Somerset WI man charged with obstruction

wimwag · Dec 11, 2013

Somerset, Wisconsin Man Narrowly Avoids Becoming Case Law

http://likeomggunsareforlosers.blogspot.com/2013/12/somerset-wisconsin-man-narrowly-avoids.html

He was openly carrying a handgun in a hip holster and an AR-15 inside a school zone.
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Law abider · Dec 11, 2013

wimwag said:
Somerset, Wisconsin Man Narrowly Avoids Becoming Case Law

http://likeomggunsareforlosers.blogspot.com/2013/12/somerset-wisconsin-man-narrowly-avoids.html

He was openly carrying a handgun in a hip holster and an AR-15 inside a school zone.
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The law enforcement system is trying to take act 35 down either that or some don't accept it nor 2A for citizens. OC is not DC unless other circumstances, which seem in this case to be nil. (2009 advisory memorandum) nor is it obstruction. It is a way for cops to arrest him and take away his weapons by making up a charge.

Firearms Iinstuctor · Dec 11, 2013

Been thoroughly discussed here shortly after it happened. Last I heard they still hadn't given his guns back

http://forum.opencarry.org/forums/s...ted-in-Eau-Claire-for-obstructing-and-DC-GFSZ

wimwag · Dec 11, 2013

Eau Claire?

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pkbites · Dec 11, 2013

Law abider said:
OC is not DC unless other circumstances, which seem in this case to be nil. (2009 advisory memorandum)

That memorandum was just that, an advisory memorandum. And it was not an official order from the AG's office.

But it's moot anyway. Wisconsins Disorderly Conduct statute was amended to specifically state OC is not disorderly conduct. Having an actually law that says that is better than an advisory memo any day of the week!

Law abider · Dec 11, 2013

pkbites said:
That memorandum was just that, an advisory memorandum. And it was not an official order from the AG's office.

But it's moot anyway. Wisconsins Disorderly Conduct statute was amended to specifically state OC is not disorderly conduct. Having an actually law that says that is better than an advisory memo any day of the week!

Agree. I think it was incorporated into act 35

wimwag · Dec 11, 2013

I think the cops had PC because it was in a school zone. That would be the other factors part.

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cirrusly · Dec 12, 2013

Interesting. At first read I thought this was the first person charged with the US GFSZA, then after more reading I learned about- Wis. Stat. 948.605(2)(b)1r.

This is another example of why having the piece of paper is beneficial. Whether you agree with the politics or not, a CCW offers a legal exemption to many GFZ, and other legal subtleties that too often land "law abiding" citizens in jail.

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cirrusly · Dec 12, 2013

On second read it sounds like he may have a valid CCW.

He'll be in a good position for a civil suit. There are no grounds for Disorderly conduct. This was made clear by the WI AG and is supported by case law, a few years back. And being charged with obstructing for exercising the 5th? What a joke.

Conversely I can understand the officers' reasoning- they "need to confirm he has a CCW" because of the GFSZ. However, verifying an individual is exempt from 948.605(2)(b) is not RS.

I'd render a guess he'll get a settlement for false arrest or some variation thereof...

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JoeSparky · Dec 13, 2013

Per the linked article....

He was charged because officer's could not prove that he was lawful in is carry of a firearm and a rifle in a school zone....

Forgive me but isn't it up to the STATE to PROVE that he was NOT lawful in his actions? And IF they can't prove his UNLAWFULNESS then he is to be found not guilty, admittedly the finding of "not guilty" is in a court of law. But, him NOT proving his "lawfulness" at the scene is NOT HIS JOB. The LEOs can properly charge him IF they have PROBABLE CAUSE to believe that he is violating the law.

Another thought about a Supreme Court case stating that the "exercise of a right CANNOT be converted into a crime" (caps added by me for emphasis). He invoked his 5th amendment rights so he is charged with obstruction? That is just not right!

cirrusly · Dec 13, 2013

JoeSparky said:
Per the linked article....
But, him NOT proving his "lawfulness" at the scene is NOT HIS JOB. The LEOs can properly charge him IF they have PROBABLE CAUSE to believe that he is violating the law.

Correct. But before we even refute that Probable Cause did not exist, I contend that Reasonable Suspicion did not even exist:

You need a driver's license to operate a motor vehicle on public roads. But the legal requisite of needing a drivers license does not constitute Reasonable Suspicion for a LEO to pull you over.

Likewise:

You need a concealed carry permit to carry a loaded firearm within a school zone, per Wis. Stat. 948.605(2)(b)1r. But the legal requisite of needing a permit does not constitute Reasonable Suspicion for a LEO to detain you.

Without RS, there is no Probable Cause. But even if we dig further, as you mentioned JoeSparky, even if RS did exist, there is still no Probable Cause in this particular instance.

This victim would be wise to file a civil suit. Given the article, and the patronizing language of Chief Doug Briggs, they know they're on thin ice, " [Mr. Hoffman] was very respectful to officers, invoked his fifth amendment rights..."

wimwag · Dec 13, 2013

cirrusly said:
Correct. But before we even refute that Probable Cause did not exist, I contend that Reasonable Suspicion did not even exist:

You need a driver's license to operate a motor vehicle on public roads. But the legal requisite of needing a drivers license does not constitute Reasonable Suspicion for a LEO to pull you over.

Likewise:

You need a concealed carry permit to carry a loaded firearm within a school zone, per Wis. Stat. 948.605(2)(b)1r. But the legal requisite of needing a permit does not constitute Reasonable Suspicion for a LEO to detain you.

Without RS, there is no Probable Cause. But even if we dig further, as you mentioned JoeSparky, even if RS did exist, there is still no Probable Cause in this particular instance.

This victim would be wise to file a civil suit. Given the article, and the patronizing language of Chief Doug Briggs, they know they're on thin ice, " [Mr. Hoffman] was very respectful to officers, invoked his fifth amendment rights..."

I'm not arguing what you're saying, but...if he was in fact, within the 1000' radius, he might just want to cut his losses as the DA could turn around and charge him with a felony under federal law.

wimwag · Dec 13, 2013

Nightmare said:
To gain standing for appeal, a guilty verdict with legally correctable error must be noticed.

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explain please?

If anyone knows what could be done to help get Mr. Hoffman his weapons back, please post it on my blog! The DA used his discretion in the matter of charging Mr. Hoffman, suggesting that he feels that a permit validates open carry of long guns within the radius, so I personally see no reason to hold them any longer, if in fact they are still being held.

wimwag · Dec 13, 2013

JoeSparky said:
Per the linked article....

He was charged because officer's could not prove that he was lawful in is carry of a firearm and a rifle in a school zone....

Forgive me but isn't it up to the STATE to PROVE that he was NOT lawful in his actions? And IF they can't prove his UNLAWFULNESS then he is to be found not guilty, admittedly the finding of "not guilty" is in a court of law. But, him NOT proving his "lawfulness" at the scene is NOT HIS JOB. The LEOs can properly charge him IF they have PROBABLE CAUSE to believe that he is violating the law.

Another thought about a Supreme Court case stating that the "exercise of a right CANNOT be converted into a crime" (caps added by me for emphasis). He invoked his 5th amendment rights so he is charged with obstruction? That is just not right!

The chief may have been intentionally vague to me about the reason for the obstruction charge so as not to give away the game plan. I just quoted him directly since I found it irritatingly vague.

wimwag · Dec 13, 2013

wimwag said:
The chief may have been intentionally vague to me about the reason for the obstruction charge so as not to give away the game plan. I just quoted him directly since I found it irritatingly vague.

Another thing he said, that I found suspicious was: "Because the law is so new (act 35) we don't know if the permit includes the carry of long guns inside school zones, it's a real gray area."

It specifically does not exempt long guns, the only term used is "firearm."

JoeSparky · Dec 13, 2013

wimwag said:
Another thing he said, that I found suspicious was: "Because the law is so new (act 35) we don't know if the permit includes the carry of long guns inside school zones, it's a real gray area."

It specifically does not exempt long guns, the only term used is "firearm."

Sorry, but unless the word "firearm" is specifically defined in the specific law or referenced to NOT include long guns then LONG GUNS ARE INCLUDED IN THE DEFINITION OF A FIREARM!

Primus · Dec 13, 2013

JoeSparky said:
Sorry, but unless the word "firearm" is specifically defined in the specific law or referenced to NOT include long guns then LONG GUNS ARE INCLUDED IN THE DEFINITION OF A FIREARM!

+ 1

Firearm is general something like " any device able to expel projectile.,... blah blah. " basically if I goes boom and something comes out he end its a firearm. There will be a listed exception such as "antique firearm" or "long gun" etc.. .

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cirrusly · Dec 13, 2013

wimwag said:
I'm not arguing what you're saying, but...if he was in fact, within the 1000' radius, he might just want to cut his losses as the DA could turn around and charge him with a felony under federal law.

Not true. With a CCW issued by the state of Wisconsin he would also be exempt from the Federal Gun Free School Zone Act (GFSZA):

18 U.S.C §922(q)
(B) Subparagraph (A) does not apply to the possession of a firearm—
(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;

Law abider · Dec 13, 2013

wimwag said:
Somerset, Wisconsin Man Narrowly Avoids Becoming Case Law

http://likeomggunsareforlosers.blogspot.com/2013/12/somerset-wisconsin-man-narrowly-avoids.html

He was openly carrying a handgun in a hip holster and an AR-15 inside a school zone.
Sent from my Desire HD using Tapatalk 2

I thought DC was specifically defined in state statute as being belligerent and loud. He was polite and didn't raise any ruckus. They couldn't verify that he could carry a weapon?:question: Why is that? All they have to do is to call in a BGC on him and his age. I think it was his LG that caused alarm, like in the other case. Now my cop buddy told me that I can OC my LG also. My 2 cents worth, get to know your cops/deputies/sheriff and don't break the law. In my Prescott case this helped.

wimwag · Dec 22, 2013

Law abider said:
I thought DC was specifically defined in state statute as being belligerent and loud. He was polite and didn't raise any ruckus. They couldn't verify that he could carry a weapon?:question: Why is that? All they have to do is to call in a BGC on him and his age. I think it was his LG that caused alarm, like in the other case. Now my cop buddy told me that I can OC my LG also. My 2 cents worth, get to know your cops/deputies/sheriff and don't break the law. In my Prescott case this helped.

Got a link? Id love to hear about it!

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Somerset WI man charged with obstruction

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