1st Police Interaction

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Yes. I believe that the LRB's database search engine and format (NXT powered by FAST) is broke and a PITA at best. I bought a $100 multi-site license with four updates and have given up using it. What I bought is the same as what's on-line.

Everything that I do at the LRB's on-line Statutes, I do in PDF.

Brass Magnet wrote:

Doug, could you cite the places the heller decision shows up in the WISC statutes? I'd like to see it just out of curiousity. I tried a search for "heller" but it must not search the annotations....

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http://www.legis.state.wi.us/statutes/wisconst.pdf

Right to keep and bear arms. SECTION 25. [As created
Nov. 1998] The people have the right to keep and bear arms for
security, defense, hunting, recreation or any other lawful purpose.
[1995 J.R. 27, 1997 J.R. 21, vote November 1998]

[ ... ]

The most natural reading of “keep arms” in the 2nd Amendment is to have weapons.
The natural meaning of “bear arms” is to “wear, bear, or carry . . . upon the
person or in the clothing or in a pocket, for the purpose . . . of being armed and ready
for offensive or defensive action in a case of conflict with another person.” Putting
all textual elements together, the 2nd amendment guarantees the individual right
to possess and carry weapons in case of confrontation. However, like most rights,
the right secured by the 2nd Amendment is not unlimited. District of Columbia v.
Heller, 554 U.S. ___, 171 L. Ed. 2d 637, 128 S. Ct. 2783, (2008)

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In order to establish it clearly as a detention. The OP would have needed to ask"Officer are you asking or demanding my ID?". Also, an audio-recorder to backhim up if the LEO lies on his report.

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Yeah and then what???

Nothing is going to happen. What? You gonna take the recording to the PD and say "look, he DEMANDED" my ID... please... There is no reprecussion

Just say no. Stop police abuse of power before it starts, don't allow it to happen get a recording and then cry about it on the internet but do nothing.

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vmaxanarchist wrote:

However it is very easy for an LEO to characterize this encounter as consensual.

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Read the entire thread. Six officers and five police cars makes the encounter not consensual by force of numbers, what ever words were exchanged.

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Doug Huffman wrote:

[ ...]

The most natural reading of “keep arms” in the 2nd Amendment is to have weapons.
The natural meaning of “bear arms” is to “wear, bear, or carry . . . upon the
person or in the clothing or in a pocket, for the purpose . . . of being armed and ready
for offensive or defensive action in a case of conflict with another person.” Putting
all textual elements together, the 2nd amendment guarantees the individual right
to possess and carry weapons in case of confrontation. However, like most rights,
the right secured by the 2nd Amendment is not unlimited. District of Columbia v.
Heller, 554 U.S. ___, 171 L. Ed. 2d 637, 128 S. Ct. 2783, (2008)

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Thanks Doug!



Oh, and sorry for sidetracking the thread.

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Note that is not from the statutes but is an annotation of the State Constitution. Hence, again, what is the effect of an 'annotation' in law.

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Ok, a few more points. After the officer ran my info and it came back as fine, the othersleft except for him and one other. I would not have consented to a search nor was I asked for one. If I had been made to produce my physical ID, I would have then demanded to know what I was being charged with. I was not asked any questions other than the ID questions. I was not given all the "why do you carry" BS. It seemed as if the officers were not told by dispatch exactly what the call said. I don't know if it came in on the non emergency number or 911. They also didn't seem to know exactly who called. This is info that I overheard while sitting there. It appears as if the reason they went inside to talk to the employees was to see if they had called. This is not meant to excuse them; it is just what I observed. I have been going there for a few years and will continue to do so as long as they do not put up a sign or ask me to leave. If they do then I will vote with my wallet and let them know why. At the time, I felt it was more important to stay there and let people see the police show up and leave without being disarmed, removed, or molested. I did that and people saw a man with a gun being talked to and then left alone. Should the police have even talked to me? No. Did I do everything the "correct way?" No. It's a bit late for me to change the way the situation was handled yesterday and I am glad that this has sparked such a lively discussion.

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Doug Huffman wrote:

Note that is not from the statutes but is an annotation of the State Constitution. Hence, again, what is the effect of an 'annotation' in law.

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It seems to point to being used for interpretation of the statute. I also wonder how much legal weight it carries.

http://www.legis.state.wi.us/rsb/preface.html

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5. NOTES

Statutory changes that are not effective at the time of publication are indicated by notes that follow the affected statute provision.

Notes prepared by the Judicial Council or the Joint Legislative Council that are published as a part of Wisconsin Acts, or comments or notes included in Supreme Court Orders that aid in the construction and interpretation of affected statutes, are published in full in the Wisconsin Statutes and Annotations or are referred to in notes following the affected statute section directing the user to see the original act or order. These notes follow the history note and precede other annotations.

Notes indicating cross-references to sections of the Wisconsin administrative code that are authorized by or interpret the statute are included in many statute sections.

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Are you sure the officer said "he needed ID"

If it's possible that he phrased it in a way that sounds more like a request than a demand then it was a consensual encounter and the LEO did everything legally. Like him saing "I would like to get some ID" after that you complied with his request from that point. Instead of an investigatory detention.

In other words he was not using his police authority.Just like you can legally go up to anyone and askfor there full name and address.The person being asked can tell you"no" and walk off. In that same situationwith a LEO you could have legally said "no" to his request and walk off, but you chose to comply.

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With six LEO standing around it does not matter what tone of voice was used or if the request was made using an engraved card presented on a purple velvet pillow.

Further, it is not the LEO's perception but the law abiding citizen's freedom that is at issue.

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Doug Huffman wrote:

vmaxanarchist wrote:

However it is very easy for an LEO to characterize this encounter as consensual.

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Read the entire thread. Six officers and five police cars makes the encounter not consensual by force of numbers, what ever words were exchanged.

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Just because you bring five of your buddys with you to go up to someone and ask there name and address. Does not force them to comply. Unless there is a apparent use of force like drawing weapons.

The OP has described the other officers not being involved in the encounter.Than to stand there and observe the initial encounter.Than leave after it became apparent that the initial officer was dealing with an ordinary law abiding citizen who chose to OC and did not pose a significant risk.

Their temporary presence does not make it any different in the eyes of the law. Then content of the language the LEO used and his tone of voice. Is what changes it from a conversation to an interrogationduring a investigatory detention. Unless there is apparent show of force like drawing weapons.

The reason behind this is it matters more not whether that he felt compelled to comply than whether the officers did anything to imply that there wasn't a choice.

So, a person in that situation needs to find out for sure that he doesn't have a choice. Like saying "Are you asking or demanding officer?", or "Am I free to go officer?"

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Citizen wrote:

Shotgun wrote:

SNIP Note in the annotations that refusal to provide a name, or silence, is not obstruction. Also look at the last interesting citation which states the police must be acting lawfully at the time, i.e., in accordance with the state and federal constitutions.


1. No law allows officers to arrest for obstruction on a person’s refusal to give his or
her name. Mere silence is insufficient to constitute obstruction. Henes v. Morrissey,
194 Wis. 2d 339, 533 N.W.2d 802 (1995).

2. “Lawful authority,” as that term is used in sub. (1), requires that police conduct be
in compliance with both the federal and state constitutions, in addition to any applicable
statutes. State v. Ferguson, 2009 WI 50, ___ Wis. 2d ___, ____ N.W.2d ___,
07−2095.

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1. Check the date on their case cite--1995. Then check the date on Hiibel--2004. I would say Hiibel basically overturned this case. In fact, maintaining silence and the right to silence in regard to having to give your name was the main question in Hiibel.

2. This statement is just a restatement of a fundamental of law. It goes without saying thatpolice conduct must be in compliance with law. There may be silver lining, though. I wonder if this can be used to get around sovereign immunity on questions of good faith mistakes by police and so forth.



In any event, I can't see the stop-and-identify statute as a legal nullity. If refusal to identify can't be charged under obstruction (and I'm not convinced it can't), I'm betting there is a penalty somewhere else. For the moment, if I lived in Wisconsin, and I wanted to really know the details, I'd look deeper into the obstruction angle. Its bound to have come up a number of times already since theHiibel decision five yearsago.

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I would direct attention to this interpretation which states that Hiibel has no effect in Wisconsin:

http://www.cityofmadison.com/police/documents/Summer2004.pdf

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Schneckloth v. Bustamonte, 412 U.S. at 412 U. S. 225.
We conclude that a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. [Footnote 6] Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. See Terry v. Ohio, supra at 392 U. S. 19, n. 16; @ 442 U. S. 207, and n. 6; 3 W. LaFave, Search and Seizure 53-55 (1978). In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

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At the time, I felt it was more important to stay there and let people see the police show up and leave without being disarmed, removed, or molested. I did that and people saw a man with a gun being talked to and then left alone. Should the police have even talked to me? No. Did I do everything the "correct way?" No. It's a bit late for me to change the way the situation was handled yesterday and I am glad that this has sparked such a lively discussion.

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I agree. I think those around received some positive education regarding OC. As you said, they saw you there, you didn't have to leave, you didn't get disarmed. Now more people know its legal. (unless they assume you were a cop)

I merely strive for advancement of freedom and to that end, until police behave exactly as they should, I will continue to expect more even if its one interaction at a time letting them know that my rights won't be violated.

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Shotgun wrote:

SNIP I would direct attention to this interpretation which states that Hiibel has no effect in Wisconsin:

http://www.cityofmadison.com/police/documents/Summer2004.pdf

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That is a handy little document. Good find!

As I understand it, the document says in so many words that Hiibel does not apply because the statute itself has no penalty AND a state court has ruled that refusal to identify is not obstruction.

Now the question is, what is the penalty, if any, for failing to verbally identify oneself when lawfully demanded by an LEO? (I didn't read thedocument's section on Hiibel entirely.)

I wouldn't assume just yet that there is no penalty. Legislatures don't really make a habit of passing laws without a penalty for violation.

Of course, it would be really cool if the state court decision that cancelled "arrest for obstruction" for refusal to identify also inadvertantly unhinged the sole penalty the legislature had in mind. Meaning there is no penalty. If true, HughJarmis's approach would be safe after all. But, I'm just speculating here. I'd still think really carefully before deciding to refuse to verbally identify myself as a standard tactic.

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vmaxanarchist wrote:

Doug Huffman wrote:

vmaxanarchist wrote:

However it is very easy for an LEO to characterize this encounter as consensual.

Click to expand...

Read the entire thread. Six officers and five police cars makes the encounter not consensual by force of numbers, what ever words were exchanged.

Click to expand...

Just because you bring five of your buddys with you to go up to someone and ask there name and address. Does not force them to comply. Unless there is a apparent use of force like drawing weapons.

The OP has described the other officers not being involved in the encounter.Than to stand there and observe the initial encounter.Than leave after it became apparent that the initial officer was dealing with an ordinary law abiding citizen who chose to OC and did not pose a significant risk.

Their temporary presence does not make it any different in the eyes of the law. Then content of the language the LEO used and his tone of voice. Is what changes it from a conversation to an interrogationduring a investigatory detention. Unless there is apparent show of force like drawing weapons.

The reason behind this is it matters more not whether that he felt compelled to comply than whether the officers did anything to imply that there wasn't a choice.

So, a person in that situation needs to find out for sure that he doesn't have a choice. Like saying "Are you asking or demanding officer?", or "Am I free to go officer?"

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Doug has already brought up a really good and valid cite to this. Kudo's Doug.

Here is my feelings on a show of force with 3 or more officers, lets say you get intypical stupidargument with somejoe-blow off the street about something, All of a sudden 5 or 6 of his buddies appear and stand off to the side. Are they threatening? Not in the eyes of the law,But that show of force is meant to, and actually is intimidating to almost anyone! Especially when they are loaded down with several choices of offensive gear hanging off their batman utility-belts
As Ron White once said; "I do not know how many of themit would have taken to kick my ass, But I knew how many they weregoing to use!"

The confrontation by the police was excessive, andIMO there was no legal reason for a show of force like this. What is your guess as to what may have transpired if the OP was to simply get up and walk away from the officers without uttering a word or acknowledging their presence? I would be willing to bet a large sum of money that it would not have been allowed and offensive action by the officers would have been initiated.

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Citizen wrote:

hugh jarmis wrote:

I will never provide my name. I refuse to give the police opportunityto make a point of retribution. Given that we ALL break the law every day (speeding) I don't want the police to know who I am. I don't want to be "on the list" that a local police department keeps of citizens that DARE to know and exercise their rights.

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You might reconsider that, Hugh. Wisconsin has a stop-and-identify statute. Since there is no penalty written into the statute, I would assume for the moment thatthe penalty for obstruction would apply.

http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=968.24

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"when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime"

Without at least one(1) of those three elements, it is my non-legal opinion that one would not be in violation of 968.24.

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vmaxanarchist wrote:

SNIP The reason behind this is it matters more not whether that he felt compelled to comply than whether the officers did anything to imply that there wasn't a choice.

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Not exactly.

US vs Mendenhall:

We conclude that a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. (emphasis added).

Earlier in this thread I asked the OPer several questions designed to find out what the additional officers did, how close they were, etc. Rather than speculate andgo off on tangets, what say we just let him answer.

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I would like to post some follow up. I spoke with the Brookfield PD today and asked them if I had declined to provide any ID what would have happened. I was informed that nothing would have happened. They were within their rights to ask and I was within my rights to decline. I chose to give them the information and I am fine with that decision. They were professional and polite.


I have been given a bit of grief about that decision, that is fine. I can see that for some people any cooperation with the police is too much. In many ways I share that view. Everyone has a "line in the sand" when it comes to their rights that they will not cross. Before anyone jumps to the conclusion that I enjoy justifying myself to the police, please understand that is not my opinion. I would love to see most, if not all, of the firearms regulations removed from this country. I also feel that government needs to be pruned, not with shears but with a back-hoe. I also feel that the "fight" for firearms carry is a public relations battle.


Most of the population doesn't care at all about firearms carry. The notion of self security is rather alien to them. After all, if there is trouble you just dial 911 right? I feel that this group is the largest of the population. The other ends of the spectrum are people like us who do carry and then the antis. The antis will never be happy until everyone has been stripped of their firearms. Those people we will never reach. Every time one of the non carrying public sees us and the experience is positive or neutral, it is a win for our side. The more that they see us and get used to seeing firearms carried in a responsible manner, the larger our support grows. All of us want certain restrictions removed. The school zone law and vehicle carry are two. When these types of legislation updates come up, we don't want the vast majority of people to be calling their Reps in opposition. We want them to either support it or do nothing. The media and the antis will do enough against it, we want the "general public" to be thinking that this really doesn't sound like a big deal.


I try my best to project a positive image when I am out and armed. I am more friendly and polite than I would be if I wasn't carrying. This is all to try to project a good image of the civilian firearms carrier. When I made the decision to provide my name, I knew I was being "observed" by people. There was no-one out on that patio except for the people at my table so all anyone could do was see the"goings on." What people saw was either a man at a table with two other people or a man with a gun at a table with two other people. They then saw the police arrive and talk to that man. They then saw police leave and the man continue to stay and enjoy his coffee. They didn't see anyone shot, arrested, tasered, searched, or beaten. What they saw looked like no big deal after all, if it was a big deal wouldn't they have taken the guy to jail? It sucks that the police came and after some of the other incidents that people have had this definitely seems like "progress."

This is an imperfect world and it is an uphill battle to make people see OC as normal. Everyone has a choice to make as to how cooperative they wish to be with the police. Some people have nowhere to be tomorrow and others need to get home to a sick wife. If you can look at yourself in the mirror and be okay with the choices you made in a given situation, then you've done fine. If all you seek is the approval of the masses, then you probably spend too much time on the internet. I'm sorry if some of our more hardline members feel as if I have "given in to the man." I'm personally fine with it and have no problem looking at myself in the mirror.

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If only as a taxpayer you should be offended by the wasted resources of six officers and five cars responding and writing reports. A Town supervisor should be having some heads.

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Well, I'm a taxpayer of West Allis and not Brookfield. We waste taxpayer money far more egregiously than that....