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Thread: Wisconsin Attorney General Refuses to Issue Opinion on Open Carry

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    The AG appears to not want to get in the middle of ongoing criminal cases.

    My prediction: Open carry will ultimately not be held to be unlawful or criminally disorderly. Wisconsin will soon be like all the other open carry states and open carry will become more common.

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    http://www.lakelandtimes.com/main.as...ArticleID=8985



    1/23/2009 9:30:00 AM
    [
    Attorney general won't say whether open carry is legal
    Disorderly conduct charges blossom across state



    Richard Moore
    Investigative Reporter

    News Analysis

    As conflicts over of the open carry of firearms mushroom in the state, Wisconsin attorney general J.B. Van Hollen is declining to issue a legal opinion about whether the practice is legal.

    In a Nov. 6, 2008, letter to then state Rep. Terry Musser (R-Black River Falls), deputy attorney general Raymond Taffora acknowledged a number of requests for just such an opinion, as well as a growing number of arrests for carrying firearms in plain view, mostly on the charge of disorderly conduct.

    On behalf of an unnamed constituent, Musser had specifically asked for an opinion about the open carrying of firearms for personal defense, but Taffora told him there were prudent legal reasons for the attorney general not to get involved.

    For one thing, Taffora said, many requests for a formal opinion had been prompted by disorderly conduct charges brought by district attorneys. In general, he wrote to Musser, private citizens wanted an opinion to cite at trial or at the appellate level to defeat the charge.

    There are procedural reasons not to give them those citations, Taffora wrote.

    First, he noted, state statutes provide that the attorney general can only provide formal opinions to the governor, the Legislature, state officers and agencies, corporation counsels, and district attorneys. The attorney general cannot issue formal opinions to cities, towns, villages or other municipal attorneys or private citizens.

    "We also discourage authorized requestors from acting as proxies for private citizens seeking a formal opinion," he wrote. Musser was in fact acting as such a proxy when he asked for the opinion.

    Moreover, Taffora went on, an opinion should not be requested on an issue that is the subject of current or reasonably imminent litigation, since an opinion of the attorney general might affect the case.

    "That limitation protects the right of Wisconsin litigants to obtain a definitive ruling on their matter of controversy," Taffora stated. "A formal opinion of the Wisconsin attorney general is not a judicial ruling. While formal opinions may be considered persuasive authority, they are not precedent for any court."

    Indeed, Taffora said, the attorney general's office is aware of "various court actions" in which the defendants may challenge the factual basis for a disorderly conduct citation, or raise constitutional challenges to the charge. Given that, he stated, the attorney general should not issue an opinion.



    DA discretion

    Finally, Taffora said, the attorney general is cautious about offering opinions on the propriety of bringing or not bringing charges in a particular class of cases because the Wisconsin Supreme Court has concluded that state officers cannot direct a district attorney's exercise of charging discretion, whether it is to bring a charge or decline to bring a charge.

    Taffora cites a case, Kurkierewicz v Cannon, in which the court determines that district attorneys are constitutional officers and are endowed with a discretion that approaches the quasi-judicial. Therefore, the Kurkierewicz ruling states, district attorneys do not have to prosecute all complaints filed with them or all apparent violations of the law, and they are answerable to no authority other than the people in elections.

    "We believe Kurkierewicz stands for the proposition that state officials - including the Wisconsin attorney general - cannot compel a district attorney to charge or decline to charge a class of cases in a particular manner," Taffora wrote. "Even if the procedural bars described above were not in place, Kurkierewicz would strongly counsel against our attempting to influence criminal charging in the manner sought by [your constituent]."

    That does not leave citizens without judicial recourse, Taffora concluded.

    "If a district attorney lacks a proper or sufficient factual basis to bring a particular criminal charge, then the defendant may challenge the charge in both the trial and appellate courts," he wrote. "And if the county's citizens disagree with a district attorney's exercise of charging discretion over the run of cases, Kurkierewicz is a reminder that a district attorney must ultimately respond to the citizens concerns in the electoral process."



    Sleeping with one eye open

    Some open-carry advocates, among them Gene German, see the attorney general's refusal to get involved as so much political jockeying.

    In particular, German said, Van Hollen could be eyeing the West Allis case of Brad Krause, which could end up in state court. Krause was arrested for disorderly conduct for wearing a holstered firearm on his own property.

    "Jim Doyle (when he was attorney general) has done more for us than Van Hollen will do," says German, who is the state director of the American Association of Certified Firearms Instructors and one of the founders of Wisconsin Patriots, a grassroots organization whose declared mission is to "encourage our fellow citizens to restore, exercise and preserve their individual rights, including the right to be safe."

    "The reason they (the attorney general's office) blew Musser off, I think, is that if J.B. says open carry is in fact lawful and then West Allis appeals, the state will be representing the city and he's going to end up creating a problem for himself defending the city's actions when he has already said what Brad did was lawful. So he's not going to put himself in jeopardy and open his mouth, although he should."

    Whatever his motivation, the attorney general certainly has a surfeit of case law and DOJ briefs to form an opinion, if he chose to do so.

    As German alluded to and The Lakeland Times has reported, both Doyle, as attorney general, 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.

    In a brief signed by Doyle, 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."

    What's more, the state Supreme Court has already ruled on what can be and cannot be considered disorderly conduct, in the case, State v. Douglas D.

    "To prosecute a defendant for a violation of this statute, the State has the burden to prove two elements," the court determined. "First, it must prove that the defendant engaged in violent, abusive, indecent, profane, boisterous, 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."

    How the very act of a carrying a visible legal firearm fits or does not fit that judicial criteria is a matter screaming for clarification.

    With the attorney general on the sidelines, that will likely happen in court, probably the Supreme Court, and take months, if not years. In the meantime, more open carry arrests for disorderly conduct and more contested court cases can be expected.

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    "We also discourage authorized requestors from acting as proxies for private citizens seeking a formal opinion," he wrote. Musser was in fact acting as such a proxy when he asked for the opinion.

    Moreover, Taffora went on, an opinion should not be requested on an issue that is the subject of current or reasonably imminent litigation, since an opinion of the attorney general might affect the case.
    A legalistic rationale to ignore the mere citizens.

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    Doug Huffman wrote:
    "We also discourage authorized requestors from acting as proxies for private citizens seeking a formal opinion," he wrote. Musser was in fact acting as such a proxy when he asked for the opinion.

    Moreover, Taffora went on, an opinion should not be requested on an issue that is the subject of current or reasonably imminent litigation, since an opinion of the attorney general might affect the case.
    A legalistic rationale to ignore the mere citizens.
    But what's strange is that of course legislators are asking questions of importance to their constituents. What other questions would they care about?



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    I'll post my reply from Senator Kohl in a separate thread to avoid distracting from the OP. Needless to say, he and I disagree.

    http://opencarry.mywowbb.com/forum57/21013.html

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    Mike wrote:
    Doug Huffman wrote:
    "We also discourage authorized requestors from acting as proxies for private citizens seeking a formal opinion," he wrote. Musser was in fact acting as such a proxy when he asked for the opinion.

    Moreover, Taffora went on, an opinion should not be requested on an issue that is the subject of current or reasonably imminent litigation, since an opinion of the attorney general might affect the case.
    A legalistic rationale to ignore the mere citizens.
    But what's strange is that of course legislators are asking questions of importance to their constituents. What other questions would they care about?

    +1. Who does this dolt think that elected legislatures should represent and speak for. It sure is notthe state. It is and should be their constituents. This AG is just an out right coward. He should be making an opinion on what is the law of the state. That is part of his job. It should not matter why an authorized person asks for an AG opinion on a matter. It is not up to him to duck it because there are or may be potential for litigation and it might affect a DA's case. If the DAs are charging people for something that is legal, then they should be put in check. AG, grow a pair and act like the humble servant of the people of your state as you should. If not, then resign. JMHO.

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    Just an observation about the Utah AG. He WON a verdict at the Utah Supreme Court that the University of Utah could not prevent or penalize students, faculty, and staff who have CFP's from carrying on campus. Very pro-gun AG! (Or at least he follows and supports the law).

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    I see the Wisconsin AG won't issue an opinion regarding the legality of the OPEN CARRY of Firearms even when asked to do so by a Wisconsin State Legislator. Several OTHER Attorneys General HAVE issuedopinions on this very matter.

    Is Wisconsin's AG the ONLY one with ethics or just a whiner without backbone?

    Me thinks the others that have issued the various opinions regarding OPEN CARRY are the one's that are taking their responsibilities seriously and have shown that they are the one's with ETHICS!!!!!!

    JoeSparky

    edit: slight rewording for better flow and understandability.

    RIGHTS don't exist without RESPONSIBILITY!
    If one is not willing to stand for his rights, he doesn't have any Rights.
    I will strive to stand for the rights of ANY person, even those folks with whom I disagree!
    As said by SVG--- "I am not anti-COP, I am PRO-Citizen" and I'll add, PRO-Constitution.
    If the above makes me a RADICAL or EXTREME--- So be it!

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    2nd amendment says.... "...The right of the people to keep and bear arms SHALL NOT BE INFRINGED!"

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    The Wisconsin AG does have state law to back him up.

    Right or wrong he is required only to respond to inquiries from the powers that be. The BS prohibiting 'proxy questions' is just Barbara Streisand.

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    Krause was arrested for disorderly conduct for wearing a holstered firearm on his own property.




    W T F
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    TechnoWeenie wrote:
    Krause was arrested for disorderly conduct for wearing a holstered firearm on his own property.




    W T F
    Yes. Appalling, isn't it?
    “The 1911 pistol remains the service pistol of choice in the eyes of those who understand the problem. Back when we audited the FBI academy in 1947, I was told that I ought not to use my pistol in their training program because it was not fair. Maybe the first thing one should demand of his sidearm is that it be unfair.” — Col. Jeff Cooper, GUNS & AMMO, January 2002

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    GlockMeisterG21 wrote:
    TechnoWeenie wrote:
    Krause was arrested for disorderly conduct for wearing a holstered firearm on his own property.




    W T F
    Yes. Appalling, isn't it?
    Certainly seems like it might even border on a violation of his constitutional rights!!!!
    RIGHTS don't exist without RESPONSIBILITY!
    If one is not willing to stand for his rights, he doesn't have any Rights.
    I will strive to stand for the rights of ANY person, even those folks with whom I disagree!
    As said by SVG--- "I am not anti-COP, I am PRO-Citizen" and I'll add, PRO-Constitution.
    If the above makes me a RADICAL or EXTREME--- So be it!

    Life Member NRA
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    2nd amendment says.... "...The right of the people to keep and bear arms SHALL NOT BE INFRINGED!"

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    Mike wrote:
    [

    First, he noted, state statutes provide that the attorney general can only provide formal opinions to the governor, the Legislature, state officers and agencies, corporation counsels, and district attorneys. The attorney general cannot issue formal opinions to cities, towns, villages or other municipal attorneys or private citizens.

    "We also discourage authorized requestors from acting as proxies for private citizens seeking a formal opinion," he wrote. Musser was in fact acting as such a proxy when he asked for the opinion.


    The obvious course of action is for a group of Wisconsin citizens to ask their legislators to draft up a law explicitly making open carry legal, or explicitly making it illegal. I lean toward a law explicitly making it illegal because I don't think a free people need laws telling them what they are permitted to do; only laws banning certain conduct.

    THEN, in the interest of knowing whether the law needs to be run or not, the legislators should seek guidance from the AG on the current state of the law by requesting a formal opinion. Most often, formal AG opinions are backed up with some rational, references to constitution and statute, and so on.

    If the AG tells them either that Yes, open carry is currently legal lack of any statute preventing it; OR,

    No, it is not legal based on such and such statute or how disorderly conduct can be reasonably applied; OR,

    That the law is not clear and a clarification is needed.

    In other words, rather than clearly being a proxy for private citizens, a few legislators need to create a very legitimate reason why a legislator would need to know the current state of the law. This may require a certain amount of constituent pressure.

    And for what it is worth, in Utah, the AG is not required to respond to individual legislators, but only to legislative leadership. Single legislators do not represent the legislature as a body, but leadership does. So you might consider seeing if the speaker of your house, senate president (or equivalent officers) or even the Governor might just request a formal opinion.

    All the best.

    Charles
    All experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. Thank heaven we do not permit a few to impose anarchy.

    "With Anarchy as an aim and as a means, Communism becomes possible."
    --Marxist.org

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    utbagpiper wrote:[
    The obvious course of action is for a group of Wisconsin citizens to ask their legislators to draft up a law explicitly making open carry legal, or explicitly making it illegal. I lean toward a law explicitly making it illegal because I don't think a free people need laws telling them what they are permitted to do; only laws banning certain conduct.
    What?? There's no way I'm going to encourage legislators to draft a law making open carry illegal!
    A. Gold

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    Regular Member Sonora Rebel's Avatar
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    WTF's all this gobbledegook?

    The Right is either recognized or denied. If denied, it is an unconstitutionalviolation of an actual pre-existing civil right so declared by the US Constitution. That's the long 'n short of it. All this AG is doin' is a disingenous verbose tap-dance contrary to the Law of the Land.

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    Shotgun wrote:
    utbagpiper wrote:[
    The obvious course of action is for a group of Wisconsin citizens to ask their legislators to draft up a law explicitly making open carry legal, or explicitly making it illegal. I lean toward a law explicitly making it illegal because I don't think a free people need laws telling them what they are permitted to do; only laws banning certain conduct.
    What?? There's no way I'm going to encourage legislators to draft a law making open carry illegal!
    Lest there be any confusion, I am NOT suggesting passing, or even sponsoring such legislation. I am simply thinking of the quickest, easiest way for sympathetic legislators to create a situation where they have a very legitimate need for a formal AG opinion.

    Alternatively, they might approach the AG, make clear their desire to eliminate all possible legal impediments to OC and ask for a formal opinion in that regard. But that clearly reveals their intent to an obviously hostile AG.

    They might do better to instead seek a formal opinion in support of the need for a bill banning OC.

    Of course, this all requires a couple of highly trusted, sympathetic, and savvy legislators to pull off. This is not the kind of thing that you approach random legislator about.

    Charles
    All experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. Thank heaven we do not permit a few to impose anarchy.

    "With Anarchy as an aim and as a means, Communism becomes possible."
    --Marxist.org

    "Communism and Anarchy [are], a necessary complement to one another. "
    --PETER KROPOTKIN, "Anarchism: its philosophy and ideal." 1898.

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    Sonora Rebel wrote:
    WTF's all this gobbledegook?

    The Right is either recognized or denied. If denied, it is an unconstitutionalviolation of an actual pre-existing civil right so declared by the US Constitution. That's the long 'n short of it. All this AG is doin' is a disingenous verbose tap-dance contrary to the Law of the Land.
    Yes. But that is true of MOST gun laws in this nation, now isn't it? I mean, where does it say that we have a right ONLY to OC our firearms but if we let a coat or shirtail cover them we have stepped beyond our rights?

    There is what is right, and there is what is. And what is is that most of us can ill afford what are often very serious consequences for being convicted under laws that we here happen to believe--even know--are contrary to original constitutional intent.

    Charles
    All experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. Thank heaven we do not permit a few to impose anarchy.

    "With Anarchy as an aim and as a means, Communism becomes possible."
    --Marxist.org

    "Communism and Anarchy [are], a necessary complement to one another. "
    --PETER KROPOTKIN, "Anarchism: its philosophy and ideal." 1898.

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