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Thread: Columnist Says Wisconsin Open Carriers Are Now Fighting Back Against Police Abuse

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    http://www.lakelandtimes.com/main.as...mp;TM=37236.69


    1/9/2009 9:19:00 AM
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    DNR to hunters: Hand over your guns on demand
    Ex-hunter ed instructor says directive unconstitutional





    Richard Moore
    Investigative Reporter

    First of a two-part series



    The Wisconsin Department of Natural Resources has a simple, blunt message for hunters in Wisconsin: When a DNR warden asks you to give up your legal firearm, do so, plain and simple, no matter what.

    What's more, that goes for all citizens, the agency has asserted. Citizens with firearms, the DNR argues, should always do exactly what law enforcement officers tell them to do, regardless of the circumstances of the situation.

    To which one former hunter education instructor for the department has an equally simple and blunt response: The agency's directive is unconstitutional, plain and simple, and citizens don't have to hand over their firearms without any probable cause.

    That viewpoint is the reason Mark Palan, the owner of Palan's Outpost Sporting Goods in Iowa County, has the word 'former' attached to his title. After 14 years as a volunteer instructor, the DNR cast him out last year for, in the agency's words, misrepresenting agency standards to hunter education students.

    The issue promises to affect many more people than hunters in the coming year. In fact, the DNR's foray into gun rights issues on the Palan matter represents just one cloud in a growing storm over what authority law enforcement officers actually have to seize openly carried but legal firearms, whether it's from a hunter in the field or a citizen on the street.

    Wisconsin is ostensibly an open-carry state; the media debate thus far has focused on whether to extend so-called carrying rights to concealed weapons.

    But the latter could soon be yesterday's news; the DNR's excommunication of Palan, and its subsequent articulation of a broad grant of power for law enforcement to confiscate legal firearms, has suddenly called the legitimacy and reality of open carry itself into question.

    Just as important, along with an ongoing non-DNR case in West Allis, the agency's expression of support for the ability of police to take away legal firearms upon simple command has in effect opened the door for a de facto state policy for all law enforcement.

    The question is, is it constitutional, or, as Palan contends, does the DNR's position characterize an unconstitutional breach of a citizen's Fourth Amendment right against unreasonable search and seizure?

    Simply asked, can law enforcement take a person's legally carried firearm without any probable cause that a crime is being committed? Must a hunter in the field surrender his firearm just because a conservation warden tells him to?



    Palan's encounter

    To Palan, the answer is no.

    "For 14 years, I've been teaching my students the same thing, over and over and over," Palan told The Lakeland Times.

    The first thing he teaches is, he said, when a person is on private property and a warden stops and asks to see a license, the first thing to do is ask the warden for his credentials. The second thing, Palan said, is to boot the warden off the property because he's trespassing.

    "And when they start throwing their weight around, you just reach in your pocket and dial 911 and have the police come out and have them removed," he said.

    Being approached by a warden on public land is different, Palan said.

    "If you are on public ground and a warden stops you and wants to see your license, you should ask him for his credentials, then you show him your license," he said. "And when he says, give me your gun, you show him your gun. You set it down on the ground or you can hand it to him. But your right is that you do not have to give him your gun. And if you set it down on the ground and he picks it up, now he's taken your gun without your permission. I've been teaching that for 14 years."

    But, Palan said, his instruction collided with DNR attitudes last March when a local conservation warden lectured at one of his classes and discovered what Palan was teaching.

    A confrontation ensued, Palan recalls, both in the class that night and a few days later in his store, and Palan says the DNR gave him a choice - either admit to the class that what he had been teaching was wrong, or get kicked out.

    Palan got kicked out.



    For the record

    DNR documents corroborate Palan's version of events.

    In an April 28, 2008, letter, DNR hunter education administrator Timothy Lawhern told Palan he was being ousted as a DNR instructor for a variety of reasons, including Palan's alleged refusal to abide by a program instructor code of conduct, his refusal to accept constructive criticism from local conservation warden Joe Frost, and his refusal to teach the program as the DNR wanted.

    The removal applied to all recreational safety programs, Lawhern stated, boater education as well as snowmobile education, ATV education as well as hunter education and bow hunter education.

    "You have trained many hunter education graduates contrary to our program standards of how to handle a firearm when approached by a law enforcement officer," Lawhern wrote. "This training has now placed those students in a potentially dangerous attitude which could have catastrophic results for themselves and members of the law enforcement community."

    Palan certainly had the right to disagree with the DNR's approach, Law- hern added, but that did not give him any authority to teach one of their programs contrary to the agency's guidelines.

    "You may disagree with our required training as you have every right to do so," Lawhern wrote. "However, you have no authority to teach our program contrary to our guidelines."

    Lawhern followed his April 28 letter to Palan with a May 19, 2008, missive to Palan's former students. That letter instructed them to always follow the commands of a law enforcement officer, no matter the circumstance and even if it meant giving the officer the firearm.

    "It has come to our attention that a portion of the training you received while taking the Department of Natural Resources Hunter Education Course in Iowa County was not in compliance with our program policies," Lawhern began. ". . . . The portion of the training I need to clarify for you is what is expected of citizens when they are contacted by a law enforcement officer."

    Lawhern didn't name Palan but said the "instructor" had misrepresented the DNR's program training standards regarding such contacts.

    "What you should have been taught was to maintain good muzzle control and then follow the instructions of the law enforcement officer," Lawhern wrote. "This will vary depending on what type of contact it is, where it is taking place, the circumstances behind the contact, the officer's intuition or concern about safety and your demeanor during the contact."

    What the DNR teaches in its hunter education program must carry over to everyday real-life situations, Lawhern continued.

    "That is why it is important to understand that law enforcement communities, regardless of their branch of service (i.e. state trooper, county deputy, municipal police, conservation warden, etc.), have expectations that their instructions will be followed," he wrote. "This is for your safety, the safety of the officer as well as any other citizens that might be nearby."

    For the most part, Lawhern wrote, wardens were simply checking for legal firearms for the game being pursued, magazine capacity (waterfowl hunting), and legal ammunition types - all the while maintaining a safe environment.

    Examples of instructions a person might receive during a hunting situation might include the following, Lawhern stated: "Please open the action of your firearm"; "Would you mind safely unloading your firearm"; "You may place your firearm safely against that tree until we are finished"; "I'll hold your firearm while you check for your license"; "Allow me to check your magazine for a plug while you find your license."

    Listening to law enforcement, no matter what, was the proper course of action, he wrote.

    "Your cooperation with law enforcement is vital no matter what the situation is," Lawhern concluded. "To act any other way could result in a tragedy easily avoided by simply following their instructions."

    The letter stunned Palan.

    "They took the time and the taxpayer dollars to send a letter to every student that I've taught in 14 years, telling them that they were misrepresented by an Iowa county instructor," he said.

    But the former instructor said he was more interested in what the letter did not say.

    "Now what is expected of citizens?" he asked. "It doesn't say here that the law says that you will hand over your firearm."



    To the next level

    Even after removing Palan as an instructor, Lawhern wasn't content to leave the issue alone. He also addressed it in the April 2008 issue of the Wisconsin Hunter Education newsletter, which is distributed to hunter education instructors.

    In the article, entitled "When a Warden Approaches, What Do I Do with my Gun," he expanded the scope of authority to include all law enforcement and all citizens. In so doing, he put the DNR on a collision course with the state's open-carry law.

    "About 8 years ago the International Hunter Education Association raised the question about what is being taught in hunter education courses relative to how hunters should handle their firearms during license checks in the field," Lawhern wrote. "The aftermath of the debate was that a survey should be done within the law enforcement community to determine what they expected as appropriate behavior. The debate caused us to ask all manner of law enforcement since what we teach we wanted to meet every cop, state trooper, county deputy or municipal officer's expectations."

    Law enforcement wanted just two things, he said of the survey's results. One was to maintain good muzzle control. The other was to "do exactly what the officer tells you to do."

    "This may seem a bit odd as it's a standard that could be different from one officer to the next or different when situations are different," Lawhern wrote. "The officers instructions can and will vary depending on the situation."

    Lawhern them moved on to address the likely response of law enforcement in general when officers see someone openly carrying a firearm, which, again, is not illegal per se in Wisconsin.

    "Note that the officer on the street doesn't expect to see firearms openly exposed," he wrote. "In most cases when they do see a firearm, they draw theirs and tell the person 'Let me see your hands! Don't move!' In some cases they yell, 'Put the gun down,' or "Drop the gun!'"

    Similarly, he stated, there would be times when a warden would ask a hunter to put down a gun or unload it or hand it to the warden.

    "The point is, we must be teaching our students to follow the officer's instructions," he concluded.

    To Lawhern, then, the mere presence of a firearm was reason enough for the police to give commands that must be obeyed, in addition to launching preliminary use-of-deadly force tactics such as drawing weapons.

    Mystified at that reasoning, Palan sought out a legislative viewpoint, asking his state senator, Dale Schultz (R-Richland Center), whether a DNR warden in fact possessed any authority to take custody of a legal firearm, absent any probable cause.

    Schultz retrieved an opinion from a senior staff attorney for the Wisconsin Legislative Council. The answer was vague, at best. Still, the attorney, Mark Patronsky, could find no blanket authority, except that arising from certain specifically defined statutory reasons.

    "Within the scope of the constitutional prohibition of unreasonable searches and seizures, the courts have carved out authorization for law enforcement officers (such as conservation wardens) to take control of a firearm to protect the safety of the law enforcement officer," Patronsky wrote. "The officer, after further investigation and determination of a probable cause, may proceed to arrest the individual and seize the firearm."

    Other situations in which a firearm might be seized included violations of various ammunitions and transporting regulations or the creation of a public nuisance.

    The bottom line was, though, police needed some reason for the seizure.

    "The statutes and administrative rules described in this memorandum, as well as a variety of other statutes and rules, do allow a warden to take a person's firearm for various reasons," he wrote.

    Palan says that means a warden simply can't take a firearm without some probable cause.

    "Nowhere in the hunters' education manual, nowhere in the instructors manual, nowhere in any state statutes that I can find, does it say you must hand over your firearm," he said. "Nowhere."



    Real-life impact

    One practical effect of Lawhern's expansive grant of confiscatory powers to police, not to mention their supposed prerogative to draw their weapons on gun-carrying citizens, would be a practical evisceration of Wisconsin's open carry status.

    That status is already murky.

    On the one hand, despite Lawhern's drawn-gun scenario, the heads of multiple Wisconsin law enforcement agencies told The Lakeland Times their officers would not act in the manner Lawhern described upon merely seeing someone with a gun. They acknowledged the legality of open carry.

    In addition, the Use of Deadly Force policy of the Oneida County Sheriff's Department would seem to prohibit such conduct, without some other probable cause or suspicion.

    "In any use of force decision, the officer must be certain that he or she has the right to make contact," the policy states. "The intervention must have legal beginning based upon articulable facts or circumstances. Officer presence can be based upon invitation, reasonable suspicion, community caretaker function, probable cause, exigent circumstances or other 'legal beginnings.'"

    According to the policy, officer presence - which presumably could include a drawn gun - is the lowest level of use of force, but, the policy emphasizes, "an excessive or negative presence must be avoided or, if used, must be justified."

    How could Lawhern's scenario be reconciled with such a policy? That could only logically occur if open-carry was by itself illegal, by definition constituting reasonable suspicion, probable cause, exigent circumstance or some other "legal beginning" that justified police contact and presence.

    Then, too, both the state, under then attorney general Jim Doyle, and the Supreme Court recognized open-carry rights in State of Wisconsin v Hamdan, in which the High Court carved out a concealed weapon exemption for small storeowners.

    The Department of Justice argued against the exemption, citing the ability of citizens to already possess and carry an open weapon: "The State argues that even under the strictest enforcement of the [concealed carry] statute, a person lawfully in possession of a firearm will always retain the ability to keep the firearm in the open - holding the weapon in the open, keeping the weapon in a visible holster, displaying the weapon on the wall, or otherwise placing the weapon in plain view," the court stated in summing up the DOJ's brief.

    In her dissent of the final decision, chief justice Shirley Abrahamson went even further.

    "That is, [the law] does not prevent anyone from carrying a firearm for security, defense, hunting, recreation, or other lawful purposes," Abrahamson wrote. "Rather, it limits the manner of carrying weapons, by requiring that a weapon that is on a person or within a person's reach not be concealed. The gist of the offense is the concealment."



    Then again

    On the other hand, police have increasingly begun to cite those openly carrying firearms for disorderly conduct, which a September 2000 memorandum by the Legislative Reference Bureau warned could happen.

    "Wisconsin law does not specifically prohibit the open carrying of loaded or unloaded firearms in public, but a person doing so may risk being arrested, and charged with disorderly conduct, on the grounds that the display threatens the public peace or safety," the brief stated.

    If that's the case, then police departments and the DNR could effectively make open carry illegal by defining it as disorderly conduct from the get-go, making an end run around both the Supreme Court and the Legislature. Using the same logic, any law enforcement commands not obeyed could result in a disorderly conduct citation.

    Until recently, those charged with disorderly conduct for carrying open firearms have not fought the issue. That changed last year.

    In West Allis, in August, in a scenario eerily similar to the one Lawhern outlined, West Allis police drew their weapons and arrested Bruce Krause, who was wearing a holstered legal pistol while planting trees on his own property.

    In a case that could finally clarify both police authority to seize firearms and the state's open carry law, Krause is fighting back, and a landmark U.S. Court of Appeals decision last month could be decisive in the outcome.

    Those cases will be discussed in the next article.

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    Thanks Mike for this great article! I've invited Mr. Moore to join us.

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    That letter instructed them to always follow the commands of a law enforcement officer, no matter the circumstance and even if it meant giving the officer the firearm.

    Always follow the commands of law enforcement... ah.. no...

    KNOW YOUR RIGHTS MY FRIENDS! (that comment is directed at the public of course, not this forum as we certainly know our rights better than the average sheep) The police don't know them, and they have no obligation to inform you of them (except miranda)





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    You beat me to this. Read this in our local paper today and thought it would be a great post for this forum. Got my blood stirred up for a while then I considered the source - Richard Moore.

    He has shown a vendetta against the DNR or anybody who crosses his path and disagrees with his point of view in his newspaper articles. Please keep in mind as you read it, even tho he calls himself an investigative reporter, his articles push his agenda and are extremely biased. He prints a version of the truth, the version he wants people to believe. If they were in the editorial section I would not have a problem with his attitude. But he did it to me in one instance when he was after a DNR employee and quoted me in his article although I had never spoken to him about it nor was interviewed in any regard by anyone at his paper. He spoke to someone who spoke to someone who spoke to me WHO GOT IT WRONG. However, I somewhat appreciate this particular article.

    I've no doubt there is or will be a problem arising with SOME DNR employees just as SOME cops misinterpret the law.Or, one could say with some reporters who don't always get their facts lines up correctly..... Livingup here and being out in the woods as a hunter, hiker, dirt biker, etc., I am aquainted with some of the DNRemployees or have had experiences with them during hunting seasons. Case in point - a couple years ago I took my 20 gauge and yellow lab over to the Raven Trail for a hike and hoping to find a grouse or two.My gun case was open and empty in the hatchback of my car. The sun was going down when Iheadedback to the car so I unloaded the gun and pocketed the shells since shooting time was over. When I arrived at the parking lot I saw a big dark truck with someone sitting in it. I got suspicious but was far enough away that I could get in my car quickly. He got out and I recognised the DNR warden uniform so I relaxed a bit, and also approached him with my gun unloaded and pointing in a safe direction andI commented to that effect that it was unloaded and safe coz that's the way I am with anyone. He had gotten a call that someone was out with a gun, guess that was me! Some idiot hiker (probably from Illinois <g> went to the effort to look in my car before hitting the trail. I told the warden that this was a legal place to hunt, I had checked the regulations and knew I couldn't hunt down the road at the Clear Lake State park - this was a state forest trail. He was honest with me and admitted he didn't know if I was legal ornot, I assured him I was. We had a nice conversation and he said he'd check on it when he got back to work and would give me a call as to the outcome. I smiled and said 'you'll be calling me and telling me I was legal all the time'. I really didn't expect to hear back from him admitting I was right, but he did call and tell me.

    Everyone I've come across has been great to work with, they do their job professionallyand don't walk around with a stick uptheir butt. I've had even better reception on open carry by Vilas County cops. Not that I've done it much yet, but some of them know I will open carry just because I can. When a convicted felon came after me with a sharp weapon this summer (I was in my vehicle getting the H*** out of there very fast,one of the detectives who initally interviewed me was at the gun range a week later, when we ran across each other. He was very supportive of me being able to protect myself with whatever means necessary. (And complimented me on my shooting!) I told him I now open carry on and off my property and he didn't have a problem with it. I've talked to a few of the cops and they would much prefer running into someonelegally open carrying and minding their business thanwalking into a house where domesticviolence threats are being made.

    My point is, there will always be people in authority who's goal is to usurp our rights because they want to hold power over us. Just as there are folks who open carry who will be argumentative and confrontational whenpolice are calledand give us a bad name. Whatever side of the fence you're on,this is not all of us nor is it all of them.

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    Hey, "He has shown a vendetta against the DNR..." so he can't be all bad!

    I thought Palan's comments about trespass under color of law were interesting,
    The first thing he teaches is, he said, when a person is on private property and a warden stops and asks to see a license, the first thing to do is ask the warden for his credentials. The second thing, Palan said, is to boot the warden off the property because he's trespassing.

    "And when they start throwing their weight around, you just reach in your pocket and dial 911 and have the police come out and have them removed," he said.
    Either we are equal or we are not. Good people ought to be armed where they will, with wits and guns and the truth. NRA *******


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    a landmark U.S. Court of Appeals decision last month could be decisive in the outcome.


    Guess I missed this one, could some one enlighten me?

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    Yeah, I've been puttering with that comment too. http://www.ca7.uscourts.gov isn't very forthcoming and their attempt at communicating with their subjects, their Wiki, is empty.

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    bnhcomputing wrote:
    a landmark U.S. Court of Appeals decision last month could be decisive in the outcome.


    Guess I missed this one, could some one enlighten me?
    I think he means Vegas.

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    Parabellum wrote:
    bnhcomputing wrote:
    a landmark U.S. Court of Appeals decision last month could be decisive in the outcome.


    Guess I missed this one, could some one enlighten me?
    I think he means Vegas.
    What court decision?

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    Parabellum wrote:
    bnhcomputing wrote:
    a landmark U.S. Court of Appeals decision last month could be decisive in the outcome.
    Guess I missed this one, could some one enlighten me?
    I think he means Vegas.
    "U.S. Court of Appeals decision last month..." Last month?

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    Doug Huffman wrote:
    Parabellum wrote:
    bnhcomputing wrote:
    a landmark U.S. Court of Appeals decision last month could be decisive in the outcome.
    Guess I missed this one, could some one enlighten me?
    I think he means Vegas.
    "U.S. Court of Appeals decision last month..." Last month?

    Vegas got his gun back last month and the court of appeals had jurisdiction.

    Edit: I missed the US Court of appeals part. I dont know what he is talking aout now.:?

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    Cobbersmom wrote: "My point is, there will always be people in authority who's goal is to usurp our rights because they want to hold power over us."

    Of course there are. That is the focus of this forum, especially the Wisconsin section. It is all about the so called authorities abusing the powers of their offices in order to supress our rights in any area that doesn't fit with their professional or political ideologies. That is what makes it WRONG. That is why any way or method we can use, or find, to bring these abuses to public attention are valuable. I don't know the particulars involved in Cobbersmom association with Moore. I don't question Cobbersmom's truthfulness but we only have Cobbersmom's side of the story. I do know that everything Moore said in his article is right on target. Everything he discusses has been discussed and bantered on this forum ad infinitum. He mirrors what I gather are our opinions. I also know this is the first time we have had such thourough and informative media exposure to our cause. We can only hope that he continues to cover the cases of Palan and Krause. In my opinion he deserves our support.

    I'm sure we all tolerate that there may be an occassional LEO that makes a wrong personal interpretation of statute or departmental rules. However, when specific instruction comes from the high authority to all LEO's that they should ignore statutes and constitutional rights in deference to department agenda, as apparently happened in Palan's case, then that action can not be tolerated. That is exactly what Lawhern did. What is absolutely intolerable is he apparently used the power of his office to take disciplinary action against a private citizen for daring to question his abuse of power.

    I have but one reponse to Cobbermom's quote that suggests that this type of abuse of power is common and that we must be complacent and accept it. Bull@#$%.



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    Lammie wrote:
    I have but one reponse to Cobbermom's quote that suggests that this type of abuse of power is common and that we must be complacent and accept it. Bull@#$%.

    Wow, I said that? Maybe you ought to be a reporter also. Seeing as I never said such a thing you'd be perfect at the job.<sarcasm intended!>.

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    Moore can be a bit over the top at times in some peoples minds, but most of those people are in a position of authority and they just do not like when he calls bullschitt on them.

    it was Moores articles that opened the northwoods minds as to Ex-warden T. Kroeplins abusive and lawful behavior towards the general public. I for one am glad he is finally gone. He was an idiot with a badge, and made up his own laws as he went along. He has shown the DNR in a very unfavorable light for many years. I will not go into specifics, but a brief google search should bring up enough information to back-upmy statements

    So Cobbersmom, What is the general attitude of the MQA police departments view of the right to open-carry in town? In another thread I have invited others to join mefor a day of window shopping downtown while OC'ing. I expect problems from a select few officers on the force, especially the younger one with blond hair that has the same last name as abrand ofpersonal latex protection worn on a mans private parts during intimate behavior if being safe and protecting himself.





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    Parabellum wrote:
    Vegas got his gun back last month and the court of appeals had jurisdiction.
    Please explain in detail. What proceeding? Was their an opinion? etc.

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    Nutczak wrote:
    So Cobbersmom, What is the general attitude of the MQA police departments view of the right to open-carry in town? In another thread I have invited others to join mefor a day of window shopping downtown while OC'ing. I expect problems from a select few officers on the force, especially the younger one with blond hair that has the same last name as abrand ofpersonal latex protection worn on a mans private parts during intimate behavior if being safe and protecting himself.



    Actually, not a clue about Minocqua but I have a friend who works in the department. From that persons statements, I'd guess it could be West Allis all over again. I'd like to OC thru Minocqua on a summer day when all the fibs were out and about but can't afford ($$$) the problems ifsome of those select fewdecide to not play nice. From what I hear, even the new chief is having problems with respectfrom some of them. I OC when walking the dog down the road or while on hiking trails. No ones noticed, or if they have, no one cares.

    Hehehe, I know who you are talking about. He likes to hang around Radio Shack. Do you have a scanner? At times it can be eye opening when it comes to Minocqua.

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    The opinion of an individual police officer, or even an entire department doesn't really matter. OC is legal. As far as I can determine the nearest school to "downtown" Minocqua is over a mile away, so there is no "school zone" to worry about. OC and have fun!
    A. Gold

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

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    Mike wrote:
    Parabellum wrote:
    Vegas got his gun back last month and the court of appeals had jurisdiction.
    Please explain in detail. What proceeding? Was their an opinion? etc.
    I don't posses too much detail. Vegas was arrested twice and charged once for similaroffenses. Pizza delivery driver, concealed carried to defend himself, did so twice. Both times his firearm was taken from him. The second time they charged him but when the judge ruled in Vegas favor they were forced to return his property. They denied returning the first gun because "it was used in the commission of a crime". Vegas appealed, and won and December 16th, 2008. The jist of it is he was not charged with a crime but could still get his property back. In other words, the DA or other prosecuting authority cannot simply not charge you,claim you committed a crime,and keep your property. Which happens to be the tactic they are using on me. I wonder if people see the similarities now?

    WCCA(Wisconsin Circuit Court Access) has the basic run down of the case, here.

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    Parabellum wrote:
    Mike wrote:
    Parabellum wrote:
    Vegas got his gun back last month and the court of appeals had jurisdiction.
    Please explain in detail. What proceeding? Was their an opinion? etc.
    I don't posses too much detail. Vegas was arrested twice and charged once for similaroffenses. Pizza delivery driver, concealed carried to defend himself, did so twice. Both times his firearm was taken from him. The second time they charged him but when the judge ruled in Vegas favor they were forced to return his property. They denied returning the first gun because "it was used in the commission of a crime". Vegas appealed, and won and December 16th, 2008. The jist of it is he was not charged with a crime but could still get his property back. In other words, the DA or other prosecuting authority cannot simply not charge you,claim you committed a crime,and keep your property. Which happens to be the tactic they are using on me. I wonder if people see the similarities now?

    WCCA(Wisconsin Circuit Court Access) has the basic run down of the case, here.
    Well the granting of thepetition to return the gun is not a reported case I can find in WestLaw.

  20. #20
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    Driver's gun charge tossed Judge finds prosecution of delivery man unconstitutional By Derrick Nunnally of the Journal Sentinel
    Posted: Sep. 25, 2007
    A Milwaukee County judge found the concealed-weapon prosecution of a pizza driver who shot two would-be robbers in seven months unconstitutional Monday.
    The ruling by Circuit Judge Daniel A. Noonan means Andres Vegas won't face criminal charges in the non-fatal shootings. Prosecutors had filed a misdemeanor count of carrying a concealed weapon after the second shooting, in January, and said Vegas had been warned after a July 2006 shooting not to carry a concealed gun while driving for his job.
    However, Noonan agreed with defense attorneys' contention that Vegas needed the gun to protect himself in his chosen work, citing state Supreme Court decisions that found justified exceptions to the state's concealed-carry ban.
    "Given Vegas's experience, he has a need for a gun at a moment's notice," Noonan writes in his decision. "Enclosing and unloading the weapon is not a reasonable alternative to secure and protect his safety. Plus, Vegas while delivering pizzas enters and exits his car constantly; it would be unreasonable for him every time that he enters his car to require him to unload it and place it in a case and then reverse the process every time he exits. This defeats the purpose of having the gun for security and protection."
    Craig Mastantuono, one of two attorneys who represented Vegas, said the weapons ban had presented Vegas, 46, with two untenable choices: either carry a gun illegally or else go unarmed on delivery runs in the same central-city neighborhoods where he has been robbed four times.
    "Mr. Vegas's situation may seem unique," Mastantuono said, "but given the gap between the rights that are afforded Wisconsin citizens in the right to bear arms amendment and the prohibitions that restrict Wisconsin residents in the concealed-carry general ban that was never updated by the Legislature, I think it's going to be a recurring situation, quite frankly."
    Deputy District Attorney Kent Lovern said the office has no plans to appeal the decision. An appeal could give a higher court an opportunity to hand down a precedent-setting decision on whether the concealed-carry prohibition is constitutional, whereas Noonan's decision applies only to Vegas's case.
    Mastantuono said Vegas has moved on, career-wise. After the charge was filed, Vegas became a delivery driver in a Milwaukee suburb. He is now a cook.
    "Mr. Vegas felt required by circumstances - not only of threats to his safety but being prosecuted for defending himself - he felt required to change careers," Mastantuono said.


    **********



    My understanding is that while Vegas beat charges for carrying his gun concealed both times that he shot people, after the second shooting the authorities refused to return his gun. His petition to have his gun returned went to the Wisconsin appeals court, not the U.S. Court of Appeals. The Wisconsin appeals court ordered the county court to return his gun. I don't believe the appeals court issued a formal opinion, just an order to the lower court. Not surprisingly, the circuit court complied.

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    So while this article is not specifically concerned with the West Allis case--could anyone explain what the current status of that case is?



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    suntzu wrote:
    So while this article is not specifically concerned with the West Allis case--could anyone explain what the current status of that case is?


    Vegas won.







    Date

    Event

    Court Official

    Court Reporter


    1

    09-28-2007

    Change of address notification



    Event Party



    Vegas, Andres



    Additional Text:



    ADDRESS INFO for Andres Vegas
    Current: 5110 S Packard Ave, Cudahy, WI 53116 United State (Effective: 09-28-2007)
    Prior: Milwaukee, WI United State


    2

    11-28-2007

    Letters/correspondence



    Additional Text:



    of 11-28-07 from Rebecca M. Coffee, with attachments, filed.


    3

    11-30-2007

    Administrative disposition

    Kremers-36, Jeffrey A.


    4

    12-10-2007

    Hearing

    Kremers-36, Jeffrey A.

    Philbert, LeeAnn


    Additional Text:



    Court reporter Lee Ann Philbert
    Attorney Craig Mastantuno appeared for the petitioner.
    Irene Parthum appeared for the City of Milwaukee
    Petition granted in part and denied in part.


    5

    12-11-2007

    Notes


    Additional Text:



    Certification of transcript of proceedings commencing NOVEMBER 30, 2007 - RETURN OF PROPERTY PETITION received and filed. (Pages 9) Copy of transcript forwarded to: ATTY. CRAIG MASTATUONO, 276-8662./CM


    6

    12-20-2007

    Motion



    Additional Text:



    Defendant's motion for reconsideration.


    7

    12-21-2007

    Notes



    Additional Text:



    Petition assigned to the Hon. Jeffrey Kremers, Br. 36, for review.


    8

    01-02-2008

    Order

    Kremers-36, Jeffrey A.



    Additional Text:



    Decision and Order Denying Motion for Reconsideration signed and filed. sm


    9

    01-11-2008

    Notes



    Additional Text:



    Notice of Appeal filed. mc


    10

    01-14-2008

    Notes



    Additional Text:



    Notice of Appeal Transmittal. Copy of Notice of Appeal and a copy of the docket entries transmitted to the Court of Appeals. mc


    11

    02-14-2008

    Notes


    Additional Text:



    Original Record forwarded to Court of Appeals 02/14/2008. Last Page No. 12. Appeal No. 2008AP167. tf


    12

    10-29-2008

    Notes



    Additional Text:



    per court of appeals order dated 10/28/08 on appeal # 2008AP167; this matter is immediately remanded to the circuit court for a hearing consistent with this order, but the court of appeals retains jurisdiction of the appeal; the circuit court shall conduct an evidentiary hearing and enter a decision within 60 days of the date of this order; a transcript of the proceeding shall be prepared & filed within 20 days of the date of the circuit court's decision and the clerk of the circuit court shall return the record to the court of appeals, including the decision entered by the circuit court and the transcript of the hearing within 10 days of the date the transcript is filed in circuit court. mc


    13

    10-31-2008

    Notes



    Additional Text:



    remittitur received from the Court of Appeals on Appwal # 2008AP167. mc


    14

    10-31-2008

    Notes


    Additional Text:



    file to Br 27, Judge Martens, for Remand Order dated 10/28/08 to hold an evidentiary hearing. mc


    15

    11-05-2008

    Letters/correspondence

    Martens-27, Kevin E.

    Off the Record

    Additional Text:



    received and filed, from attorney Craig Mastantuono dated 10-30-2008 regarding return of property hearing.
    /krw


    16

    11-06-2008

    Notes

    Martens-27, Kevin E.

    Off the Record



    Additional Text:



    Attorney Mastantuono and ADA Antoni Apollo appeared and court date of 12-16-2008 at 1:30 pm set for hearing as to return of property. Defense counsel to notify the petitioner.
    /krw


    17

    11-07-2008

    Judicial transfer

    Martens-27, Kevin E.

    Garry, Pauline


    18

    12-16-2008

    Hearing

    Martens-27, Kevin E.

    Garry, Pauline


    Additional Text:



    Antoni Apollo appears for the City of Milwaukee
    Court Reporter Pauline Garry
    Petitioner appeared by counsel, attorney Craig Mastantuono
    Rebecca Coffee co-chaired with attorney Mastantuono
    Attorney Jeremy P. Levinson - additional counsel appeared
    Petition granted.
    Order signed and filed.


  23. #23
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    Wong case parabellum, I think he was wondering about the "OCing while planting a tree in West Allis" case. Which has been delayed until...what Feb 16th?

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    suntzu wrote:
    So while this article is not specifically concerned with the West Allis case--could anyone explain what the current status of that case is?

    The bolded setion leads me to think he meant the Vegas case. Or at least NOT the West Allis case.

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    Parabellum wrote:
    suntzu wrote:
    So while this article is not specifically concerned with the West Allis case--could anyone explain what the current status of that case is?

    The bolded setion leads me to think he meant the Vegas case. Or at least NOT the West Allis case.
    well, either way i think we got the bases covered

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