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Thread: Opencarry.org asks Senator Decker to amend SB 222 to fix case law on meaning of "concealed&

  1. #1
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    Everybody take note of the case law cited below for future reference - this problem needs to get fixed.

    -----
    Subject: Suggested amendment to SB 222 to clarify meaning of "concealed" in Wisconsin
    Date: 6/15/2009 7:34:36 A.M. Eastern Daylight Time
    To: patrick.walsh@legis.wi.gov

    Patrick,


    Mike Stollenwerk here, co-founder of OpenCarry.org.



    Thank you for returning my call this past Thursday re Sen. Decker’s SB 222.



    I am following up with you as discussed to provide you the appeals court case citations which make possessing any gun within arms reach **in a vehicle** unlawfully concealed under Wisconsin’s concealed carry statute (Wisconsin Stat. § 941.23) even if the gun is (1) carried in plain sight, or (2) encased in accordance with Wisconsin Stat. § 167.31.



    In Wisconsin, “where a legislative act has been construed by [the judicial branch], the legislature is presumed to know that in the absence of the legislature explicitly changing the law, the court's construction will remain unchanged.” Blazekovic v. City of Milwaukee[/i][/b], 593 N.W.2d 809, 812 (Wis. App.1999).



    Accordingly, please let Sen. Decker know that in order for SB 222 to permit hunters to possess unloaded guns in vehicles within arms reach, encased or not, SB 222 must be amended to also change Wisconsin Stat. § 941.23 so as to overturn existing case law.



    Even if it appears that there is not enough support in the legislature to permit hunters to possess un-encased weapons while hunting in vehicles, I urge Sen. Decker to at least pursue a change to Wisconsin Stat. § 941.23 with SB 222 to permit Wisconsin gun owners to transport encased weapons (i.e., conforming to existing Wisconsin Stat. Section § 167.31) within arms reach both in vehicles and on foot or otherwise.



    Here are the relevant case law citations:



    State v. Fry[/i][/b], 388 N.W.2d 565 (Wis. App. 1986) (defendant was properly convicted under this section for driving a vehicle with a gun locked in a glove compartment).



    State v. Keith[/i][/b], 498 N.W.2d 865 (Ct. App. 1993) (To “go armed” does not require going anywhere. The elements for a violation of s. 941.23 are: 1) a dangerous weapon is on the defendant’s person or within reach; 2) the defendant is aware of the weapon’s presence; and 3) the weapon is hidden).



    State v. Walls[/i][/b], 526 N.W.2d 765 (Wis. App. 1994) (A handgun on the seat of a car that was indiscernible from ordinary observation by a person outside, and within the immediate vicinity, of the vehicle was hidden from view for purposes of determining whether the gun was a concealed weapon under this section).



    State v. Alloy,616 N.W.2d 525 (Wis. App. 2000) (affirming concealed carry conviction of man possessing handgun in a vehicle in conformity with Wisconsin Stat. § 167.31 because “Alloy's argument is based on the false assertion that he was trapped by a conflict between Wis. Stat. § 167.31 and Wis. Stat. § 941.23. A person transporting a firearm is governed by both statutes. To comply with § 167.31, the person must encase the weapon. To comply with § 941.23, he or she must place the enclosed weapon out of reach. See[/i] State[/i] v. Asfoor[/i], 75 Wis.2d 411, 433-34, 249 N.W.2d 529 (1977). A person complying with § 167.31 is not required to violate § 941.23. The encased weapon can be lawfully transported out of reach.”)



    Reading these 3 cases together, it is currently unlawful in Wisconsin to possess any gun within arms reach in a vehicle, even a long gun, whether openly carried, encased, or, locked in a glove box.



    The appeals courts holdings, if extended to apply outside one’s vehicles, would make it unlawful to walk to one’s vehicle from a gun store with a new encased firearm, or to walk from one’s vehicle to the airport check-in desk to declare the encased firearm at check-in.



    Unfortunately SB 222 as currently drafted it would not repeal the holding in State v. Walls[/i][/b] that openly carried guns in vehicles are concealed within the meaning of Wisconsin Stat. § 941.23 unless the hunter held the gun up in the air so folks outside the vehicles could see it. The holding in State v. Walls[/i][/b] that an openly carried gun in a vehicle compartment is “concealed” is a one of a kind holding; no other state has such case law, though several states **by statute** require persons openly carrying handguns in vehicles possess a gun carry permit. However note that most states do not require any permit to carry loaded handguns in vehicles. See map at http://www.opencarry.org/travel.html.



    I suggest below a straw man addition to SB 222 to clarify that weapons possessed in conformity with Wis. Stat. § 167.31 shall not be a violation of Wisconsin Stat. § 941.23 (see additional text in CAPS):



    941.23 Carrying concealed weapon. Any person except a peace officer who goes armed with a concealed and dangerous weapon is guilty of a Class A misdemeanor. Notwithstanding s. 939.22 (22), for purposes of this section, peace officer does not

    include a commission warden who is not a state−certified commission warden. ANY WEAPON CARRIED, POSSESSED, OR TRANSPORTED IN COMPLIANCE WITH WIS. STAT. § 167.31(2)(B) SHALL NOT BE CONSIDERED CONCEALED WITHIN THE MEANING OF THIS SECTION REGARDLESS OF WHETHER THE WEAPON IS IN A VEHICLE OR NOT.



    Note: There is already legislative precedent to reference Wis. Stat. § 167.31 as a standard for weapons transport in other statutes, i.e., the Wisconsin gun free school zone law at Wis. Stat. § 948.605 (permitting gun owners to carry guns in school zones if encased in compliance with Wis. Stat. § 167.31). Reading Wis. Stat. § 948.605, many gun owners erroneously think they can possess such encased and unloaded guns in school zones, but they are wrong if the gun is within arms reach, a violation of the concealed carry law even on foot walking to your car from your home in a school zone, see[/i] State v. Alloy and State v. Fry[/i][/b].



    Please contact me if I can be of any assistance in this matter. I am ccing some of the key organizing members of OpenCarry.org who reside in Wisconsin and are also following this issue closely.



    Sincerely,



    Mike Stollenwerk

    Co-founder, OpenCarry.org



    cc: Sen. Decker

  2. #2
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    WOW, very nice job Mike! Hope to see a response.



    Ben

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    Awesome job Mike!

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    Wow,

    I didn't see this until today. Must have been cross-eyed. I talked to my representatives about this last week and voiced my opininon. It was pretty much the same as yours but I was conversing over the phone so yours is much more complete with the proper case notes.

    I'm anxiously awaiting a reply to your letter.
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    Yeah, pls do call your reps on this and similar problems that need to be addressed.

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    Excellent letter Mike. I'm anxious to see the response.

    I'm one of the many that thought it was legal to carry an unloaded & encased firearm within a school zone according to 948.605. Could you please explain to me (and others) why this is not legal? I have attached 948.605-2 for others' reference.



    Thanks,

    Geoff




    2. P
    OSSESSION OF FIREARM IN SCHOOL ZONE. (a) Any individual
    who knowingly possesses a firearm at a place that the individual
    knows, or has reasonable cause to believe, is a school zone is
    guilty of a Class I felony.
    (b) Paragraph (a) does not apply to the possession of a firearm:
    1. On private property not part of school grounds;
    2. If the individual possessing the firearm is licensed to do so
    by a political subdivision of the state or bureau of alcohol, tobacco
    and firearms in which political subdivision the school zone is
    located, and the law of the political subdivision requires that,
    before an individual may obtain such a license, the law enforcement
    authorities of the political subdivision must verify that the
    individual is qualified under law to receive the license;
    3. That is not loaded and is:
    a.Encased; or
    b. In a locked firearms rack that is on a motor vehicle;
    ...

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    Regular Member bigdaddy1's Avatar
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    Mike, I feel like an idiot now but what exactly does this stuff mean in laymans terms. In otherwords what is the goal here. Is it to permit the carry of an encased and unloaded weapon with in reach of drivers or passengers? Or is it to further define the current law regarding carrying weapons in a school zone. I am not an attorney nor do I understand the legal mumbo-jumbo they tend to spew.

    Its hard for me to get behind something when I really dont know what the end goal is
    What part of "shall not be infringed" don't you understand?

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    Wow, what a mess. Glad I live in Idaho, it's nice and simple here.

    Edit: How is someone on a motorcycle supposed to transport a firearm?

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    Geoff wrote:
    Excellent letter Mike. I'm anxious to see the response.

    I'm one of the many that thought it was legal to carry an unloaded & encased firearm within a school zone according to 948.605. Could you please explain to me (and others) why this is not legal? I have attached 948.605-2 for others' reference.

    Thanks,

    Geoff


    2. P
    OSSESSION OF FIREARM IN SCHOOL ZONE. (a) Any individual
    who knowingly possesses a firearm at a place that the individual
    knows, or has reasonable cause to believe, is a school zone is
    guilty of a Class I felony.
    (b) Paragraph (a) does not apply to the possession of a firearm:
    1. On private property not part of school grounds;
    2. If the individual possessing the firearm is licensed to do so
    by a political subdivision of the state or bureau of alcohol, tobacco
    and firearms in which political subdivision the school zone is
    located, and the law of the political subdivision requires that,
    before an individual may obtain such a license, the law enforcement
    authorities of the political subdivision must verify that the
    individual is qualified under law to receive the license;
    3. That is not loaded and is:
    a.Encased; or
    b. In a locked firearms rack that is on a motor vehicle;
    ...
    The issue is the concealed carry statute - carrying an encased gun within arms reach is a violation of the concealed statute, presumably even if the case is locked. See State v. Alloy and State v. Fry above.

    Everybody needs to become familiar with Wisconsin gun law statutes and case law - you have to comply with each statute, as interpretted by the courts, independent of the other statutes. it's just like traffic laws - if you riun a red light you can't say "but I was obeying the speed limit."



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    bigdaddy1 wrote:
    Mike, I feel like an idiot now but what exactly does this stuff mean in laymans terms. In otherwords what is the goal here. Is it to permit the carry of an encased and unloaded weapon with in reach of drivers or passengers? Or is it to further define the current law regarding carrying weapons in a school zone. I am not an attorney nor do I understand the legal mumbo-jumbo they tend to spew.

    Its hard for me to get behind something when I really dont know what the end goal is
    In short, the purpose of this particular email above was to suggest to Sen. Decker that SB 222 would be a good vehicle to overturn State v. Alloy (holding that possession of an encased unloaded gun within arms reach is a violation of the concealed carry state).

    The goal of the online petition is to demonstrate and rally support to repeal the Wisconsin 1,000 ft. school zone gun ban and decriminalize open carry in vehicles



  11. #11
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    Thanks for the extra explanation Mike. I was thinking way off track on that one.



    geoff

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    Here is how UTAH covered this issue. Seems cleaner to me!

    I have enlarged and colored red the specific section. The most relevant section is 2(b)

    Utah Code
    Title 76 Utah Criminal Code
    Chapter 10 Offenses Against Public Health, Safety, Welfare, and Morals
    Section 501 Definitions.



    76-10-501. Definitions.
    As used in this part:
    (1) (a) "Antique firearm" means any firearm:
    (i) (A) with a matchlock, flintlock, percussion cap, or similar type of ignition system; and
    (B) that was manufactured in or before 1898; or
    (ii) that is a replica of any firearm described in this Subsection (1)(a), if the replica:
    (A) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition; or
    (B) uses rimfire or centerfire fixed ammunition which is:
    (I) no longer manufactured in the United States; and
    (II) is not readily available in ordinary channels of commercial trade; or
    (iii) (A) that is a muzzle loading rifle, shotgun, or pistol; and
    (B) is designed to use black powder, or a black powder substitute, and cannot use fixed ammunition.
    (b) "Antique firearm" does not include:
    (i) any weapon that incorporates a firearm frame or receiver;
    (ii) any firearm that is converted into a muzzle loading weapon; or
    (iii) any muzzle loading weapon that can be readily converted to fire fixed ammunition by replacing the:
    (A) barrel;
    (B) bolt;
    (C) breechblock; or
    (D) any combination of Subsection (1)(b)(iii)(A), (B), or (C).
    (2) (a) "Concealed dangerous weapon" means a dangerous weapon that is covered, hidden, or secreted in a manner that the public would not be aware of its presence and is readily accessible for immediate use.
    (b) A dangerous weapon shall not be considered a concealed dangerous weapon if it is a firearm which is unloaded and is securely encased.

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