Defendant Vegas has moved this court to dismiss the concealed weapon charge
against him, because, in light of Handan ad Fisher, he argues that the charge against
him is unconstitutional as applied to him. Vegas contends thar his right to carry a
concealed weapon for security and protection is substantiar and outweighs the State,s
lnterest to police concealed weapons. vegas asserts that he has no other reasonable
altemative but to conceal and has extraordinary circumstances that justify his
concealment of a weapon in his car. Vegas also argues that the ccw rarv shoukl be
declared unconstitutionar. The state contends tl.( the Handatt exception is iinrited to
only the apex of a person's interest in canying a conceared weapon, to wlt: a home or a
pnvately-owned business. As well, the State argues that Vegas does nol have
extraordinary circumstances tojustify concealing it in his car nor does he have a
substantial inlerest to have it concealed.
WISCONSIN'S CCW CASELAW
ln State v. Handan, the Suprerne Court examined the constitutionatity of the
CCW statute in light of the recent passing of a new amendment to the Wisconsin
Constitution. 264 Wis. 2d,433,2003 WI 113. The new amendment, Article I , Sec.25,
The people have the right to keep and bear anns for security, defense, hunting,
recreation or any other lawful purpose.
The Hamdam court ruled that the new amendment did not ovemrle the CCW statute in its
entirety. Id. at\5. The Supreme Court explained that the state retains the authority to
police the manner, time and place a person may possess a firearm. Id. atl146. The Court
found that the CCW statute was a reasonable exercise ofthat power lo regulate the
rnarmer in which a person may possess a fircarm. Id. But the Court did fincl that there
are times that the CCW would conflict with a citizen's individual right to possess a
firearm for the lawful purpose ofsecurity and protection. Itl. at\ 5. Because of this
conflict in certain situations, the Hamdan Court held that the CCW statute may be
unconstitutional as applied. 1d. The Court then ruled that the CCW statute was
unconstl tutional as applied to Defendant Hanidan. 1u1.
The Court outlincd horv a defendant couid bnng a constitutional challenge to a
CCW prosecution. Id.atl86. In order to challenge a prosecution underthe CCW statute
on constitutional grounds, the Court established that a defendant must secure affirmative
answers to both of the following quesrions:
First, the defendant must show that "the defendant's interest in concealing trre
weapon to facilitate exercise of his or her right to keep and bear arms substantialry
out'eigh[s] the state's interest in enforcing the conceared weapons statute." 1rl. The
Handan court explained that the state "generally has a significant interest in prohibiting
the carryrng ofconcealed weapons." 1d. so to satisfythe first question,..the defendant
must have been exercising the right to keep and bear amrs under circumstances in which
the need to do so was substantial." _Id.
Seco'd, the court stated that a defendant must estabrish that "conceal[ing] was
the only reasonable means under the circumstances to exercise his or her right to bear
arms " Id. In other words, the second question asks whether the defendant had a
reasonable altemative to concealment to exercise his or her constitutional right to bcar
Setting forth the procedure for bringing this molion, the court stated that ,,the
invocation of this possible defense must be raised by motion ofthe defendant before trial,
and resolution ofthese legal questions must be made by the cou( prior to trial." 1zJ.
Affirmative answers to the previous two questions requires "a court to conclude that the
State's enforcement of the CCW statute constituted an unreasonable and unconstitutional
impairment of the right to keep and bear arms as granted in Article I. Section 25 of the
Wisconsin Constitution." /d.
As to the issue of whether there was a. unlawfur purpose, the court exprained
that the state can overcome a court-approved constitutional defense if it asserts and
proves at trial tharthedefendanthadanunlawfulpurposeintheconcealme nt.Id.atlg7.
Implicit in this line of reasoning is that the State must demonstrate that there was
probable cause of the unlawful purpose.
The Humdan Court, relying heavily on the facts surrounding the case, determined
Ihat the CCW statute was unconstitutional as applied to Defendanl Hamdan. Id. atjJ82,
Hamdan's store was located in a high-cnme neighborhood of Mihvaukee. 1d. The Court
referenced that "between 1993 and 1999, Hanrdan's store had been a target offour armed
robberies (three ofthem successful) and two fatal shootings." 1d. at fl 8. Hamdan
described one assault where an assailant placed a gun to his head, pulled the trigger and
the weapon misfired. 1rl. In another armed robbery attempt, Hamdan struggled with.
fought, shot and killed an assailant. 1d. Hamdan purchased his gun to protect himself
and his family whilc they worked at his business. Id. atl9. Applying the facts, the
Corrrt in Hamdan came to the conclusion that Defendant Hamdan's interest in havins a
concealed weapon was substantial in contrasto the weak interest of the state in
regulating how Hamdan canied his weapon within his business. Id. at jJ84. The Court
reversed Hamdan's CCW conviction. 1d.
In State v. Fisher, Defend,ant Fisher altempted to extend the principles of Hamdan
to carrying a concealed weapon in a vehicle. 290 Wis. 2d 121,2006 WI 44. The Frsler
Court statcd that there were circumstances u'hen it would be appropriate to have a
concealed weapon in a car, but found that the burden to establish the Defendant's
individual right was greater than that tn Hamtlttn. Id. al|,l32. The Cor.rrt explained that to
find that an individual's right to carry a wcapon within a vehicle is substantial and
outweighs the State's interest, a Defendant must show extraordinary circumstances. 1d.
The Fisher Court stated that extraordinary circumstances would be present "ifa defendant
reasonably believes that he or she is actually conlronted with a threat of bodily harm or
death and that carrying a concealed weapon is necessary for protection from the threat."
1d. The Court elaborated:
Because the individual's interest in carrying a concealed weapon in a vehicle is
generally comparatively weak and the state's interest in prohibiting such weapons
in vehicles is relatively strong, it is only in extraordinary circumstances that an
individual asserting a constitutional defense under llamdan wlll be able to secure
an affirmative answer to the first question in the Hamdan test' Id.
Though the Court opined that there is the possibility of applying the Hamdan
exception lor a concealed weapon in a vehicle, the Fisher Court did not reverse the
conviction against Defendant Fisher. 1d. at fl 49. The Court, like rn Hamdan, relied on
the facts surrounding Fisher's defense. Id. atll34. The Court noted that Fisher's tavem,
which was located in Black River Falls, Wisconsin, was not in a high crime area. 1d. at fl
41. There was no evidence, in the five years that Fisher owned the tavern, that it was
ever a site ofan armed robbery, a fatal shooting or any other violent crime. Id. atn 42.
In addition, there was no evidence that Fisher was a victim ofany violent crime. 1d.atfl
43. Fisher contended that he needed the firearm for safety when carrying cash from his
bar, but the Court pointed out that Fisher inconsistently only kept the guns in his car and
did not use them for security or protection when carrying cash back and forth between his
bar and his vehicle. 1d. at U 45. The Court found that Fisher did not have extraordinary
circumstances warranting carrying a concealed weapon within his vehicle. Id. atl 48.
Addressing the first question, Defendant Vegas has demonstrated the requisite
extraordinary circumstances that warrant his concealed weapon. Like Hamdan, Vegas
works in a dangerous, high crinre area in the city of Milwaukee. Like Hamdan's grocery,
Vegas is engaged in a cash business activity that rrrakes him a target lor armed robbenes.
Also like Hamdan, Vegas has been a victim of multiple violent crimes. Like Hamdan,
Vegas legally purchased his firearm for the purpose ofsecurity and protection. There is a
strong inference that Vegas'concealed weapon has saved his life during these violent
assaults. In light ofthe totality ofthe circumstances, vegas has a substantial interest in
being secure and protecting himself by canying a concealed \^,eapon.
The State argues that Vegas has not demonstrated extraordinary circumstances;
that there was not a reasonable beliefthat he was actually "confronted with a threat of
bodily hann or death and that carrying a conceaied weapon is necessary for protection
lrom the threat." The State contends that there were no extraordinary circumstances
en route to the pizza delivery. ln one sense, this is true. There was not a continued
immediate threat during his cntire trip front pizza store to delivery locale. But the Fisher
Court, when dctermining whether Fisher had a substantial interest in concealing a
rveapon in his car, evaluated the totality ofthe cjrcumstances sunounding Fisher, not
whether there was an acute immcdiate threat. For security purposes, the need to conceal
a weapon in a car may be an intermittent, consistent threat, much like the one tn Hamdan.
Furthcrmore, though there may not have been an acute immediate threat en route to the
pizza delivery, there was such a threat when he got there. Without having an accessible
\4'eapon, how does Vegas protecl himself then rvhen faced with an extraordinary
circumstance ofan assailant's gun? Vegas needed his weapon when he got to the scene;
this the State concedes. Vegas had a substantial need to conceal a weapon to protect
hirlself and to provide securitl.
As for the second question regarding the viability of altematives to concealment,
the State argues that there were reasonable altematives to concealment. The State
contends that Vegas could wear it on a holster to warn the public. Bul, Ihe Humclan courl
cxplained thal an openly holstered weapon was a dangerous and counterproductive
option. Id. at U 73. The Court stated that requiring gun owners "to carry a gun openly or
in a holster is simply not reasonable. Such practices rvould alert criminals to the presence
ofthe weapon and frighten fricnds and custorners." i/. As a pizza delivery person, this
reasoning applies to Vegas' situation as well.
In addition, the State alludes to Wis. Stat. $ 167.31, which requires those traveling
with fireamrs in veliicles to keep thenr unloaded and secured in a case. Given Vegas'
experience, he has a need for a sun at a moments notice. Enclosing and unloading the
weapon is not a reasonable alterative to secure and protect his safety. Plus, Vegas while
delivering pizzas enters and cxits his car constantly; it would be unreasonable for him
every time that he enters his car to require him to unload it and place it in a case and then
reverse the process every time he exits. This defeats the purpose ofhaving the weapon
for security and protection.
In Vegas' situation, carrying a weapon for security requires having the weapon so
that it is easify accessible. As in Handan, Vegas cannot predict the exact montent that
the next attack will occur. All Vegas knows is that he has been attacked in the past and
that it is highly probable that he will be attacked again.
This Courl is not conl'inced that there are any reasonable altematives that lvould
have secured Vegas' safety. Vegas'concealed weapon has most likely saved his life on
several occasions; this the State cannot ignore. The State has conceded that Vegas did
not have an unlawful purpose for concealing a weapon. Given the lotality of the
circumslances, this Court is satisfied that the Defendanl has affirmatively answered the
two-prong analysis as outlined in Hamdan and Fisher and thus grants the Defendant's
motion to dismiss.
Based on review of the record, briefs and arguments ofthe parties, this Court
finds that Defendant Vegas has demonstrated that Wis. Stat. $ 941.23 is unconstitutional
as applied to him.
Accordingly, IT IS ORDERED that Defendant Vegas' motion to dismiss is