imported post
[align=left]STATE OFWISCONSIN CIRCUIT COURT MILWAUKEE COUNTY[/align]
[align=left]BR{NCH 3I[/align]
[align=left]STA'I'E OF WISCONSIN.[/align]
[align=left]Plain ti ff,[/align]
[align=left]ANDRES VEGAS,[/align]
[align=left]Case No.: 07 CM 687[/align]
[align=left]DECISION AND ORDER[/align]
[align=left]INTRODUCTION[/align]
[align=left]In this criminal mattcr, Defendant Andres Vegas (Vegas) has moved to dismiss[/align]
[align=left]the concealed weapon charge against him. Defendant Vegas has proffered two[/align]
[align=left]arsuments: first, that the Carrying a Concealed Weapon statute (CCW) Wis. Stat. $[/align]
[align=left]941.23 is unconstitutional in light of the recent firearm Amendmento the Wisconsin[/align]
[align=left]State Constitution, and second, that applying the standards of Handan and Fisher, the[/align]
[align=left]CCW statute is unconstitutional as applied to Vegas. The State countered by noting that[/align]
[align=left]the I{amdan court already upheld the constitutionality ofthe CCW statute in light of the[/align]
[align=left]new amendment and that the application ofthe CCW statute is not unconstitutional as[/align]
[align=left]applied to this defendant. ln'light of Hamdan and Fisher and in consideration oflhe facts[/align]
[align=left]of tliis case, this Court holds that the CCW statute is unconstitutional as applied to[/align]
[align=left]Defendant Vegas.[/align]
[align=left]Defendant.[/align]
[align=left]BACKGROUND[/align]
[align=left]On January 4,200'7, Mr. Vegas was attempting to deliver a pizza at 2840 North[/align]
[align=left]22ni St., Mih.vaukee, Wisconsin. As a precaution, Vegas called the customer twice to ask[/align]
[align=left]the customer to come outside. After no response. he called his boss who thcn called the[/align]
[align=left]cuslomer. The customer then called Vegas to assure him that the customervas there and[/align]
[align=left]was on his way out to get the pizza. After Vegas got out of his vehicle, two men[/align]
[align=left]approached him. One of the men had a handgun and pointed it directly at Vegas' face.[/align]
[align=left]Vegas pushed the assailant's gun aside and retrieved his gun. In the melee, Vegas shot[/align]
[align=left]one of the robbers in the hip. After the incident, Vegas took the assailant's gun and his[/align]
[align=left]gun. placed them on top ofhis car and dialed 911. He waited for and cooperated with the[/align]
[align=left]responding Milwaukee police officers. The Milwaukee County District Attomey has[/align]
[align=left]deternrined that Vegas actions were taken in self-defense. However, the State has[/align]
[align=left]brought a CCW charge against Vegas for the moments before he was assaulted and[/align]
[align=left]defended himself.[/align]
[align=left]This is not the first time tliat Mr. Vegas has been a victim of an armed robbery.[/align]
[align=left]Before this incident, Vegas has been the victirn of an armed robbery while delivering[/align]
[align=left]pizzas on three separate occasions. In March 2005, Vegas was robbed while attempting[/align]
[align=left]to deliver a pizza. On luly 14,2Q06, two individuals attempted to rob him. One of the[/align]
[align=left]men, who was masked, pointed a gun at Vegas and demanded money. Vegas, who was[/align]
[align=left]armed, defcnded himself and shot one of [.ris assailants. The Milwaukee District Attomcy[/align]
[align=left]determined that Vegas acted in self defense and declined to prosecute for CCW.[/align]
[align=left]However, the District Attomey's office did send Vegas a letler rvaming hinr about[/align]
[align=left]canyrng a concealed weapon.[/align]
[align=left]On September 13,2006, rhree men robbed and physically beat Vegas while he[/align]
[align=left]was delivering pizzas. rt is unclear whether he was armed at the time, but Vegas did not[/align]
[align=left]use a fireamr to defend him.self The assailants beat Vegas and pepper sprayed his eyes.[/align]
[align=left]Vegas attenlpted to run away, but one of the assailants grabbed him, punched him in the[/align]
[align=left]face and then kicked him. In that case, vegas is a key rvitness for the Mirwaukee District[/align]
[align=left]Attomey.[/align]
[align=left]It is undisputed that Vegas delivers pizzas in areas of Milwaukee that are[/align]
[align=left]dangerous and that have very high rates ofviolent crime. (Tr. p. g; Ex. A.) Furrhemlore,[/align]
[align=left]the pa(ies agree that Derendant Vegas has been a victim oramed robbery numerous[/align]
[align=left]trmes while working as a pizza delivery person. (Tr. p. 35.) As we , the state concedes[/align]
[align=left]that Defendant Vegas was not concealing his rveapon for an unlawful purpose. (Tr. p.[/align]
[align=left]s7.)[/align]
[align=left]Defendant Vegas has moved this court to dismiss the concealed weapon charge[/align]
[align=left]against him, because, in light of Handan ad Fisher, he argues that the charge against[/align]
[align=left]him is unconstitutional as applied to him. Vegas contends thar his right to carry a[/align]
[align=left]concealed weapon for security and protection is substantiar and outweighs the State,s[/align]
[align=left]lnterest to police concealed weapons. vegas asserts that he has no other reasonable[/align]
[align=left]altemative but to conceal and has extraordinary circumstances that justify his[/align]
[align=left]concealment of a weapon in his car. Vegas also argues that the ccw rarv shoukl be[/align]
[align=left]declared unconstitutionar. The state contends tl.( the Handatt exception is iinrited to[/align]
[align=left]only the apex of a person's interest in canying a conceared weapon, to wlt: a home or a[/align]
[align=left]pnvately-owned business. As well, the State argues that Vegas does nol have[/align]
[align=left]extraordinary circumstances tojustify concealing it in his car nor does he have a[/align]
[align=left]substantial inlerest to have it concealed.[/align]
[align=left]WISCONSIN'S CCW CASELAW[/align]
[align=left]ln State v. Handan, the Suprerne Court examined the constitutionatity of the[/align]
[align=left]CCW statute in light of the recent passing of a new amendment to the Wisconsin[/align]
[align=left]Constitution. 264 Wis. 2d,433,2003 WI 113. The new amendment, Article I , Sec.25,[/align]
[align=left]provides that:[/align]
[align=left]The people have the right to keep and bear anns for security, defense, hunting,[/align]
[align=left]recreation or any other lawful purpose.[/align]
[align=left]The Hamdam court ruled that the new amendment did not ovemrle the CCW statute in its[/align]
[align=left]entirety. Id. at\5. The Supreme Court explained that the state retains the authority to[/align]
[align=left]police the manner, time and place a person may possess a firearm. Id. atl146. The Court[/align]
[align=left]found that the CCW statute was a reasonable exercise ofthat power lo regulate the[/align]
[align=left]rnarmer in which a person may possess a fircarm. Id. But the Court did fincl that there[/align]
[align=left]are times that the CCW would conflict with a citizen's individual right to possess a[/align]
[align=left]firearm for the lawful purpose ofsecurity and protection. Itl. at\ 5. Because of this[/align]
[align=left]conflict in certain situations, the Hamdan Court held that the CCW statute may be[/align]
[align=left]unconstitutional as applied. 1d. The Court then ruled that the CCW statute was[/align]
[align=left]unconstl tutional as applied to Defendant Hanidan. 1u1.[/align]
[align=left]The Court outlincd horv a defendant couid bnng a constitutional challenge to a[/align]
[align=left]CCW prosecution. Id.atl86. In order to challenge a prosecution underthe CCW statute[/align]
[align=left]on constitutional grounds, the Court established that a defendant must secure affirmative[/align]
[align=left]answers to both of the following quesrions:[/align]
[align=left]First, the defendant must show that "the defendant's interest in concealing trre[/align]
[align=left]weapon to facilitate exercise of his or her right to keep and bear arms substantialry[/align]
[align=left]out'eigh the state's interest in enforcing the conceared weapons statute." 1rl. The[/align]
[align=left]Handan court explained that the state "generally has a significant interest in prohibiting[/align]
[align=left]the carryrng ofconcealed weapons." 1d. so to satisfythe first question,..the defendant[/align]
[align=left]must have been exercising the right to keep and bear amrs under circumstances in which[/align]
[align=left]the need to do so was substantial." _Id.[/align]
[align=left]Seco'd, the court stated that a defendant must estabrish that "conceal[ing] was[/align]
[align=left]the only reasonable means under the circumstances to exercise his or her right to bear[/align]
[align=left]arms " Id. In other words, the second question asks whether the defendant had a[/align]
[align=left]reasonable altemative to concealment to exercise his or her constitutional right to bcar[/align]
[align=left]arms. 1d.[/align]
[align=left]Setting forth the procedure for bringing this molion, the court stated that ,,the[/align]
[align=left]invocation of this possible defense must be raised by motion ofthe defendant before trial,[/align]
[align=left]and resolution ofthese legal questions must be made by the cou( prior to trial." 1zJ.[/align]
[align=left]Affirmative answers to the previous two questions requires "a court to conclude that the[/align]
[align=left]State's enforcement of the CCW statute constituted an unreasonable and unconstitutional[/align]
[align=left]impairment of the right to keep and bear arms as granted in Article I. Section 25 of the[/align]
[align=left]Wisconsin Constitution." /d.[/align]
[align=left]As to the issue of whether there was a. unlawfur purpose, the court exprained[/align]
[align=left]that the state can overcome a court-approved constitutional defense if it asserts and[/align]
[align=left]proves at trial tharthedefendanthadanunlawfulpurposeintheconcealment.Id.atlg7.[/align]
[align=left]Implicit in this line of reasoning is that the State must demonstrate that there was[/align]
[align=left]probable cause of the unlawful purpose.[/align]
[align=left]The Humdan Court, relying heavily on the facts surrounding the case, determined[/align]
[align=left]Ihat the CCW statute was unconstitutional as applied to Defendanl Hamdan. Id. atjJ82,[/align]
[align=left]Hamdan's store was located in a high-cnme neighborhood of Mihvaukee. 1d. The Court[/align]
[align=left]referenced that "between 1993 and 1999, Hanrdan's store had been a target offour armed[/align]
[align=left]robberies (three ofthem successful) and two fatal shootings." 1d. at fl 8. Hamdan[/align]
[align=left]described one assault where an assailant placed a gun to his head, pulled the trigger and[/align]
[align=left]the weapon misfired. 1rl. In another armed robbery attempt, Hamdan struggled with.[/align]
[align=left]fought, shot and killed an assailant. 1d. Hamdan purchased his gun to protect himself[/align]
[align=left]and his family whilc they worked at his business. Id. atl9. Applying the facts, the[/align]
[align=left]Corrrt in Hamdan came to the conclusion that Defendant Hamdan's interest in havins a[/align]
[align=left]concealed weapon was substantial in contrasto the weak interest of the state in[/align]
[align=left]regulating how Hamdan canied his weapon within his business. Id. at jJ84. The Court[/align]
[align=left]reversed Hamdan's CCW conviction. 1d.[/align]
[align=left]In State v. Fisher, Defend,ant Fisher altempted to extend the principles of Hamdan[/align]
[align=left]to carrying a concealed weapon in a vehicle. 290 Wis. 2d 121,2006 WI 44. The Frsler[/align]
[align=left]Court statcd that there were circumstances u'hen it would be appropriate to have a[/align]
[align=left]concealed weapon in a car, but found that the burden to establish the Defendant's[/align]
[align=left]individual right was greater than that tn Hamtlttn. Id. al|,l32. The Cor.rrt explained that to[/align]
[align=left]find that an individual's right to carry a wcapon within a vehicle is substantial and[/align]
[align=left]outweighs the State's interest, a Defendant must show extraordinary circumstances. 1d.[/align]
[align=left]The Fisher Court stated that extraordinary circumstances would be present "ifa defendant[/align]
[align=left]reasonably believes that he or she is actually conlronted with a threat of bodily harm or[/align]
[align=left]death and that carrying a concealed weapon is necessary for protection from the threat."[/align]
[align=left]1d. The Court elaborated:[/align]
[align=left]Because the individual's interest in carrying a concealed weapon in a vehicle is[/align]
[align=left]generally comparatively weak and the state's interest in prohibiting such weapons[/align]
[align=left]in vehicles is relatively strong, it is only in extraordinary circumstances that an[/align]
[align=left]individual asserting a constitutional defense under llamdan wlll be able to secure[/align]
[align=left]an affirmative answer to the first question in the Hamdan test' Id.[/align]
[align=left]Though the Court opined that there is the possibility of applying the Hamdan[/align]
[align=left]exception lor a concealed weapon in a vehicle, the Fisher Court did not reverse the[/align]
[align=left]conviction against Defendant Fisher. 1d. at fl 49. The Court, like rn Hamdan, relied on[/align]
[align=left]the facts surrounding Fisher's defense. Id. atll34. The Court noted that Fisher's tavem,[/align]
[align=left]which was located in Black River Falls, Wisconsin, was not in a high crime area. 1d. at fl[/align]
[align=left]41. There was no evidence, in the five years that Fisher owned the tavern, that it was[/align]
[align=left]ever a site ofan armed robbery, a fatal shooting or any other violent crime. Id. atn 42.[/align]
[align=left]In addition, there was no evidence that Fisher was a victim ofany violent crime. 1d.atfl[/align]
[align=left]43. Fisher contended that he needed the firearm for safety when carrying cash from his[/align]
[align=left]bar, but the Court pointed out that Fisher inconsistently only kept the guns in his car and[/align]
[align=left]did not use them for security or protection when carrying cash back and forth between his[/align]
[align=left]bar and his vehicle. 1d. at U 45. The Court found that Fisher did not have extraordinary[/align]
[align=left]circumstances warranting carrying a concealed weapon within his vehicle. Id. atl 48.[/align]
[align=left]ANALYSIS[/align]
[align=left]Addressing the first question, Defendant Vegas has demonstrated the requisite[/align]
[align=left]extraordinary circumstances that warrant his concealed weapon. Like Hamdan, Vegas[/align]
[align=left]works in a dangerous, high crinre area in the city of Milwaukee. Like Hamdan's grocery,[/align]
[align=left]Vegas is engaged in a cash business activity that rrrakes him a target lor armed robbenes.[/align]
[align=left]Also like Hamdan, Vegas has been a victim of multiple violent crimes. Like Hamdan,[/align]
[align=left]Vegas legally purchased his firearm for the purpose ofsecurity and protection. There is a[/align]
[align=left]strong inference that Vegas'concealed weapon has saved his life during these violent[/align]
[align=left]assaults. In light ofthe totality ofthe circumstances, vegas has a substantial interest in[/align]
[align=left]being secure and protecting himself by canying a concealed \^,eapon.[/align]
[align=left]The State argues that Vegas has not demonstrated extraordinary circumstances;[/align]
[align=left]that there was not a reasonable beliefthat he was actually "confronted with a threat of[/align]
[align=left]bodily hann or death and that carrying a conceaied weapon is necessary for protection[/align]
[align=left]lrom the threat." The State contends that there were no extraordinary circumstances[/align]
[align=left]en route to the pizza delivery. ln one sense, this is true. There was not a continued[/align]
[align=left]immediate threat during his cntire trip front pizza store to delivery locale. But the Fisher[/align]
[align=left]Court, when dctermining whether Fisher had a substantial interest in concealing a[/align]
[align=left]rveapon in his car, evaluated the totality ofthe cjrcumstances sunounding Fisher, not[/align]
[align=left]whether there was an acute immcdiate threat. For security purposes, the need to conceal[/align]
[align=left]a weapon in a car may be an intermittent, consistent threat, much like the one tn Hamdan.[/align]
[align=left]Furthcrmore, though there may not have been an acute immediate threat en route to the[/align]
[align=left]pizza delivery, there was such a threat when he got there. Without having an accessible[/align]
[align=left]\4'eapon, how does Vegas protecl himself then rvhen faced with an extraordinary[/align]
[align=left]circumstance ofan assailant's gun? Vegas needed his weapon when he got to the scene;[/align]
[align=left]this the State concedes. Vegas had a substantial need to conceal a weapon to protect[/align]
[align=left]hirlself and to provide securitl.[/align]
[align=left]As for the second question regarding the viability of altematives to concealment,[/align]
[align=left]the State argues that there were reasonable altematives to concealment. The State[/align]
[align=left]contends that Vegas could wear it on a holster to warn the public. Bul, Ihe Humclan courl[/align]
[align=left]cxplained thal an openly holstered weapon was a dangerous and counterproductive[/align]
[align=left]option. Id. at U 73. The Court stated that requiring gun owners "to carry a gun openly or[/align]
[align=left]in a holster is simply not reasonable. Such practices rvould alert criminals to the presence[/align]
[align=left]ofthe weapon and frighten fricnds and custorners." i/. As a pizza delivery person, this[/align]
[align=left]reasoning applies to Vegas' situation as well.[/align]
[align=left]In addition, the State alludes to Wis. Stat. $ 167.31, which requires those traveling[/align]
[align=left]with fireamrs in veliicles to keep thenr unloaded and secured in a case. Given Vegas'[/align]
[align=left]experience, he has a need for a sun at a moments notice. Enclosing and unloading the[/align]
[align=left]weapon is not a reasonable alterative to secure and protect his safety. Plus, Vegas while[/align]
[align=left]delivering pizzas enters and cxits his car constantly; it would be unreasonable for him[/align]
[align=left]every time that he enters his car to require him to unload it and place it in a case and then[/align]
[align=left]reverse the process every time he exits. This defeats the purpose ofhaving the weapon[/align]
[align=left]for security and protection.[/align]
[align=left]In Vegas' situation, carrying a weapon for security requires having the weapon so[/align]
[align=left]that it is easify accessible. As in Handan, Vegas cannot predict the exact montent that[/align]
[align=left]the next attack will occur. All Vegas knows is that he has been attacked in the past and[/align]
[align=left]that it is highly probable that he will be attacked again.[/align]
[align=left]This Courl is not conl'inced that there are any reasonable altematives that lvould[/align]
[align=left]have secured Vegas' safety. Vegas'concealed weapon has most likely saved his life on[/align]
[align=left]several occasions; this the State cannot ignore. The State has conceded that Vegas did[/align]
[align=left]not have an unlawful purpose for concealing a weapon. Given the lotality of the[/align]
[align=left]circumslances, this Court is satisfied that the Defendanl has affirmatively answered the[/align]
[align=left]two-prong analysis as outlined in Hamdan and Fisher and thus grants the Defendant's[/align]
[align=left]motion to dismiss.[/align]
[align=left]CONCLUSION[/align]
[align=left]Based on review of the record, briefs and arguments ofthe parties, this Court[/align]
[align=left]finds that Defendant Vegas has demonstrated that Wis. Stat. $ 941.23 is unconstitutional[/align]
[align=left]as applied to him.[/align]
[align=left]Accordingly, IT IS ORDERED that Defendant Vegas' motion to dismiss is[/align]
[align=left]GRANTED.[/align]
[align=left]Datc this )rl[/align]
[align=left]t / . l[/align]
[align=left]' | , day ot - , i - l ' . 2007. in Milwatrkee. Wisconsin.[/align]
[align=left]BY THE COTJRT:[/align]
[align=left]l'he Honorable Daniel A. Noonan[/align]
[align=left]Milwaukee County Circuit Court, Branch 31[/align]
[align=left]l 0[/align]