On April 20th, Attorney General Van Hollen issued an Advisory Memorandum to state prosecutors on the interplay between Article I, § 25 of the Wisconsin Constitution, the open carry of firearms and Wisconsin's disorderly conduct statute. The Memorandum appears on the Wisconsin Department of Justice's website at this location:
While we sent the Memorandum directly to the state's prosecutors, we also asked them to use it for law enforcement training within their jurisdictions. We have received questions from state law enforcement officers about the Memorandum. Our answers to the most frequently asked questions appear below.
Q. Why did the Attorney General issue the Memorandum, and why now?
A. As amended in 1998, the Wisconsin Constitution provides that "[t]he people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose." Wis. Const. art. I, § 25. While Wisconsin courts have issued several opinions concerning the application and scope of this constitutional right, some important questions remained unanswered. In the past few months, many state prosecutors and law enforcement officers asked us whether openly carrying a firearm, without more, constituted disorderly conduct under Wis. Stat. § 947.01, and how Article I, § 25 applied. Those questions increased in number after a publicized, unsuccessful West Allis municipal court prosecution for disorderly conduct based on open carry. As a function of his statutory duty to advise district attorneys, the Attorney General issued the Memorandum to answer those questions and to explain (in paragraphs 8 and 9) that your ability to investigate possible criminal activity involving open carry has not changed.
Q. Did the Attorney General issue the Memorandum to encourage the open carry of firearms in Wisconsin?
A. No. The Memorandum discussed questions of law, not the desirability of open carry. While the Attorney General believes the Wisconsin Constitution protects a citizen's right to openly carry a firearm for lawful purposes, he also believes that rights and responsibilities go hand-in-hand. Those responsibilities include getting proper firearm safety and proficiency training, arranging for safe storage of the weapon, and making sensible decisions about where and when to openly carry, if at all.
Q. Does the Memorandum limit our ability to investigate possible criminal activity related to open carry?
A. No. As explained in paragraphs 8 and 9 of the Memorandum, the rules regarding Terry stops and consensual questioning remain unchanged. You still have the authority to stop a person if you have a reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity. And even without reasonable suspicion, you still have the ability to approach a person and ask questions as long as your questions, the circumstances, and your behavior don't convey to the person that he must comply with your request for information.
Q. May private businesses and private property owners in Wisconsin designate their property as a no-open-carry-zone?
A. Yes. No state or federal laws prevent a private business owner or property owner from prohibiting the open carrying of a firearm on privately owned property. Both the Wisconsin and United States Constitutions protect a person's right to bear arms. However, constitutional rights limit government action, not private action. Private property does not lose its private character merely because the public may use it for designated purposes such as shopping. Just as businesses may exclude individuals who wish to exercise their First Amendment rights on private property, they also may exclude individuals who exercise their rights under Article I, § 25 and the Second Amendment. Business owners may choose the method by which they inform the public that firearms are not permitted on their, premises. They may, for example, post a sign notifying visitors that firearms are not permitted, or they may orally inform individuals of that policy.
Q. What should we do if a person openly carries a firearm into a private no-open-carry zone?
A. If someone refuses to comply with a business' request that they not come on their premises with a firearm, you should respond as you would in other situations where a person has been asked to leave private property and refuses. Depending on the facts and circumstances, trespassing or disorderly conduct charges may arise out of that situation.
Q. Can people openly carry firearms in a vehicle?
A. No. State law provides as a general rule that "no person may place, possess or transport a firearm ... in or on a vehicle, unless the firearm is unloaded and encased." Wis. Stat. § 167.31(2)(b). "Encased" means "enclosed in a case that is expressly made for the purpose of containing a firearm and that is completely zipped, snapped, buckled, tied or otherwise fastened with no part of the firearm exposed." Wis. Stat. § 167.31(1)(b). At present, that law remains in full force and effect.