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Thread: Assistant Attorney General says "exposed weaponry is legal conduct"

  1. #1
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    Wisconsins Assistant Attorney General Dave Perlman has a Q&A section on Wilenet.
    He once again fielded a question about open carry. What irritates me about his answer is, first he posts that it's legal, but then goes on to say if it agitates someone it is not, and alludes that it may be disorderly conduct.

    That seems to be the text book answer regarding OC in Wisconsin nowadays. And it's really starting to piss me off! If something is legal, it is legal whether someone approves or not! Especially when we are talking about conduct which is not just legal via statute (or lack of statute prohibiting such) but also constitutionally protected!

    My question to Perlman will be, what if the subject leaves the store after being advised by the owner his gun isn't wanted? Is it still DC?

    Dear Dave,
    First off I am a fan of yours, you spoke at a training I was at and you do a great job with the material. My question is about disorderly conduct. It is my understanding that a subject merely using profanities directed at a Police Officer is not disorderly conduct if there are no citizens around to hear it. I had a call where a subject was wearing a handgun on his hip into a local business. The clerk asked him why he was wearing a gun. The subject responded that it is his right to carry, citing the right to bear arms and the fact that the weapon was not concealed. No one in the business had a problem with it as he is a long time, well known customer.
    My question is that if disorderly conduct doesn’t apply to profanities with regards to Police Officers, if I am on duty in that same business when the guy comes in and no one in the business (employees) cares about it, is my being disturbed about it enough to charge the guy with DC? I guess my question is due to the now past practice of the business to allow him in there with a firearm.
    Or I guess to shorten the question. Is it Disorderly conduct if only the Officer is disturbed by the presence of the firearm?
    I was once told that the only stupid question is the one that goes unasked. I asked my Lieutenant and he gave me a puzzled look and said that’s a good question.
    I also thought about state statute 167.31, Safe use and transportation of firearms and bows. I know, I know, consult my local district attorney for he or she is the legal authority in my county.


    Dear Disturbed,
    Thanks for the compliment. I appreciate it.
    Yes, it is a good question. Disorderly Conduct is always a finicky thing, even more so when it seeks to be applied to exposed weaponry, which is by itself legal conduct. From what you describe, just an officer being disturbed is probably not enough since the police have a whole different perspective on the issue. So, absent more of a commotion, I would say a DC charge would not fit. Now if he was a new customer and the clerk seemed agitated, then if he didn’t put it away when asked, you would have a different situation. Thanks for the question.

    https://wilenet.org/secure/html/squa...dave/index.htm


  2. #2
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    It's nice you know that you can ask the AAG about these kind of things. But what a crock putting the spin on it in the end. He just couldn't leave it as, yes, open carry is legal.



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    pkbites:

    Your access to Wilenet and your willingness to use it for the open carry cause is commendable and I for one thank you. I wonder if aag Perlman's answer would have been different if he was aware of the following excerpts from the State v Douglas D. case? The case specifically adresses a first amendment issue but the paragraph's I quote is State Supreme Court interpretation of ss947.01 and therefore apply to any case where the meaning of 947.01 is an issue.

    Case No. 99-1767
    May 16, 2001
    State of Wisconsin v Douglas D.

    Para 15:
    Section 947.01 provides "Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a class B misdemeanor." To prosecute a defendant for a violation of this statute the State has the burden to prove two elements. First, it must prove that the defendant engaged in violent, abusive, unreasonably 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. Under both elements "It is the combination of conduct and circumstances that is crucial in applying the statute to a particular situation."

    Para 27:
    Section 947.01 does not imply that all conduct that tends to annoy another is disorderly conduct. Only such conduct as unreasonably offends the decency or propriety of the community is included. The statute does not punish a person for conduct which might offend some hypercritical individual. - - -

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    trailblazer2003 wrote:
    It's nice you know that you can ask the AAG about these kind of things. But what a crock putting the spin on it in the end. He just couldn't leave it as, yes, open carry is legal.
    And he left off the part about constitutionally protected conduct being rarely deemed disorderly, e.g., abortion protesters on sidewalk showing pictures of aborted fetuses - disturbing, yes, disorderly? no.

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    Lammie wrote:
    pkbites:

    Your access to Wilenet and your willingness to use it for the open carry cause is commendable and I for one thank you. I wonder if aag Perlman's answer would have been different if he was aware of the following excerpts from the State v Douglas D. case? The case specifically adresses a first amendment issue but the paragraph's I quote is State Supreme Court interpretation of ss947.01 and therefore apply to any case where the meaning of 947.01 is an issue.

    Case No. 99-1767
    May 16, 2001
    State of Wisconsin v Douglas D.

    Para 15:
    Section 947.01 provides "Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a class B misdemeanor." To prosecute a defendant for a violation of this statute the State has the burden to prove two elements. First, it must prove that the defendant engaged in violent, abusive, unreasonably 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. Under both elements "It is the combination of conduct and circumstances that is crucial in applying the statute to a particular situation."

    Para 27:
    Section 947.01 does not imply that all conduct that tends to annoy another is disorderly conduct. Only such conduct as unreasonably offends the decency or propriety of the community is included. The statute does not punish a person for conduct which might offend some hypercritical individual. - - -
    Just perusing after returning from some time off, the above is the meat & potatoes of what the AG needs to put out in a bulletin to LE across the state.While they can rest in their ostrich holes (as head lawyer) and cite the reason they can't appear to give prior guidance to a local DA on a prosecute/not prosecute decision, their role as "head cop" should not (imo) prevent them from reinforcing what Lammie cited above. Were the above reinforced & applied, where the officer's shoes meets the road, there would be fewer decisions for local DA's to make.

    I believe most police officers - certainly those I'm close to personally and those I've dealt with while carrying - understand the distinctions above which Lammie cites. There are exceptions to every cross-section of humanity, and we encounter them every day.

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    What else would he say? That is is illegal conduct?



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