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Thread: Wisconsin State Statutes and Caselaw

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    Founder's Club Member Brass Magnet's Avatar
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    Wisconsin Statutes and Case Law Surrounding Firearms

    This list may not be complete and is provided for your reference only. For real legal advise; as always, contact an attorney.

    Statutes:

    Wisconsin Stat. § 167.31 (Transportation in a motor vehicle.)
    Wisconsin Stat. § 941.23 (Concealed weapon prohibition.)
    Wisconsin Stat. § 939.22 (Words and phrases defined. "Dangerous Weapon")
    Wisconsin Stat. § 948.605 (Gun free school zone law.)
    Wisconsin Stat. § 948.61 (Other dangerous weapons in school. Needed for €œschool€ definition.)
    Wisconsin Stat. § 941.235 (Carrying of firearm in a €œpublic building€.)
    Wisconsin Stat. § 941.237 (Carryinghandgun where alcoholic beverages may be sold and consumed.)
    Wisconsin Stat. §29.089 (Phrohibition in state parks.)
    Wisconsin Stat. § 66.0409 (State preemption law.)
    Wisconsin Stat. § 939.63 (Penalties; use of a dangerous weapon.)

    Remember, just reading the statutes can get you into trouble. Case law based on those statutes isequally importantto know.


    Case Law:

    State v. Fry - 1986 WSC (defendant was properly convicted under § 941.23 for driving a vehicle with a gun locked in a glove compartment).


    State v. Keith - Ct App. 1993 (To €œgo 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 - Ct 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 § 941.23)



    State v. Cole - 2003 WSC (Companion case to State v. Hamdan)


    State v. Hamdan - 2003 WSC (§ 941.23 is constitutional under Art. I, s. 25. Only if the public benefitin the exercise of the police power is substantially outweighed by an individual€™s need to conceal a weapon in the exercise of the right to bear arms will an otherwise valid restriction on that right be unconstitutional, as applied. The right to keep and bear arms for security, as a general matter, must permit a person to possess, carry, and sometimes conceal arms to maintain the security of a private residence or privately operated business, and to safely move and store weapons within those premises)


    State v. Fischer - 2006 WSC (§ 941.23 is constitutional as applied in this case. The defendant€™s interest in exercising his right to keep and bear arms for purposes of security by carrying a concealed weapon in his vehicle does not substantially outweigh the state€™s interest in prohibiting him from carrying a concealed weapon in his vehicle.)


    State v. Vegas -2007 Milwaukee Cty. CC (The courtuses the Hamdan andFischer "two prong test"andgrants a pizza delivery mans motion to dismiss as it finds that § 941.23 is unconstitutional as applied to him.)

    Unpublished opinions and reference:

    (Although the opinions and material below is not actual law or case law it provides a good reference)

    State v. Alloy - Wis. App. 2000 (affirming concealed carry conviction of man possessing handgun in a vehicle in conformity with Wisconsin Stat. § 167.31 because €œAlloy'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.")

    This post can be updated to fill in missing information. If you can find the correct links for all the case law I'll add them in.
    Last edited by Brass Magnet; 09-26-2010 at 07:46 PM.
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    Well done Brass.

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    Thank you for this well done

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    Founder's Club Member bnhcomputing's Avatar
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    I might suggest adding:

    29.089Hunting on land in state parks and state fish hatcheries.


    As this cover the one of the five places (state parks) where we cannot carry.

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    Thanks to Brass for doing this - once John Pierce gets settled in his new home on the Wisconsin border of Minnesota he will put this on the WI state page (click on each state on our maps for more details on each state).

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    bnhcomputing wrote:
    I might suggest adding:

    29.089Hunting on land in state parks and state fish hatcheries.


    As this cover the one of the five places (state parks) where we cannot carry.
    Good point - we need a bill to repeal this, anybody have a friendly legislator?

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    Founder's Club Member Brass Magnet's Avatar
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    No problem guys. I had the stuff anyway and Mikes post about the letter to Decker filled in the blanks.

    bnhcomputing wrote:
    I might suggest adding:

    29.089Hunting on land in state parks and state fish hatcheries.


    As this cover the one of the five places (state parks) where we cannot carry.

    Thanks,

    I added it.

    Mike wrote:
    bnhcomputing wrote:
    I might suggest adding:

    29.089Hunting on land in state parks and state fish hatcheries.


    As this cover the one of the five places (state parks) where we cannot carry.
    Good point - we need a bill to repeal this, anybody have a friendly legislator?
    The ones I've been talking to keep saying "nows not the right time" whenever I bring something like this up. :X
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    Brass Magnet wrote:
    Good point - we need a bill to repeal this, anybody have a friendly legislator?
    The ones I've been talking to keep saying "nows not the right time" whenever I bring something like this up. :X
    Sounds like some sens and reps need to be primaried!

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    Brass Magnet wrote:
    No problem guys. I had the stuff anyway and Mikes post about the letter to Decker filled in the blanks.

    bnhcomputing wrote:
    I might suggest adding:

    29.089Hunting on land in state parks and state fish hatcheries.


    As this cover the one of the five places (state parks) where we cannot carry.

    Thanks,

    I added it.

    Mike wrote:
    bnhcomputing wrote:
    I might suggest adding:

    29.089Hunting on land in state parks and state fish hatcheries.


    As this cover the one of the five places (state parks) where we cannot carry.
    Good point - we need a bill to repeal this, anybody have a friendly legislator?
    The ones I've been talking to keep saying "nows not the right time" whenever I bring something like this up. :X
    Now is the time...

    Ahh, who am I telling... You know it as well as I do.

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    Does public school property that does not have a school building on it count as a school zone?

    The area public schools near where my family lives have school forests on non-adjacent property several miles away from the actual school buildings where the kids go for extra-curricular activities and field trips.

    It seems that these are identified as "school premises" not "schools". Do these "school premises" count as "gun free school zones" under 948.61?

    (b) “School” means a public, parochial or private school which provides an educational program for one or more grades between grades 1 and 12 and which is commonly known as an elementary school, middle school, junior high school, senior high school or high school.

    (c) “School premises” means any school building, grounds, recreation area or athletic field or any other property owned, used or operated for school administration.

    Also, lovely compilation of WI statutes/case law.

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    Athena wrote:
    Does public school property that does not have a school building on it count as a school zone?

    The area public schools near where my family lives have school forests on non-adjacent property several miles away from the actual school buildings where the kids go for extra-curricular activities and field trips.

    It seems that these are identified as "school premises" not "schools". Do these "school premises" count as "gun free school zones" under 948.61?

    (b) “School” means a public, parochial or private school which provides an educational program for one or more grades between grades 1 and 12 and which is commonly known as an elementary school, middle school, junior high school, senior high school or high school.

    (c) “School premises” means any school building, grounds, recreation area or athletic field or any other property owned, used or operated for school administration.

    Also, lovely compilation of WI statutes/case law.
    Check my comments here and then tell us what you think.

    http://opencarry.mywowbb.com/view_to...427912#p427912
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    Thanks Shotgun. I appreciate the clarification as I'm not exactly fluent in Lawyerese.

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    Wisconsin Carry, Inc. Shotgun's Avatar
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    Athena wrote:
    Thanks Shotgun. I appreciate the clarification as I'm not exactly fluent in Lawyerese.
    Neither am I, but I believe there is much afoul with the Milwaukee PD's take on school zones.
    A. Gold

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    Shotgun wrote:
    Athena wrote:
    Thanks Shotgun. I appreciate the clarification as I'm not exactly fluent in Lawyerese.
    Neither am I, but I believe there is much afoul with the Milwaukee PD's take on school zones.
    You only say that because about 85% of our city is a school zone. About 98% of them are also the highest crime areas of the state. I bet in Milwaukee, our school zones have more crime on a summer Saturday night than the rest of the state combined (please feel free to check that stat.). And to think, Gwen Moore thinks if I carry a gun, I will be part of some new problem...

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    Looks like you need to add the disorderly conductlaw.

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    947.01 Disorderly conduct.

    Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances
    in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor.
    History: 1977 c. 173; 1979 c. 131.

    The defendant was properly convicted of disorderly conduct when he appeared on
    a stage wearing a minimum of clothing intending to and succeeding in causing a loud
    reaction in the audience. State v. Maker, 48 Wis. 2d 612, 180 N.W.2d 707 (1970).

    An attorney was properly convicted under this section for refusing to leave a ward
    in a mental hospital until he had seen a client after having made statements in the presence of patients that caused some to become agitated. State v. Elson, 60 Wis. 2d 54, 208 N.W.2d 363 (1973).

    It was not disorderly conduct for 4 people to enter an office with other members
    of the public for the purpose of protesting the draft and to refuse to leave on orders
    of the police when their conduct was not otherwise disturbing. State v. Werstein, 60
    Wis. 2d 668, 211 N.W.2d 437 (1973).

    This statute does not require a victim, but when the disorderly conduct is directed
    at a person, that person is the victim for the purpose of prosecuting the perpetrator for intimidating a victim under s. 940.44. State v. Vinje, 201 Wis. 2d 98, 548 N.W.2d 118 (Ct. App. 1996), 95−1484.

    A “true threat” is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech. It is not necessary that the speaker have the ability to carry out the threat. State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762, 99−1924.

    Purely written speech, even written speech that fails to cause an actual disturbance,
    can constitute disorderly conduct, but the state has the burden to prove that the speech is constitutionally unprotected “abusive” conduct. “Abusive” conduct is conduct that is injurious, improper, hurtful, offensive, or reproachful. “True threats” clearly fall within the scope of this definition. State v. Douglas D. 2001 WI 47, 243 Wis. 2d 204, 626 N.W.2d 725, 99−1767.

    Application of the disorderly conduct statute to speech alone is permissible under
    appropriate circumstances. When speech is not an essential part of any exposition
    of ideas, when it is utterly devoid of social value, and when it can cause or provoke
    a disturbance, the disorderly conduct statute can be applicable. State v. A.S. 2001 WI
    48, 243 Wis. 2d 173, 626 N.W.2d 712, 99−2317.

    Disorderly conduct does not necessarily require disruptions that implicate the public
    directly. This section encompasses conduct that tends to cause a disturbance or disruption that is personal or private in nature, as long as there exists the real possibility that the disturbance or disruption will spill over and disrupt the peace, order, or safety of the surrounding community as well. Sending repeated, unwelcome, and anonymous mailings was “otherwise disorderly conduct.” State v. Schwebke, 2002 WI 55, 253 Wis. 2d 1, 644 N.W.2d 666, 99−3204.

    Defiance of a police officer’s order to move is itself disorderly conduct if the order
    is lawful. Braun v. Baldwin, 346 F.3d 761 (2003).

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    939.63 Penalties; use of a dangerous weapon.

    (1) If a
    person commits a crime while possessing, using or threatening to
    use a dangerous weapon, the maximum term of imprisonment prescribed
    by law for that crime may be increased as follows:

    (a) The maximum term of imprisonment for a misdemeanor
    may be increased by not more than 6 months.

    (b) If the maximum term of imprisonment for a felony is more
    than 5 years or is a life term, the maximum term of imprisonment
    for the felony may be increased by not more than 5 years.

    (c) If the maximum term of imprisonment for a felony is more
    than 2 years, but not more than 5 years, the maximum term of
    imprisonment for the felony may be increased by not more than
    4 years.

    (d) The maximum term of imprisonment for a felony not specified
    in par. (b) or (c) may be increased by not more than 3 years.

    (2) The increased penalty provided in this section does not
    apply if possessing, using or threatening to use a dangerous
    weapon is an essential element of the crime charged.

    (3) This section applies only to crimes specified under chs.
    939 to 951 and 961.

    History: 1979 c. 114; 1981 c. 212; 1987 a. 332 s. 64; 1995 a. 448; 2001 a. 109.
    The fact that the maximum term for a misdemeanor may exceed one year under
    sub. (1) (a) 1. does not upgrade the crime to felony status. State v. Denter, 121 Wis.
    2d 118, 357 N.W.2d 555 (1984).

    Possession encompasses both actual and constructive possession. To prove a
    violation of this section, the state must prove that the defendant possessed the weaponto facilitate the predicate offense. State v. Peete, 185 Wis. 2d 255, 517 N.W.2d 149 (1994). See also State v. Howard, 211 Wis. 2d 269, 564 N.W.2d 753 (1997), 95−0770.

    An automobile may constitute a dangerous weapon under s. 939.22 (10). State v.
    Bidwell, 200 Wis. 2d 200, 546 N.W.2d 507 (Ct. App. 1996).

    Under Peete, there is sufficient evidence of possession if the evidence allows a reasonable
    jury to find beyond a reasonable doubt that the defendant possessed a dangerous
    weapon in order to use it or threaten to use it, even if the defendant did not use
    or threaten to use it in the commission of the crime. State v. Page, 2000 WI App 267,
    240 Wis. 2d 276, 622 N.W.2d 285, 99−2015.

    When two penalty enhancers are applicable to the same crime, the length of the second
    penalty enhancer is based on the maximum term for the base crime as extended
    by the first penalty enhancer. State v. Quiroz, 2002 WI App 52, 251 Wis. 2d 245, 641
    N.W.2d 715, 01−1549.

  18. #18
    Founder's Club Member Brass Magnet's Avatar
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    Do you guys think we should include the DC in the first post? I'm a little hesitant as DC really has nothing to do with firearms laws. It's a catch-all and we know it shouldn't be applied to OCers for the mere act of carrying.

    As for the penalties... I think it's probably a good idea to include them in the first post. Thanks Doug.
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    The major case law is now added to the WI map page at http://www.opencarry.org/wi.htmlso this thread is no longer needed to stay stickied.

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    Founder's Club Member Brass Magnet's Avatar
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    Mike wrote:
    The major case law is now added to the WI map page at http://www.opencarry.org/wi.htmlso this thread is no longer needed to stay stickied.
    Cool!

    ETA: It's way less complete though, and doesn't have handy clickable links.....
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    Founder's Club Member Brass Magnet's Avatar
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    Bumping this so I don't have to search for it all the time......
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    Founder's Club Member protias's Avatar
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    Can we get this stickied again? I keep forgetting the thread title, which makes it impossible to search for it.
    No free man shall ever be debarred the use of arms. Thomas Jefferson (1776)

    If you go into a store, with a gun, and rob it, you have forfeited your right to not get shot - Joe Deters, Hamilton County (Cincinnati) Prosecutor

    I ask sir, what is the militia? It is the whole people except for a few politicians. - George Mason (father of the Bill of Rights and The Virginia Declaration of Rights)

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    You could also copy and paste into Word and then save a copy in your files.

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    bump

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    http://opencarry.mywowbb.com/forum4/34191.html

    http://scholar.google.com/

    Installed in my FF search engine box and set to legal opinions and journals.

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