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Thread: School Zone Law - what is there to it really?

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    OK, I've been running this through my mind for a while. Here's the language of the Wisconsin "school zone" statute:

    POSSESSION OF FIREARM IN SCHOOL ZONE. (a) Any individual
    who knowingly possesses a firearm at a place that the individual
    knows, or has reasonable cause to believe, is a school zone is
    guilty of a Class I felony.
    (b) Paragraph (a) does not apply to the possession of a firearm:
    1. On private property not part of school grounds.



    Consider this. Most sidewalks are on private property. Sure the public uses them, but the property upon which they sit is private, owned by the homeowner or business owner. The sidewalk is there by virtue of a "sidewalk easement" but the property is private. This is clear because the city will fine YOU, the property owner, if you don't shovel the snow on the sidewalk ON YOUR PROPERTY. And if somebody tripped on a poorly maintained or icy sidewalk, they will sue the property owner, not the city. Finally, the government wouldn't need a sidewalk easement to put a sidewalk across your property if it was government property and not yours.

    A publicly owned sidewalk would be only those placed on the school property itself or other property owned by a governmental entity. In other words, a very small percentage of all sidewalks.

    The obvious implication is that if the school zone law means what it says-- and the language is not vague-- one ought not to be subject to arrest under that law if one stays on sidewalks that aren't in front of schools or other government buildings-- even if that sidewalk is within 1000 feet of school property or even right across the street from a school.

    Thoughts anyone?
    A. Gold

    Failure to comply may result in discipline up to and including termination.
    The free man is a warrior. - Nietzsche "Twilight of the Idols"

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    Shotgun wrote:
    OK, I've been running this through my mind for a while. Here's the language of the Wisconsin "school zone" statute:

    POSSESSION OF FIREARM IN SCHOOL ZONE. (a) Any individual
    who knowingly possesses a firearm at a place that the individual
    knows, or has reasonable cause to believe, is a school zone is
    guilty of a Class I felony.
    (b) Paragraph (a) does not apply to the possession of a firearm:
    1. On private property not part of school grounds.



    Consider this. Most sidewalks are on private property. Sure the public uses them, but the property upon which they sit is private, owned by the homeowner or business owner. The sidewalk is there by virtue of a "sidewalk easement" but the property is private. This is clear because the city will fine YOU, the property owner, if you don't shovel the snow on the sidewalk ON YOUR PROPERTY. And if somebody tripped on a poorly maintained or icy sidewalk, they will sue the property owner, not the city. Finally, the government wouldn't need a sidewalk easement to put a sidewalk across your property if it was government property and not yours.

    A publicly owned sidewalk would be only those placed on the school property itself or other property owned by a governmental entity. In other words, a very small percentage of all sidewalks.

    The obvious implication is that if the school zone law means what it says-- and the language is not vague-- one ought not to be subject to arrest under that law if one stays on sidewalks that aren't in front of schools or other government buildings-- even if that sidewalk is within 1000 feet of school property or even right across the street from a school.

    Thoughts anyone?
    My thought is that argument and a dollar will get you a cup of coffee and a felony conviction. But I am not a lawyer.

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    What, are you talking for the point of making a demonstration to risk a felony charge?

    'cuz otherwise you're screwed as soon as you need to cross a street anyway....


    - What da hay?

    Keep Calm and Carry On

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    LOL, not persuaded eh? But lawyers tend to be sticklers for things such as the actual language and meaning of words.

    Crossing the street? Unload and encase.... proceed across the street. Reload. Inconvenienced, but not screwed.
    A. Gold

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    The free man is a warrior. - Nietzsche "Twilight of the Idols"

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    I've been milling this over for a while, shotgun. Unfortunately, I can't find good case law as to whether or not "easement for public use" (sidewalk easement) has been treated as public property for "public safety" laws like the school zone bulls$%t. There just doesn't appear to be any precedent, but I am not a lawyer, and have not employed one in my search.

    This is really important to me, because there is a private grade school that is probably within 1000' of my house, so I theoretically cannot cross my own sidewalk if it is considered public property. I'm hoping to not ever test the law, as I simply don't trust the courts to give me a fair verdict.

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    pkbites wrote:
    Shotgun wrote:
    OK, I've been running this through my mind for a while. Here's the language of the Wisconsin "school zone" statute:

    POSSESSION OF FIREARM IN SCHOOL ZONE. (a) Any individual
    who knowingly possesses a firearm at a place that the individual
    knows, or has reasonable cause to believe, is a school zone is
    guilty of a Class I felony.
    (b) Paragraph (a) does not apply to the possession of a firearm:
    1. On private property not part of school grounds.



    Consider this. Most sidewalks are on private property. Sure the public uses them, but the property upon which they sit is private, owned by the homeowner or business owner. The sidewalk is there by virtue of a "sidewalk easement" but the property is private. This is clear because the city will fine YOU, the property owner, if you don't shovel the snow on the sidewalk ON YOUR PROPERTY. And if somebody tripped on a poorly maintained or icy sidewalk, they will sue the property owner, not the city. Finally, the government wouldn't need a sidewalk easement to put a sidewalk across your property if it was government property and not yours.

    A publicly owned sidewalk would be only those placed on the school property itself or other property owned by a governmental entity. In other words, a very small percentage of all sidewalks.

    The obvious implication is that if the school zone law means what it says-- and the language is not vague-- one ought not to be subject to arrest under that law if one stays on sidewalks that aren't in front of schools or other government buildings-- even if that sidewalk is within 1000 feet of school property or even right across the street from a school.

    Thoughts anyone?
    My thought is that argument and a dollar will get you a cup of coffee and a felony conviction. But I am not a lawyer.
    But if you were the arresting officer testifying stand in court. And you had testified that you had arrested someone for having a firearm on a sidewalk in front of a residence within 1000' of school grounds. And the defense attorney then reads the statute and turns to you and asks, "Officer, was my client on private property when you arrested him?" How would you reply?

    A. Gold

    Failure to comply may result in discipline up to and including termination.
    The free man is a warrior. - Nietzsche "Twilight of the Idols"

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    Rick Finsta wrote:
    I've been milling this over for a while, shotgun. Unfortunately, I can't find good case law as to whether or not "easement for public use" (sidewalk easement) has been treated as public property for "public safety" laws like the school zone bulls$%t. There just doesn't appear to be any precedent, but I am not a lawyer, and have not employed one in my search.

    This is really important to me, because there is a private grade school that is probably within 1000' of my house, so I theoretically cannot cross my own sidewalk if it is considered public property. I'm hoping to not ever test the law, as I simply don't trust the courts to give me a fair verdict.
    Public use doesn't necessarily mean it isn't private property. A shopping mall is for public use, but it is private property too. The law only states that it has no effect on private property.

    And no, I'm not suggesting that people put it to the test just to test it, but it could be a potential legal defense if someone was arrested under those circumstances.
    A. Gold

    Failure to comply may result in discipline up to and including termination.
    The free man is a warrior. - Nietzsche "Twilight of the Idols"

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    I think the statute is clearly written, and I think it means what it says - and I think that should clearly mean that privately owned sidewalks within 1000' of a school are a legal place to carry. I also know that we just got a 5/4 decision on a .22LR revolver in a night stand being protected by 2A by SCOTUS. :?

    Dad always said "never trust a judge."

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    Shotgun, speaking of school zones. Did you ever get a response from the Madison city clerk(?) about a permit to carry in a school zone? I lost track, and don't remember if you updated on the subject.

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    Just curious, you guys ever thought about legislation to establish an exemption for CHL holder like we have here?

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    Open carry will bring an extra-legal Disorderly Conduct charge.

    Comp-tech wrote:
    Just curious, you guys ever thought about legislation to establish an exemption for CHL holder like we have here?
    941.23 Carrying concealed weapon. Any person except
    a peace officer who goes armed with a concealed and dangerous
    weapon is guilty of a Class A misdemeanor. Notwithstanding s.
    939.22 (22), for purposes of this section, peace officer does not
    include a commission warden who is not a state−certified commission
    warden.
    History: 1977 c. 173; 1979 c. 115, 221; 2007 a. 27.
    The burden is on the defendant to prove that he or she is a peace officer and within
    the exception. State v. Williamson, 58 Wis. 2d 514, 206 N.W.2d 613 (1973).
    A defendant was properly convicted under this section for driving a vehicle with
    a gun locked in a glove compartment. State v. Fry, 131 Wis. 2d 153, 388 N.W.2d 565
    (1986).
    To “go armed” does not require going anywhere. The elements for a violation of
    s. 941.23 are: 1) a dangerous weapon is on the defendant’s person or within reach;
    2) the defendant is aware of the weapon’s presence; and 3) the weapon is hidden.
    State v. Keith, 175 Wis. 2d 75, 498 N.W.2d 865 (Ct. App. 1993).
    A handgun on the seat of a car that was indiscernible from ordinary observation
    by a person outside, and within the immediate vicinity, of the vehicle was hidden from
    view for purposes of determining whether the gun was a concealed weapon under this
    section. State v. Walls, 190 Wis. 2d 65, 526 N.W.2d 765 (Ct. App. 1994).
    There is no statutory or common law privilege for the crime of carrying a concealed
    weapon under s. 941.23. State Dundon, 226 Wis. 2d 654, 594 N.W.2d 780 (1999),
    97−1423.
    Under the facts of the case, the privilege of of self−defense was inapplicable to a
    charge of carrying a concealed weapon. State v. Nollie, 2002 WI 4, 249 Wis. 2d 538,
    638 N.W.2d 280, 00−0744.
    The concealed weapons statute is a restriction on the manner in which firearms are
    possessed and used. It is constitutional under Art. I, s. 25. Only if the public benefit
    in the exercise of the police power is substantially outweighed by an individual’s need
    to conceal a weapon in the exercise of the right to bear arms will an otherwise valid
    restriction on that right be unconstitutional, as applied. The right to keep and bear
    arms for security, as a general matter, must permit a person to possess, carry, and
    sometimes conceal arms to maintain the security of a private residence or privately
    operated business, and to safely move and store weapons within those premises. State
    v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785, 01−0056. See also State
    v. Cole, 2003 WI 112, 264 Wis. 2d 520, 665 N.W.2d 328, 01−0350.
    A challenge on constitutional grounds of a prosecution for carrying a concealed
    weapon requires affirmative answers to the following before the defendant may raise
    the constitutional defense: 1) under the circumstances, did the defendant’s interest in
    concealing the weapon to facilitate exercise of his or her right to keep and bear arms
    substantially outweigh the state’s interest in enforcing the concealed weapons statute?
    and 2) did the defendant conceal his or her weapon because concealment was the
    only reasonable means under the circumstances to exercise his or her right to bear
    arms? State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785, 01−0056.
    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, 04−2989.
    Judges are not peace officers authorized to carry concealed weapons. 69 Atty. Gen.
    66.

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    Comp-tech wrote:
    Just curious, you guys ever thought about legislation to establish an exemption for CHL holder like we have here?
    To summarize the law Doug just cited...

    Wis. is one of the 2 remaining states that issues zero CHLs. Don't issue 'em, don't recognize 'em if they're from somewhere else.
    - What da hay?

    Keep Calm and Carry On

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    Well, almost zero CHL's.

    And there already is an exemption for firearm carry contained in the school zone law but the question is whether it is ever granted or remains theoretical. I suspect it's only words and not a reality, but I intend to find out.

    (b) Paragraph (a) does not apply to the possession of a firearm:
    1. On private property not part of school grounds;
    2. If the individual possessing the firearm is licensed to do so
    by a political subdivision of the state or bureau of alcohol, tobacco
    and firearms in which political subdivision the school zone is
    located, and the law of the political subdivision requires that,
    before an individual may obtain such a license, the law enforcement
    authorities of the political subdivision must verify that the
    individual is qualified under law to receive the license;


    Interesting that this "school zone" law comes under "crimes against children" although it's not a crime to have a gun within 1000 feet of a child, but instead within a 1000 feet of a parcel of land.

    Truly one of the most stupid laws for many reasons.


    A. Gold

    Failure to comply may result in discipline up to and including termination.
    The free man is a warrior. - Nietzsche "Twilight of the Idols"

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    *tilts head*

    Wait a minute, license issued by the BATFE exempts you? Am I reading this right? Does this exempt C&R collectors?

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    Horrible sentence; "...by a political subdivision of the state or bureau of alcohol, tobacco and firearms in which political subdivision the school zone is located, and ..."

    This is not a reference to the Department of Justice agency. It is not capitalized as a title but is a descriptive phrase.

    948.605 Gun−free school zones.
    [ ... ]
    (2) POSSESSION OF FIREARM IN SCHOOL ZONE. (a) Any individual
    who knowingly possesses a firearm at a place that the individual
    knows, or has reasonable cause to believe, is a school zone is
    guilty of a Class I felony.
    (b) Paragraph (a) does not apply to the possession of a firearm:
    1. On private property not part of school grounds;
    2. If the individual possessing the firearm is licensed to do so
    by a political subdivision of the state or bureau of alcohol, tobacco
    and firearms in which political subdivision the school zone is
    located, and the law of the political subdivision requires that,
    before an individual may obtain such a license, the law enforcement
    authorities of the political subdivision must verify that the
    individual is qualified under law to receive the license;

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    Doug Huffman wrote:
    Horrible sentence; "...by a political subdivision of the state or bureau of alcohol, tobacco and firearms in which political subdivision the school zone is located, and ..."

    This is not a reference to the Department of Justice agency. It is not capitalized as a title but is a descriptive phrase.

    948.605 Gun−free school zones.
    [ ...]
    (2) POSSESSION OF FIREARM IN SCHOOL ZONE. (a) Any individual
    who knowingly possesses a firearm at a place that the individual
    knows, or has reasonable cause to believe, is a school zone is
    guilty of a Class I felony.
    (b) Paragraph (a) does not apply to the possession of a firearm:
    1. On private property not part of school grounds;
    2. If the individual possessing the firearm is licensed to do so
    by a political subdivision of the state or bureau of alcohol, tobacco
    and firearms in which political subdivision the school zone is
    located, and the law of the political subdivision requires that,
    before an individual may obtain such a license, the law enforcement
    authorities of the political subdivision must verify that the
    individual is qualified under law to receive the license;
    State statutes rarely, if ever, capitalize the names of state agencies. I don't know the reason for this, but here are some examples randomly pulled from the statutes:

    31.01 Definitions. Terms used in this chapter are defined as
    follows:
    (1) “Corporation” means a private corporation organized
    under the laws of this state.
    (2) “Department” means the department of natural resources.

    41.01 Definitions. In this chapter:
    (1) “Department” means the department of tourism.

    101.01 Definitions. In this chapter, the following words and
    phrases have the designated meanings unless a different meaning
    is expressly provided:
    (1m) “Department” means the department of commerce.

    102.01(2)(ap) “Department” means the department of workforce development

    14.01 Office of the governor; creation. There is created
    an office of the governor under the direction and supervision of the
    governor.
    A. Gold

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    The free man is a warrior. - Nietzsche "Twilight of the Idols"

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    State Researcher lockman's Avatar
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    Yes I await some reasoned thought on that one too!
    *tilts head* Wait a minute, license issued by the BATFE exempts you? Am I reading this right? Does this exempt C&R collectors?

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    Oh get serious.

    It doesn't say "any" license issued by the state or BATFE...it says a license *TO DO SO* (possess a firearm in a school zone). Otherwise...a driver's license would fit their description - after all, it's a license issued by the state and they have to verify that I'm legally able to obtain such a license....

    On the other hand, this brings up an outstanding Heller type argument - they say you can't do it without a license, and don't issue licenses. Bam.


    - What da hay?

    Keep Calm and Carry On

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    Teej wrote:
    Oh get serious.

    It doesn't say "any" license issued by the state or BATFE...it says a license *TO DO SO* (possess a firearm in a school zone). Otherwise...a driver's license would fit their description - after all, it's a license issued by the state and they have to verify that I'm legally able to obtain such a license....

    On the other hand, this brings up an outstanding Heller type argument - they say you can't do it without a license, and don't issue licenses. Bam.

    Actually it doesn't say a license by the state. Rather, it's a license from a "political subdivision of the state" which means city, village, town or county. (Maybe even school district.)

    But your second point, Teej, is what I've been saying all along-- if they do not actually issue such licenses, then there's no practical way to exercise the constitutional right, ergo, one may challenge the constitutionality of the law as applied.
    A. Gold

    Failure to comply may result in discipline up to and including termination.
    The free man is a warrior. - Nietzsche "Twilight of the Idols"

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    Teej wrote:
    Comp-tech wrote:
    Just curious, you guys ever thought about legislation to establish an exemption for CHL holder like we have here?
    To summarize the law Doug just cited...

    Wis. is one of the 2 remaining states that issues zero CHLs. Don't issue 'em, don't recognize 'em if they're from somewhere else.
    Thanks for the clarification....my brain was hurting trying to understand all of that (no offense Doug)...lol



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    There is no way to rationalize the school zone law. It was made by buffoons in a state of fear and panic instead of adults under calm and reason. It is so full of loop holes and vague language that it would probably never survive a court test. Unfortunately the penalty is so severe for those that cherish their gun rights that it is unlikely that it will be intentionaly tested. I feel our only hope is to find some legislative representative that is pro-gun and has the guts to ask the Attorney General for an opinion on which portions are constitutional and enforceable.

    Here is an example of how utterly stupid it is. If a LEO is off duty he can not enter a school zone with a loaded firearm in order to assist someone in grave danger. 948.605(2)(6). He also can not discharge his firearm in a school zone if he is off duty. 948.605(3)(b)(4). The key phrase is official capacity. However, a civilian firearms instructor that may be in the process of conducting a firearms training course can come to assistance. 948.605(2)(4). He can also fire the firearm 948.605(3)(b)(2).

    Of course it is unlikely that an off duty LEO would ever be charged with a crime for giving assistance by use of a firearm but by literal interpretation he could be charged with a felony.

    On the issue of sidewalks. I have also done a lot of reseach on the subject. I share shotguns opinion that sidewalks in front of private residences and business are private property that has been designated for public use. I also suspect the same for streets although I'm not comfortable with saying so just yet. I have noticed on my property abstract that it shows a 33 foot easment for a town road. 33 feet would be to the center of the road, the maintenance of which is contracted with the township and paid for through property taxes.

    Doug listed some annotations from supreme court opinions. I have no confidence in the state Supreme Court. It sits too close to the lap of Doyle. It can't seem to remember what decisions it makes from one case to another. Probably because it is more concerned with making the proper political decision than the proper legal opinion. An example is that the Court laid down three conditions that define concealement in both Kieth and Hamdan. One of those conditions is that the firearm must be within reach. Yet the Court found Fry guilty of carrying a concealed weapon because it was locked in a glove compartment. What can be more out of reach than in a locked glove compartment?

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    Stare decsis annotations that have been made black letter statute law by being written into the law, conflated as it were. Talk about legislation from the bench!

    My Eastern property line is indeed the center of the road and there is an easement to allow and contain the road. My neighbor to the South accesses his property via an easement on my Southern property line.

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    Roads can differ from street to street, for instance, I live on the corner of a county road and a city street, so I own to the center of the city street, but not to the center of the county road, as far as I can tell. There is language in the statutes (Trans - 304 maybe? I can't recall for certain) about which roads have which easements. For instance, I believe most State Highways are owned by the state, but there is an easement for public use for 30-something feet from the centerline. I think in some places, the sidewalks fall within the road's easement, and some places they are specifically covered by a seperate easement.

    It's been awhile since I looked any of this up, so I may be off-base.

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    I imagine it matters if the roadway or the street bounding a business or residence is an easement or not. An area of easement remains part of the property but the easement grants use of all or part of the property for a specific use. It generally becomes part of the deed and may be a permanent part or have a specific life. In any regard the easement is property of the owner.

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    Ok, it seems like to me that this is the biggest thing to keep down the law. Let's get a legal fund together, find one of our members here who's home is within the 1000 foot school zone law, and sue.

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