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Thread: South Milwaukee considers fining open carriers - MEETING TONIGHT 16 June!!

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    Can they do that?



    South Milwaukee council supports gun measure
    Journal Sentinel


    Posted: Jun. 3, 2009 11:02 a.m.

    South Milwaukee - The Common Council is unanimously supporting an ordinance that would impose a minimum fine of $2,500 for openly carrying a gun into specified places in the city.

    The maximum fine is $10,000.

    The ordinance follows state law, in that it would prohibit carrying a gun into any school or public building; at any public park; on school grounds or playgrounds; on any premises that is licensed to sell alcohol; and at any business where a sign is posted prohibiting the carrying of firearms.

    The ordinance would allow police to write tickets and to use the fines as a deterrent, said Police Chief Ann Wellens.

    Tuesday's vote was on the first reading of the ordinance. It requires two more readings before it would take effect.

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    Remember that you are reading a newsrag. Yes, they can do that except for the trespass issue.

    66.0409 Local regulation of firearms.

    [ ... ]

    (2) Except as provided in subs. (3) and (4), no political subdivision
    may enact an ordinance or adopt a resolution that regulates
    the sale, purchase, purchase delay, transfer, ownership, use, keeping,
    possession, bearing, transportation, licensing, permitting,
    registration or taxation of any firearm or part of a firearm, including
    ammunition and reloader components, unless the ordinance or
    resolution is the same as or similar to, and no more stringent than,
    a state statute.

    Stringent synonyms, strict, binding strongly, making strict requirements, restrictive, severe.

    Trespass, with or without arms, requires effective notice not provided (certainly in other jurisdictions) by mere signage.

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    1911forme wrote:
    Can they do that?



    South Milwaukee council supports gun measure
    Journal Sentinel


    Posted: Jun. 3, 2009 11:02 a.m.

    South Milwaukee - The Common Council is unanimously supporting an ordinance that would impose a minimum fine of $2,500 for openly carrying a gun into specified places in the city.

    The maximum fine is $10,000.

    The ordinance follows state law, in that it would prohibit carrying a gun into any school or public building; at any public park[this is FALSE! State law does NOT ban firearms in "any public park."]; on school grounds or playgrounds[Here again, this is FALSE, state law does NOT ban firearms at play grounds]; on any premises that is licensed to sell alcohol[Here AGAIN, this is FALSE! State law only limits on premises for CONSUMPTION and/or class-B license]; and at any business where a sign is posted prohibiting the carrying of firearms.

    The ordinance would allow police to write tickets and to use the fines as a deterrent, said Police Chief Ann Wellens.

    Tuesday's vote was on the first reading of the ordinance. It requires two more readings before it would take effect.
    I would go the the DA's office and file a complaint AGAINST the city council for violating 66.0409. Just like the DA investigates Open Meetings law violations, he/she would have to investigate this! Get EVERY OC supporter you know, who is a city resident, to go down to the DA's office and file a complaint. Demand the DA assign a special outside investigator, as the police department (who normally would do these investigations) has a bias. If the DA refuses to call for a special investigation, file complaints with the AG's office, and the state bar.

    Filing the complaints costs you nothing. Once you file the complaint, notify the press that "several people have files complaints against the city and are requesting a special outside investigation.



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    1911forme wrote:
    Can they do that?
    They can probably pass any ordinance they want. The more important question is whether they could actually enforce it.

    Ignorance and unbridled hubris are far from the most desirable characteristics of elected officials-- but all too common.
    A. Gold

    Failure to comply may result in discipline up to and including termination.
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    Shotgun wrote:
    1911forme wrote:
    Can they do that?
    They can probably pass any ordinance they want. The more important question is whether they could actually enforce it.

    Ignorance and unbridled hubris are far from the most desirable characteristics of elected officials-- but all too common.
    NO, South Milwaukee can NOT enact this ordinance.

    66.0409 denies political subdivisions this power. Only if they ALREADY had an ordinance on the books can they have such a law that is written more stringently than the states, but even it is not enforceable. The city CANNOT"enact an ordinance more stringent than state law", that is a direct violation of 66.0409.

    Except as provided in subs. (3) and (4), no political subdivision may enact an ordinance or adopt a resolution that regulates the sale, purchase, purchase delay, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm or part of a firearm, including ammunition and reloader components, unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute.

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    Doug Huffman wrote:
    Remember that you are reading a newsrag. Yes, they can do that except for the trespass issue.

    66.0409 Local regulation of firearms.

    [ ...]

    (2) Except as provided in subs. (3) and (4), no political subdivision
    may enact an ordinance or adopt a resolution that regulates
    the sale, purchase, purchase delay, transfer, ownership, use, keeping,
    possession, bearing, transportation, licensing, permitting,
    registration or taxation of any firearm or part of a firearm, including
    ammunition and reloader components, unless the ordinance or
    resolution is the same as or similar to, and no more stringent than,
    a state statute.

    Stringent synonyms, strict, binding strongly, making strict requirements, restrictive, severe.


    Trespass, with or without arms, requires effective notice not provided (certainly in other jurisdictions) by mere signage.

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    Parabellum wrote:
    NO, South Milwaukee can NOT enact this ordinance.
    Sure, they can't legally enact the ordinance. They may do it anyway. What is the penalty for illegally enacting an ordinace? Can we simply file charges against them and have them arrested if they do? I wouldn't know the first place to look in the statutes for the penalty for this.
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    http://www.legis.state.wi.us/lrb/pub...consthiIV3.htm

    Wisconsin Constitution
    Article XI, Section 3
    MUNICIPAL HOME RULE

    [ ...]
    How courts currently interpret the section The constitutional amendment made a direct grant of legislative power to cities and villages and it limited the powers of the legislature. See State ex rel. Ekern v. Milwaukee, 190 Wis. 633, 637 (1926). It is important to note, though, that the amendment did not grant home rule authority to counties or towns. Municipal home rule authority under the constitution is not an authority granted all local governmental units. Municipal home rule jurisprudence consists largely in demarcating the boundaries between those areas of local affairs and government that are within the legislative purview of cities and villages and those areas that are of statewide concern and, therefore, subject to control by the legislature.

    In determining whether a city or village has properly exercised its constitutional home rule authority or whether the state has unlawfully intruded upon a city’s or village’s home rule authority, the courts, as in other areas of constitutional jurisprudence, are the ultimate arbiters. State ex rel. Brelsford v. Retirement Board, 41 Wis. 2d 77, 82 (1968). To establish the legal boundaries between state and local government political authority, the courts will classify a legislative enactment according to whether it is: 1) exclusively a statewide concern; 2) entirely a matter of a city’s or village’s local affairs and government; or 3) a “mixed bag.” State ex rel. Michalek v. LeGrand, 77 Wis. 2d 520, 526-527 (1977).

    If a given public policy matter is exclusively of statewide concern, the home rule constitutional amendment does not grant any city or village political authority over the matter. Van Gilder v. City of Madison, 222 Wis. 58, 83 (1936). The legislature may prohibit cities and villages from enacting ordinances in matters that are exclusively of statewide concern and it may enact laws regulating such concerns without regard to municipal home rule authority. Importantly, the home rule amendment does not prohibit the legislature from delegating to cities and villages authority over public policy matters that are of statewide concern. Wisconsin Environmental Decade, Inc. v. DNR, 85 Wis. 2d 518, 533 (1978).

    Any such delegation of authority, of course, may be rescinded, preempted, or regulated by the legislature. DeRosso Landfill Co. v. City of Oak Creek, 200 Wis. 2d 642, 651-652 (1996). The home rule amendment limits legislative authority in the area of local affairs and government, but it does not limit legislative authority in allowing cities and villages to regulate matters of statewide concern.

    In contrast, if a given public policy is entirely a matter of a city’s or village’s local affairs and government, the home rule constitutional provision authorizes a city or village to regulate that matter and prohibits any legislative enactment that would preempt or make unlawful any city or village regulation over that public policy matter. Michalek, at 527-528. An exception to this rule is that the legislature may enact legislation relating to a public policy area that is under a city’s or village’s home rule authority if the enactment uniformly applies to every city or village in the state. See Van Gilder, at 84; City of West Allis v. Milwaukee County, 39 Wis. 2d 356, 366 (1968). Moreover, the legislature may still enact legislation in areas that are entirely a matter of local affairs and government, but only with the understanding that a city or village is free to acquiesce to the enactment or to override the enactment through adoption of a charter ordinance. The charter ordinance requirement is one imposed by state law.

    Finally, if a public policy matter falls into the “mixed bag” classification in which the policy has both statewide and local government attributes, the courts must determine whether the matter is primarily or paramountly a matter of local affairs and government or the matter is primarily or paramountly a matter of statewide concern. See Ekern, at 640-641; Van Gilder, at 82; Michalek, at 528. After establishing that a given public policy is primarily or paramountly a matter of local affairs or government or a matter of statewide concern, the court will apply the appropriate test for matters that are exclusively of statewide concern or for matters that are entirely a city’s or village’s local affairs and government.
    Although case law provides that the home rule constitutional amendment be given liberal construction in matters of local affairs, as can be seen in City of Madison v. Tolzmann, 7 Wis. 2d 570, 574 (1959), the courts, in practice, have generally been unwilling to carve out an unnecessarily large sphere of local government autonomy under the home rule constitutional amendment. In fact, there are only two cases in which local governments have successfully asserted constitutional home rule authority in the face of seemingly contrary statutes.

    In Ekern, the court found that a state law limiting the height of buildings in first class cities to 125 feet was a local affair under the home rule constitutional amendment and, as a result, the city of Milwaukee could exempt itself from that state law by adopting a charter ordinance to that effect. Similarly, in Michalek, the court upheld a city of Milwaukee rent-withholding ordinance, finding that the ordinance was primarily and paramountly an enactment of a matter of local affairs and government. (In this case, though, the court found that the ordinance and state law did not conflict.)

    Far more typical of constitutional jurisprudence relating to municipal home rule is the result in Van Gilder, in which the court determined that compensation paid by the city of Madison to its police officers, which would seem to be a fairly local matter, was instead primarily a matter of statewide concern and, thus, not protected from state regulation under municipal home rule authority. In sum, based on case law, it seems that the home rule constitutional amendment is not a substantial impairment to legislative enactments affecting cities and villages. The reason may be because the terms of the amendment are limited to “local affairs and government” and, for most practical purposes, “local affairs” have statewide impact and are therefore of statewide concern.

    Strategies for reconciling legislation with the section Even though the courts for the most part have not used municipal home rule authority under the constitution to limit or strike down legislative enactments, municipal home rule authority is still a limitation on legislative power. To be sure, the home rule constitutional provision is not a significant legal constraint on legislative activity in matters affecting local governments in this state. Nonetheless, in drafting legislation that will directly or indirectly impact on cities and villages, a legislator may use a couple of strategies to address issues involving municipal home rule under the constitution:
    1. If the legislation involves a public policy area that is arguably a matter of local affairs and government, but the legislator intends to have state regulation of this policy area, the legislation could contain a broad public policy declaration that the subject matter of the legislation is primarily or predominantly a matter of statewide concern. While such statements are not determinative, courts have held that legislative declarations as to whether a public policy matter is a matter of statewide concern are entitled to “great weight.” Van Gilder, at 73-74; Brelsford, at 86. In addition, or as an alternate drafting strategy, the legislation could be fashioned so as to apply uniformly to every city and village in this state.

    2. If the legislation involves a public policy area that is arguably a matter of local affairs and government, but the legislator wants to ensure that a city or village can opt out from the application of the law, the legislation could contain a broad public policy declaration that the subject matter of the legislation is primarily or paramountly a matter of local affairs and government and could affirm that any affected city or village may adopt a charter ordinance to insulate itself from the law’s application. In this way, the courts are put on alert that the legislature is not asserting that the public policy is primarily or paramountly a statewide concern for purposes of the home rule constitutional provision.

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    I went to the police station last night and picked up a copy of the ordinance. Here is the restrictions in the proposed ordinance.

    Section 23.03 Firearms Prohibited. (1) It is unlawful for any person to carry any firearm, loaded or unloaded in any public building, on the grounds surrounding any public building, in any public park, in any school, on any school grounds, on any playground,at little league field,throughout Grant Park and the Oak Creek Parkway, on any premises liscensed for the sale of alcoholic beverages and on the grounds of and within any premises where the owner or lessee has posted a sign prohibiting the carrying of firearms.



    I just got off the phone with the chief of police in south milwaukee, she said she will adress my concerns with the city attorny. I already called the city attorny yet he's not in...... I also gave the alderpersons and mayor a call. They sound like they are relying on the city attorny to sort out whats legal and whats not. So if you want to make any headway in this I suggest you try and call the city attorny, please!



    City Attorney Joseph Murphy 764-4410



    Give him a call!



    Ben








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    That is exactly what you do, and you do it RIGHT NOW! You go down to the DA's office, you and several others, and file a complaint with the DA that the city is violating state law. You demand the DA appoint a special prosecutor and an outside investigative unit as the police(who usually investigate such things) have a bias.

    You can file a complaint, and the DA can bring charges for an "open meetings" law violation, so they (the DA) should be able to do the same here. You also have nothing to loose by filing the complaint. In fact, it may give you better legal grounds if you have to go to court to get an injunction.

    Get 15 or so people to go down and file a complaint WITH you. Then release the complaint to the media. Once the public starts to see that the city is WASTING tax dollars on litigation, peer pressure might get them to back down.

    Either way, you need to move before this is finalized.




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    66.0409 does not contain the 'liberally interpreted' language of Chapter 19 so your 'should' might be a legal conclusion, but normative statements do not in any case have truth values.

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    Cripes....does Yahoo bable fish have a "Huffman" to English translator?
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    In my opinion the parts of ordinance 23.03 that are unenforceable and contrary to 66.0409 are: on the grounds surrounding any public building, in any public park, or any playground, at little league field, throughout Grant Park and the Oak Creek Parkway, and on the grounds and within premises where the owner or lessee has posted a sign prohibiting the carrying of firearms.

    The State has no similar statutes prohibiting carry of firearms in the listed kinds and types of locations therefore prohibiton of carry in those locations by a political subdivision is in violation of 66.0409 and possibly fall under the umbrella of "color of law" if enforced.

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    Just got off the phone with John Chism's office the District attorny. They will be calling me back very shortly.Then we will go from there, and hopefully take hubert's track and file a complaint. So who wants to be the 15 people with me? Also Doug could you please elaborate lol.



    Ben



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    Brass Magnet wrote:
    Cripes....does Yahoo bable fish have a "Huffman" to English translator?
    Shakespeare did not write for the dumb masses any more than I write for Anony Mouse. If it was easy then everyone would read with comprehension.

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    Parabellum wrote:
    Shotgun wrote:
    1911forme wrote:
    Can they do that?
    They can probably pass any ordinance they want. The more important question is whether they could actually enforce it.

    Ignorance and unbridled hubris are far from the most desirable characteristics of elected officials-- but all too common.
    NO, South Milwaukee can NOT enact this ordinance.
    Can you drive 100 mph on the Interstate? The law says you cannot. But it does not stop you from doing it unless you choose to abide by the law.

    I don't know about complaints to the District Attorney. The District Attorney doesn't represent the municipality. The city attorney or corporation counsel represents a municipality. The DA represents the state in criminal prosecutions of state law and would not have a role in prosecuting municipal ordinance violations.

    If you want to complain to someone, complain the the Attorney General! He represents the state, and has an interest in assuring that state laws are not violated. It worked for me several years back when I complained about Milwaukee's ordinance requiring special background checks and municipal licensing for people who sold firearms. The AG's office wrote to the city and the city admitted and agreed that that portion of their ordinance was preempted and unenforceable.

    It's interesting how some municipalities are responding to the AG's memo by rescinding preempted ordinances (e.g., Pewaukee) and others are trying to just do whatever they can, legally or not, to discourage or prohibit carrying. Some get it, and some simply do not get it.
    A. Gold

    Failure to comply may result in discipline up to and including termination.
    The free man is a warrior. - Nietzsche "Twilight of the Idols"

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    Doug Huffman wrote:
    but normative statements do not in any case have truth values.
    Doug you never struck me as a proponent of moral relativism before this!
    A. Gold

    Failure to comply may result in discipline up to and including termination.
    The free man is a warrior. - Nietzsche "Twilight of the Idols"

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    You suffer from a false premise. You have never struck me as a moocher before.

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    Doug Huffman wrote:
    Brass Magnet wrote:
    Cripes....does Yahoo bable fish have a "Huffman" to English translator?
    Shakespeare did not write for the dumb masses any more than I write for Anony Mouse. If it was easy then everyone would read with comprehension.
    You speak an infinite deal of nothing. -

    Shakespeare -The Merchant of Venice-
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    Doug Huffman wrote:
    You suffer from a false premise. You have never struck me as a moocher before.
    No, I have kids either in, or just out of college.

    I am the moochie! goo goo g'joob!
    A. Gold

    Failure to comply may result in discipline up to and including termination.
    The free man is a warrior. - Nietzsche "Twilight of the Idols"

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    BJA wrote:
    Just got off the phone with John Chism's office the District attorny. They will be calling me back very shortly.Then we will go from there, and hopefully take hubert's track and file a complaint. So who wants to be the 15 people with me? Also Doug could you please elaborate lol.



    Ben

    Do these 15 people have to be residents of South Milwaukee? I know it might hold more weight if they were, but I'm a resident of that state that would typically patron the area so it would effect me.

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    Okay I just got off of the phone with the south Milwaukee City attorny. It appears I am gaining ground! But it's not over yet..... He will be looking further into the state law regarding this. But if he can't find anything that circumvents what I am saying he may be persuaded by what I said and not go forward with the parts of the ordinance that I believe to be in confliction.

    Magenlude, I hope I can fixit by just talking to them for now. The City attorny at least seems like he doesn't want to do anything illegal.However the DA's office should hopefully be calling me back and I will talk to them about further action.

    Thanks for sending the letterLammie!



    Ben



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    I sent this memo to the So. Milwaukee Mayor, Aldemen and Police Chief Ann Wellens.

    It is said that the city of So. Milwaukee is in the process of enacting an ordinance regulating the open carry of firearms within it's jurisdiction. The ordinance is supposedly numbered 23.03. It reads:

    Section 23.03 Firearms Prohibited. (1) It is unlawful for any person to carry any firearm, loaded or unloaded in any public building, on the grounds surrounding any public building, in any public park, in any school, on any school grounds, on any playground,at little league field,throughout Grant Park and the Oak Creek Parkway, on any premises licensed for the sale of alcoholic beverages and on the grounds of and within any premises where the owner or lessee has posted a sign prohibiting the carrying of firearms.

    I would like to call your attention to the fact that certain portions of the ordinance are contrary to the limits of firearm control put on political subdivisions of the state, by way of state statute 66.0409.

    66.0409 Local regulation of firearms.

    (2) Except as provided in subs. (3) and (4), no political subdivision
    may enact an ordinance or adopt a resolution that regulates
    the sale, purchase, purchase delay, transfer, ownership, use, keeping,
    possession, bearing, transportation, licensing, permitting,
    registration or taxation of any firearm or part of a firearm, including
    ammunition and reloader components, unless the ordinance or
    resolution is the same as or similar to, and no more stringent than,
    a state statute.


    Under the umbrella of s66.0409 it is my interpretation that the parts of the proposed ordinance that are in opposition to s66.0409 are:

    , on the grounds surrounding any public building, in any public park, on any playground, at little league fields, throughout Grant Park and the Oak Creek Parkway, and on the grounds of and within any premises where the owner or lessee has posted a sign prohibiting the carrying of firearms.

    The State has no statutes prohibiting or regulating carry of firearms in those locations. The State prohibitions are limited to: in public buildings, places that sell on sale alcohol, transport in or on a vehicle and in school zones. Any local ordinances that prohibit and regulate firearm carry in additional locations are in fact not similar to and are more strict than the state statutes and are therefore contrary to s66.0409.

    The statute references the posting of “no guns allowed” signs by private businesses. That in itself is prohibited by the word, bearing, as contained in s66.0409. While it may, in dispute, be allowable for business owners to restrict access to their establishments, it is against s66.0409 for a local subdivision to ticket and penalize a person for firearm carry in private businesses. If such person refuses to leave at owner request then a charge of disorderly conduct or trespass may be warranted, but not a ticket for the simpleact of firearm carry.

    Attorney General Van Hollen's recent memorandum which confirmed that the people of Wisconsin do have the constitutional right to open carry firearms is sometimes used as an endorsement of “no guns allowed “ signage by private businesses, in fact your own police chief Ann Wellens has done so. There is no mention of such a matter in the AG memorandum.

    Respectfully,

    XXXXXXXXXXX




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    Good work guys - keep it up! Let's try to head this off at the pass.

    Maybe open carriers can show up to the next council meeting and speak against the proposal as (1) Illegal (violates letter and spirit of preemption, (2) and not necessary as civil and criminal tresspass law already gives property owners the tools they need to control access to their properties.

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    Maybe open carriers can show up to the next council meeting and speak against the proposal as (1) Illegal (violates letter and spirit of preemption, (2) and not necessary as civil and criminal tresspass law already gives property owners the tools they need to control access to their properties.
    A group of carriers protesting outside the building anyway.

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