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Thread: WI Attorney General Issues Opinion on Open Carry - it's legal

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    Regular Member comp45acp's Avatar
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    NEWS RELEASE



    For Immediate Release For More Information Contact:

    April 20, 2009 Bill Cosh 608/266-1221





    Attorney General J.B. Van Hollen Releases

    Advice to District Attorney’s Regarding

    Open Carry and Disorderly Conduct



    MADISON - Attorney General J.B. Van Hollen released guidance in the form of an Advisory Memorandum to Wisconsin’s District Attorney’s today regarding Wisconsin’s Constitutional Right to openly carry firearms and its relative application in matters of criminal Disorderly Conduct.



    The Advisory Memorandum is summarized as follows:



    Under Article I, § 25 of the Wisconsin Constitution, a person has the right to openly carry a firearm for any of the purposes enumerated in that Section, subject to reasonable regulation. The Wisconsin Department of Justice believes that the mere open carrying of a firearm by a person, absent additional facts and circumstances, should not result in a disorderly conduct charge from a prosecutor.



    “It is not unlawful, barring other facts and circumstances, to openly carry a firearm in Wisconsin,” Attorney General J.B. Van Hollen said. He went on, “This is offered as guidance to Wisconsin’s prosecutors when making charging decisions. It will also assist Wisconsin law enforcement in the exercise of their duty to keep the peace, protect rights and enforce the law.”



    See the Advisory memorandum at:



    http://www.doj.state.wi.us/news/file...nCarryMemo.pdf



    # # #
    Jim Burgess
    NRA Lifetime

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    Take THAT, Milwaukee.

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    Hooah - finally !



    BTW - your link has a period at the end - it wont copy. Simple fix. Thanks for posting!

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    Wisconsin Carry, Inc. Shotgun's Avatar
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    This is pretty good news --- make sure you carry a copy in your pocket whenever you OC in Wisconsin.
    A. Gold

    Failure to comply may result in discipline up to and including termination.
    The free man is a warrior. - Nietzsche "Twilight of the Idols"

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    Excellent. Progress.

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    http://www.doj.state.wi.us/news/file...nCarryMemo.pdf

    Easy enough to fix. I read the whole 'advisory' memo. At first I thought Van Hollen grew a set until I read the caveat:


    "We further note that, as explained below, this informal Advisory Memorandum does not carry the same legal significance as a formal Opinion of the Attorney General on a matter of state law. "


    He could have issued a formal opinion but chose to not do that. Plus note the way he worded it below, siting examples of someone open carrying but ON THEIR PROPERTY. It mentions a hunterON HIS PROPERTYin sec. 6 and alludes to Krause ON HIS PROPERTY in sec. 7. It doesn't appear to support open carry off your property by threatening possible DC charge off your property in public. I have no doubtsome cops against OC will say just open carrying in a holster is brandishing a handgun. If there are cops who already feel the law abiding public should never carry a gun other than for hunting purposes, this won't change anything.


    "¶6. Applying these principles to open carry matters, we recognize that under certain circumstances, openly carrying a firearm may contribute to a disorderly conduct charge. But this determination must take into account the constitutional protection afforded by Article I, § 25 of the Wisconsin Constitution. The Department believes that mere open carry of a firearm, absent additional facts and circumstances, should not result in a disorderly conduct charge. For example, a hunter openly carrying a rifle or shotgun on his property during hunting season while quietly tracking game should not face a disorderly conduct charge. But if the same hunter carries the same rifle or shotgun through a crowded street while barking at a passerby, the conduct may lose its constitutional protection. See Werstein, 60 Wis. 2d at 672-73 (collecting cases illustrating disorderly conduct) ("In each of these cases, convictions for being ‘otherwise disorderly’ resulted from the inappropriateness of specific conduct because of the circumstances involved") (emphasis added).4


    ¶7. The same concepts should apply to handguns. The state constitutional right to bear arms extends to openly carrying a handgun for lawful purposes. As illustrated by a recent municipal court case in West Allis, a person openly carrying a holstered handgun on his own property while doing lawn work should not face a disorderly conduct charge.5 If, however, a person brandishes a handgun in public, the conduct may lose its constitutional protection. Again, "[i]t is the combination of conduct and circumstances that is crucial in applying the [disorderly conduct] statute to a particular situation." Maker, 48 Wis. 2d at 616. "

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    Wisconsin Carry, Inc. Shotgun's Avatar
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    If an LEO claims that a holstered gun is a brandished gun, then they all better arrest each other first for brandishing their guns.
    A. Gold

    Failure to comply may result in discipline up to and including termination.
    The free man is a warrior. - Nietzsche "Twilight of the Idols"

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    "The Wisconsin Department of Justice (the Department) believes that the mere open carrying of a firearm by a person, absent additional facts and circumstances, should not result in a disorderly conduct charge from a prosecutor."

    This of course does nothing to solve our little predicament with the police who tend to "haul 'em in and let the DA sort it out."

    But still.. baby steps!!

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    I concur - definition of brandish =

    1 : to shake or wave (as a weapon) menacingly

    2 : to exhibit in an ostentatious or aggressive manner

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    I heard this on 1130 WISN on my way home.

    WOOT. Progress.

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    Please send a note or make a phone call to the AG's office and thank him for submitting this memorandum. We were quick to condemn when he didn't do it. Let's be as quick to compliment him for this, as imperfect as it is. It is a step in the right direction and will do much to help our cause.

    I think his opinion, as far as it goes, is correct. It is not the mere act of carrying openly that can be considered disorderly, but a combination of carrying openly and other behavior. I think this is as it should be. The law is not settled as to what a jury will find disorderly when carrying a firearm. There have not been enough cases to determine the limits that will be accepted.

    This, IMHO, is another reason for carrying concealed. Behaviour not accepted when carrying openly may be accepted when the citizenry doesn't know if you are carrying at all.

    Fast Ed


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    Regular Member Smurfologist's Avatar
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    Now, ifWisconsin can just rub off on their neighbor state of Illinois........

    The 2nd Amendment... brought to you by Beretta and the number 1787!!:X
    The 2nd Amendment... brought to you by Beretta and the number 1791!!

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    Ap quotes OCDO's John Pierce at http://www.chicagotribune.com/news/c...,2756197.story

    AG: Openly carrying guns not an automatic charge
    By SCOTT BAUER | Associated Press Writer
    5:03 PM CDT, April 20, 2009

    MADISON, Wis. - Gun rights advocates heralded a memo issued Monday by Wisconsin Attorney General J.B. Van Hollen saying that openly carrying a gun should not automatically result in a disorderly conduct charge.

    The advisory memo came just two months after a judge ruled that a West Allis man was within his rights when he carried a gun on his property while planting a tree. He had been charged with disorderly conduct.

    Van Hollen said his office received a number of questions about the issue from prosecutors around the state. Unless there are other circumstances, Van Hollen said in the memo sent to district attorneys, merely carrying a weapon shouldn't result in being charged with disorderly conduct.

    "The decision to charge a defendant with disorderly conduct necessarily depends on the totality of the circumstances," Van Hollen said.

    John Pierce, co-founder of gun advocacy Web site OpenCarry.org, praised Van Hollen.

    "It shows our friends and our neighbors and the people in our communities that carrying a firearm legally and constitutionally is a very wholesome act," Pierce said.

    Wisconsin is one of 29 states that allow people to openly carry a firearm without a permit, Pierce said. Permits are required in 13 states, in two states unloaded weapons can be carried in some areas, and it's barred in the other six states, he said.

    Wisconsin and Illinois are the only states that do not issue permits for people to legally carry concealed weapons.

    The West Allis case, and another one involving a Milwaukee man who was twice detained by police for carrying a holstered gun, shows that the open carry law in Wisconsin isn't widely understood, Pierce said.

    Van Hollen notes in the memo that while weapons can legally be carried in the open, other laws specifically limit the possession of firearms in places like schools, bars and public buildings.

    Police also are fully within their rights to stop someone who is openly carrying a weapon to investigate possible illegal activity, Van Hollen said.

    Pierce accused Van Hollen of "taking the easy way out" by not providing more specific guidance for prosecutors on how to handle difficult cases. But he said it was understandable the attorney general would want to give them leeway.

    Ralph Uttke, district attorney for Langlade County and president of the Wisconsin District Attorneys Association, said he agreed with Van Hollen's analysis.

    "I wouldn't charge someone simply for carrying a firearm," Uttke said.

    Uttke said he's never received a complaint about someone carrying a weapon openly in his northeastern Wisconsin county.

    "People carry firearms a lot up here, especially people working in the woods where they might have a rifle or a handgun in case they encounter animals," he said.

    In West Allis, where openly carrying a firearm is more unusual, resident Brad Krause was charged with disorderly conduct in August after he carried a gun in a holster while planting a tree on his property. In February a judge said he was within his rights.

    Last week, Jesus Gonzalez of Milwaukee filed a federal lawsuit alleging that his constitutional rights were violated on two separate occasions when police in West Milwaukee and Chilton took him into custody because he was carrying a handgun in a holster.

    In addition to seeking damages, Gonzalez is also asking for a declaration from a federal judge that openly carrying a firearm in Wisconsin alone does not constitute disorderly conduct.


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    This is not a baby step. It is a big step. We now have the State Supreme Court, the State prosecutors office and the Attorney General Office (the three top levels of state law enforcement)confirming our right to open carry firearms. If local law enforcement still doesn't get the message they must be brain dead. As far as the AG memorandum having caveats and wiggle room, it probably has to. There are too many variables involved for a carte blanche statement. For example: Theremay befuture circumstances where a person open carrying a firearmmay engage in true disorderly conduct. The DA's must have authority to prosecute those cases. The Krause case, the Gonzales' cases. the AG memorandum and the SSC definition of disorderly conduct in state v. Douglas should keep them from making frivilous charges.

    It may be interesting to resend the emails and a copy of the memorandum, to those LEO's that have gone on record as opposing open carry and see if thier official positions have changed.

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    Is it just me, or does the statement that LEOs can investigate individuals openly carrying go directly against JL v. Florida? I didn't think the presence of a firearm in the open was RAS for a Terry stop?

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    I agree with Lammie - this is not a small step!

    I contacted a couple of LEO's that are friends of mine. They both state that although this isn't law, it's legal direction from the chief law enforcement officer in the state, which seems to be more than enough direction, according to my sources. One commented that it was about time that they got guidance on the issue, so they know how to proceed.

    IANAL, so take it for what it's worth.

    Good news indeed!

    Jason

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    Agreed, BIG step. Especially for us sorry saps locked into the Peoples Republic of Milwaukee.

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    Great news!

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    Rick Finsta wrote:
    Is it just me, or does the statement that LEOs can investigate individuals openly carrying go directly against JL v. Florida? I didn't think the presence of a firearm in the open was RAS for a Terry stop?
    I caught that too. The memorandum seems to have it correct, but some how the news article has skewed the facts.

    The article has a, police can stop a person and go on a fishing expedition tone to it.

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    Rick Finsta wrote:
    Is it just me, or does the statement that LEOs can investigate individuals openly carrying go directly against JL v. Florida? I didn't think the presence of a firearm in the open was RAS for a Terry stop?
    read the whole passage - . . . "if he has "reasonable suspicion," based on articulable facts, of criminal activity.'

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    http://www.jsonline.com/news/crime/43302252.html

    Open carrying of firearms legal, Van Hollen says
    By Patrick Marley of the Journal Sentinel


    Posted: Apr. 20, 2009 3:16 p.m.

    Madison - State Attorney General J.B. Van Hollen said openly carrying firearms is legal in a memo he sent to district attorneys Monday afternoon.

    "The Department (of Justice) believes that mere open carry of a firearm, absent additional facts and circumstances, should not result in a disorderly conduct charge," the Republican attorney general wrote in the memo.

    Wisconsin and Illinois are the only states that have an outright ban on carrying concealed weapons. But Wisconsin's statute is silent on carrying weapons openly, such as in a clearly visible belt holster.

    But people who openly carry guns often have been charged with disorderly conduct. That police practice has come under scrutiny recently.

    In February, Brad Krause was acquitted after being charged in August with disorderly conduct for having a holstered handgun while he did yard work in West Allis.

    Then last week, Jesus Gonzalez filed a federal lawsuit against West Milwaukee and Chilton after police officers in those communities detained him for carrying a gun in a holster in a Menards and a Wal-Mart. In both cases, he was taken to jail but not charged.

    In his memo, Van Hollen noted that the state constitution protects the right to bear arms.

    "A hunter openly carrying a rifle or shotgun on his property during hunting season while quietly tracking game should not face a disorderly conduct charge," Van Hollen wrote. "But if the same hunter carries the same rifle or shotgun through a crowded street while barking at a passerby, the conduct may lose its constitutional protection."

    "The same concepts should apply to handguns," he added, citing the West Allis case. He noted that brandishing a gun in public is not legal, however.

    Van Hollen said police retain the right to stop someone who is openly carrying a weapon to investigate possible crimes, including disorderly conduct.

    "Even though open carry enjoys constitutional protection, it may still give rise to reasonable suspicion when considered in totality," he wrote. "It is not a shield against police investigation or subsequent prosecution."

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    I agree with Lammie also.

    OC has quickly gained a lot of momentum in WI, there are events being planned, now this AG memo. We need to keep the momentum going. The best way is to actually exercise the right. If you've been timid about OCing. Print a copy of the AG memo and carry it with you as you OC.

    Yes, there's wiggle room to still arrest you, but it isn't that much. Brad and Jesus were arrested for just having a gun. Period. That won't (or shouldn't) cut it now. If you OC, don't give them anything else to hang on you. Be polite and civil. Open doors for old ladies. Open doors for young ladies too!

    As the AG said, if you're carrying a rifle or shotgun down the street and "barking" at a passerby, you might be subject to arrest. Hell, if you're scary enough looking, you might get arrested for that even without a gun on you. Most people will consider the fact that you have a gun to automatically make you scary. Many people will probably think that your GRANDMA looks scary if she has a gun, so even grandma's shouldn't be barking at people while armed.

    Interestingly, earlier today when I was checking to see how the story of the AG's memo was hitting the area news, the longest story I found was in the Chicago Tribune! I hope Mayor Daley reads the Tribune... I assume he knows how to read...
    A. Gold

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    The memorandum from the AG is one victory for us. There are two other impediments to open carrythat need an agressive approach from us. One is the school zone law. The other is open carry in or on a vehicle. My opinion is that the vehicle prohibition is the most fragile.

    The Wisconsin Supreme Court has ruled more than once that it does not see a conflict between the concealed weapon statue 941.23 and the vehicle transport statute 167.31(2)(b). In fact the Court has said that a person must comply with both statutes.Statute 167.31(2)(b) requires that if you carry a firearm in or on a vehicle it must be concealed in a carrying case. That requirement would seem to conflict with the supreme court applied rules that define concealement, Namely; The person knows the weapon is there. The weapon is within reach and the weapon is completely concealed. Encasing a weapon in accord with 167.31(2)(b) would appear to meet thoseconditions and therefore amount to going armed with a concealed weapon, therefore, be a violation of statute 941.23. The SSC has said "not so" It has said that a person can avoid a conflict between the statutes by carrying the weapon out of reach.

    The reason statute 167.31(2)(b) and the SSC ruling is so fragile is that it is not possible to carry an encased weapon out of reach on a number of vehicles. The most solid case in point is an All-Terrain-Vehicle. It's very name and the definition of vehicle as contained in state statutes determine that an ATV is a vehicle. Additionally state statute 23.33(3)(c) (which is one of the Rules of Operation of ATV's) reads: It is unlawful to operate an ATV --- with any firearm in his or her possession unless it is unloaded and encased in a carrying case. That statute confirms that the carry of a firearm on an ATV is lawful providing it is encased. However, the construction of an ATV is such that under normal operating condiitions it is impossible to carry the firearm out of reach. Therefore it is impossible to avoid the conditions of concealment as the SSC rules.

    There are a number of other vehicles that are constructed so that out of reach carry is not possible, vehiclessuch as motorcycles,snowmobiles, trail bikes just to name a few. Thier argument isn't as strong as an ATV because there is no specific statute that specifically allows carry of firearms on them. (Snowmobiles are a separate class and aren't defined as vehicles but there is a specific statute that requires firearms to be encased while they are in operation).

    The fact that carry of a firearm on an ATV is lawful and the fact that it is not possible to avoid the three conditions of concealment is what makes one of the two statutes, in my opinion, unconstitutional. Statute 941.23 prohibits carry of a concealed weapon on an ATV. Statute167.31(2)(b) prohibits open carry of a weapon on an ATVand no way to avoid the three conditions of concealment. So, even though ss23.33 allows carry of firearms on an ATV and Article I section 25 says we have the constitutional right to keep and bear arms for security, defense, hunting, recreation or any lawful purpose it is impossible toexercise those rights while carrying a firearm on an ATV, therefore,a person'sconstitutional rights are infringed.

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    Aesome guys!! We made a big step!

    Ben

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    Mike wrote:
    Rick Finsta wrote:
    Is it just me, or does the statement that LEOs can investigate individuals openly carrying go directly against JL v. Florida? I didn't think the presence of a firearm in the open was RAS for a Terry stop?
    read the whole passage - . . . "if he has "reasonable suspicion," based on articulable facts, of criminal activity.'

    The problem is mostofficials and peoplewill read " Finally, several law enforcement agencies have asked whether, in light of Article I, § 25, they may stop a person openly carrying a firearm in public to investigate possible criminal activity, including disorderly conduct. We say yes. " and that's it. Ifpolice understood the "reasonable suspicion" requirement these situations would never have happened in the first place. AND if yousee or hearhow WISN 12 interpreted the "opinion" you will see my point.

    Regardless, the rest of the days events morethan make up for it. Incorporation of the Second Amendment in the Ninth Circuit, Chicago Tribune and Milwaukee Journal Sentinel articles as well asevening news coverage of the AG Van Hollen's Informal Memo. A big step indeed.


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