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Thread: Robbery thwarted by citizen open carrying - in a school zone!

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    Found this on http://www.journaltimes.com, seems my lovely city of Racine just may be a good place to OC afterall. He did all this WHILEwithin the 1000ft boundary of a school zone. After being checked out at the hospital, the cops GAVE him a ride home AND returned his firearm. No word yet on any charges, but at least they didnt fine him on the spot, lock him up, OR confiscate his firearm.

    Exact url of story is: http://www.journaltimes.com/articles...9957429120.txt

    RACINE — Four teens knocked a 42-year-old Racine man from his bike Friday night. He thought they were going to rob him.

    The man pulled a Smith and Wesson revolver from his side holster, pointed it at the sky and yelled, “Gun!”

    The four suspects ran, and the man flagged down a Racine police officer.

    The incident will perhaps mark the first time a new opinion allowing open carry of firearms is put to the test here, as it conflicts with another state statue that makes it illegal to possess a gun within 1,000 feet of a school, if not on private property.

    The Racine man involved, who asked not to be named and declined to comment on the alleged robbery attempt when contacted by The Journal Times, was assaulted in the 1100 block of Grand Avenue, which is within 1,000 feet of Walden School, 1012 Center St.

    Police did not arrest the man. After he was treated for head and wrist injuries at the scene by Racine rescue, officers escorted the man home and returned his gun to him.

    But that doesn’t mean charges won’t be filed against the man, and police are questioning how such situations should be handled in the future.

    “It’s difficult with the way the laws are written to carry (a gun) and not get into trouble,” said police spokesman Lt. Jim Dobbs.

    He said the new open carry ruling will probably prompt more and more people to wear firearms, but in many places in the city, even stepping off their front porch would mean they are breaking the law.

    “People will break the law inadvertently,” Dobbs said. “We want clarification from the state on what we should be doing.”

    Last month, Attorney General J.B. Van Hollen sent out a memo saying openly wearing a holstered gun is not illegal. While Wisconsin law states a person cannot legally carry a concealed weapon, it does not address carrying a firearm in plain sight.

    The opinion has created many questions, now including the apparent conflict between the existing statue over possessing a firearm near a school.

    Racine County District Attorney Mike Nieskes said Tuesday that he has been briefed on the incident and has talked to the state Attorney General’s Office about it. “We don’t have all the information,” he said. “It’s still under investigation.”

    Bill Cosh, spokesman for the state Department of Justice, said the Attorney General's Office wouldn't comment on specific cases or fact-pattern scenarios.

    According to the police report, just after 10:30 p.m. an officer on patrol saw a bike lying in the roadway in the 1100 block of Grand Avenue. He then saw the victim walk out from between two houses holding a revolver. The man flagged the officer down as he set the gun on the concrete.

    The man told the officer that he had just been assaulted. He said he was openly carrying his black and silver revolver in a side holster while riding his bike west on 12th Street toward Grand Avenue. He saw a group of teens on the corner of 12th and Grand and said, “Bike coming through,” to warn the group.

    As the man turned onto Grand Avenue, he turned around to look at the group and was hit in the back of the head, the police report said. The man was knocked from his bike and hit in the head again.

    The man told police he drew his revolver, pointed it to the sky and yelled out, “Gun!”

    The four suspects ran west on 12th Street and the man went to hide between the two houses. He told police he intended to contact authorities, but then saw the squad car pulling up.

    According to the report, the man believed the teens were trying to rob him. He could not give police a description other than the suspects were four black, male teens

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    Presumably under Hamdan-Vegas doctrine the man can assert the Wisconsin constitutiona as a defense as his carriage of the gun was a lawful purpose.

    But will the prosecutor exercise proper judgement and accept the defense? or will he prosecute anyway?

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    Mike wrote:
    There are probably 2 statutory violations here - carrying a loaded gun on/in a vehicle and within a school zone.

    Presumably under Hamdan-Vegas doctrine the man can assert the Wisconsin constitutiona as a defense as his carriage of the gun was a lawfukl purpose.

    But will the prosecutor exercise proper judgement and accept the defense? or will he prosecute anyway?
    I believe he was on a "pedal type bike", not the "vroom vroom type", so that wouldn't be "carrying a loaded gun on/in a vehicle" would it?

    Also, the school zone thing, yes, it is acknowledged that it was and is against the law, but I believe it is a good thing that he wasnt locked up right that minute, and his firearm wasn't taken. It shows our police dept isn't as quick as some other areas to "prove a point".

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    IIRC, doesn't the Federal statute state you KNOWINGLY are within 1000 ft? There haven't been many challenges of that yet, it's ripe for one. I hope prosecutorial discretion keeps them from filing charges against him.

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    I believe we've examined the "bicycle" question elsewhere in the forum and concluded it's not a "vehicle" for the purposes of the "vehicle transport" law. But again, it's my fuzzy memory that's telling me this.
    A. Gold

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    JohnK87 wrote:
    IIRC, doesn't the Federal statute state you KNOWINGLY are within 1000 ft? There haven't been many challenges of that yet, it's ripe for one. I hope prosecutorial discretion keeps them from filing charges against him.
    The state statute says "knowingly" or has "reasonable cause to believe" they are in a school zone.
    A. Gold

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    The free man is a warrior. - Nietzsche "Twilight of the Idols"

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    Unfortunately, since this man was most likely from this area, he knew he was by the school, its clearly posted as "Walden School". Not much of a defense, since he was on the street that runs DIRECTLY past the school, not one that doesn't have direct exposure to the school.

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    jjcharris wrote:
    Unfortunately, since this man was most likely from this area, he knew he was by the school, its clearly posted as "Walden School". Not much of a defense,
    But under Hamdan-Vegas, lawful purpose = defense. remmebr that vegas was driving around milwaukee delivering pizzas witha loaded gun in his car - a school zone violation or 2 on every pizza run!

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    For anyone that may want to drop a line of encouragement to our DA's office, here's the info, I know I will be, and to our police chief, Kurt Wahlen.

    Michael Nieskes

    Racine County Courthouse

    730 Wisconsin Ave

    Racine, WI 53403

    RCDistrictAttorney@GoRacine.org

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    Mike wrote:
    jjcharris wrote:
    Unfortunately, since this man was most likely from this area, he knew he was by the school, its clearly posted as "Walden School". Not much of a defense,
    But under Hamdan-Vegas, lawful purpose = defense. remmebr that vegas was driving around milwaukee delivering pizzas witha loaded gun in his car - a school zone violation or 2 on every pizza run!
    True True, Good Point Sir

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    The whole school zone law needs to be done a way with. What if this guy had chosen to obey that law, he may be dead now because a law disarmed him. I am sure glad he had the balls to do what he thought was right, it may help us all.

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    I've got some important questions on the school zone law.
    1. Private property is excepted. Does that include stores?
    2. How about parking lots?

    and this is a little off topic, but it doesn't seem to me that open carrying in a grocery store that sells alcohol is illegal. Thoughts?

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    I find the Vegas case law quite intriguing. You cant conceal a firearm, that is unless you need to use it to protect yourself - What?!

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    The Racine man involved, who asked not to be named and declined to comment on the alleged robbery attempt when contacted by The Journal Times, was assaulted in the 1100 block of Grand Avenue, which is within 1,000 feet of Walden School, 1012 Center St.
    +1

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    eleuthera wrote:
    I've got some important questions on the school zone law.
    1. Private property is excepted. Does that include stores?
    2. How about parking lots?

    and this is a little off topic, but it doesn't seem to me that open carrying in a grocery store that sells alcohol is illegal. Thoughts?
    Yes private property is exempt. Parking lots which are part of a store are also private property.

    I OC in Pick n Save all the time. The restriction is Class B liquor licenses..and Pick n save does not sell alcohol for consumption on premises.

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    :celebrateA+!

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    Shotgun wrote:
    I believe we've examined the "bicycle" question elsewhere in the forum and concluded it's not a "vehicle" for the purposes of the "vehicle transport" law. But again, it's my fuzzy memory that's telling me this.
    340.01(5) "Bicycle" means every vehicle propelled by the feet acting upon pedals and having wheels any 2 of which are not less than 14 inches in diameter.

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    This incident shows why we need to educate more folks and get them to signt he petition at http://www.petitiononline.com/wi1848oc/petition.htmlto repeal the school zone and car carry bans - forcing citizens to mount a Hamdan-Vegas defense in court is too costly.

    And that's why we need to raise funds for radio adds. Total now:

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    But we still have $190 left in unused matching funds! Please donate today - as soon as we have used up the rest of these matching funds, we will sign a radio contract for for the greater Milwaukee County Metro market - time is of the essence!


    If you have even just $10 or $25, now would be the time. Give now in a few seconds athttp://www.opencarry.org/carryland.html

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    Mike I hope your able to wait till this weekend, hopefully when friday comes around more people will be able to donate, I hope to donate a little more too then. Back to this case, I just heard the tail end of charlie sykes talking about the open carrier who thwarted teh attack. Does anyone have a link to this show, I have it on live now but that segment is over! I hope after work I can find a link to the show this morning so we can all hear it.



    Ben

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    BJA wrote:
    Mike I hope your able to wait till this weekend, hopefully when friday comes around more people will be able to donate, I hope to donate a little more too then.
    OK, but use of a credit card gives you 30+ days to pay - not sure what waiting till friday does.

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    Moved comment

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    jjcharris wrote:
    Mike wrote:
    There are probably 2 statutory violations here - carrying a loaded gun on/in a vehicle and within a school zone.

    Presumably under Hamdan-Vegas doctrine the man can assert the Wisconsin constitutiona as a defense as his carriage of the gun was a lawfukl purpose.

    But will the prosecutor exercise proper judgement and accept the defense? or will he prosecute anyway?
    I believe he was on a "pedal type bike", not the "vroom vroom type", so that wouldn't be "carrying a loaded gun on/in a vehicle" would it?

    Also, the school zone thing, yes, it is acknowledged that it was and is against the law, but I believe it is a good thing that he wasnt locked up right that minute, and his firearm wasn't taken. It shows our police dept isn't as quick as some other areas to "prove a point".
    I can't speak for that state's laws but in Florida a bicycle IS considered a vehicle, just not a motor vehicle. People get arrested for DUI on bicycles in Florida.

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    Doug Huffman wrote:
    Shotgun wrote:
    I believe we've examined the "bicycle" question elsewhere in the forum and concluded it's not a "vehicle" for the purposes of the "vehicle transport" law. But again, it's my fuzzy memory that's telling me this.
    340.01(5) "Bicycle" means every vehicle propelled by the feet acting upon pedals and having wheels any 2 of which are not less than 14 inches in diameter.
    http://www.legis.state.wi.us/statutes/Stat0340.pdf
    (5) “Bicycle” means every vehicle propelled by the feet acting upon pedals and having wheels any 2 of which are not less than 14 inches in diameter.

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    RE: the "with a view to prevent crime" concept (as seen in the Texas constituion and others):

    As I have said before, until some GOOD laws are passed to dispense with all the contradictory/confusing, crazy-quilt and mostly BAD gun laws out there, all we need NOW is one more (yes, another gun-law, # 20,001 if you will,but a "temporary" law) -- and one that applies NATION-WIDE preferably, no matter what stateyou are inas long as you're in America...so no politician, police chief, DA, street cop/deputy or judge (or even the AG or President) could get around it, as it would be an official affirmation of an inalienableRIGHT: The right of Self-Defense.

    That is, even if it is illegal (as it often is NOW due to some federal/state/county/city/town/village law or ordinance) to carry a CW in insidesome building, ina convenience store/restuarant (selling/serving alcohol),in or near schools, or on public transportation, etc.) -- whether WITH or WITHOUT a CW permit -- if acriminal attackagainst the "illegal carrier" (and/or against others said "illegal carrier" comes to the aid of) is prevented or stopped in-progress, then NO CHARGES couldbe filed againstsaidperson who otherwise WOULD have been charged with carrying a gun illegally. In short it makes the "he/she was carrying illegally" moot as that does not apply...because a crime wasPREVENTED from taking place (mugging/robbery/car-jacking/rape) or stopped one from being worse that it was (mall/school/place-of-business/place-of-employment mass-shooting spree).

    After all, why should a person who suffers a criminal attack ALSO suffer from "the authorities" afterwards? [Yes, I know common sense does not apply to "justice" in this country...but I'mjust saying anyway]

    So, ifone carries a legal CW (has a valid CW permit) into a place that is not legally allowed, or, if one iscarrying illegally to begin with (does not have a CW permit at all), then uses the gun to prevent or stop a crime -- i.e., the person is "OUTED" becausehe/she prevented or stopped a crime/saved his/her or other peoples LIVES -- thenthat person couldnot be charged with carrying illegally.

    The RESULT -- preventing severe bodily harm and/or saving lives -- trumps the breaking of a lesser issue law (and a BAD/ILLEGAL law at that). I mean if "a view to prevent crime" is so important aCONCEPT, enough so to bewritten into the TX consititution (and those of other states), then shouldn't preventing crime IN REALITYtrump all else, especially when it comes to saving lives? [a rhetorical question]

    IMO, since most of us -- legally carrying (those who have CW permits) or illegally carrying (those without CW permits) -- are more concerned/worried about "the law" and "the authorites" (which should NOT be the case) FAR more than were are concerned about dealing with criminals (actually, we couldn't care less nor are we worried about dealing with that trash -- after all, we're not worried about a CRIMINAL discovering we are armed, are we?), this would relieve that concern (a bit) and stop the INSANITY of some person -- carrying a handgun "illegally" for whatever reason -- doing the right thing crime-wise by scaring-off/killing some street-punk/gangster/car-jacker but then being charged afterwards for doingthe right thingbecause of the trivial technicality of having a CW "illegally."

    Sure -- and as per the current (though also currently erroneous, conflicting, contradictory and confusing) legal environment -- on all other occasions if a CW permit holder knowingly decides to go to places on the illegal list and gets caught carrying there, he/she would be charged with that offense. Likewise, a person who carries WITHOUT a permit takes a chance going out ANYWHERE that he'she might be somehow dicovered to be carrying, and if caught, would be charged with carrying w/o a permit. But if a criminal attack happens, then this would change things.

    Of course, this won't happen, but I'm just saying that only ONE law making the "victim" of a crime immune from being prosecuted (or even charged) with carrying illegally -- IF a serious crime (make it a felony for legal languane purposes/definitions) was prevented or stopped in progress -- then said victim would not have to worry about any illegal carrying charges NOR would he/she have the gun confiscated.

    As I also have said, decent citizens should NOThave to worry MORE about the cops than they do criminals -- but they SURE DO as things standnow -- so this is one way around that.

    Let's at least consider doing this "for the children." [Had to throw that in]

    -- John D.



    (formerly of Colorado Springs, CO)

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