Suggestions for January meeting

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Lonnie Wilson wrote:

Declaratory judgement I think is the wrong way to go about it.

Training bulletins by the police agencies, on the other hand, is the right way.

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Why?

What do you mean? How would you accomplish this?

Throwing out unsupported opinion and making vague statements does not advance the communal understanding.

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Either you've never been arrested or have been arrested so many times it's old hat. For most people, the process is a dehumanizing, degrading, painful experience that will trail them the rest of their lives. If you want have to explain an arrest until the day you die, go ahead. No matter what the outcome - it is a black mark. Is that right or fair? Probably not but there it is. I'll defer to pkbites on Wisconsin law but often there are both state and local laws with discretion give to the LEO which one to use. A misdemeanor is not a parking ticket. It is a CRIME. You can be jailed. You will be a CRIMINAL. If the option exist will you just get a citation to appear later rather than being taken in? Possibly but I find it hard to understand how a LEO who believes OC is a crime is going to "write you a ticket" and then let you go on your way - still carrying! It's like getting a DUI ticket and then be permitted to drive home.

I have given up on you actually answering my question. I can only assume that you don't have an answer or realize the truth but are trying to pretend it's not there. Too bad. You are throwing away a valuable tool in the fight. Let me know when and where you OC'd. The day you stroll down the street in pkbites area or the main street in Madison will be the day I'm a believer in your philosophy. Right now it's just so much theory. I really do wish you well - I just think you're mistaken.





Mike wrote:

apjonas wrote:

I agree that it is unlikely that anyone could be successfully prosecuted for open carry. Howeverwhy go through that hellish process? At a minimum you are going to be stopped and questioned and possibly arrested. Who needs that?

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From time to time, open carriers ARE going to be stopped & questioned by LEOs, declaratory judgement or not, preemption statute or not, Constitutional holding or not, in every state, for any a myriad of valid, questionable, or once in a while, darn right hostile reasons.

And anyone can "possibly be arrested" at any time - of course, in many or most states, like VA, disturbing the peace or disorderly conduct is merelymisdemeanor not subjecting the person to custodial arrest - just issuance of a citation & an order by the peace officer to stop the alleged unlawful conduct.

Everybody else already OCing around the US faces some likelihood of scrutiny by LEOs every day - and most of us look forward to it - a chance to calmly & confidently interact with a public servant most likely just trying to do his job, while on the watch for any harassment - such rare LEO conduct will then result in a heap of publicity and paperwork for his superiors & elected officials until they cry uncle and fix the problem.

OC is'nt for everybody so don't feel like you have to do it, but it is your right in Wisconsin, and every other state but 6 wherestatutes ban OC (TX, OK, AR, SC, FL, and NY).

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apjonas, thanks for that post. You put it better than I ever could.

I've carried openly in states where it's 100% legal: AZ, UT, MT, ID, etc.

But I never carried openly in big cities in those states. Why? I didn't know the politics of those cities, and didn't want to find out the hard way.

Once, on one of my motorcycle trips out west, I stopped at a gas station in Paige, AZ while carrying. The clerk was really eyeballing me.

By the time I got to the dam (forget the name, but it's a tourist attraction), a squad pulled up.

The officer was very polite and cordial, and I was dressed well: button-down pin-striped dress shirt under a clean leather vest, clean pants, and polished boots.

Imagine what might have happened if I'd been dressed otherwise.

Here in Milwaukee, I also dress respectably. And I've been detained for suspicion of rape, suspicion of murder, and a whole host of other "suspicions."

Imagine if the cops think I look suspicious, and then also see that I'm carrying a gun.

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apjonas wrote:

A misdemeanor is not a parking ticket. It is a CRIME. You can be jailed. You will be a CRIMINAL. If the option exist will you just get a citation to appear later rather than being taken in? Possibly but I find it hard to understand how a LEO who believes OC is a crime is going to "write you a ticket" and then let you go on your way - still carrying! It's like getting a DUI ticket and then be permitted to drive home.

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Option?

In Virginia, ". . . when a police officer detains a person for a Class 1 misdemeanor, the officer 'shall. . . issue a summons . . . to appear at a time and place to be specified in such summons,' and 'upon the giving by such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody." . . .[In the instant case T]he officers were authorized to issue only a summons to Moore for the offense of operating a vehicle on a suspended license since none of the exceptions in Code § 19.2-74 were present. Thus, under the holding in Knowles, the officers could not lawfully conduct a full field-type search. We find Knowles and Lovelace controlling and hold that the search of Moore was not consistent with the Fourth Amendment. Accordingly, we will reverse the judgment of the Court of Appeals and dismiss the indictment against Moore." Moore v. Commonwelath, 636 S.E.2d 395 (Va. 2006).

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As to the letter of the law we all agree OC is legal. But for the perception of many citizens, LEO’s & politicians it should be unlawful and to that end will enforce any other statute possible to dissuade the practice.
There are leaders and followers. Both have there place. If organizations such as WCCA had the financial support of the followers to provide the legal backing, I am sure some leaders will step forward and challenge the current situation. If someone steps up to the plate on our behalf we should make sure they do not suffer financially for it.
Does WCCA have a defense fund? If So, where do I send my share?

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Imagine what might have happened if I'd been dressed otherwise.

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Let me pipe up as a former Arizona resident:

Absolutely nothing would have happened. The legality of open carry has been well settled law in Arizona and Arizona territory for over a century. Law enforcement's awareness of the legality of open carry exceeds that of Virginia.

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http://www.thehighroad.org/showthread.php?t=244569

Dick, is there something going on that we don't know about here?

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Nice story but what does it have to do with this issue? First, we are talking about Wisconsin. Second, I said "if." Third, aw forget it -> :banghead:



Mike wrote:

apjonas wrote:

A misdemeanor is not a parking ticket. It is a CRIME. You can be jailed. You will be a CRIMINAL. If the option exist will you just get a citation to appear later rather than being taken in? Possibly but I find it hard to understand how a LEO who believes OC is a crime is going to "write you a ticket" and then let you go on your way - still carrying! It's like getting a DUI ticket and then be permitted to drive home.

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Option?

In Virginia, ". . . when a police officer detains a person for a Class 1 misdemeanor, the officer 'shall. . . issue a summons . . . to appear at a time and place to be specified in such summons,' and 'upon the giving by such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody." . . .[In the instant case T]he officers were authorized to issue only a summons to Moore for the offense of operating a vehicle on a suspended license since none of the exceptions in Code § 19.2-74 were present. Thus, under the holding in Knowles, the officers could not lawfully conduct a full field-type search. We find Knowles and Lovelace controlling and hold that the search of Moore was not consistent with the Fourth Amendment. Accordingly, we will reverse the judgment of the Court of Appeals and dismiss the indictment against Moore." Moore v. Commonwelath, 636 S.E.2d 395 (Va. 2006).

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apjonas,

You'll see that it's talking about Wisconsin in the news story. CCW licensing=open carry in our cars loaded without a problem.

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apjonas wrote:

Nice story

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It's no story - it's the Virginia Supreme Court announcing a rule of law.

And the Court's holding (thatthe Fourth Amendment related exclusionary rule applies to evidence obtained as a result of a search incident to a full custodial arrest executedin violation of a statute)is pursuasive authority for all courts in the United States on this federal question.

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lockman, the WCCA has never had much money. Usually we have about $500 to $1500 on hand for literature, gun show tables, etc. The whole idea of the WCCA was that it would be an all-volunteer, grassroots group to help get the word out.

The WCCM (our political action committee) has had some pretty significant amounts go through the checking account, but those monies went to candidate campaigns.

Lonnie, I wasn't sure about AZ, so I thought it best not to carry in cities where I didn't know the politics.

In Utah, I was advised not to carry openly in Salt Lake City. I carried in smaller towns like Moab, Blanding, etc. without a problem. In Montana and Idaho, I was never too concerned about any cities or towns that I went through.

In Nevada, I had a sheriff warn me that I would be arrested in just about any city of significant size.

Here in WI, I think we need to push open carry. But I think we need to lay the groundwork in advance so that there's no little or no chance of arrest.

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Lonnie Wilson - What news story are you talking about? I see no reference to Wisconsin in Mike's quote.

Mike - You know I did not mean "story" as in fiction. I still fail to see the relevance. In Virginia there was a clear statutory direction - if A then B. There is no such equivalent to Wisconsin (to my knowledge). I hope pkbites will chime in but I believe in some cases the choice of law (state statute or city ordinance) and whether or not to arrest (vs cite and release) is at the discretion of theLEO based upon departmental policy. To be a candidate for persuasive authority, a court decision from another state must be on all fours or pretty close to the case at bar and by definition is not binding (i.e. a Wisconsin court could disregard it no matter how good a match it was).

Unless and until a court rules that OC is, a matter of law, not disorderly conduct, LEO's are free to consider it as such with impunity. So if you do not want to go the declaratory judgement route you will have to wait for and endure a prosecution to find out for sure. If LEO's are smartthey will just harass OC (not arrest) since nobody wants to challenge them. If the DA is of a like mind, they can arrest and then dismiss. Such tactics would certainly wear down the resolve to OC. Heck, all they have to do now isto suggesta DC charge is likely and everybody cowers. I think it would be much better to be in a position where the LEO knows he had better have more than OC to detain a person.

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apjonas, thank you again for your considered reply.

There's state statutes on DC and DTP, and then there's municipal.

What authority does a state court have over municipal law?

These are the ducks we have to get in a row before we proceed.

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Monkeyleg wrote:

apjonas, thank you again for your considered reply.

There's state statutes on DC and DTP, and then there's municipal.

What authority does a state court have over municipal law?

These are the ducks we have to get in a row before we proceed.

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Again I would like to hear from pkbites but my guess is that state courts handle violations of state law and city courts handle violations of municipal ordinances. There may be overlap, I am not familiar with the WI court system. I am not sure what you mean by ...state court authority over municipal law... However if a law or ordinance conflicts with the state constitution or is being applied in an unconstitutional manner then the state court system would have jurisdiction to hear the case (my guess). It is like the state - federal dichotomy. If a state law is claimed to violate the U.S. constitution or a federal law then the case would be heard (or at least could be) in federal court. Generally a federal court would not hear a state claim unless this were the case or there was diversity of the parties and other factors were met. The relationship between state and local courts is somewhat different but probably the same principles apply. If this doesn't answer your question, please restate. pkbites where are you? Somebody turn on the Batsignal!

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apjonas wrote:

Again I would like to hear from pkbites but my guess is that state courts handle violations of state law and city courts handle violations of municipal ordinances. There may be overlap, I am not familiar with the WI court system. I am not sure what you mean by ...state court authority over municipal law... However if a law or ordinance conflicts with the state constitution or is being applied in an unconstitutional manner then the state court system would have jurisdiction to hear the case (my guess). It is like the state - federal dichotomy. If a state law is claimed to violate the U.S. constitution or a federal law then the case would be heard (or at least could be) in federal court. Generally a federal court would not hear a state claim unless this were the case or there was diversity of the parties and other factors were met. The relationship between state and local courts is somewhat different but probably the same principles apply.

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There are only state courts in astate - no local courts. Localities and courts in a state are purely creations of state law.

State courts may adjudicateany federal question. Decisions of federal court do not create binding precedent on state courts, unless the federal court is the US Supreme Court.

And while a federal court has jurisdiction to adjuducate some claims under state law if the claim is pendant to diversity or federal question jurisdiction, federal courts may not entertain state law claims against states. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984)(holding that the Eleventh Amendment precludes federal courts from ordering state officials to conform their conduct to state law)

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Mike,

You seem to be a nice guy but some of your assertions are cutting into your credibility.

There are only state courts in astate - no local courts.

Well if this is the case somebody ought to inform the authorities about the following website:

http://www.city.milwaukee.gov/MunicipalCourt653.htm

Localities and courts in a state are purely creations of state law.

This may or may not be true but even if the authority to create courts lies with the state it does not turn local courts into "state" courts.

State courts may adjudicateany federal question. Decisions of federal court do not create binding precedent on state courts, unless the federal court is the US Supreme Court.

This is incorrect. Federal courts have exclusive jurisdiction in certain circumstances - e.g. a federal agency is a party, bankruptcy, patent and trademark. This is not to say that state courts do not deal with cases touching upon these topics but you cannot file for bankruptcy in a state court. Period. End of story.


And while a federal court has jurisdiction to adjuducate some claims under state law if the claim is pendant to diversity or federal question jurisdiction, federal courts may not entertain state law claims against states.

I would state it as a federal court has jurisdiction to adjudicate state claims which are tied to a federal case (however it became such). As always, this general rule has many branches.

Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984)(holding that the Eleventh Amendment precludes federal courts from ordering state officials to conform their conduct to state law)

The federal courts have never had authority to hear claims against the states except in cases of diversity, federal question, etc. Eleventh Amendment jurisprudence is a mess. My position is that it merely removed diversity jurisdiction in cases where a state is a party. As you probably know, it was perverted long ago starting with Hans v. Louisiana, and has grown more convoluted ever since. The Supreme Court ought to wipe the slate clean and give the amendment its stated (and intended) purpose. But to answer your question, state law claims may be incorporated peripherally in some federal cases against a state under supplemental jurisdiction. The federal court must still rely on the state courts (in reality the highest appellate court) to determine what the state law is but the 11th Amendment does not operate as an absolute bar where the state is a party. It is also important that there is a distinction between the state itself and state agencies and state officials. Of course all of this is beyond the scope of what we're concerned about. But it is interesting.

To get back to the original issue - in Wisconsin there are "state" and "local" courts. The extent of the jurisdiction of each is not known to me but I am guessing there is some overlap. The issue of state law violation v. ordinance violation is probably more important because of the penalties involved. I can't see where a state violation would be heard in a local court but I will defer to those with more knowledge such as pkbites (by the way, I am going to send out the sniffer dogs if he doesn't reply soon.)

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Am I missing something? What do municipal courts have to do with this? Wisconsin has complete state preemption for firearms laws. If a municipality has a law on the books in violation of state preemption, then petition the council to remove it. The only way OC should get you into a municipal court is if you violate a municipal ordinance that is in compliance with state preemption.

Is this argument over OC or DC? I thought the OC part is settled and the groundwork should be focused on those municipalities that perceive OC as synonymous with DC.

It is hard for me to follow cites back and forth and where opinion and facts merge.

Mike: What are your suggested methods?

users/151.html apjonas: What are yours?

Monkeyleg: What are yours?

I am sure you have already answered this but I might have dropped a few IQ points since last year.

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Apajonas has chosen to conflate the issues and argue trivialities to make this duscussion thread less useful as pertaining to the topic of open carry for folks who are willing to open carry.

To focus:

1. The way to approach a preempted ordinance is to put the local council and police chief on notice that the ordinance is preempted and unenforceable - email, letter, citizen comment period. Then, promptly and continuously engage in the conduct that is purported to be proscribed by the preempted ordiance.

2. The way to approach potential charges against open carriers is to review the applicable statutes such as "disorderly conduct." This has been done for WI on this board, and no text or case law has been found to indicate that open carry on foot is vulnerable to this a disorderly charge.

3. Obviously, as discussed on this board, the WI car ban and WI case law on what is concealed inside vehicles is a problem - it appears that one can transport unloaded guns encased in cars, but a cased handgun in the passenger compartment may be construed as "concealed" so unloaded trunk carry might be the only lawful place to have a handgun in a vehicle - this limits OC in WI to "on-foot."

4. So go with the flow and OC on foot as often as weather conditions will allow.

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To give an example of a "big city" in a 100% legal open carry State (Ohio):

I have carried in plain view of Cincinnati police officers while in downtown Cincinnati. This was in a restaurant (First Watch, no alcohol served), and was before our concealed carry law was passed.

They clearly saw the handgun holstered but did not approach me. I was with my parents.

I also walked down the sidewalk and entered another store, passing an LEO, who did not question me.

So, here is one example of someone carrying in one of those "big cities" where open carry is 100% legal, with no incident to report.

Indeed, the only time I've had an incident is when carrying into a Mall I had patronized since youth, and had never seen their "rules" sign which listed "no weapons." After LEOs were called by a store clerk, and they verified with security videos that I had done no brandishing, etc., they let me go without charge. The LEOs (this time township police) verified that there was no law against open carrying, other than in a vehicle or liquor establishment (the only two places they mentioned), but since the Mall asked me to not carry there, I would have to disarm.

Solomon

Monkeyleg wrote:

apjonas, thanks for that post. You put it better than I ever could.

I've carried openly in states where it's 100% legal: AZ, UT, MT, ID, etc.

But I never carried openly in big cities in those states. Why? I didn't know the politics of those cities, and didn't want to find out the hard way.

Once, on one of my motorcycle trips out west, I stopped at a gas station in Paige, AZ while carrying. The clerk was really eyeballing me.

By the time I got to the dam (forget the name, but it's a tourist attraction), a squad pulled up.

The officer was very polite and cordial, and I was dressed well: button-down pin-striped dress shirt under a clean leather vest, clean pants, and polished boots.

Imagine what might have happened if I'd been dressed otherwise.

Here in Milwaukee, I also dress respectably. And I've been detained for suspicion of rape, suspicion of murder, and a whole host of other "suspicions."

Imagine if the cops think I look suspicious, and then also see that I'm carrying a gun.

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Ok, Mike - you win. Since as a "super moderator" you inherently have more power than I do, there is no point in continuing the discussion. I expect my posts will start to disappear as your frustration at being unable to answer my points grows. Just for old times' sake I will make a few comments here and then leave you all to yourselves. You choose to dismiss my comments as "conflation" and "trivialities." Fine, although personalbarbs are not a substitute for a coherent argument. If you cannot (or will not) understand what I am saying then I can do nothing further. You (and many others) appear to have a predetermined romanticized idea of open carry and any reality that intrudes on that must be squashed. The real world is more complex than the wording of a statute and the law is not what one's cousin's friend's uncle's fishing buddy says it is, even if the buddy is a LEO. If you sincerely think the reality is different - arrange with pkbites to OC on his beat. He may not hassle you but I'm sure some of his colleagues will. Then tell the judge (if it gets that far) that you cannot be charged with DC because of preemption. Once he gets done laughing his ass off, you may get the case kicked but not for the reason you think. Preemption involves a certain subset of laws. It does not invalidate any local ordinance simply because the behavior may involve a firearm. If the charges are dismissed, repeat the performance until you get tired of being booked and put into a cell (or showing up for arraignment). There is nothing (at this point) stopping any LEO from multiple "catch and release" arrests just to tire you out. As was seen in Hamdan and other cases, what you may consider unambiguous and on point is going to be subject to multiple interpretations. Supreme Court rulings are rarely unanimous and I don't think it's because the justices are legal nitwits. Perhaps you are on a plane above such people but it is they that will decide. At least you acknowledge my point about the inability to carry inside a car. Maybe there's hope after all. Goodbye and Good Luck (really).

Mike wrote:

Apajonas has chosen to conflate the issues and argue trivialities to make this duscussion thread less useful as pertaining to the topic of open carry for folks who are willing to open carry.

To focus:

1. The way to approach a preempted ordinance is to put the local council and police chief on notice that the ordinance is preempted and unenforceable - email, letter, citizen comment period. Then, promptly and continuously engage in the conduct that is purported to be proscribed by the preempted ordiance.

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Yep and in a place like Madison you will get yawns or worse. This issue isn't about preempted ordinances regarding posession, purchase, storage etc. It is about OC. Now there are ordinances against OC in some areas but I rather think that the DA would use the DC approach because it avoids the issue of preemption altogether. Your opponents may be wrong but they're not stupid.

2. The way to approach potential charges against open carriers is to review the applicable statutes such as "disorderly conduct." This has been done for WI on this board, and no text or case law has been found to indicate that open carry on foot is vulnerable to this a disorderly charge.

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No but there are oft repeated statements by LEO's in certain cities. So far that has been enough to step on OC. The minute OC actually happens you will see a different tactic - detention a/o arrest. You can make your case then but you will pay a price no matter what the outcome and there is always the chance that you will lose. If you want a criminal conviction stapled to your butt for the rest of your life, go right ahead.

3. Obviously, as discussed on this board, the WI car ban and WI case law on what is concealed inside vehicles is a problem - it appears that one can transport unloaded guns encased in cars, but a cased handgun in the passenger compartment may be construed as "concealed" so unloaded trunk carry might be the only lawful place to have a handgun in a vehicle - this limits OC in WI to "on-foot."

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I think he's finally got it!

4. So go with the flow and OC on foot as often as weather conditions will allow.

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But make sure that Mike will post your bail.

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