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Thread: Milwaukee Journal Sentinal: Lawsuit challenges open carry arrests

  1. #1
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    The article does cite OCDO.

    http://www.jsonline.com/news/wisconsin/43074132.html

    Due to the threats by the lamestream media walking deadmen's commitment to prosecuting copyright violators, I think that I'll only post the link to the article. When the walking deadmen fall over then we may consider ripping whole articles. An excess of caution.

    http://www.jsonline.com/news/crime/39722082.html

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    "gun-toting" (insert worlds biggest eye roll here)



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    "Gun toting plaintiff"??

    it couldn't be a proper description like
    "Another UScitizen wrongfully arrested while exercising hissecond amendmentrights again!"

    And why isthere not a comment section for that article? Becuase the last article they ran and added a reader comment section got the opposite reaction from the general public than what they were hoping for.


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    Yeah, why not "rights toting?"
    A. Gold

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    Or even "citizen with sidearm"

    Oh well... I've come to expect it.

    I agree with you nutzcak... After the last article, I don't think they want to know how much support is out there for the legality of open carry.

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    This URL is from Lawofficer.com web site. Paul Laska is a retired cop and is now an advisor. For the most part it mimics what some of us think is the number one impediment to open carry; the lack of knowledge of state statutes and constitutional rights by the cops on the street. It is not without fault. Laska states that open carry in rural areas is OK but to carry in an urban area is rude. (In my opinion constitutional rights are not location dependent). Second, he implies that asking for more information than the subject's name and address is OK during a "stop" even when there is no indication of criminal conduct.

    http://www.lawofficer.com/news-and-a.../carry_on.html

    I think that even if the article isn't perfect we should accept it as the first real admission by law enforcement that more and better education of laws and regulations is required in the law enforcement community.



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    Doug Huffman wrote: I especially like how Krause's vindication story is in the CRIME section. Horse$****.

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    If gun-toting is the new word, then we should also see any news article about a cop describe him as a "double hidden gun-toting law enforcement officer"...referring to his duty and concealed backup weapon...

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    I read he was carrying in a thigh holster... (Forgive me but Im new here) I would think that this type of rig isn't the best to carry openly. I have one and I use it when I go to my friends farm.But for an everyday carry I would think that I would find somthing closer to the hip. It didn't say what type of holster he was carrying in the seccond time.



    Does anyone else carry in a thigh holster daily?

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    Article Text: http://www.jsonline.com/news/wisconsin/43074132.html

    Lawsuit challenges open carry arrests
    Gun-toting plaintiff says rights violated
    By Tom Held of the Journal Sentinel


    Posted: Apr. 15, 2009

    A lawsuit in federal court challenges the statewide police practice of arresting people openly carrying handguns in public.

    The suit alleges the actions of police in West Milwaukee and Chilton violated the rights of the plaintiff, Jesus Gonzalez, and that police erroneously interpret state law as prohibiting so-called open carry. John Monroe, a Georgia attorney specializing in gun rights cases, filed the suit on behalf of Gonzalez, of Milwaukee.

    According to the suit, two West Milwaukee police officers stopped and arrested Gonzalez at the Menards store at 2101 Miller Parkway on May 14, 2008. Gonzalez was openly carrying a handgun in a thigh holster at the time.

    He was taken to jail and required to produce his Social Security card but was not prosecuted. His gun was returned upon court order, after 10 months, according to the suit.

    Gonzales was stopped by police again on April 10, while shopping at the Wal-Mart store in Chilton. Again, Gonzalez was openly carrying a handgun in a holster, according to the lawsuit.

    He was handcuffed, taken to jail and told that it was illegal to carry a firearm in Wisconsin.

    Monroe filed the suit seeking a court declaration that it is legal to openly carry a firearm in the state, and to obtain damages from West Milwaukee and Chilton for alleged privacy and due process violations.

    Officials in both cities said they would withhold comment on the lawsuit, pending the litigation.

    The lawsuit follows a legal victory for a West Allis man and open carry advocates earlier this year.

    West Allis Municipal Judge Paul Murphy dismissed a disorderly conduct ticket issued to Brad Krause, who was arrested while planting a tree in his yard. He had a gun in a holster.

    Murphy found that Krause's conduct did not constitute disorderly conduct.

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    This is a email exchange I have had with Paul Laska concerning his article that I referenced in a previous post. I had sent my comments to the editor of Lawofficer.com which was in turn forwarded to Paul Laska. Needless to say I don't agree with his response concerning "rude". It is in a urban setting that a person is most likely to have to use his personaal protection firearm. To worry that it might upset some oversensitive person and be counter productive to the open carry movement is in my opinion senseless. Anyway read the emails and draw your own conclusions.


    Dear Dale,



    Thanks for the comments.


    My comment about "rude" was not directed at exercise of a right. It was directed at the point that certain activities are not always appropriate, despite being legal. I believe that prudence calls for one to show discretion is carry, as in many other things in life. Open carry in many areas acts alarm many "innocents" who fear firearms, think we who dare to own (not to mention carry) are wrong, and will not be won over by carry in an inappropriate setting. Rural areas, and also urban carry such as delivery personnel, folks out late at night to make a necessary trip, etc. may well be appropriate. Going to the mall with those soccer moms, etc. may well not be. No, it is not wrong in a legal manner in an open carry state, but may be a serious faux pas from the aspect of winning over folks who are already intimidated. I also believe that it is a serious tactical shortcoming - that exposed firearm marks one to the creature looking to rob the convenience store as the first victim of his assault. Many agencies mandate that officers not in uniform remain concealed, for both the PR importance to the agency but also for the tactical consideration. Kind of like the baggy, droopy hip-hop style of wearing pants - I don't believe it should be legislated against, it is their freedom of expression (not to mention makes it for those inclined to criminality more likely to trip and fall), but in many settings it is inappropriate and rude. Likewise the now common wearing of hats indoors - there are times it becomes unavoidable, but sitting in arestaurantor similar locales is rude. Neither wins others to their side in understanding, and mostly just acts toalienatethose who find it inappropriate.


    You are right about the mindset of cops. It is a difficult thing. They are often ostracized by many in common society, or subjected to meaningless drivel by folks. They are not given the support to learn to deal with this, and your comments are very accurate, I think. There should be more outreach at the entry level especially to help the incoming cops understand this and try to protect them from the "us 'n them" mentality. Unfortunately, for a variety of reasons, academies are very unlikely to add such a segment.


    You are right about the stats on police deaths, I think that for almost my entire career, except for the early 70s, traffic deaths deaths outnumbered criminally by about 2 to 1. Part is due, I believe, to the greater emphasis on officer survival skills to driving skills. Part is due to a need to generate better methods of emergency parking, to provide better protection for officers stopped roadside, whether from DUI, inattentive drivers, or other hazards. Finally, the need to improve driving skills and determine better tactics for use during high speed, whether responses or pursuits. If we can find folks with the knowledge to do the research and establish better techniques, perhaps thetrafficrelatedtoll can be lowered as well. It is a sad fact that officers are generally much less safety conscious than members of other fields such as the fire service, EMS, etc. I don;t believe in over regulation as the answer, but do see the need for safety training and enlightenment of the police service.


    Thanks for your comments,


    Paul


    Paul R. Laska

    Forensic and Anti-terrorism Consultant
    www.PaulRLaskaForensicConsulting.com
    www.PaulRLaska.com

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    From:[/b]Dale[mailto:d]
    Sent:[/b]Thursday, April 16, 2009 9:55 AM
    To:[/b]Dees, Tim (ELS-SDG)
    Subject:[/b]Open Carry



    I just finished reading Paul Laska's article concerning open carry of firearms by the general public. For the most part I find it was a good article.There are two areas that concern me. First his suggestion that open carry is OK in a rural setting but rude in an urban setting. Constitutional rights are not setting dependant Second; Unless criminal conduct is suspected a person detained is only required to give correct name and address. Any other identification requested by the officer in charge is not warranted.

    I havegeneral comment I would like to make.

    I have law ennforcement officers in my family. One of them recently told me that the one thing that troubled him was being able to maintain a rational mind set. What he meant by that is that after dealing 24/7 with the lower element of society one eventually gets the mindset that all of society is bad. The reality is that 90% of society is good and means him no harm. He said it is a struggle for him to keep that perspective. I am sure he is not alone in his conundrum.

    I recently attended graduation ceremony of a friend that completed a police acadamy. Some days before the ceremony I was given the privlege of getting a one on one tour of the academy and it's curiculum. I was suprised that there wasn't a great deal of class time given to the psychology of the job. Training that could address the need to maintain a rational mindset.

    Another family member in law enforcement told me that he was troubled by the apparent "phobia" law enforcement has in general when it comes to the possession of firearms by the general public. He says that he is much more worried about being killed by a careless or drunk driver of an automobile than being shot while on duty. FBI statistics would bear that comment out. Year after year more police officers are killed by some form of automobile action than are killed by firearms, yet an officer killed by firearm will gain nationwide attention whereas one killed by a drunk driver will generally be lucky to make the local news.

    Thank you for your attention

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    Abock33 wrote:
    I read he was carrying in a thigh holster... (Forgive me but Im new here) I would think that this type of rig isn't the best to carry openly. I have one and I use it when I go to my friends farm.But for an everyday carry I would think that I would find something closer to the hip. It didn't say what type of holster he was carrying in the second time.



    Does anyone else carry in a thigh holster daily?
    There was a concealed carry issue the first time. I didn't want to chance them saying I was covering it up at ANY point. Which notsurprisingly, there was such an attempt by a DA before his little stroke of "genius" was cut short by the fact thatI was wearing a thigh holster. After that and Krause's case I felt the risk of a trumped up CCW chargewas not as high and was using a belt holster after that and during the second arrest. But the thigh holster was/is more comfortable.

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    Abock33 wrote:
    I read he was carrying in a thigh holster... (Forgive me but Im new here) I would think that this type of rig isn't the best to carry openly. I have one and I use it when I go to my friends farm.But for an everyday carry I would think that I would find somthing closer to the hip. It didn't say what type of holster he was carrying in the seccond time.



    Does anyone else carry in a thigh holster daily?
    Why is a thigh holster not the best for open carry?

    In cold climes, where heavy and long outer wear is common, and in Wisconsin where the only legal carry is open, it seems a thigh rig is about the best solution for winter carry.

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    Doug Huffman wrote:
    Abock33 wrote:
    I read he was carrying in a thigh holster... (Forgive me but Im new here) I would think that this type of rig isn't the best to carry openly. I have one and I use it when I go to my friends farm.But for an everyday carry I would think that I would find somthing closer to the hip. It didn't say what type of holster he was carrying in the seccond time.



    Does anyone else carry in a thigh holster daily?
    Why is a thigh holster not the best for open carry?

    In cold climes, where heavy and long outer wear is common, and in Wisconsin where the only legal carry is open, it seems a thigh rig is about the best solution for winter carry.

    Exactly. I do not know what state you are from, But Wisconsin does not have any concealed carry provisions for it's citizens. So the firearm needs to be fully exposed to be legal. In the winter months we commonly wear longer length jackets, if that jacket were to partially conceal a firearm crried on the hip, we would be charged with and most likely be foundguilty of carrying a concealed firearm.

    Vehicles are also considered concealment in the state of WI, So all firearns must be unloaded and fully encased before entering a vehicle. It is also unlawful to rest or place afirearm on the outsideof or resting againsta vehicle in this state. That is a very common charge used during our hunting seasons.


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    Wow - I didn;t know they he was arrested again for OC'ing. Good thing the lawsuit was filed.

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    "No, it is not wrong in a legal manner in an open carry state, but may be a serious faux pas from the aspect of winning over folks who are already intimidated. I also believe that it is a serious tactical shortcoming - that exposed firearm marks one to the creature looking to rob the convenience store as the first victim of his assault. "

    Could folks be "already intimidated" because of anti-gun propaganda? If so, then more open carry will slowly start to ease the fear.

    Still looking for anyone to provide a link where a bad guy saw an open carrier and shot him down. Most criminals are cowards and bullies and will retreat when they are the ones being threatened.

    Most not all. Be aware. Shoot straight.
    Remember Peter Nap and Skidmark. Do them proud. Be active. Be well informed. ALL rights matter.

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    Actually he is correct in saying that asking more questions is legal, it is. According to Van Hollens advisory as long as questions or behavior of LEO do not convey to the subject that he must comply with the request it is fine and does not violate the Fourth Amendment. Individuals retains right to walk away and not anwser the questions.

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    "On the other hand, when in the back country, it is very reassuring, whether you may encounter snakes, mortally injured cattle and deer, or ne'er do wells looking to prey on the unwitting."

    Ya, out in the country is where we will run into all those ne'er do wells. I suspent this guy is a militant anti-gunner that just doesn't want to appear that way.

    I grew up out in the back country and I don't think I once I had the urge to carry for self defense until I joined the military and started spending all my time in the populated area's

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    any progress in this case?

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    You know how it goes. This kind of case can take a long time to get done. I was, and still am asking that the first winner of a case like this in Wisconsin hold a big party after. A kind of "super open carry party".

    One thing I can say for sure. We will all know when this case is over. This one is big. It should change LEOs' ideas of what we willaccept from them.It should show the full State that we willexercise all of our rights, without fear. From the tip of Washington Island to the South Side of Beloit, all LEOs' in this State should understand that open carry is legal, and in the end, a good thing for all.

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    So, say if a person was carrying a Bible, he would be Bible toting? Toting? Seems to impose an automatic threat, just by the wording. Very biased.

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    The federal court issued a decision today, granting the defendants' motion for summary judgment. In the court's opinion, anyone can be arrested for disorderly conduct for wearing a gun in a store, and presumably anywhere else:

    "No reasonable person would dispute that walking into a retail store openly carrying a firearm is highly disruptive conduct which is virtually certain to create a disturbance. This is so because when employees and shoppers in retail stores see a person carrying a lethal weapon, they are likely to be frightened and possibly even panicky. many employees and shoppers are likely to think that the person with the gun is either deranged or about to commit a felony or both. Further, it is almost certain that someone will call the police. And when police respond to a "man with a gun" call, they have no idea what the armed individual's intentions are. The volatility in such a situation could easily lead to someone being seriously injured or killed."

    The court's opinion will be posted soon.

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    That's that, a well timed decision. Thanks, I'll be looking for the decision.

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    WTF?

    Which court was this and where do I look for the decision? Where does the case go from here?

    If we are denied both modes of carry; one by the CCW prohibition, and the other by DC, I can't think of better grounds for a constitutional challenge.

    Would this decision have been different if it would have been brought up after the Mcdonald opinion (assuming 2A is applied to states)? I mean, if this was a federal civil rights lawsuit, in federal court, is there a difference on whether you are nailed for DC for practicing your rights? Maybe I'm talking in circles......uhm.... OK, I guess the question is, does the federal court look at our stateRKBA or do they view this onlyon thefederal level?

    I'm confused. If they view this as DC, can DC be challenged again as overbroad?

    Ergh..... are we all going to start getting arrested for DC again?


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    947.01 Disorderly conduct.

    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.
    History: 1977 c. 173; 1979 c. 131.

    The defendant was properly convicted of disorderly conduct when he appeared on
    a stage wearing a minimum of clothing intending to and succeeding in causing a loud
    reaction in the audience. State v. Maker, 48 Wis. 2d 612, 180 N.W.2d 707 (1970).

    An attorney was properly convicted under this section for refusing to leave a ward
    in a mental hospital until he had seen a client after having made statements in the presence of patients that caused some to become agitated. State v. Elson, 60 Wis. 2d 54, 208 N.W.2d 363 (1973).

    It was not disorderly conduct for 4 people to enter an office with other members
    of the public for the purpose of protesting the draft and to refuse to leave on orders
    of the police when their conduct was not otherwise disturbing. State v. Werstein, 60
    Wis. 2d 668, 211 N.W.2d 437 (1973).

    This statute does not require a victim, but when the disorderly conduct is directed
    at a person, that person is the victim for the purpose of prosecuting the perpetrator for intimidating a victim under s. 940.44. State v. Vinje, 201 Wis. 2d 98, 548 N.W.2d 118 (Ct. App. 1996), 95−1484.

    A “true threat” is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech. It is not necessary that the speaker have the ability to carry out the threat. State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762, 99−1924.

    Purely written speech, even written speech that fails to cause an actual disturbance,
    can constitute disorderly conduct, but the state has the burden to prove that the speech is constitutionally unprotected “abusive” conduct. “Abusive” conduct is conduct that is injurious, improper, hurtful, offensive, or reproachful. “True threats” clearly fall within the scope of this definition. State v. Douglas D. 2001 WI 47, 243 Wis. 2d 204, 626 N.W.2d 725, 99−1767.


    Application of the disorderly conduct statute to speech alone is permissible under
    appropriate circumstances. When speech is not an essential part of any exposition
    of ideas, when it is utterly devoid of social value, and when it can cause or provoke
    a disturbance, the disorderly conduct statute can be applicable. State v. A.S. 2001 WI
    48, 243 Wis. 2d 173, 626 N.W.2d 712, 99−2317.

    Disorderly conduct does not necessarily require disruptions that implicate the public
    directly. This section encompasses conduct that tends to cause a disturbance or disruption that is personal or private in nature, as long as there exists the real possibility that the disturbance or disruption will spill over and disrupt the peace, order, or safety of the surrounding community as well. Sending repeated, unwelcome, and anonymous mailings was “otherwise disorderly conduct.” State v. Schwebke, 2002 WI 55, 253 Wis. 2d 1, 644 N.W.2d 666, 99−3204.

    Defiance of a police officer’s order to move is itself disorderly conduct if the order
    is lawful. Braun v. Baldwin, 346 F.3d 761 (2003).
    It seems to me that the red part could be appplied to other constitutionally protected rights giving the burden to the state to prove that it's actually constitutionally unprotected behavior.

    The people have the right to keep and bear arms for security,defense, hunting, recreation and for any other lawful purpose

    It surly fits within "security" and "any other lawful purpose".



    IDK, this is just making me mad. I'm sure it will be clearer to me when I can read the decision but even then, I'm affraid, I'll be PO'd.
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