Wisconsin open carry or concealed carry?

cato · Apr 9, 2007

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Brigdh wrote:

I'll do it if someone can afford me an attorney :lol:

Buy some legal insurance and don't tell them you have a pre-existing condition that will result in anarrest!:?

Malum Prohibitum · May 3, 2007

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Monkeyleg wrote:

What I'm asking is if the state law defining Disorderly Conduct or Disturbing the Peace can override local statutes.

http://glocktalk.com/showthread.php?s=&threadid=683505&perpage=25&highlight=&pagenumber=1

apjonas · May 3, 2007

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pkbites (a WI LEO) who apparently is now in the witness protection program at one time said something to the effect that some state laws are assimilated by local governments as an ordinance. In other words, there is a state DO statute and a local (say city) DO ordinance. Which you get charged under is up to the prosecutor. The state charge (which I guess is a misdemeanor) would carry heavier penalties that the ordinance violation. This is from memory, I wish pkbites would return. Does this anwer your question?

tarzan1888 · May 22, 2007

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apjonas wrote:

Well, kiddies I'm gone. OCDO has finally reached PDO condition. The newest technique is for a moderator to prevent comment on, corrections to, or other response to demonstrably false and silly claims. If the members want this board to be a mutual admiration society (or more crudely, a circle jerk) so be it. At the beginning, I had much hope for this endeavor but it seems (any psychologist chime in) that there is always a slow, steady migration to group think and control by the most vocal posters. Thus, once it has been established that the correct position (also know as the "party line") is A, anybody who suggests B, or heaven forfend, C-Z is pounced upon. Name calling and insults become the order of the day rather than a rational, logical and calm discussion of the issues. Sometimes people throw out communication stopping words (a la "Nazi") because they have no counterargument. This type of "winning" may be comforting to some but it simply undermines the effort towards (what I thought was) a common goal. People at LCAV, TBC, etc. must laugh their posteriors off when they read (and they do) some of the posts here. With such people as opponents they must be encouraged. I sometimes think that the posters who engage in undermining tactics are really moles. Would that be paranoid? I sincerely hope that OCDO can pull out of its death spiral. I won't offer suggestions because they will be attacked by those who see themselves in my words (then again some may be so oblivious to their actions that they think I'm talking about the "other guy.") Apologies for any errors here. I don't want to take the time to edit. I will read posts from time to time to see if the atmosphere has changed but I have little hope. Good luck to all.

Andrew Percival Jonas

My MY MY look who's back. :celebrate

BB62 · May 23, 2007

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Monkeyleg wrote:

Lammie, I've already talked to the three NRA-recommended attorneys here in WI. And they all said the same thing: you can be arrested for DC or DP charges.

DC and DP aren't just state charges. Just about every municipality has disorderly conduct or disturbing the peace provisions in the municipal code. I don't see how these local ordinances can be overridden by the state pre-emption law, as the law doesn't address either of those charges.

Monkey,

I would expect the NRA-recommended attorneys to respond that way, but YOU have to understand why, and not take their advice as be-all, end-all. Two years ago, when I hooked up various people in WI with the NRA, Ohio RKBA orgs, and the founder of Ohio's OC walks, it was the same story.

Here in Ohio, the Klein vs Leis court decision was not undertaken with the help of NRA lawyers, but it was helped behind the scenes with the SAF/CCRKBA.

To clarify: the open carry walks were NOT sanctioned by the NRA, or initialized by one of Ohio's RKBA organizations at the time, they were started by an individual, and the intial walk was publicized mostly by local (Cincinnati) media. Ohioans for Concealed Carry was present, and observant, but did NOT sanction it - they merely reported on it.

As things picked up steam, that arrangement changed (still OFCC never organized a walk).

Lammie has done as masterful job (I presume accurately) of summarizingthings from a legal perspective there in WI.

Apjonas wants a declaratory judgement (which I have no idea why this route hasn't already been taken), the NRA wants legislative action, and WI is still status quo.As I've asked dozens of times before- WHEN are you guys going to start the walks??

The original organizer gauged the climatehere for his walk, and you all can no doubt do the same - some areas will be more accepting than others, and the ones that say "We'll arrest everyone" you can avoid - butwhy let that stop the whole effort? Pressure will build, and that's exactly what you want.

Malum Prohibitum · May 23, 2007

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Monkeyleg wrote:

I've already talked to the three NRA-recommended attorneys here in WI. And they all said the same thing: you can be arrested for DC or DP charges.

Did you pay money for actuallegal advice, or was this just some informal discussion?

I am curious whether anyone in Wisconsin has obtained actual legal advice from a real Wisconsin lawyer. This means you are the client and pay the attorney money to give you a (written) opinion.

Parabellum · May 5, 2008

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Lammie wrote:

Open carry pros:

. No license requirements. No costly certification requirements. No renewal requirements, Few retricted locations.
1. You can't carry in a school zone unless you live there

This is not an accurate statement, 948.605 states that; [font=Arial,Bold]

[align=left](2) Possession of firearm in school zone.[/align]

[align=left](a) [/font]Any individual who knowingly possesses a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone is guilty of a Class I felony. [/align]

[align=left][font=Arial,Bold](b) [/font]Paragraph (a) does not apply to the possession of a firearm: [/align]

[align=left][font=Arial,Bold]1. [/font]On private property not part of school grounds;[/align]it doesnt even state that it has to be your private property

Lammie · May 5, 2008

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You are technically correct. However what constitutes private property is vague. For example concerning a privately owned business. Does private property include the boulevard and sidewalk in front of the business. If the boulevard and sidewalk are not considered private property how do you get from your car to the business with an uncased weapon. If the boulevard and sidewalk are considered part of the private property how do you get to them. As soon as you step out of a vehicle uncase your weapon, load it and put it in your holster and are then standing on a public street you are guilty of caring an uncased weapon, on public property within a school zone. The only way to escape the scrutiny of those issues is to drive into a private driveway or private parking lot and hope the business has an entrance from those locations.

I do not defend the stupid school zone law. In fact I strongly believe the school zone law is an infringement on our Wisconsin constitutional rights. If the school zone law applied only to school owned property that is one issue, but to extend it to 1000ft outside of the actual school property denies us the right to open carry arms not only for personal defense and security but also for hunting, recreationor any other lawful purpose. There are some concessions for authorized hunting and recreation but those concessions were made soley to get enough votes for passage, both have specificconditions and do not allow for casual carry of an open weapon.

It is unlikely that the constitutionality of peaceful open carry of a firearm in a school zone for personal protection will ever be intentionally challenged in court. The risk of losing brings with it the charge of a Class 1 felony. In Wisconsin a felony charge (any felony charge) takes away a personsprivlege to own or posses a firearm for life. Only a pardon from the governor can reinstate the privlege.

The "school zone law" is a stupid law. It was passed out of fear and panic instead of reason. It is so stupid that even an off duty police officer can't carry within 1000 feet of school property. Now we law abiding citizens suffer the consequences.

Pointman · May 5, 2008

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Shotgun · May 5, 2008

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Pointman wrote:

A felony conviction does not prohibit a person from firearm ownership in WI.

A felony conviction merely prohibits possession of a firearm. I don't think the statute addresses ownership, per se.

Parabellum · May 5, 2008

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Lammie wrote:

You are technically correct. However what constitutes private property is vague. For example concerning a privately owned business. Does private property include the boulevard and sidewalk in front of the business. If the boulevard and sidewalk are not considered private property how do you get from your car to the business with an uncased weapon. If the boulevard and sidewalk are considered part of the private property how do you get to them. As soon as you step out of a vehicle uncase your weapon, load it and put it in your holster and are then standing on a public street you are guilty of caring an uncased weapon, on public property within a school zone. The only way to escape the scrutiny of those issues is to drive into a private driveway or private parking lot and hope the business has an entrance from those locations.

I do not defend the stupid school zone law. In fact I strongly believe the school zone law is an infringement on our Wisconsin constitutional rights. If the school zone law applied only to school owned property that is one issue, but to extend it to 1000ft outside of the actual school property denies us the right to open carry arms not only for personal defense and security but also for hunting, recreationor any other lawful purpose. There are some concessions for authorized hunting and recreation but those concessions were made soley to get enough votes for passage, both have specificconditions and do not allow for casual carry of an open weapon.

It is unlikely that the constitutionality of peaceful open carry of a firearm in a school zone for personal protection will ever be intentionally challenged in court. The risk of losing brings with it the charge of a Class 1 felony. In Wisconsin a felony charge (any felony charge) takes away a personsprivlege to own or posses a firearm for life. Only a pardon from the governor can reinstate the privlege.

The "school zone law" is a stupid law. It was passed out of fear and panic instead of reason. It is so stupid that even an off duty police officer can't carry within 1000 feet of school property. Now we law abiding citizens suffer the consequences.

in court "technically" is all that matters, and yes the boulevard and side walk in front of stores is "private property" with "public access" and the streets are owned bythe private resident or private businessin front of them. they are "technically" private property. The problem is most people think they are public, but they are just public access. parks are public property. i couldn't find the legal definition of private property or public property in law books so I went with the ones in a dictionary. If anyone can findthem I would love to lookthem up. (please include statute number and book it can be found in)

lockman · May 5, 2008

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Lammie wrote:

Concealed Carry or Open carry in Wisconsin?

Article 1 chapter 25:
The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.

Article 1 chapter 26:
The people have the right to fish, hunt, trap, and take game subject only to reasonable restrictions as prescribed by law.

Statute 66.0409(2):
No political subdivision may enact an ordinance or adopt a resolution that regulates the sale, purchase, delay, transfer, ownership, use, keeping, possesion, bearing, transportation, licensing. permitting, registration, or taxation of any firearm, including ammunition and reloader components, unless the ordinance or resolution is the same or similar to and no more stringent than, a state statute.

State v Hamdan (2003):
The supreme court held that not withstanding Article 1 chapter 25 the state has the authority to regulate the manner of carry of firearms therefore the concelaed carry prohibition statute 941.23 was constitutional. The Court also said there were two manners of carry, visible and hidden. The court also declared that if the state intends to prosecute against one manner of carry it must provide for a resonable alternative or yield to the ammendment. The court said that if a person is carrying a firearm for a lawful purpose the burden is on the state to prove it was carried for an unlawful (criminal) purpose. Note: This would tend to "shoot down" the disorderly conduct theory.

State v Hamdan (2003)
The State prosecuters argued that if Hamdan had been wearing his firearm in a holster (visible) he would not have been charged. Governor Doyle was Attorney General at that time and a member of the prosecution.

I would think the above red highlighted section would also seem to put the school zone ban in question. It is one thing to ban carry on specific property, but the school zone prohibits concealed or open carry on public streets and sidewalks and with some exception even on private property.

Pointman · May 5, 2008

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Lammie · May 6, 2008

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Wisconsin Statute 941.29 Possesion of a firearm:

(1) A oerson is subject to the requirements and penalties of this section if he or she has been:

(a) Convicted of a felony in this state.

(b) Convicted of a crime elsewhere that would be a felony if convicted in this state.

etc.

Merriam-Webster Dictionary

Main Entry:
pos·sess

Pronunciation:
\pə-ˈzes also -ˈses\
Function:
transitive verb
Etymology:
Middle English, from Middle French possesser to have possession of, take possession of, from Latin possessus, past participle of possidēre, from potis able, having the power + sedēre to sit — more at potent, sit
Date:
14th century
1 a:to have and hold as property :own b:to have as an attribute, knowledge, or skill

Doug Huffman · May 6, 2008

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So, what is case law written into statute law called?

I thought this dab in Wisc. S. 941.29 interesting,

Retroactive application of this provision did not violate the prohibition against ex post facto laws because the law is intended not to punish persons for a prior crime but to protect public safety. State v. Thiel, 188 Wis. 2d 695, 524 N.W.2d 641 (1994).

in light of COTUS 1 9:3a

No bill of attainder or ex post facto Law shall be passed

I don't see any wiggle room in 'no ex post facto law shall be passed' that allows an exception for the tyrant's tool, 'safety'.

It is this conflation of case law into Wisconsin Statutes that has allowed the courts to turn the will of the people expressed as Article I, Section 25 by the Legislature on its head.

Pointman · May 6, 2008

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apjonas · May 14, 2008

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An ex post facto law is one that makes an act that occurred before the enactment a crime. I don't see where this was done. In most states, an employer can use a conviction as a reason not to hire you. This is a private business decision and not punishment for a crime. In some states, you cannot work in certain professions if you are a felon. This is public policy not punishment for the crime. It may be bad policy, unfair and stupid - but it does not implicate the constitution.

WIG19 · May 27, 2008

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Monkeyleg wrote:

Thanks for citing that case, Lammie.

It looks like we'd need a test case, someone willing to be arrested and go to court.

Just perusing this resurrected thread. NOT volunteering, but not afraid of it when/if it comes. Everyone's locale is different. I do believe there are alot of venues in WI where one could successfully get a bogus DC/DP thrown out, and even the cost of a Fri night fish-fry if they took your gun in the process.

Again, recognizing that everyone's circumstances are different, I lose not one minute of sleep about whether I could defend a DC/DP in my local municipal court armed with:

WI Art. 1 Sec.25

Article XI, §3 ¶(1)

WI 66.0409

State of WI v. Hamdan

State of PA v. Hawkins

Having the option to conceal would make winter much more tolerable, that's for sure. Doyle is banking that people won't OC, and if we don't, no one else will cry foul to the legislature because, to quote Ray Stevens...
"it was too late! She'd already been IN-censed" (as in, please make them hide those terrible guns away).

Doug Huffman · May 27, 2008

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Welcome to the forum.

WIG19 · May 27, 2008

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Thanks; been browsing a bit now & then. Mostly on GT and WI Shooter's Forum, but this is a valuable area for a specific issue, especially with some county-wide resolution initiatives out there.

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