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Milwaukee Mayor Furious at AG opinion on open carry

Mike

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http://www.wisn.com/politics/19235901/detail.html- with VIDEO

What Do You Think About Open Carry Of Guns?
Milwaukee Mayor Furious; Gun Rights Groups Claim Victory
POSTED: 11:03 pm CDT April 20, 2009
UPDATED: 11:02 am CDT April 21, 2009


[*]
MILWAUKEE -- [/b]Gun rights groups are claiming victory after Wisconsin's attorney general said people can openly carry firearms.


Click To Comment

While the activists are praising the decision, others -- including Milwaukee Mayor Tom Barrett -- are not happy.

Opencarry.org member Nik Clark, of New Berlin, said he wouldn't wear his gun in public in some communities for fear of being arrested, but that is no longer the case after Attorney General J.B. Van Hollen ruled that openly carrying a firearm is legal in Wisconsin.

"It doesn't mean you can un-holster it, it doesn't mean you can waive it around, but it does mean you can openly carry a firearm," Clark said.

In a memo to all of Wisconsin’s district attorneys, Van Hollen said the right to openly carry a gun is protected by the state constitution.

"I don't see people suddenly starting to openly carry weapons because of this opinion,” Van Hollen said. “I think most people who would be so inclined are already aware of the fact that the law permitted them to do so.”

He said he was asked by a number of district attorneys to offer his opinion after a West Allis, Wis., man was charged with disorderly conduct last summer for wearing his gun while doing yard work. The man was eventually acquitted.

"If some people misunderstood or were misled about what their rights are, it's good we could clarify those things," Clark said.

Barrett said he is furious with the decision.

"It almost seems like the A.G. is encouraging people to carry guns in Milwaukee, and I cant think of a worse idea," Barrett said.

Felons still are not allowed to posses firearms, and they can't be brought into government buildings or near schools, according to Van Hollen.

But as long as the owner is following the law, they can carry a gun.

"Does that mean if they are walking down the street with an Uzi that that doesn't cause a disturbance?" Barrett said. "It’s insane. It's insane to be carrying guns on the streets of Milwaukee."

Van Hollen said police officers can still stop and briefly detain a person wearing a gun for investigative purposes.
 

thx997303

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Hmm, Police can stop and briefly detain citizens for investigative reasons?

Sounds like a harrassment lawsuit in the making.
 

Brigdh

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actually Wisconsin is a stop and identify state, so the police are covered
 

ConditionThree

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"It almost seems like the A.G. is encouraging people to carry guns in Milwaukee, and I cant think of a worse idea," Barrett said.



Mr. Barrett is obtuse, unable to imagine worse circumstances existing, than the right of armed self-defense being exercised in a lawful and honest way.

I can think of things much worse than this- I can imagine 30 or 40 unarmed victims being executed one by one in a shopping mall or school or a restaurant by a homicidal gunman uses a gun-free zone as their personal shooting gallery. I can imagine a serial rapist stopping women under the pretense of being law enforcement or a 'good Samaritan' so he can feed his need of sexual control and murder. I can imagine understaffed police forces unable to provide patrol services in communities being criticized for priority call response times exceeding 15 or 20 minutes or more.

Those things are certainly much worse. Mr Barrett needs to lighten up.
 

DHCruiser

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I'm not sure that would fully apply, Citizen.

"The petitioner was arrested and convicted for refusing to identify himself during a stop allowed by Terry v. Ohio, 392 U.S. 1 (1968)."

Other rulings have stated that being lawfully armed is not sufficient RAS for a Terry stop. In Hiibel, they had RAS as they were investigating a reported crime.

Even if someone is required to identify themselves, it doesn't give the officer RAS or Terry stop authority to search/seize the firearm or require the person to answer any questions since RAS has not been satisfied (indicating a crime in progress).

Edit to add further in Hiibel:

"The Court has recognized similar constitutional limitations on the scope and operation of stop and identify statutes. In Brown v. Texas, 443 U.S. 47, 52 (1979), the Court invalidated a conviction for violating a Texas stop and identify statute on Fourth Amendment grounds. The Court ruled that the initial stop was not based on specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity."
 

AZkopper

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A Terrystop requires reasonable articulatable suspicion that a crime is occurring or has occurred. If open carry is constitutionally legal in WI (which the AG says it is), then you can not assume that a crime is occurring without further articulatable facts.
 

Brigdh

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Mike wrote:
Brigdh wrote:
actually Wisconsin is a stop and identify state, so the police are covered
Really? Got a cite to that statute?
I was really hoping i could be lazy and have someone else form WI post it, but since I've got nothing to do at work: http://en.wikipedia.org/wiki/Stop_and_identify

Provides a direct link to the WI statute about a third of the way down the page.
 

glenn_r

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Brigdh wrote:
Mike wrote:
Brigdh wrote:
actually Wisconsin is a stop and identify state, so the police are covered
Really? Got a cite to that statute?
I was really hoping i could be lazy and have someone else form WI post it, but since I've got nothing to do at work: http://en.wikipedia.org/wiki/Stop_and_identify

Provides a direct link to the WI statute about a third of the way down the page.
Wikipedia is wrong. http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=946.41. Wisconsin law gives officers the right to demand identification, but it's not criminal to decline to provide it on a Terry stop. Henes v. Morrissey, 194 Wis. 2d 339, 533 N.W.2d 802 (1995). Local ordinances could require ID, however, and those would be constitutional under Hiibel.
 

Mike

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OK, so, in a terry stop WI law is satisfied by the person stating their name and address - sounds easy enough, and no need to cary an ID token:
[align=left]968.24 Temporary questioning without arrest.
After[/align]
[align=left]having identified himself or herself as a law enforcement officer,[/align]
[align=left]a law enforcement officer may stop a person in a public place for[/align]
[align=left]a reasonable period of time when the officer reasonably suspects[/align]
[align=left]that such person is committing, is about to commit or has committed[/align]
[align=left]a crime, and may demand the name and address of the person[/align]
[align=left]and an explanation of the person’s conduct. Such detention[/align]
[align=left]and temporary questioning shall be conducted in the vicinity[/align]
[align=left]where the person was stopped.[/align]
 

BB62

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Mike wrote:
OK, so, in a terry stop WI law is satisfied by the person stating their name and address - sounds easy enough, and no need to cary an ID token...
Wouldn't WI's law be overridden by Hiibel, which concluded that a person merely had to provide their name?
 

Mike

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BB62 wrote:
Mike wrote:
OK, so, in a terry stop WI law is satisfied by the person stating their name and address - sounds easy enough, and no need to cary an ID token...
Wouldn't WI's law be overridden by Hiibel, which concluded that a person merely had to provide their name?

Possibly, but i think the Nevada statute was vague - merely a command to identify one's self - the WI statute is specific - name and & address.

In the end the whole Hiibel rationale upholding the Nevada statut is shaky - how does a person know what is in the mid of the police officer justifying the reasonable suspicion for the stop?? SAnd further, the bad guy exception in Hiibel under Fifth Amendment makes the whole thing seem weird. That exception would appear to give a prohibited person teh right to refuse to ID one's self while open carrying as the testimoney would implicate him in a crime.
 

BB62

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Mike wrote:
BB62 wrote:
Mike wrote:
OK, so, in a terry stop WI law is satisfied by the person stating their name and address - sounds easy enough, and no need to cary an ID token...
Wouldn't WI's law be overridden by Hiibel, which concluded that a person merely had to provide their name?
Possibly, but i think the Nevada statute was vague - merely a command to identify one's self - the WI statute is specific - name and & address.

In the end the whole Hiibel rationale upholding the Nevada statut is shaky - how does a person know what is in the mid of the police officer justifying the reasonable suspicion for the stop??..
(my emphasis above)

Exactly. Yes, but the whole "how does a person know" puts the person in what I feel is an unwinnable situation - since the officer can lie without repercussions about his reasons for the stop, IF he chooses to offer any explanation at all, one is putting oneself at risk by not IDing oneself, right?

What the $#@& good are rights if you can't exercise them?
 

Legba

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As for identication during stops, I'm in a bad position because I have a very common name, which definitely does produce multiple LEADS/NCIC/OBCII hits unless I supply yet more personal information to distinguish myself from the rogues gallery that comes up from just a name search. Even supplying my birthday matches me with a known felon from Columbus (he's black and I'm white, so the confusion is resolvable, but it has come up before). Ohio has some requirement for ID during stops (name and address or name and birthday or something) but for practical purposes, I'm required to supply my full name, address, SS#, and drivers license number to avoid being run in for fingerprinting.

-ljp
 

Mike

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Legba wrote:
As for identication during stops, I'm in a bad position because I have a very common name, which definitely does produce multiple LEADS/NCIC/OBCII hits unless I supply yet more personal information to distinguish myself from the rogues gallery that comes up from just a name search. Even supplying my birthday matches me with a known felon from Columbus (he's black and I'm white, so the confusion is resolvable, but it has come up before). Ohio has some requirement for ID during stops (name and address or name and birthday or something) but for practical purposes, I'm required to supply my full name, address, SS#, and drivers license number to avoid being run in for fingerprinting.

-ljp
The SSN demand is a violation of Section 7 of the Fed. Priv. Act - whay are you complying when damages can be obtained if arrested on that basis?
 

JSK333

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The code Mike quoted still requires RS. Openly carrying a firearm, absent any other criminally-suspicious behavior, would not constitute RS, and therefore I cannot see howthe averageOC'er could be legally forced to provide ID.
 
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