imported post
I have been arguing the conflict of statutes 197.31 and 941.23 with the DNR since March 2006. First of all let me state that it is my opinion that the Court of Appeals judgement in State v Alloy is flawed. I say that because it can only apply to vehicles that are physically constructed so that it is possible to carry the encased firearm out of reach. Second it does not define what "out of reach means" and of whom. i.e. driver, all passengers, firearm owner). My opinion is the ruling is too vague to be universally applied and can only be used as applied. I wish the case would have been appealed to the State Supreme Court for clarification.
As I said earlier I have been "doing battle" with the apparent conflict between the two statutes for nearly three years. The person in the DNR I have been communicating with is Michael Lutz. Mr. Lutz is the top lawer in the DNR. Below I am including an email communication from Mr. Lutz that I received in September 2006. Keep in mind that I am not a lawyer and nothing in this post shall be considered legal advice. Also note that Mr. Lutz can only speak for the DNR. How local law enforcement would react is unknown. Interpret and use the information at your own risk.
The mail is to me from: Lutz-Michael-DNR dated 9/17/2006 10:01AM
Copied where: Timothy Lawhern, Amy Watson, Amber Smith
Dear Mr. XXXXXXXX
In response to your message of September 7, 2006, I would like to reiterate for you the Wisconsin Department of Natural Resource's position in response to your concern that compliance with Wis. Stat. § 167.31(2)(b) could create a conflict with Wis. Stat. § 941.23.
The previous memorandum and email that I provided to you on April 18, 2006 did not imply that you must ensure that your gun case is out of reach in order to comply with the concealed carry law. Instead, the email indicated that if you wanted to be absolutely certain you are not in violation of Wis. Stat. § 941.23, you could ensure your encased gun was out of your reach. The memorandum provided that recommendation by relying on the unpublished opinion of State v. Alloy, which stated that an "encased weapon can be lawfully transported out of reach." 2000 WI app 116, P3 (Wis. Ct. App. 2000), pet. denied, 2000 WI 88 (Wis. 2000). However, the court's decision in that particular case, which involved a Jeep, should not be construed as requiring all individuals in all types of vehicles to keep their encased weapons out of reach. Instead, the case merely provides additional assurance for individuals in a truck or car who are concerned about complying with both Wis. Stat. § 167.31(2)(b) and Wis. Stat. § 941.23.
As discussed in the memorandum, the requirements of Wis. Stat. § 167.31(2)(b) have been interpreted by a Wisconsin court as an exception to Wis. Stat. § 941.23. State v. Walls, 190 Wis. 2d 65 (Wis. Ct. App. 1994). In that case, the court held that a defendant who left a handgun on the passenger seat of the car he had been riding in had a concealed weapon as defined by Wis. Stat. § 941.23. Id. at 72-73. However, the court was careful to point out that "our conclusion in this case in no way limits the lawful placement, possession, or transportation of unloaded. . .and encased firearms, bows, or crossbows in vehicles as permitted by Wis. Stat. § 167.31(2)(b)." Id. at 69. Therefore, the court did not consider a lawfully encased weapon to be a concealed weapon.
Furthermore, my email stated that in the Department's view, "a gun case that is clearly a gun case and which in effect 'advertises' the contents of what is inside does not result in a violation of the concealed carry law."
Therefore, as both my April 18, 2006 email and attached memorandum indicated, if you unload and encase your weapon and then transport it in a vehicle in accordance with Wis. Stat. § 167.31(2)(b), with the cased gun clearly visible, the Department does not view you as violating Wis. Stat. § 941.23. However, the email and memorandum recommended that if you were still concerned about compliance with both statutes, you could make absolutely certain you do not violate either law by ensuring your encased weapon is out of reach while transporting it in a vehicle. This advice was offered with the notion that you would be using a car or truck to transport the encased weapon, and was not meant to impose an impossibility. Of course other types of vehicles make it difficult, or even impossible, to ensure an encased weapon is out of reach. Consequently, if you are transporting an encased weapon in a vehicle such as a motorcycle, snowmobile, or trail bike, as long as the weapon case makes it evident a weapon is contained inside and the case is clearly visible, the DNR does not view transportation of the encased weapon to be a violation of the concealed carry law.
-----Original Message-----
From: DaleXXXXXXXXXXXXXX
Sent: Thursday, September 07, 2006 11:00 PM
To: Lutz, Michael - DNR
Cc: Hassett, P Scott - DNR; Rep Gunderson; Meyer, George
Subject: Statures 167.31(2)(b) and 941.23
Mr. Lutz:
March 30 of this year I sent an email to DNR secretary Hassett concerning a question I have about what I perceive to be a conflict between Wisconsin statutes 941.23 and 167.31(2)(b). In recap the statutes read as follows.:
941.23 Any person except a peace officer who goes armed with a concealed and dangerous weapon is guilty of a class A misdemeanor.
167.31(2)(b) No person may place, posses, or transport a firearm, bow, or crossbow in or on a vehicle unless the firearm is unloaded and encased in a carrying case. Companion statute 167.31(1)(b) requires that no part of the firearm be exposed.
As stated in my March email my question was precipitated by my review of Wisconsin supreme court judgments in State vs Walls, State vs Fry, State vs Kieth, State vs Hamdan. and since then State vs Fisher. The significance of these cases is that in Walls, Fry, Keith and Fisher the state supreme court found that a firearm need not be hidden on a person's body to be declared concealed and in Keith and Hamdan the Court described the conditions needed for the State to charge a violation of the concealed weapon prohibition statute 941.23.
1. The person must know the weapon is present.
2, The weapon must be hidden from view.
3. The weapon must be within reach.
Statute 167.31(2)(b) can cause all of these elements to be present.
Secretary Hassett assigned my question to you for resolution. You in turn assigned it to an intern in your department a Mr Martinez. Mr Martinez did a very thorough job of research and prepared a report on the subject. He referenced some historical state supreme court cases concerning the issue. He quoted court statement that said to avoid a conflict of the statutes a person need only transport the weapon "out of reach". Mr Martinez concluded that was his opinion as well. In your response to me you stated you did not see a conflict between the statutes and you agree with Mr. Martinez that if a person wants to be sure to not violate the concealed weapon statute the person need only transport the weapon in a motor vehicle "out of reach". and remove one of the conditions of concealment.
I have been pondering your response the last few months and find that I am confused by it. I was of the opinion that it was lawful to transport a concealed weapon in any motorized vehicle including a small motorized duck boat, a snowmobile, a motorcycle, an all terrain vehicle, a utility vehicle or other vehicles of the like. I see no practical way a firearm can be transported on any of them so that it is out of reach. Or is it in fact unlawful to transport a weapon on any of those type vehicles because it is impractical, if not impossible, to avoid meeting all the conditions of being charged with "going armed with a concealed and dangerous weapon" as per statute 941.23?
If I transport a firearm in accordance to 167.31(2)(b) on a trail bike to my hunting stand can you assure me that I won't be in danger of being cited by a local law enforcement officer for carrying a concealed weapon in violation of 941.23?
Hunting season is fast approaching. I anxiously wait for you response.
Respectfully,
