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Thread: Letter to LEOs in Ozaukee Cty.

  1. #1
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    I sent the following (with slightly modified language for the Sheriff) to my local police chief, so we'll see if I hear anything back. The Sheriff does not have an email address posted anywhere online, so I had to extrapolate it based on other county government addresses. If it gets bounced back, I'll know it didn't go through and I'll send a paper letter. Here are the goods:

    June 30, 2008

    Dear Chief Meloy:

    I have been a resident of Saukville for two years now, and would very much appreciate it if you could answer a few questions for me. First, I wish to offer you a bit of background:

    Roughly one month ago, an acquaintance of mine was approached in the city of West Milwaukee, in the parking lot of a Menard's store, by on-duty members of that locale's law enforcement community. DETAILS OF STOP OMITTED ON FORUM FOR PARABELLUM'S PRIVACY. He identified himself to the responding officers, as required by Wisconsin law when an officer believes a citizen has committed, or imminently will commit, a crime (though the United States Supreme Court has stated that the mere carry of a firearm does not constitute reasonable articuable suspicion for a Terry stop, see Terry v. Ohio and J.L. v. Florida). He was arrested for "Disorderly Conduct while Armed," (947.01 with 939.63 modifier) and his weapon and his accessories (case, magazines, ammunition, and holster) were confiscated without any receipt being issued. He has not been charged with any crime to date, and he has not had his property returned to him. He has since begun the arduous process of filing a motion for the return of his property, as well as finding a civil rights attorney for a possible 42 USC, 1983 action.

    Now, as I openly carry a firearm from time to time (for personal security, as lawful exercise of a constitutionally guaranteed right under Article 1, Section 25 of the Wisconsin Constitution, and in compliance with the Wisconsin Supreme Court decision in State v. Hamdan), this gave me pause to wonder what sort of response would be executed by law enforcement officers here in Saukville in a similar situation. As such, I would like to pose a hypothetical (understanding that I am not asking for legal advice, but rather, trying to determine what response should be expected):

    A 27 year old man who is not a felon (or otherwise prohibited person) is armed with a handgun. Said handgun is secured in a holster, attached to the man's belt, and is clearly visible (outside all clothing). The man is sober. The man is shopping for mangos in a local supermarket, and his route of ingress/egress on foot does not take him within 1000' of a school zone, or into a state park. The man has not been asked to disarm or to leave by the retailer.


    My questions are as follows:

    1) If another citizen became alarmed by this man buying mangos solely because he had a firearm, and without aggravating factors that could constitute disorderly conduct (per 947.01), and that citizen called 911, will officers automatically be dispatched to reconnoiter, or will the operator attempt to verify that aggravating factors are in place ("is the man threatening anyone," "what is the man doing," etc.)?


    2) If police officers are dispatched, will they approach this man regardless of his observed conduct?


    3) If police officers approach this man, will they preemptively escalate to threat of deadly force by drawing their weapons?


    4) Absent any behavior that meets the statutory definition of disorderly conduct, will the responding officers arrest the man?


    5) Since the application of 66.0409 renders the language "
    or have any firearm in his possession within the Village unless it is unloaded and knocked down and enclosed in a carrying case or other suitable container" of municipal ordinance 140-2 null and void, what statute(s) would be used to justify any arrest made in question #4?

    6) Given the conditions of question #4, would this man's firearm (and/or ancillary equipment) be confiscated, and would a receipt be issued? (I understand that officers may temporarily relieve the man of his weapon during detention, I am referring to an actual confiscation.)


    I fully understand that you cannot tell me exactly what would transpire, and I am not asking for carte blanche to act like a jerk while armed. I take my decision to go armed very seriously, and I conduct myself accordingly. However, having heard of my acquaintance's plight, and understanding the costs he must incur for legal recourse and return of his property, I think prudence dictates I seek clarification on the Saukville Police Department's policy in responding to a "man with a gun" call that turns out to be a citizen peacably going about their business while legally armed. I will be sending an identical query to Sheriff Straub, and would very much appreciate confirmation of receipt if an answer will not be forthcoming within 10 days.

    Finally, let me thank you for your time and public service. My sister and her husband are both in law enforcement (DEPARTMENTS OMITTED FOR PRIVACY, respectively), and I greatly appreciate the job you and your department perform. I look forward to hearing back from you, and I am available by email or telephone to answer any questions you may have.

    Sincerely,

    Mike Gallo

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    I got a brief reply back from the Sheriff this morning; he said he is out of town for the week and will answer when he gets back. I guess I got his address correct; yay deductive reasoning!

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    Any word?

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    I recieved this response from the Sheriff, with a "ditto" from the Chief:

    Mr. Gallo,

    Thank you for your patience in awaiting my reply. As earlier indicated I was out of town last week and I am just now starting to catch up.

    You indicated that you were not looking for a legal opinion and that is good because I am not qualified to provide one, nor would I be so inclined to offer one if I were. Your questions are good ones yet I discern from their tenor that you may have already anticipated my response.

    Let me state that every situation is different, every communication is different, every response is different and every officer reacts to a variety of stimuli differently than the next. While your questions appear to have been written with the intent of garnering black and white answers, the reality of the scenario you describe, and a law enforcement response to it, contain far too many nuances which preclude black and white answers. In fact this could be discussed and speculated upon for many hours, days, weeks or months. As a matter of fact this has been a topic of discussion for the 33 years that I have been in law enforcement and long before that I suspect. That discussion will likely go on for some time and certainly long after I finish discussing it here.



    I believe however, I can clear up most of this in a relative hurry. As indicated, there is no law in Wisconsin, nor a county ordinance in Ozaukee County, that precludes carrying a firearm as long as it is not concealed. Most people however are not aware of that fact. In my experience the carrying, and display, of a firearm in this area, other than by a law enforcement officer, is so foreign to our daily lives and expectations that wearing one may cause some concern and likely precipitate a call to police from a concerned citizen. This call would normally result in a response from an officer or, more likely, multiple officers.

    You ask what would happen here in Ozaukee County. I believe it likely that responding officers would:

    Attempt to locate the armed individual.

    Likely approach the individual.

    Be prepared to defend their life or the lives of others while confronting an armed individual.

    Attempt to determine if there was a violation of law or ordinance and if there was take appropriate action.

    Might there be an arrest for Disorderly Conduct or some other violation? Possible, depending on all the circumstances.

    Might the firearm be seized and held as evidence pursuant to an arrest? Quite possible.

    It would be unlikely that you would be issued a receipt for the evidence seized.

    As long as human beings are involved, whether they are concerned citizens, responding officers or students of the constitution, there are few black and white answers.

    Good luck with your future endeavors.

    Sheriff Maury Straub



    It's pretty much exactly what I expected: a non-answer. Even though I tailored the question to basically say "does your department treat open carry as de facto disorderly conduct," they said "it depends." I've forwarded this to Senator Grothman, and I urge anyone else who has gotten varied responses on these inqueries to do the same with their representatives. This will help our legislators see how application of the law varies across the state.

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    Yes, it's interesting. The preemption statute was intended to avoid having a patchwork of local gun laws across the state and to make "the rules" consistent everywhere in Wisconsin. But if enforcement or interpretation of "the rules" varies from one jurisdiction to the next, or even from one LEO to the next, then a problem remains and something clearly needs to be done to put everyone on the same page.
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    Wisc. Statute 66.0511(2) would seem to apply.

    66.0511 Law enforcement agency policies on use of force and citizen complaint procedures.

    (1) DEFINITION. In this section, “law enforcement agency” has the meaning given under s. 165.83 (1) (b).

    (2) USE OF FORCE POLICY. Each person in charge of a law enforcement agency shall prepare in writing and make available for public scrutiny a policy or standard regulating the use of force by law enforcement officers in the performance of their duties.

    (3) CITIZEN COMPLAINT PROCEDURE. Each person in charge of a law enforcement agency shall prepare in writing and make available for public scrutiny a specific procedure for processing and resolving a complaint by any person regarding the conduct of a law enforcement officer employed by the agency. The writing prepared under this subsection shall include a conspicuous notification of the prohibition and penalty under s. 946.66.

    History: 1987 a. 131; 1997 a. 176; 1999 a. 150 s. 366; Stats. 1999 s. 66.0511.

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    Rick:

    Sheriff Straub's answer is what in most cases we should expect to hear. I don't think it is evasive so much as it is cautious. He did state concisely that there is no law against peaceful open carry. He also did not say, as some of the LEO responses have, that mere open carry of a firearm would bring an arrest for DC. He said an arrest for DC would depend on the circumstances, an answer I myself would have given. Only an officer on the scene could asses the situation and determine if an arrest for DC is warranted. What is unknow, however, is what their threshold for disorderly is. For the most part I see his reply as being on the positive side.

    I think Sheriff Straub is like other LEO's out there. They would really embrace an opinion from the Attorney General concerning open carry. An opinion that would establish a statewide policy of enforcement. so that individual agencies don't have to set individual policies on the senstive issue. I think that should be our next endeavor. I think sending the letter to senator Grothman was a good move. Perhaps a follow up explaining the confusion we have seen in interpretation of relevant statutes and enforcement policies concerning open carry and DC, and with a suggestion that he ask for an AG response might be in order.

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    I agree, Lammie - this is exactly what I expected, and I should have been more careful with my wording: I fully understand this response, and don't think it was improper of him. I'm not so sure that he's on board with open carry, though. He was quoted as beingof the"no one but police should carry" camp back when the PPA first came up in the legislature (2003 I believe). I was surprised to read this when I was doing research for writing this letter; I had not been back from college at that point, and that I did not find this out until now ashames me. I am not sure I would have voted for anyone running against him in the meantime, but I certainly would have witheld my vote.

    I have been corresponding with Senator Grothman regarding this matter (and I have directly asked for an opinion from the AG), and I sent him this response at his behest. He has expressed his support, and I think that with a few other legislators on his side, he would gladly go to bat for us.

    If you have sent something to a local LE agency and recieved a reply, I think you should take the time right now to contact your representative(s).

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    "Quite possibly" a firearm would be seized persuant to an arrest. Wow.

    I agree that the AG would send a clear message to LEOs. Also, if anything comes from the AG office, it must alsospecifically address theimproper siezing of property, this could be the one way where they try to oppress.

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    Absolutely - what good is it for me to have an $800 firearm confiscated and then pay more than that to get it back in lawyer's fees? I specifically addressed this with my Senator. In the meantime, it's almost better to get a used glock POS and just call it a throwaway (though I would lose sleep over the principle of just "letting them take it").

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    True True.. Maybe this is a good reason to buy a used .38 for $200 and carry that around. It would be fully reliable and having it illegally confiscated wouldn't hurt as much. Though I would still refuse to have my rights violated and allow ittobe indefinately confiscated.

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    When off my property I carry an Iver Johnson break-top revolver in .38 S&W caliber. I bought it at a gun show just for that pirpose. It's in decent condition and if it's confiscated I'm out $130. I'll carry it until the OC issue is resolved, then switch to a better gun. The illegal confiscation would still be an issue but I would be able to fight that without my mind being upset with losing an expensive firearm.

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    You might want to check this site out:

    http://www.fbi.gov/hq/cid/civilrights/civilrts.htm

    Let us know what you think and maybe we should all file a complaint with them.

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