Mike
Site Co-Founder
imported post
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
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
