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OC in WI

ilbob

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ilbob wrote:
Getting back to the car-- keep it encased and unloaded, period. Anyone who says that the case is concealing it or you have to keep it in your trunk is BS'ing you.
There is at least one guy (currently out on bond) thatI am aware of who was arrested and charged with CCfor havingan unloaded and encased firearm in his vehicle.

Walworth County arrest of an Illinois resident.

I will ask him to comment. Maybe he will.
as might be expected, he is unable to comment on his case on advice of counsel.
 

Rick Finsta

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apjonas wrote:
New note: So if you want to carry next to you, there is a choice - violate 941.23 or violate 167.31(2)(b). Although it is probably easier to be caught in violation of 167, I'm guessing the penalty would be less than that of a CC charge. I'd prefer to avoid both. Just because 167 tells you how to avoid transgressing its provisions does not mean that you can use those provisions as a defense to 941.23. Wisconsin is Wacky...just accept it.

The only problem I see here is that keeping a weapon on your person, even if in plain view to a passenger, while in a vehicle, it is easily considered "concealed from view" to a reasonable person outside the vehicle. So in essence, you would probably be charged with violation of BOTH statutes for open carrying in a vehicle, or just a concealed carry violation (max. $100 fine) for carrying it unloaded and cased next to you. Odd, I think, that Andres Vegas was not charged for both, only concealed carry, for keeping a gun next to himself on the seat. I'd have to take a look and see if he had it underneath something or otherwise concealed from view in the vehicle, or just concealed BY the vehicle.

Uuuugh.
 

Lammie

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I have pursued the obvious conflict between statutes 941.23 and 167.31(2)(b) quite vigorously. Staute 941.23 being the statute we are all familiar with that prohibits common citizens from carrying a concealed and dangerous weapon and statute 167.31(2)(b) requiring a firearm to be unloaded and encased in a carrying case if it is transported in or on any motor vehicle.

The State Supreme Court has ruled that if the following three conditions are met the State has cause to charge a violation of 941.23 (State v Hamdan 2003). 1) The weapon is within reach 2) The weapon is hidden from ordinary view 3) The person knows the weapon is present. On the surface it's obvious that compliance with 167.31(2)(b) puts a person at risk of violating 941.23. However, the SSC has reviewed this apparent conflict and ruled that it didn't see a particular problem because if a person was concerned with violating 941.23, while complying with 167.31(2)(b), the person needs only to carry the weapon "out of reach" (whatever that means, the Court doesn't define out of reach or out of reach of who). Carrying the weapon out of reach removes one of the conditions that define concealment.

Concerned with the stupidity of those comments I contacted my state senator, the top lawyer at the Department of Natural Resources and the Attorney General Office. Initially the DNR and my senator quoted the above comments and more or less said end of argument. However, I reminded them that statute 167.31(2)(b) says any vehicle and that there are many vehicles used in the sport of hunting or firearm recreation that are constructed so that it is impossible to carry a weapon "out of reach". Some examples I used were snowmobiles, ATV's, trail bikes, motorized wheel chairs and small rubber rafts propelled by an electric trolling motor. It is lawful to carry a firearm on any of those vehicles but doing so in compliance with 167.31(2)(b) definitely violates all three conditions of concealment.

After a few more rounds of discussion both the DNR and my senator agreed that under the conditions I described there was a conflict between the two statutes. When I asked each of them what they intended to do about the situation. Their response was disturbing. My senator said that firearm issues were not "on the floor" and that the legislature would unlikely do anything about it. The response from the DNR was even more disturbing. The DNR said that even if enforcement under the conditions I described was questionable, the DNR would continue to enforce it on all vehicles, and turn their head concerning 941.23. The DNR said how local law enforcement would view the situation is a matter for their judgement.

The Attorney General Office responded by saying that state staute prevented it from answering questions from the general public so it could not comment. It did say that I had obviously done good research and presented a good argument. (reading between the lines it seems the AG supports my opinion but can't endorse it because I am a private citizen).

Because satute 167.31 can't be uniformally applied to all vehicles without putting a person at risk of violating 941.23 and because carrying a weapon on certain lawful vehicles prevents a person from exercising rights given by Article I chapter 25 of the state constitution (you can't carry it concealed and you can't carry it unconcealed) there is no question in my mind that one or both of the statutes is unconstitutional.

Unfortunately, because it takes some extaordinary situation or activity to get the legislature or law enforcement or the attorney general to fix bad laws it falls on private citizens to get arrested and spend time and money and go through the judicial system to get anything to happen. That being the case we are going to be under the shadow of the two statutes and at the enforcement whim of the agency that is involved for quite some time. For example: If you are riding your trail bike through town on your way to a shooting range and have a handgun in a "rug", local law enforcement would probably come unglued and claim you are carrying a concealed weapon. On the other hand a DNR conservation officer would see that the firearm is properly encased and that you are on your way to exercise one of the activities in Article I chapter 25 and tell you to have a good day.

One thing I did find out is that the Attorney General must give opinion to any legislative representative. Mine probably won't get involved but if one of you has a gun friendly representative or senator that would be willing to present the "single passenger vehicle" argument, and ask for an AG opinion, this mess can get resolved.

This vehicle carry restriction is the only real impediment we have to open carry. We can live with the only other restrictions of carry in government buildings, on sale liquor establishments and school zones.
 

apjonas

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Mr. Lammie,

You are actually using the test from the Keith case as to what constitutes a violation of 941.23. Hamdan's test is to determine whether or not concealed carry is constitutionally permitted under the circumstances. Hamdan was but later, Fisher was not. The annotation says:

This section is constitutional as applied in this case. The defendant's interest in exercising his right to keep and bear arms for purposes of security by carrying a concealed weapon in his vehicle does not substantially outweigh the state's interest in prohibiting him from carrying a concealed weapon in his vehicle. State v. Fisher, 2006 WI 44, 290 Wis. 2d 121, 714 N.W.2d 495

So perhaps open carry in a vehicle is a better choice. In hearing such a case, the court would probably use similar reasoning but then they are faced with the Catch-22 situation. I would expect them to drop kick 167 rather than reverse Fisher. If they tried to keep both, they would be saying that the Sec. 25 of the state constitution is a dead letter and that the referendum process is meaningless. Not that this matters much, nobody is willing to test open carry on foot so talking about vehicle carry seems superfluous. Why do the folks in Virginia have brass balls about this issue while people in Wisconsin seem to leave their set at home? Are the laws that different? How is Northern virginia's hatred of open carry different that that of the Madison-Milwaukee axis? Geographically speaking, probably 80% of both states are on your side.
 

Doug Huffman

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I can speak of the difference between SC statutes and Wisc. statutes. Wisc code is a POS compared to SC.

In SC we could appeal to legislative intent for clarification/extension of a statute. In Wisc,. a 'simple' statute may have a hundred annotations of case law that completely reverse the apparent legislative intent.

In Wisc. we have the Revisor of Statutes Bureau that seem to be the Laputian 'flappers' for the Legislature.
 

Lammie

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Apjonas:
Thank you for taking time to read my post concerning open carry in vehicles. I sometimes get a little verbose when voicing my opinion. I was aware, as you pointed out, that the first time the state supreme court laid down the conditions that define concealment was in the Kieth case. However, the Court repeated those conditions in Hamdan. I chose Hamdan because the Court was very specific on what conditions had to be met before the State can prosecute a violation of 941.23. Please reference paragraph 20 of the Hamdan ruling.
 

Lammie

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Just a note concerning the Fisher case: To point out the stupidity of our laws consider this. As I understand it Fisher had a firearm stored uncased in the center console of his SUV and was therefore convicted of carrying a concealed weapon. However, if he had the firearm concealed in a handgun case called a "rug" and then placed it in the center console of his SUV he would not have been charged with carrying a concealed weapon because he would have been in compliance with state statute 167.31 (Statute 167.31(2)(b) declares the requirements for transporting a firearm in a motor vehicle). There may have been an issue over whether the firearm was loaded or unloaded. If it was loaded it would have been a violation of 167.31 not 941.23 and Fisher may have had to pay a fine not to exceed $100. Go figure!!
 

Mark

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ilbob could you give me either the case number or the name of the person so I could look it up on CCAP.

I'm currently looking for some stuff to help out a friend on a CCW charge.

BTW technicly any firearm in any case is considered a concealed weapon. Even if you are complying with the safe transportation laws. however they generaly do not chage it because you are complying with the safe transportation law. This was brought up at the oral arguments in State V. Fisher, which I was at in person to hear. I heard the states AAG say that.


I was also told back in november of a guy that was convicted of DC for open carry. It was supossedly appealed and lost. The decison as I was told was that While open carry is legal, it is still DC if it causes a disturbance to the community, as multiple people called in the report of a man with a gun it fit the DC statute. This case is about 30-40 years old. As of right now I still have not found anything on this case. But i'm still looking. The case is out of the city of Racine if anyone is interested.
 

pkbites

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Mark wrote:
I was also told back in november of a guy that was convicted of DC for open carry. It was supossedly appealed and lost. The decison as I was told was that While open carry is legal, it is still DC if it causes a disturbance to the community, as multiple people called in the report of a man with a gun it fit the DC statute. This case is about 30-40 years old. As of right now I still have not found anything on this case. But i'm still looking. The case is out of the city of Racine if anyone is interested.
30-40 years?

Up until circa 10 years ago we did not have a State Constitutional right to bear arms.

Up until 10 years ago we did not have a firearms preemption law. Most municipalities had ordinances against open carry. The preemption law wiped them out.

Up until the last 10 years we did not have some of the court rulings we have now.

And you won't find a 30-40 year old misdemenor case on CCAP.

So while such a case probably exists, thankfully it would be mostly irrelevant to the current situation here in Wisconsin.
 

vmaxanarchist

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So, if I were to go to WI on my motorcycle the only way for me to carry and be in compliance with the CC law is to OC. Any place I could put it in a case and stash it on a motorcycle would be within reach. This would subject me to getting a $100 fine every time a LEO saw me ride by with my gun on my hip.

It seems to me if I was willing to do this and had the disposable income it would be a perfect opportunity to challenge that the transportation lawis in conflict withthe CC lawand the state Constitution.

This could maybe result in a ruling overturning the transportation law. Then a car driver could Velcro a holster to their dash and not have to worry about a $100 fine every time they drove by a LEO.
 

Mark

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Quoted the wrong post.The fact that we have only had the RKBA amendment since 1998 doesn't matter.
Not a lawyer and all that crap.

The exceptions are what count.
And it also opens up a few other things. You'll have to pardon me but I suck at explaining all this stuff.
 

Mark

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vmaxanarchist wrote:
So, if I were to go to WI on my motorcycle the only way for me to carry and be in compliance with the CC law is to OC. Any place I could put it in a case and stash it on a motorcycle would be within reach. This would subject me to getting a $100 fine every time a LEO saw me ride by with my gun on my hip.

It seems to me if I was willing to do this and had the disposable income it would be a perfect opportunity to challenge that the transportation lawis in conflict withthe CC lawand the state Constitution.

This could maybe result in a ruling overturning the transportation law. Then a car driver could Velcro a holster to their dash and not have to worry about a $100 fine every time they drove by a LEO.
If you open carried you'd be subject to a fine for violating the safe transportation laws. But thats a whole nother issue.
 

Mark

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pkbites wrote:
Mark wrote:
I was also told back in november of a guy that was convicted of DC for open carry. It was supossedly appealed and lost. The decison as I was told was that While open carry is legal, it is still DC if it causes a disturbance to the community, as multiple people called in the report of a man with a gun it fit the DC statute. This case is about 30-40 years old. As of right now I still have not found anything on this case. But i'm still looking. The case is out of the city of Racine if anyone is interested.
30-40 years?

Up until circa 10 years ago we did not have a State Constitutional right to bear arms.

Up until 10 years ago we did not have a firearms preemption law. Most municipalities had ordinances against open carry. The preemption law wiped them out.

Up until the last 10 years we did not have some of the court rulings we have now.

And you won't find a 30-40 year old misdemenor case on CCAP.

So while such a case probably exists, thankfully it would be mostly irrelevant to the current situation here in Wisconsin.
i'm not looking for a 30-40 year old case ]on CCAP I know what can and can not be found on that. I asked ilbob for the case info he was talking about. The other case I'm looking for I have other routes to check on as my Uncle is a lawyer and he has access to a lot of case databases I don't.
 

pkbites

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Mark wrote:
Quoted the wrong post.The fact that we have only had the RKBA amendment since 1998 doesn't matter.

It most certainly does matter, as the arguments that can be used by the defense today are different than what could have been used used 30 years ago.
 

Mark

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pkbites wrote:
Mark wrote:
Quoted the wrong post.The fact that we have only had the RKBA amendment since 1998 doesn't matter.

It most certainly does matter, as the arguments that can be used by the defense today are different than what could have been used used 30 years ago.
It does not matter how old the case is, it's the precident thats important(thats why it has to be a published decision at the apeals court or higher).

It now gives anyone an affirmative answer to one of the exceptions laid out in Hamdan.
 

pkbites

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Mark wrote:
pkbites wrote:
Mark wrote:
Quoted the wrong post.The fact that we have only had the RKBA amendment since 1998 doesn't matter.

It most certainly does matter, as the arguments that can be used by the defense today are different than what could have been used used 30 years ago.
It does not matter how old the case is, it's the precident thats important(thats why it has to be a published decision at the apeals court or higher).

It now gives anyone an affirmative answer to one of the exceptions laid out in Hamdan.
I wasn't talking about the age of the case, I was talking about the right that is now in the constitution.

If some prosecutor tried to use that 30-40 year old appeals court decision, you can bet the defense could agrgue it irrelevant as the state constitutional RTKBA did not exist at the time of the ruling. And they would have a damn good argument.
 

Mark

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pkbites wrote:
Mark wrote:
pkbites wrote:
Mark wrote:
Quoted the wrong post.The fact that we have only had the RKBA amendment since 1998 doesn't matter.

It most certainly does matter, as the arguments that can be used by the defense today are different than what could have been used used 30 years ago.
It does not matter how old the case is, it's the precident thats important(thats why it has to be a published decision at the apeals court or higher).

It now gives anyone an affirmative answer to one of the exceptions laid out in Hamdan.
I wasn't talking about the age of the case, I was talking about the right that is now in the constitution.

If some prosecutor tried to use that 30-40 year old appeals court decision, you can bet the defense could agrgue it irrelevant as the state constitutional RTKBA did not exist at the time of the ruling. And they would have a damn good argument.
I was told by a former DA and a current DA to look for cases like this as they would be of help. It would take me forever to try and explain it but I do know exactly what i'm looking for and why and that yes it would actually be of help. The case sets a precident if it's a published decision, the fact that the RKBA amend wasn't around then has no bearing on it.
 

pkbites

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Mark wrote:
the fact that the RKBA amend wasn't around then has no bearing on it.

Not on it in the past, no.

But if a prosecutor tried to cite that case the defense would raise the changes in law/constitution.

Courts routinely rule in opposition to past decisions, based on the ruling was in error, or on present laws/decisions/constitutional changes. According to your standards these past decisions are set in stone forever & ever. NOT SO!
 

smithman

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pkbites wrote:
Mark wrote:
the fact that the RKBA amend wasn't around then has no bearing on it.

Not on it in the past, no.

But if a prosecutor tried to cite that case the defense would raise the changes in law/constitution.

Courts routinely rule in opposition to past decisions, based on the ruling was in error, or on present laws/decisions/constitutional changes. According to your standards these past decisions are set in stone forever & ever. NOT SO!
This is correct. The laws and consitution are different now. Courts have reversed precidents for a number of reasons, so in general we shouldn't worry about cases tried 30 years ago (especially regarding firearms!)
 
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