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

comp45acp

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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/files/FinalOpenCarryMemo.pdf



# # #
 

Cobbersmom

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http://www.doj.state.wi.us/news/files/FinalOpenCarryMemo.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:


[align=left]"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. "[/align]

[align=left]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.[/align]

[align=justify]"¶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. [font="Times New Roman,Times New Roman"]The Department believes that mere open carry of a firearm, absent additional facts and circumstances, should not result in a disorderly conduct charge. [/font]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. [font="Times New Roman,Times New Roman"]See Werstein, [/font]60 Wis. 2d at 672-73 (collecting cases illustrating disorderly conduct) ("In each of these cases, convictions for being ‘otherwise disorderly’ resulted from [font="Times New Roman,Times New Roman"]the inappropriateness of specific conduct because of the circumstances involved[/font]") (emphasis added).4 [/align]

[align=justify]¶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, "t is the combination of conduct and circumstances that is crucial in applying the [disorderly conduct] statute to a particular situation." [font="Times New Roman,Times New Roman"]Maker, [/font]48 Wis. 2d at 616. "[/align]
 

Shotgun

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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.
 

Agent1187

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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!!
 

Fast Ed

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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
 

Mike

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Ap quotes OCDO's John Pierce at http://www.chicagotribune.com/news/chi-ap-wi-carryingweapons,0,2756197.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.
 

Lammie

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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.
 

Rick Finsta

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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?
 

Birdhunter

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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
 

tomm1963

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

trailblazer2003

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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.
 

Mike

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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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