imported post
I'd like to share with you some email correspondance I had some three years ago concerning the apparent conflict of statutes 941.23(the prohibition of conceaaled carry) and statute 167.31(2)(b).(the requirement to encase a firearm when transporting such in a vehicle). The documents also address the constitutionality of 167.31(2)(b). The correspondancewas involved or copied to the following: Mike Lutz the chief legalcouncil within the DNR, Scott Hassett the then DNR secretary, George Meyer the head of the Natural resources board, Representative Gunderson and my state senator Sheila Harsdorf.
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Dear Mr. xxxxxxx
In response to your message of September 7, 2006, I would like to reiterate for you the Wisconsin Department of Natural Resource's position in response to your concern that compliance with Wis. Stat. § 167.31(2)(b) could create a conflict with Wis. Stat. § 941.23.
The previous memorandum and email that I provided to you on April 18, 2006 did not imply that you must ensure that your gun case is out of reach in order to comply with the concealed carry law. Instead, the email indicated that if you wanted to be absolutely certain you are not in violation of Wis. Stat. § 941.23, you could ensure your encased gun was out of your reach. The memorandum provided that recommendation by relying on the unpublished opinion of State v. Alloy, which stated that an "encased weapon can be lawfully transported out of reach." 2000 WI app 116, P3 (Wis. Ct. App. 2000), pet. denied, 2000 WI 88 (Wis. 2000). However, the court's decision in that particular case, which involved a Jeep, should not be construed as requiring all individuals in all types of vehicles to keep their encased weapons out of reach. Instead, the case merely provides additional assurance for individuals in a truck or car who are concerned about complying with both Wis. Stat. § 167.31(2)(b) and Wis. Stat. § 941.23.
As discussed in the memorandum, the requirements of Wis. Stat. § 167.31(2)(b) have been interpreted by a Wisconsin court as an exception to Wis. Stat. § 941.23. State v. Walls, 190 Wis. 2d 65 (Wis. Ct. App. 1994). In that case, the court held that a defendant who left a handgun on the passenger seat of the car he had been riding in had a concealed weapon as defined by Wis. Stat. § 941.23. Id. at 72-73. However, the court was careful to point out that "our conclusion in this case in no way limits the lawful placement, possession, or transportation of unloaded. . .and encased firearms, bows, or crossbows in vehicles as permitted by Wis. Stat. § 167.31(2)(b)." Id. at 69. Therefore, the court did not consider a lawfully encased weapon to be a concealed weapon.
Furthermore, my email stated that in the Department's view, "a gun case that is clearly a gun case and which in effect 'advertises' the contents of what is inside does not result in a violation of the concealed carry law."
Therefore, as both my April 18, 2006 email and attached memorandum indicated, if you unload and encase your weapon and then transport it in a vehicle in accordance with Wis. Stat. § 167.31(2)(b), with the cased gun clearly visible, the Department does not view you as violating Wis. Stat. § 941.23. However, the email and memorandum recommended that if you were still concerned about compliance with both statutes, you could make absolutely certain you do not violate either law by ensuring your encased weapon is out of reach while transporting it in a vehicle. This advice was offered with the notion that you would be using a car or truck to transport the encased weapon, and was not meant to impose an impossibility. Of course other types of vehicles make it difficult, or even impossible, to ensure an encased weapon is out of reach. Consequently, if you are transporting an encased weapon in a vehicle such as a motorcycle, snowmobile, or trail bike, as long as the weapon case makes it evident a weapon is contained inside and the case is clearly visible, the DNR does not view transportation of the encased weapon to be a violation of the concealed carry law.
Mike Lutz
-----Original Message-----
From: [mailto:dale@baldwin-telecom.net]
Sent: Thursday, September 07, 2006 11:00 PM
To: Lutz, Michael - DNR
Cc: Hassett, P Scott - DNR; Rep Gunderson; Meyer, George
Subject: Statures 167.31(2)(b) and 941.23
Mr. Lutz:
March 30 of this year I sent an email to DNR secretary Hassett concerning a question I have about what I perceive to be a conflict between Wisconsin statutes 941.23 and 167.31(2)(b). In recap the statutes read as follows.:
941.23 Any person except a peace officer who goes armed with a concealed and dangerous weapon is guilty of a class A misdemeanor.
167.31(2)(b) No person may place, posses, or transport a firearm, bow, or crossbow in or on a vehicle unless the firearm is unloaded and encased in a carrying case. Companion statute 167.31(1)(b) requires that no part of the firearm be exposed.
As stated in my March email my question was precipitated by my review of Wisconsin supreme court judgments in State vs Walls, State vs Fry, State vs Kieth, State vs Hamdan. and since then State vs Fisher. The significance of these cases is that in Walls, Fry, Keith and Fisher the state supreme court found that a firearm need not be hidden on a person's body to be declared concealed and in Keith and Hamdan the Court described the conditions needed for the State to charge a violation of the concealed weapon prohibition statute 941.23.
1. The person must know the weapon is present.
2, The weapon must be hidden from view.
3. The weapon must be within reach.
Statute 167.31(2)(b) can cause all of these elements to be present.
Secretary Hassett assigned my question to you for resolution. You in turn assigned it to an intern in your department a Mr Martinez. Mr Martinez did a very thorough job of research and prepared a report on the subject. He referenced some historical state supreme court cases concerning the issue. He quoted court statement that said to avoid a conflict of the statutes a person need only transport the weapon "out of reach". Mr Martinez concluded that was his opinion as well. In your response to me you stated you did not see a conflict between the statutes and you agree with Mr. Martinez that if a person wants to be sure to not violate the concealed weapon statute the person need only transport the weapon in a motor vehicle "out of reach". and remove one of the conditions of concealment.
I have been pondering your response the last few months and find that I am confused by it. I was of the opinion that it was lawful to transport a concealed weapon in any motorized vehicle including a small motorized duck boat, a snowmobile, a motorcycle, an all terrain vehicle, a utility vehicle or other vehicles of the like. I see no practical way a firearm can be transported on any of them so that it is out of reach. Or is it in fact unlawful to transport a weapon on any of those type vehicles because it is impractical, if not impossible, to avoid meeting all the conditions of being charged with "going armed with a concealed and dangerous weapon" as per statute 941.23?
If I transport a firearm in accordance to 167.31(2)(b) on a trail bike to my hunting stand can you assure me that I won't be in danger of being cited by a local law enforcement officer for carrying a concealed weapon in violation of 941.23?
Hunting season is fast approaching. I anxiously wait for you response.
Respectfully,
XXXXXXXX
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Representative Gunderson:
I am writting you for the following reasons. The first is because my
representative Andy Lamb is not going to run for re-election this year so
will probably not get involved in the subject of this letter and his
successor won't be hired by us voters until November. The second reason is
your involvement in the Personal Protection act. The third because you
introduced legislation to allow a variation of transporting a firearm on an
all terrain vehicle. Finally because you are a fellow FFL holder and , as
me, must understand state and federal firearm regulations in order to barter
in firearms.
March 30 of this year I sent a letter to Secretary Hassett of the state
department of natural resources. The subject of the letter was to obtain a
DNR opinion on what I perceive to be a conflict between the concealed carry
prohibition statute 941.23 and statute 167.31(2)(b) that requires a firearm
to be concealed in order to be transported in or on a motor vehicle.
What led to my question was my review of those statutes, my review of
Supreme Court opinions for the cases of State vs Keith, Fry, Walls, Hamdan
and Fisher and review of the 1998 voter ratified amendments to the State
Constitution, Articles 1 chapters 25 and 26.
As you are aware chapter 25 is the amendment that gives the people of
Wisconsin the right to keep and bear arms for security, defense, recreation,
hunting, or for that matter any lawful purpose.
Chapter 26 is the amendment that gives the people of Wisconsin the right to
hunt and fish.
The Supreme Court Cases I reviewed are of special interest to my opinion.
For example: Keith and Hamdan establish the conditions needed for the State
to charge a violation of statute 941.23.
They are:
1. The person must know the weapon is present.
2. The weapon must be hidden from view
3. The weapon must be within reach.
4. The person is not a peace officer.
Those cases establish that a weapon does not have to be carried on a
person's body to be considered concealed. It can be in a handbag (Kieth), On
the body (Hamdan) or in a motor vehicle (Fry)(Walls)(Fisher). In fact any
occasion where the above conditions are met constitutes weapon concealment.
The Court upheld the constitutionality of 941.23. It declared that the State
has the authority to regulate the manner of carry of weapons. Also the Court
stated in paragraph 72 of Hamdan that there are only two manners of carry,
visible or concealed.
The Court also stated in paragraph 48 of Hamdan that the concealed weapon
prohibition was a strict liability and applied to the activities contained
in Article 1 chapter 25 of the state constitution.
The Court was persistent through paragraphs 69 through 72 of Hamdan that if
the State prohibits one manner of carry it must provide an alternative way
for the people to exercise their rights guaranteed by Article 1 chapter 25.
The above information brought me to the opinion that statutes 941.23 and
167.31(2)(b) are in conflict. Statute 941.23 strictly prohibits the
transport of a concealed weapon in a motor vehicle. Statute 167.31(2)(b)
requires that in order to be transported in or on a motor vehicle the weapon
must be concealed. It is concealed because if it is carried as required by
167.31(2)(b) it can meet all four conditions of concealment. Accordingly my
opinion is that one or both statutes are unconstitutional. The State does
not allow an alternative means to concealed carry in order to transport a
weapon in or on a motor vehicle. The person's right to exercise the
activities contained in Article 1 chapter 25 is infringed. That, in summary,
is the question I presented to Secretary Hassett of the Department of
Natural Resources for an opinion. I also asked the DNR if it upheld there
was no conflict between the statutes what assurance would I have that I
would not be cited by local law enforcement as violating 941.23.
Secretary Hassett assigned the question to Mr. Michael Lutz of the DNR legal
department. Mr. Lutz spent a lot of fully appreciated time and effort in
responding to my question. He assigned the question to a Mr. Martinez to
review and report. In summary Mr. Martinez reviewed some historic supreme
court opinions on the subject and quoted court comments that if a person was
really concerned about a conflict between the statutes they could transport
the weapon in a motor vehicle so that it is "out of reach". Mr Martinez
reported that he agreed to that comment and Mr. Lutz responded back to me
that he echoes that conclusion and added that statute 167.31(2)(b) requires
that the firearm be carried in an encasement that advertises its presence
which would also minimize the concealment issue.
It's true transporting the concealed firearm out of reach would solve the
conflict because one of the elements needed to charge concealment would be
removed, however, that solution can only apply to certain types of vehicles
i.e. cars and trucks. There is a whole new class of vehicles that are
commonly used today to transport weapons for sporting and hunting purposes.
Vehicles on which it is impossible to carry the weapon "out of reach".
Vehicles such as ATV's, trail bikes, snowmobiles, motorcycles, small duck
boats etc. As one of the attachments to this letter shows I submitted that
information to Mr. Lutz. Mr. Lutz responded back and his response is also
attached. In short Mr. Lutz agrees that there are motorized vehicles where
it is impossible to carry the firearm out of reach. He states that if a
person is transporting a firearm on one of those vehicles and the unloaded
firearm is properly encased in a containment that advertises that it
contains a firearm the DNR would not consider that action as carrying a
concealed weapon. Understandably Mr. Lutz can only represent the DNR on the
subject. He stopped short of saying how local law enforcement such as city
police or county sheriff would act. I wonder how they would act if they
observed me riding a legal trail bike on a public road while carrying a
concealed hunting handgun in a case that advertised its presence. As a side
note to Mr. Lutz' comments it is interesting that the one encasement that
most truly advertises the presence of a handgun, a holster, is unlawful to
use while transporting the handgun in a motor
vehicle. In fact just placing the holstered handgun on a trailer attached to
a stationary motor vehicle is unlawful.
That brings me to the theme of this letter.
Recent state supreme court rulings, the ratification of amendments to the
state constitution and social conditions have changed the complexion of the
State's firearm laws; As new laws addressing these actions are enacted they
are usually piled on top of existing statutes. No housekeeping of the total
firearm regulations is performed. Unfortunately even the Supreme Court
rulings are for the most part ignored. It is time for the state legislature
to review the existing firearm laws, the supreme court rulings, current
social conditions and above all our state constitutional rights and bring
them in concert with each other. Our state firearm laws are getting so
convoluted that under certain circumstances they can unknowingly make common
criminals out of law abiding citizens. A complete overhaul is needed. Just
putting new laws on top of those already on the books will not solve the
problem. For example: Adding a new statute such as the Personal Protection
Act on top of 941.23 which would allow persons with a concealed carry
permit to transport a firearm in a motor vehicle won't solve the conflict
between 941.23 and 167.31(2)(b). It won't solve the conflict because it
can't be expected that all hunters will have a carry permit. In fact hunters
under the age of 21 wouldn't even be able to obtain a permit to conceal
carry.
The confusion between statutes 941.23 and 167.31(2)(b) is but one example.
Here are some more:
Statute 941.235(1) prohibits the carry or possession of a firearm in any
government building.
Statute 941.237(2) prohibits the carry or possession of a handgun in a
tavern.
Peace officers can carry a firearm in those locations. However, private citi
zens are prohibited from carrying a concealed weapon and most law
enforcement and judiciaries will say that there is no written or implied law
that ordinary citizens can visible carry a firearm in public and doing so
may subject them to being charged as a public nuisance. So who do those
statutes apply to? Another case of confusion.
I personally disagree that Wisconsin private citizens do not have an implied
right to visible carry a handgun in places not prohibited by the 941.23x
statutes and in a school zone. Article 1 chapter 25 gives us the right to
carry firearms for a number of activities including any lawful purpose. The
Wisconsin Supreme Court (SSC) has said that there are two manners of carry,
visible and hidden. The Court has also said that if the State restricts one
manner it must allow an alternative so that the citizens rights granted by
Article 1 chapter 25 are preserved. Statute 941.23 strictly forbids the
concealed carry of firearms by private citizens so by the State Supreme
Court's own definition the reasonable alternative is visible carry.
Even the SSC seems to be uncertain about the impact of Article 1 chapter 25
on existing law. In paragraph 48 of Hamdan it declares that statute 941.23
is a strict liability prohibition of concealed carry, including the
activities contained in Article 1 chapter 25. One of those activities is
security. Then it goes on to conclude that Hamdan did have constitutional
authority to conceal carry a handgun in his place of business for security.
In 1998 80% of the citizens of Wisconsin ratified constitutional amendment
Article 1 chapter 25. It is obvious that the vast majority of the voting
public consider the right to posses and carry firearms an inherent right. As
a result Article 1 chapter 25 has a significant impact on existing firearm
laws. Some yet to be discovered. As of this point in time the impact of
Article 1 chapter 25 on existing law has been largely ignored and
unrecognized by the legislature.
Constitutional law is the supreme law of the State and must prevail over all
other laws. Amendments to it and the resulting impact on existing firearm
laws must be actively reviewed by the state legislature and existing law
modified so that the Constitution does prevail. Even the SSC recognizes the
confusion the existing laws are causing in the court system. In Hamdan it
had to give lower courts instructions on how to judge firearm related cases
and has implored the state legislature to fix the problem.
Respectfully,
XXXXXX
Spring Valley, Wisconsin
Note: Representative Gunderson did not respond.
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October 15, 2006
Dear Senator Harsdorf:
I thank you for taking some of your valuable time to address my concern that Wisconsin state statutes 941.23 and 167.31(2)(b) are in conflict with each other.
Unfortunately your response does not resolve my concern. Perhaps my question was not stated clearly. I would like to attempt to clarify it.
Wisconsin statutes are inclusive. By that I mean they apply to all relative circumstance. For example: statute 167.31(2)(b) does not apply to only circumstances involving the activity of hunting. It applies to all transportation of firearms in a motor vehicle under all conditions. Hunting is only one of those conditions. Although I am an avid hunter I did not intend to imply in my question that I was only concerned with the activity of hunting.
I, too, contacted the DNR for their opinion of my concern. I have corresponded with Mr. Lutz of the DNR legal department a number of times. He is probably tired of hearing from me on the issue. I understand the DNR's position that if I am transporting a firearm encased and concealed in an encasement that advertises it's presence and the firearm is unloaded and the firearm is a legal firearm for hunting the DNR would turn it's head and not consider me going armed with a concealed and dangerous weapon, even though I would meet all three requirements the State Supreme Court says is a violation of 941.23. Namely, The person knows the weapon is there, the weapon is within reach and the weapon is hidden from view.
Statutes should be enforced universally by our law enforcement agencies. Certain agencies should not be able to pick and choose those they wish to enforce in order to satisfy their department policies. The DNR response treats the symptom of the problem not the cause.
The DNR says that if I wish to avoid any controversy between the statutes I need only carry the weapon out of reach and in an encasement that advertises the presence of a firearm. There is no requirement in the statutes that require those conditions. what does "out of reach mean" of whom driver, passengers? In or on which type of vehicles? What is an encasement that "advertises" the presence of a firearm. There are handbags, hard cases, fanny packs available commercially that are manufactured for the specific use of carrying a firearm. They are legal under statute 167.31 and certainly don't advertise that there is a firearm inside. Statutes should be clear. We citizens should not have to take creative means to avoid penalty.
I close with the following hypothetical situation Perhaps it may better illustrate my concern.
I am driving a licensed, road legal, trail bike on a public road ( lets say near River Falls) and get stopped by a conservation officer. The officer will probably check my vehicle registration and my driver license. Then the officer will probably observe that I have a handgun totally concealed in a carrying case strapped to the handle bars of the trail bike. The officer will probably check to see if the firearm is unloaded and that it is a handgun legal for hunting. The officer will then probably ask to see my hunting license. If I pass all those tests the officer will conclude that I comply with all the requirements of statute 167.31 and it's subparagraphs and send me on my way. The officer will probably even wish me good luck hunting.
Now the second part.
I am driving a licensed, road legal, trail bike on a public road near River Falls and get stopped by a county sheriff deputy. The deputy will probably check my vehicle registration and my driver license. Then the deputy will probably observe that I have a handgun totally concealed in a carrying case and strapped to the handle bars of the trail bike. The deputy may respond dramatically. Maybe even draw his own weapon. The deputy may then confiscate my firearm and may issue me a citation stating that I have violated state statute 941.23. I had a totally concealed weapon, within reach, and I knew it was there. Or I may get a citation for being a piblic nuisance or a public danger. As a minimum I may have to go "downtown" to explain my actions. The fact that I have a valid hunting license may be of little importance.
Some may say that is a far reaching hypothetical but stranger things have happened in the legal community. I need only call your attention to the recent supreme court decision State v Fisher. Fisher was found guilty of going armed with a concealed weapon because he had a firearm contained in the closed center console of his SUV. The weapon was within reach, it was hidden and he knew it was there. It probably would not have mattered if the firearm was contained in a carrying case inside the console. If it was, by it's own words, the DNR would not have issued a concealed weapon citation. Local law enforcement did not cite Fisher for transporting an improperly concealed firearm in the console in violation of 167.31(2)(b). Local law enforcement cited him for carrying a concealed weapon in violation of 941.23.
I am still of the opinion the two statutes, 167.31(2)(b) and 941.23 are in conflict. At the least I am sure they are confusing to most people. Part of the confusion is probably caused by the fact that most people presume that a firearm must be carried on a person's body to be considered concealed. The state supreme court has ruled numerous times that is not so. The Court has ruled that any time the above referenced conditions are met the firearm is considered concealed. Some reference cases are Walls, Hamdan, Kieth, Fisher. Of special interest is paragraph 48 of Hamdan.
The firearm laws of our state need attention by the legislature and a complete overhaul, especially since the ratification of Article 1 chapters 25 and 26 to our state's constitution.
Again, I thank you for taking time to listen to my question
Respectfully,
XXXXXXXXXXX
Note: Senator Harsdorf did respond by written letter that she agreed with my assessment but said in words to the effect that it was very unlikely that any legislative action would be initiated to correct the problem.
