Assistant Attorney General answer on open carry scenario

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Beinga copI have the privilege of going on WILENET, a website for law enforcement officers. On the site Assistant Attorney General Dave Perlman has a feature in which he fields questions regarding law, legal procedure, and cases officers come upon during the course of their duties. It is simply a Q&A forum and it does not afford any room for debate. Perlman is under no obligation to answer any questions at all.

There is a disclaimer indicating that Perlmans opinion does not constitute a formal opinion of the Attorney General or the Wisconsin Department of Justice.He is the AAG none the less, and I offered him this scenario:

A man aged 21 who is not a felon is walking down a public sidewalk. He is not
in a school zone. He is keeping to himself and is sober. On his hip is a
handgun, openly carried (not concealed), secured in a holster. When asked why
he is carrying a firearm, he states "I'm bearing arms for security and
defense, a right the state constitution says I have". Wisconsin has no law
against open carry, and ss 66.0404 voided out any local ordinances on it.

I say he is not committing any violation. But some my fellow officers say
they would arrest him for Disorderly Conduct. But reading the DC statute
947.01 I fail to see how it fits the act of open carry.

What do you think?

Perlmans answer:







I find it arguable that the conduct is legal, unless there are more people around, and then the same conduct is all of a sudden illegal. But this is the kind of thinking we're dealing with on this issue here in the Land of Cheese. Thought I'd share this with you.

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That's odd I do not believe any of the statutes you referenced say anything about the number of people present. Does WI have a two's company, three is a crowd law?

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Thanks for the heads-up! It sounds like a CYA answer on his part to me, which makes sense given the length of time that the "OC is DC" boondoggle has been proliferating...

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it sounds like he's trying to play off the TX v. johnson (sic) case about the flag burning case. In the USSC decision, the justices opined that disorderly conduct could not be cited because the flag burning in question did not incite anyone to lash out uncontrollably and start riots or fights.

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Interesting. Do something around a few people its legal, but do that same thing around a lot of people and it could be illegal. Wow.

Sounds like he has gotten this question before, based on his "always an interesting question".

Thanks PK for submitting the question....

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*

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Thanks for posting this. My only suggestion would be that you would suggest to him to consult with Asst. AG Kassel prior to formulating his response.

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pkb: Thanks for your efforts in looking into this.

While I realize you don't want to badger him, perhaps it's worth following up with him to point out the testimony of AAG Kassel in front of the supreme court. May also want to put this past your fellow officers...

Specifically if one goes here:

http://www.wicourts.gov/supreme/scoa.jsp?docket_number=&begin_date=&end_date=&party_name=gonzales&sortBy=date

and calls up the playback for State v Gonzales...starting at approximately 55:40 (pasted from my post in the intent to open carry in milwaukee thread)

55:40 Justice Abrahamson: Is there any legal way to exercise this new right?

Kassel: Sure - you carry it..the weapon openly.

Justice A: Just pack it on your person outside your clothes?

Kassel: That's right.

Justice #2: Getting arrested for Disorderly Conduct?

Kassel: You shouldn't be.

(chuckles in courtroom)

Justice #2: That a guarantee?

(more chuckles)

Kassel: Excuse me?

Justice #2: - a word or two garbled

Kassel: Uhh it's the State's position that it is legal to walk down State street in Madison with a pistol in your holster.
Now Defense counsel gave the example in her brief of someone waving a gun. Well, that's "carrying" but that's going beyond
what's necessary to exercise the right.

Justice #?: What about in your belt?

Kassel: Excuse me?

Justice #?: What about in your belt, without a holster. You don't have a holster.

Kassel: If it's not concealed. And we have language that says...it doesn't have to be completely concealed to be
concealed. The reverse is not the case though...the fact that a gun is partially concealed doesn't mean that it is concealed.
That is, if it's discernable to an ordinary observation that it is a gun....When I'm walking down State Street and I see a
policeman with a pistol in his or her holster, well, part of it's concealed by the holster, but I have no doubt that they
are carrying a gun.

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Case Law

State v Douglas D 2001 WI 47, para 15.243 WIS 2d, 204,626N.W, 2d 725.

Para. 15

"The State must prove two elements to convict a defendant under this statute (947.01)" First, it must prove that the defendant engaged in violent, abusive, indecent, profane, boisterous, unecessarily loud, or similar disorderly conduct. Second, it must prove that the defendant's conduct occurred under circumstances where such conduct tends to cause or provoke a disturbance".

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Excellent pointer, Lammie!

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pkbites wrote:

Beinga copI have the privilege of going on WILENET, a website for law enforcement officers. On the site Assistant Attorney General Dave Perlman has a feature in which he fields questions regarding law, legal procedure, and cases officers come upon during the course of their duties. It is simply a Q&A forum and it does not afford any room for debate. Perlman is under no obligation to answer any questions at all.

There is a disclaimer indicating that Perlmans opinion does not constitute a formal opinion of the Attorney General or the Wisconsin Department of Justice.He is the AAG none the less, and I offered him this scenario:

A man aged 21 who is not a felon is walking down a public sidewalk. He is not
in a school zone. He is keeping to himself and is sober. On his hip is a
handgun, openly carried (not concealed), secured in a holster. When asked why
he is carrying a firearm, he states "I'm bearing arms for security and
defense, a right the state constitution says I have". Wisconsin has no law
against open carry, and ss 66.0404 voided out any local ordinances on it.

I say he is not committing any violation. But some my fellow officers say
they would arrest him for Disorderly Conduct. But reading the DC statute
947.01 I fail to see how it fits the act of open carry.

What do you think?

Perlmans answer:

Code:

Always an interesting question- under the circumstances that you describe it would seem to be legal conduct- a DC could be easily triggered (pun intended)if there are a lot of people around, etc. but the situation you describe does
not seem to reach to that level.

I find it arguable that the conduct is legal, unless there are more people around, and then the same conduct is all of a sudden illegal. But this is the kind of thinking we're dealing with on this issue here in the Land of Cheese. Thought I'd share this with you.

Click to expand...

Have you ever asked your fellow officers if they remember the oath they took to support the U.S. and WI Constitutions? Why do they want to waste the time on a DC charge when their time could be better used "to serve and protect"? Police officers can't be everywhere and how would they like knowing that because of the DC charge the man was not carryingand some thug killed his wife and children? It could also bethe officer'sfamily that the man protects one day.

Thanks for looking into it but we need to carry everywhere and concealed because of winters in WI. The less handling in public, the better.

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My favorite quote from the Wisconsin supreme court, paragraph 41 in state v. Hamdan,

"If the State applies reasonable laws in circumstances that unreasonably impair the right to keep and bear arms, the State's police power must yield in those circumstances to the exercise of the right. The prohibition of conduct that is indispensable to the right to keep (possess) or bear (carry) arms for lawful purposes will not be sustained."

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This country is becoming more and more a police state where manyLEO's are quite ignorant of the US and StateConstitutions. Most are woefully ignorant ofAmericas early history, our founding fathers, and original intent.

The moment you place a person in a uniform, arm them, and send them out with the idea they are the enforcement agent of the state not a protector of the peoples rights under the Constitutionwe perpetuate the police state.

We then disarm our populace, or significantly restrict their ability to bear arms, and create a substantial inequality between LEO andwe the people.

Instead of defending the rights of law abiding citizens many officersare busy enforcing unconstitutionalpetty laws that substantially infringe the rights of we the people.

I would much rather be armed and responsible for my own securitythan pay an extrodinary amount in taxes to have to wait 20 minutes for the Police to arrive, who have no legal duty to protect me by th way, after the shooting is stopped and I am already dead.

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Virtus Honoris wrote:

This country is becoming more and more a police state where manyLEO's are quite ignorant of the US and StateConstitutions. Most are woefully ignorant ofAmericas early history, our founding fathers, and original intent.

The moment you place a person in a uniform, arm them, and send them out with the idea they are the enforcement agent of the state not a protector of the peoples rights under the Constitutionwe perpetuate the police state.

We then disarm our populace, or significantly restrict their ability to bear arms, and create a substantial inequality between LEO andwe the people.

Instead of defending the rights of law abiding citizens many officersare busy enforcing unconstitutionalpetty laws that substantially infringe the rights of we the people.

I would much rather be armed and responsible for my own securitythan pay an extrodinary amount in taxes to have to wait 20 minutes for the Police to arrive, who have no legal duty to protect me by th way, after the shooting is stopped and I am already dead.

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All too true!!! People have had it so good for so long that everything is taken for granted. I wish I knew the right words that would get their attention. If they only knew what we're all in for if they keep ignoring what is going on around them.

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Max wrote:

My favorite quote from the Wisconsin supreme court, paragraph 41 in state v. Hamdan,

"If the State applies reasonable laws in circumstances that unreasonably impair the right to keep and bear arms, the State's police power must yield in those circumstances to the exercise of the right. The prohibition of conduct that is indispensable to the right to keep (possess) or bear (carry) arms for lawful purposes will not be sustained."

Click to expand...

Since it is our responsibility to protect ourselves I would think the State's reasonable laws unreasonably impair the right to keep and bear arms.

We don't have enough elected people that honor their oath of office.

If that quote was in the majority opinion, I would think that we could CCW. The judges make up things for each case even if it conflicts with other rulings.

:cuss::banghead::banghead::banghead::cuss: