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Thread: Lakeland Times: Sen. Jim Holperin speaks about open carry in Wisconsin

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    3/3/2009 10:26:00 AM

    What officials have to say about open carry in the state of Wisconsin

    Sen. Jim Holperin

    This issue is not, in my opinion, and leaving aside a couple of court cases, one that is very relevant to Wisconsin citizens or gun owners right now. Therefore I am somewhat perplexed by The Lakeland Times' persistence in writing about it as if it were a major concern. Nevertheless, I am glad to answer your question.

    I do support open carry in Wisconsin, since that clearly seems to be the law. If court rulings reverse this supposition, I cannot say how I would vote on legislation to overrule the courts and allow open carry.

    I would need to consult with voters, law enforcement, gun rights organizations, outdoor sports organizations and other groups with a stake in the legislation.

    Regardless of the position I might take on open carry legislation, I continue to support concealed carry legislation which I believe should be advanced until Wisconsin joins 48 other states which have such a law.

    Rep. Dan Meyer

    There is no prohibition in Wisconsin law on openly carrying a firearm. Case law and former Attorney General opinions substantiate that.

    There is a prohibition on actions that constitute disorderly conduct, described under Wis. Stat. 947.01. (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.)

    I don't see the open carrying of a firearm and disorderly conduct behavior as being related - the former is legal, the latter illegal. That said, if a person is engaged in behavior characteristic of disorderly conduct, that is something law enforcement can pursue, regardless of whether a person is openly carrying.

    I understand some law enforcementmay be using the pretext of disorderly conduct, when in reality they are focused on curtailing the right to open carry. If there is no evidence of disorderly conduct behavior, this should be a tough argument to win, given current laws in Wisconsin.

    If necessary, yes, I would support legislation that would clarify that open carry is permissible in Wisconsin.

    John Niebuhr

    Vilas County sheriff

    As I understand, simple open carry would not be probable cause for an arrest of a "law abiding" citizen under the statute for disorderly conduct, however, circumstances would change if that citizen was intoxicated, handled the weapon recklessly, possessed it in a school zone, a Class B liquor premises, or certain other public buildings. Again, I will make the assumption that you are referring to simple open carry by a law abiding citizen without the above added implications. But you can understand how certain situations can occur with just the change in attitude, physical location, or circumstances while an individual practices open carry.

    I do not support the creation of additional laws for weapons offenses. We certainly have adequate laws in place to address the needs and safety of citizens with the proper enforcement, prosecution, and judicial findings to maintain our quality of life.

    In closing, I will state again that I have no detailed knowledge of the governor's comments or the events which surround the circumstances of the ongoing Krause case and therefore decline to comment on them specifically. If you do have questions about any particular Vilas County case or incident that is not in litigation, please contact myself or chief deputy Fath.

    Jeff Hoffman

    Oneida County sheriff

    I strongly support the legal conduct of citizens and their right to bear arms, when they have a legal right to do so.

    Additionally, I believe that in each case an officer responds to a complaint involving the carrying of a firearm will have its own set of circumstances and facts.

    Having said that, officers will continue to use good common sense, protect our citizen's constitutional rights, and be responsive in keeping the peace.

    Andrew Gee

    Minocqua chief of police

    I firmly support a citizen's right to legally and safely possess, store, carry and use firearms as the law stands now in Wisconsin.

    As I have discussed [before] my concern is not with people simply possessing or carrying a firearm, provided that they are legally eligible to possess the firearm.

    My concern from a law enforcement and public safety standpoint is what a person is doing while they are in possession of a firearm.

    Our job is to enforce the statutes as written by the Legislature in a fair and consistent manner based on the facts andthe intent of the law.

    Thomas Wrasse

    DNR Conservation

    Warden Supervisor

    Regarding potential legislation, it's not possible toeffectively comment since the actual text to review and analyze is not available.

    Shouldlegislationbe introduced, it would be evaluated at that time.

    Gun rights controversies underscore fundamental issues of freedom

    Richard Moore
    Investigative Reporter

    Last week this newspaper asked several local law enforcement officials and state legislators just what they thought about the idea of open carry in Wisconsin, or the ability to publicly carry a firearm in plain view.

    In his answer (they all accompany this column on page 10), Sen. Jim Holperin (D-Eagle River) said he was perplexed by all the attention being given to the question.

    More about Sen. Holperin's answer later, but let's clarify now why recent controversies over the issue need to be broadcast: the attack on the right of citizens to openly carry their legal firearms, as well as on the rights of hunters to do so without fear of unreasonable seizures, represents an extraordinary and unprecedented attempt by some law enforcement agencies to claim unconstitutional grants of power for themselves.

    What's at stake are not just gun rights - though those are very much on the table - but our Bill of Rights protections.

    Recent incidents involving Mark Palan of Highland and Brad Krause of West Allis, as well as others, have been ignored by the mainstream media and by legislators who apparently can't see the forest for the trees, but how they play out will most certainly answer a question of paramount concern:

    Is Wisconsin a free state or a police state?

    Mr. Palan, of course, was thrown out of the Department of Natural Resources' hunter education program because, as an instructor, he had the audacity to teach his students that they have civil rights. Meaning that, in this country, law-abiding citizens don't have to hand over their firearms just because a warden asks them to, for no reason and without any explanation.

    Ah, but they do, the DNR's bloated bullies bellowed. Not only that, but the agency carried its reasoning to an absurd conclusion: When you are approached by law enforcement, the DNR exhorted, "no matter what the situation is," you should "do exactly what the officer tells you to do." Period.

    Thanks, dudes, but no thanks.

    If a police officer comes to my door and demands entry, I'm going to insist on a warrant first. If a police officer stops me on the street and asks for identification - and oh, by the way, I'll hold your briefcase while you get your wallet - I will refuse the first request unless a valid reason is offered.

    Even if it is and I produce identification, I'm still not going to hand over the briefcase unless he arrests me or produces a warrant.

    To be sure, the DNR says these are extreme examples; what they say they are talking about is an occasional request by a warden to hold a gun for a few seconds while a hunter retrieves his license. Using Jim Holperin-style rhetoric, the DNR says everything is being blown out of proportion.

    The problem is, ceding to the police the authority to demand obedience to minor commands also cedes to them that authority on more serious matters. You can't give away part of a freedom and keep part; you either have it, or you don't.

    Having to hand over that firearm to a warden, even for a few seconds, or to obey every instruction of law enforcement, no matter why it is given, takes us one step closer to the day when police can indeed enter homes without a warrant.

    Hey, folks, we don't have to listen to the police if we don't want to, if the command is not accompanied by a legitimate law-enforcement reason. In these days of unparalleled police power and mass worship of authority, I admit, that might earn us a disorderly conduct charge - the most common citation for refusing to obey police commands - or even a Taser or two, but in the end we would have the Wisconsin Supreme Court on our side.

    Here's what the justices said in 1973 on the issue of "doing exactly what the officer tells you to do," to use the DNR's words.

    "Under specific circumstances the refusal to obey a police command may constitute criminal conduct," the court stated in state of Wisconsin v Werstein. "If for example, the police officer orders an unlawful assembly to disperse, the intentional failure or refusal of an individual to withdraw from such an assembly constitutes criminal conduct. ... However, to hold without limitation that any violation of a police command, whether or not lawful, constitutes disorderly conduct would be patently violative of the Fourteenth Amendment."

    The case of Brad Krause raises equally serious constitutional issues.

    In this incident, Mr. Krause was planting trees in his West Allis yard, wearing a legal, holstered pistol, when police suddenly stormed the property with their weapons drawn. He now faces - you guessed it - disorderly conduct charges for wearing the gun.

    This is not an isolated incident. Police departments around the state are increasingly using disorderly conduct citations to prevent law-abiding citizens from openly carrying firearms.

    These are not tickets being issued because of disruptive or threatening behavior. These are citizens who are doing nothing but carrying their firearms openly, just as Mr. Krause was. They might be planting trees in their yard, or wearing a holstered pistol for protection while walking in the Northwoods' wilderness with family and pets.

    By defining such conduct - the very act of openly carrying a firearm - as disorderly behavior, these agencies are making open carry illegal on its face, even though there is no statutory prohibition.

    That flies absolutely in the face of legislative intent. To wit, legislators enacted a law prohibiting concealed carry because they wanted to ban the practice. If lawmakers had wanted to clamp an identical ban on open carry, they would have done so at the same time.

    What's more, Gov. James Doyle - both as governor and as attorney general - has acknowledged the legality of open carry, as has the Supreme Court itself.

    In state of Wisconsin v Philip Cole, chief justice Shirley Abrahamson, writing for the majority, upheld the constitutionality of the state's concealed carry law precisely because citizens could carry their firearms openly, declaring that "the constitutional right to bear arms is not unlimited" and that "[t]he right to bear arms in self-defense is not impaired by requiring individuals to carry weapons openly."

    Interestingly, justice Abrahamson observed that, while fundamental rights can be subject to reasonable restrictions, those restrictions must rise above and beyond the mere reasonable exercise of police power: "The explicit grant of a fundamental right to bear arms clearly requires something more, because the right must not be allowed to become illusory."

    But that is exactly what police agencies are doing. Given that bearing a concealed firearm is illegal by statute, making open carry illegal in practice leaves no realistic way to exercise that right. The right has become illusory.

    So while legislative intent and state courts have declared open carry legal, many police agencies (as the answers accompanying this editorial make clear, our local police agencies are thankfully not among them) make up new laws as they go, and enforce them on a whim. That's a direct threat to our gun rights.

    More than that, they are abusing the disorderly conduct statute, which has already been beaten beyond recognition. In fact, though some police are applying the charge in vague and broad ways, the courts have narrowly construed what constitutes disorderly conduct, and, as both Vilas County sheriff John Niebuhr and Minocqua police chief Andy Gee stated, it must be related not only to what a person is doing but to the circumstances of the conduct.

    In state v Douglas, the court placed a high burden on the state, saying it had to prove two elements to cite someone for disorderly conduct - the conduct itself must be violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly, and the state must prove that the defendant's conduct occurred under circumstances where such conduct tends to cause or provoke a disturbance.

    It's the vague "otherwise disorderly" language that police claim gives them the discretionary power to determine what is disorderly and what is not, but, again in state v. Werstein, the court defined what that was - it was conduct that might be protected generally and OK in many instances, except for its location or some other circumstance, such as the individual involved.

    "A careful review of those cases interpreting the 'otherwise disorderly' provision will demonstrate the importance of a coalescing of conduct and circumstances," the court stated.A sit-in of protesters was deemed disorderly not because they were protesting, the justices cited in one example, but because they were protesting in a small office that effectively shut it down.

    "In each of these cases, convictions for being 'otherwise disorderly' resulted from the inappropriateness of specific conduct because of the circumstances involved," the court stated. "Though the conduct may have, in varying circumstances, been protected by the First Amendment, because of the location, the individuals involved or the manner of conduct, we found criminal culpability. Such a test must now be applied to the situation at hand."

    And such a test should now be applied to Mr. Krause's case and to similar disorderly conduct charges.

    Under the 1973 court's test, Mr. Krause could not be considered disorderly for merely openly carrying a gun on his own property, which is not statutorily prohibited. Neither was he violent, abusive, indecent, profane, boisterous, or unreasonably loud.

    That leaves standing only the "otherwise disorderly" conduct, but, if it used the 1973 standard, the high court would not likely find Mr. Krause 'otherwise disorderly,' since the location was his own property and the only person involved, Mr. Krause, had no criminal record. Nor does it seem likely the state would ultimately find him guilty for open carry on private property when they have already, in Hamdan, said even some concealed carry on private property is permissible.

    Still, you never know what a judge might do. The bottom line is, arresting law-abiding citizens who open carry for disorderly conduct is way beyond the pale, and Sen. Holperin is beyond the pale for not being able to see it.

    Incredibly, the senator said that, "aside from a few court cases," this issue is not of much relevance.

    With all due respect, we cannot put those court cases aside, for they are precisely why the issue has become relevant. That's like a doctor saying, aside from the brain cancer and the failing heart and a few other ailments, the patient seems to be in fine health.

    If those court cases determine that a police officer can arrest a person for carrying a firearm openly, then the officer can arrest somebody for carrying a shovel while walking down the street - after all, a shovel can be lethal, too - or for disobeying a simple command. They could conceivably even arrest someone for hunting.

    If the state courts don't tighten up the current interpretation of disorderly conduct, then you might as well kiss open carry goodbye, and count on an ever-increasing number of court cases, including civil rights cases in federal court, at an ever increasing cost to taxpayers.

    Shouldn't Sen. Holperin be concerned about that? And shouldn't he, as a lawmaker, be concerned that police are thumbing their noses at legislative intent?

    Then, too, the senator won't say whether he would vote to explicitly reinstate open carry if court decisions effectively outlawed it - he only says he supports it now because it is the law, apparently not on principle - so maybe he's taking his cues from the attorney general.

    That's Mr. Van Hollen, who is so spineless he won't issue an opinion on the legality of open carry, despite the governor's proclamations, the plain language of the statutes, the intent of the Legislature and reams of case law.

    The attorney general says he doesn't want to influence ongoing litigation; by not issuing an opinion, however, he is ensuring that even more litigation will come down the pike as police exaggerate the reach of their power.

    We deserve better. We deserve pro-active lawmakers who will draft legislation now to more precisely define the scope of disorderly conduct, and we need legislators similar to those in Virginia, who reinforced their own open-carry law in 2004 after police tried similar tactics there.

    That statute prohibits any locality from enacting any regulations on gun ownership, carrying, storage or purchase, except for rules related to the workforce.

    Pretty simple, really.

    Such a statute, along with disorderly conduct reform and a judicial reiteration that law-abiding citizens do not - as the DNR maintains - have to obey every instruction given by a police officer would go a long way to restoring a balance between our constitutional freedoms and state police power.

    Such balance is sorely needed. The Wisconsin Supreme Court perhaps put it best in its Hamdan decision: "The State's broad police power to regulate the ownership and use of firearms and other weapons continues, notwithstanding [the right to keep and bear arms]. Nonetheless, the amendment's broad declaration of the right to keep and bear arms inevitably impacts the exercise of that power. In this state, constitutional rights do not expand the police power; they restrict the police power."

    Let's hope that's true.

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    Although I share many of Mr. Moore's opinions I do wonder whether he makes a distinction between reporting and editorializing. Alas that is nothing unique to him but something pervasive throughout journalism.

    A. Gold

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    His local title is 'Investigative Reporter' while his material is clearly published in the 'Opinion' section of his paper. I imagine that he struggles with the same fine line between between bald opinion, unsupported fact and readability that we do.

    A positive statement that is falsifiable from the reader's personal knowledge or research is more valuable than a mere normative wish.

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    I amjust thankful that Mooreis not letting this situation disappear into the wind.

    What other publication has been so helpful to our cause?

    So about that open cary picnic? Having it up here is sounding like a real good location again, isn't it?

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    I getupset when people read a document and only pick out those entries that support their specific opinion. Mr. Moore refers to the Douglas D. case wherin he brings up the phrase " otherwise disorderly" as an apparent loophole for the authorities to apply the statute at their will. I have heard that same logic from other sources. If those persons making the statement that the words "otherwise disorderly" is a potential loophole would read farther into the Douglas D.opinion they would find that the SSC answered that concern. It answered it in paragraph 27. I include it below.

    ΒΆ27. Douglas is correct insofar as he indicates that not all conduct which causes personal discomfort in others necessarily falls within the ambit of disorderly conduct. This court has held as much:

    [Section947.01] does not imply that all conduct which tends to annoy another is disorderly conduct. Only such conduct as unreasonably offends the sense of decency or propriety of the community is included. The statute does not punish a person for conduct which might possibly offend some hypercritical individual. The design of the disorderly conduct statute is to proscribe substantial intrusions which offend the normal sensibilities of average persons or which constitute significantly abusive or disturbing demeanor in the eyes of reasonable persons.

    Emphasis Mine.

    In other words any "otherwise disorderly" conduct must have the sameintensity of disruption as the other actions contained in the statute. A law abiding person minding their own business and peacefully carrying a firearm in a non prohibited location does not fit in that envelope.

    I don't write this to discredit Mr. Moore's article. While I don't necessarily agree with everything he says I yield to the fact that he isa megaphone we have been looking for and he deserves our support.

    "The only thing certain is uncertainty".

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    Just want to point out that thiseditorial was first published in the newsprint Lakeland Times on February 10. It was missing from the web page -- though every other editorial by Walker & Moore has been posted there since God grew whiskers, and finally got put up on the site March 3. Go figure.

    Thecomments from Holperin, Meyer and the rest arein a separate boxon the web page next to the editorial under the heading "What officials have to say about open carry in the state of Wisconsin" but the Lakeland Times didn't post the original question from the newspaper version about hypothetical legislation following a hypothetical court decision from the newsprint version which was: "Do you support the legality of open carry in the state of Wisconsin -- and if the courts rule that Wisconsin is not an open-carry state and those doing so may be arrested for disorderly conduct -- would you support legislation to prohibit such charges and restore the legality of the open carry of firearms?"

    Don't like to repeat myself so hope you also read my comments at two other pages o=369894

    Thanks, Lammie forpaying attention to the details.That's important. We may be happy that somebody is finally paying attention but that doesn't mean we have to swallow everything whole without chewing.What's the difference between using the Lakeland Times no matter what so long as they further our cause,and usingSen. Holperin, in the same way? He said he supports open carry and concealed carry whether or not Moore and his boss Walker have their shorts in a knot over the way he worded the first part of his answer. I still think we should encourage that support because we will need all the "D's" we can get if these issues ever get introduced asa bill. The "R's" aren't in control of committees or anything for at least the next two years.

    I don't say this often, but the DNR guy got it right, too. I would sooner have a legislator stop and say he wants to first see how that bill is worded, then evaluate itand talk to all stakeholders, than one who automatically says he will support any open carry legislationwhen we don't know if it will turn outto be a bad bill. It would be better for a Senator to knowopen carry rights peoplein his district for calmly sharing our honest concerns so he feels free to talk to us when the time came instead of thinking we line up behind the editorial beatings.

    Hey Doug afraid you lost me with the falsifiable normative comment. But I agree with the rest of what you said.

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    safetyon wrote:
    Hey Doug afraid you lost me with the falsifiable normative comment. But I agree with the rest of what you said.
    Read Sir Karl Popper on 'falsifiability'. As always, the Wikipedia is a good place to start on an unfamiliar topic.

    'Falsifiable normative' is an oxymoron. A normative statement is not falsifiable. Normative statements express a desire and are characterized by 'would, should or could'. In contrast, a positive statement is testable and falsifiable. These terms wander back and forth between logic (Popper) and economics (of Thomas Sowell and Walter E. Williams).

    Believe nothing you read or hear without verifying it yourself unless it fits your preexisting worldview.

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    Believe nothing you read or hear without verifying it yourself unless it fits your preexisting worldview."

    I live in the Northwoods and remember Moore as that candidate who was ANTI MINE and ANTI GUN.

    So when is he goin to flip again? When the Commie Capitl Times hires him?

    Hey its warming up. Time to get new targets up.

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