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

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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...

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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?

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read the whole passage - . . . "if he has "reasonable suspicion," based on articulable facts, of criminal activity.'

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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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The AGs memo and the incorporation of the 2nd amendment are both HUGE. I would never, ever guess the 9th circuit would have come up with it, that is a court of loony tunes, but God bless them today.

So while we should not be charged for DO while OCing, we may still be arrested as was Jesus. A victory for Jesus in his civil suit should seal the deal and make "lawfully" OCing a hassle free experience. I am sooooo looking forward for open carry picnics and get togethers this summer.

This news should enbolden the timid amongst us (like me) to open carry on a regular basis.

Also others here have given what I think is sound advice 1) send a thank you to Attorney General. 2) we need to focus on expanding our rights in regards to schools, vehicles and public buildings.

What a day!!!:celebrate

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Yeah, what Jesus said. I have concerns that the wording was obtuse enough to be interpreted as the presence of the weapon still giving RAS, but I think he meant that the presence of a weapon doesn not necessarily shield a person from a Terry stop. IANAL, but neither is the guy who would detain and arrest me!

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Max said----This news should enbolden the timid amongst us (like me) to open carry on a regular basis.

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True that!! I used to only carry at my place but now I hope to get out more with my weapon. However as Lammie said we need to definately work on those two laws. And the frikin school zone law! Man I hate that law.

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Hey Bunker. How's that grab ya?

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Lammie LOL. Bunker is probably lying in a corner of his basement, in the fetal position chanting, "It is against the law, it is against the law..."

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Coming on the heels of the Nordyke v. King decision from the Ninth US Circuit, this is a pretty good week so far.

I find ithumorous that the guidance memo discusses the AG's inability to previously issue an opinion to people/legislators (one of whom was yrs trly) because of pending litigation but he will now. Oh, wait... that's right. Jesus' pending S.1983-type civil suit has nothing to do with this. Oh, well. Kudos toMr. Gonzalez& Mr. Krause anyway.

Hopefully the AG will stick around for awhile with head above ground and DA's will do what they're supposed to do with such guidance and use it as an educational/policy tool with the departments/agencies in their jurisdiction.

Happy trails folks.

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i have printed a "few" copies

Ill have one in my pocket, and post the rest wherever they will let me

i still dont oc all the time.. but as soon as the school zone junk gets thrown out..
i wont leave the house without it! : )

HUGE step in the right direction..

now how about a picnic in milwaukee? :lol:

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WIG19 wrote:

Coming on the heels of the Nordyke v. King decision from the Ninth US Circuit, this is a pretty good week so far.

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Actually, we have a trifecta if you include the DOI's decision to go forward with the emergency environmental assessment to save the Natyional Park gun ban repeal, see http://www.ajc.com/metro/content/printedition/2009/04/18/nation0418.html.

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Shotgun wrote:

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...

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Soon, many people won't have a choice, but, to read the Chicago Trib (since the Chicago Sun-Times has bit the big one). I grew up reading the Trib (considered a conservative paper). I just hope it rubs off on the people and help them see that all of this is about self-protection, protection of one's family, protection from criminals, the 2nd Amendment, etc. My two cents.

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

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Badger Hearld article: http://badgerherald.com/news/2009/04/21/carrying_firearm_not.php

Carrying firearm not grounds for disorderly conduct Wisconsin law does not address openly possessing weaponby Rachel Vesco Tuesday, April 21, 2009 01:01
Wisconsin citizens are legally allowed to carry firearms openly, Attorney General J.B. Van Hollen said in a memo to the state’s district attorneys Monday.
Currently, Wisconsin and Illinois are the only two states with laws preventing the carrying of concealed weapons. However, according to Van Hollen, there is nothing in state law regarding citizens who openly carry weapons.
“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,” Van Hollen wrote.
The memo came after various state district attorneys requested further information from the attorney general’s office regarding the relationship between the state’s statute allowing the open carry of firearms and the state’s disorderly conduct law.
In the memo, the attorney general cited a West Allis case in February, where a citizen wearing a holstered handgun on his property while doing lawn work was charged with disorderly conduct. According to Van Hollen, the man should not have faced a disorderly conduct charge.
Van Hollen did say, however, that the police may stop and question citizens who openly carry weapons if the officer has “reasonable suspicion based on articulable facts of criminal activity,” based on the individual circumstance.
Officers can also stop citizens even though they may not have any “basis to question the individual,” and can ask questions or verify a citizens’ identification, although the citizen being questioned does not have to answer, Van Hollen added.
“Even though open carry enjoys constitutional protection, it may still give rise to reasonable suspicion when considered in totality,” Van Hollen wrote.
According to University of Wisconsin political science professor Howard Schweber, the ruling is not common.
“I have to confess that’s an unusual rule. I am not familiar of another example of a state that has adopted a public carry law,” Schweber said.
On a federal level, the Second Amendment of the U.S. Constitution applies only to national laws, Schweber said, adding a recent Supreme Court decision ruled citizens could own a gun in their home, but said nothing about carrying a gun in public.

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And this: http://racinenews.org/?p=28349

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Brigdh wrote:

Officers can also stop citizens even though they may not have any “basis to question the individual,” and can ask questions or verify a citizens’ identification, although the citizen being questioned does not have to answer, Van Hollen added.

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I wonder what memo this journalist was reading? Like the AG said, absent reasonable suspicion of crime, the police cannot "stop" anyone.

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Everybody get ready for a BIG OC SUMMER.

Print a copy out and carry it with you!

Also don't forget your voice recorder, always a good idea when OCing.

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Another article: http://www.wrn.com/gestalt/go.cfm?objectid=CA289CE8-5056-B82A-37BC0B4C12D221EF

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Brigdh wrote:

Badger Hearld article: http://badgerherald.com/news/2009/04/21/carrying_firearm_not.php

According to University of Wisconsin political science professor Howard Schweber, the ruling is not common.

“I have to confess that’s an unusual rule. I am not familiar of another example of a state that has adopted a public carry law,” Schweber said.

On a federal level, the Second Amendment of the U.S. Constitution applies only to national laws, Schweber said, adding a recent Supreme Court decision ruled citizens could own a gun in their home, but said nothing about carrying a gun in public.

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It sounds to me like the University of Wisconsin needs to hire smarter Political Science professors, or at least ones that can read a web site:

http://www.opencarry.org/opencarry.html

I suppose to be fair, his second quote may have been made before the Nordyke v. King decision was released.

TFred