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Thread: CC of unloaded firearm?

  1. #1
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    First, I'd like to you all that I have enjoyed the discussions on this board.

    This may be misplaced since this board is dedicated to open carry. However this group seems knowledgable on all aspects of carry and guns.



    I seem to remember a court case that I can not find any reference. The case involved the CC (see, one day and I'm throwing around those abbreviations! ) of an unloaded firearm. He was arrested and the judge ruled it was legal because an unloaded firearm is not a dangerous weapon and therefore the CCW laws did not apply.

    Am I remembering correctly? Anyone have information on this case?

    Thanks.

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    941.23 is the statute prohibiting concealed dangerous weapons. In its annotations are listed the elements for a violation:

    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. Keith, 175 Wis. 2d 75, 498 N.W.2d 865 (Ct. App. 1993).

    For your recollection to be effective it would seem to me to require a definition of only a loaded gun being a dangerous weapon. I don't recall such.

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    You guys are right. Perhaps it was a different state.

    Perhaps I had too many Whiskey Sours that night.

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    Well.....there is another way we can go about this too. Remember in certain places you MUST CARRY your firearm unloaded and encased. School zone, state parks. SO therefore you are in possession of a concealed weapon, BUT under Alloy I do not think they could charge/ prosecute you. This is only my opinion, but I have not yet seen ANYONE who could tell me different.



    IN MY OPINION

    You could make your own "case" "designedspecifically for carrying a firearm"and strap it to your belt with your unloaded pistol inside.And walk around in a school zone or state park. WHY?? Because you have NO other option to possess that firearm legally, possibly creating a valid rift in the CCW law.

    Here is a snippet from Wisconsin vs. Aloy





    A person complying with § 167.31 is not

    required to violate § 941.23. The encased weapon can be lawfully transported out of reach.
    3



    It can't be in many of the times the state forces us to carry in a case.


    Ben




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    BJA wrote:
    Well.....there is another way we can go about this too. Remember in certain places you MUST CARRY your firearm unloaded and encased. School zone, state parks. SO therefore you are in possession of a concealed weapon, BUT under Alloy I do not think they could charge/ prosecute you. This is only my opinion, but I have not yet seen ANYONE who could tell me different.



    IN MY OPINION

    You could make your own "case" "designedspecifically for carrying a firearm"and strap it to your belt with your unloaded pistol inside.And walk around in a school zone or state park. WHY?? Because you have NO other option to possess that firearm legally, possibly creating a valid rift in the CCW law.

    Here is a snippet from Wisconsin vs. Aloy






    A person complying with § 167.31 is not


    required to violate § 941.23. The encased weapon can be lawfully transported out of reach.
    3






    It can't be in many of the times the state forces us to carry in a case.




    Ben

    You are taking that sentence out of context - the state does not have to let you carry at all.

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    Lets look at this for a second, a fully closed case, an unloaded firearm. Legal right.

    The statute specifically states "The case must be designed to hold a firearm"

    It does not state anywhere that the case cannot be designed to be worn, So how about one of those "Man-purse" fannypacks designed for concealed carry? A few of my long-gun cases have a sling on them to wear over the shoulder. So IMO a fannypack holster fits the same bill.

    If the firearm is not loaded, and the pack is fully closed with no part of the gun showing, and it just happens to attach to your body, so be it IMO.

    The Chicago boys a few years (decades ago) found that fannypack carry was not prohibited by wording of their laws, (it changed later) and they were winning cases for fannypack carry of a loaded firearm if I remember correctly.

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    Nutczak wrote:
    Lets look at this for a second, a fully closed case, an unloaded firearm. Legal right.
    No, violates concealed carry law to have a gun in a case. See Alloy.



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    Nutczak wrote:
    Lets look at this for a second, a fully closed case, an unloaded firearm. Legal right.

    The statute specifically states "The case must be designed to hold a firearm"
    Safe transportation only applies to vehicles. Encased applies to School Zones. If you were walking within a Gun Free School Zone, there may exist an argument. Let me know where to Pay Pal my donation if you are going to try it and get caught and wish to fight it...

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    If we keep going back to "Alloy" as a reference , even for a person on foot, not in a vehicle.
    That leaves us no other option but to carry firearms uncased for any travel. And we have all seen how well thatworks in this state. It easily gets turned into brandishing if on foot. illegally concealed if in or on a vehicle, and at the very least illegal transport of a firearm.

    If the case-law set in alloy does not allow us to walk down the street with an unloaded firearm in a case. Doesn't that specifically violate the 2nd amendment?

    I still hold that alloy is aninvalid argumentbecause we do not know the status of the firearm, the summary of the case makes no mention if the firearm was loaded or not. I contend that Alloy must have had a loaded firearm in his vehicle to be found guilty of the charges.
    Is there any way to dig up the notes of the arrest to verify so we can finally put this argument to rest?


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    Nutczak wrote:
    [snip]..I contend that Alloy must have had a loaded firearm in his vehicle to be found guilty of the charges.
    Is there any way to dig up the notes of the arrest to verify so we can finally put this argument to rest?
    Unfortunately, an unloaded weapon is considered a a "dangerous weapon" in the Wisconsin statutes so to be found guilty of possessing a concealed weapon it need not be loaded.


    Wisconsin Stat. § 941.23 (Concealed weapon prohibition.)
    Wisconsin Stat. § 939.22 (Words and phrases defined. "Dangerous Weapon")


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    i remember watching cops one night and a guy had fired a gun in an alley and when the police got there he had no bullets but an empty gun. the cop made the comment that they could not charge him with possession of a dangerous weapon because it had no bullets. only that they could arrest him for disorderly conduct, i think it was in cali.

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    Nutczak wrote:
    If we keep going back to "Alloy" as a reference ,
    From Alloy, FN 3 on page 3, emphasis mine,
    While complying with WIS. STAT. § 167.31 might provide a defense to a person who possessed a concealed weapon immediately after it was encased for purposes of transporting it, those facts are not present here. We do not address hypothetical arguments.
    This is the subject of the video that I am trying to produce, the "might" is a fork that will capture the unwitting.

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    Someone please verify, but I think here in WI the firearm doesn't even need to be in working condition to be considered a dangerous weapon. Could you get nailed for CCW for having a dismantled gun in your backpack?


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    If by "could" you mean 'can', yes, the police do not require a legitimate violation of the law to "nail".

    The law that I know does not address dismantling.

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    I'm just wondering, I think I understand the law correctly, this seem correct?:

    Violation of "concealed" in s. 941.23 contains three elements: #1) the weapon is on your person or within reach; #2) you're aware of the weapon's presence; and #3) the weapon is hidden. Carrying openly is acceptable because #3 is not violated. The reason your firearm needs to be out of reach while transporting in a vehicle is because you're aware of the weapon's presence (#2) and because s. 157.31(2) says the firearm needs to be encased (#3, hidden). If you were to put your firearm in a proper case (doesn't matter whether loaded or unloaded since both meet the definition of as a dangerous weapon) and carry it on you as you walked around town, you would be in violation of all three criteria for violation of S. 941.23. The argument in State v. Alloy that a person complying with s. 167.31 is violating s. 941.23 would likely only be valid if an officer nabbed someone for concealing while they were on the way from the door to their vehicle with an encased firearm, as stated in the footnote from the State v. Alloy case: "While complying with WIS. STAT. § 167.31 might provide a defense to a person who possessed a concealed weapon immediately after it was encased for purposes of transporting it, those facts are not present here."

    Anyways, new here, from Eau Claire and was just reading up on OC in WI and came across this site.

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    Welcome to OCDO Wisconsin!

    I may have a video out soon that tries to show that you cannot transition from legal open carry to legal transportation by a vehicle because you cannot close the gun case while in your arms and you cannot have the gun encased in a open case in the vehicle - even momentarily. If you are not cited for a violation of 941 or 167 it is at the discretion of the cop and that is unsatisfactory and unconstitutional.

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    Well lets use a few different scenarios and put the"Alloy" decisions up against them.
    And the gun is unloaded in all situations

    I purchase a new gun, I place it in a guncase I boughtat the gun shop. According to Alloy walking from that shop to my car it is then illegally concealed!

    I want to go to the shooting range, Firearm is in the case, I walk to the shooting range with my cased firearm. Am I again illegally concealing? What If I have that same cased firearm and I need free hands, so I strap it to the handlebars of my motorcycle, or bicycle. Am I still illegally concealing a firearm?

    My point being, the decision in alloy differs from the rules and regulations set forth by the published from the WIDNR, where the rulesclearly state that all firearms must be fully enclosed in a case specifically made to house a firearm with no part of the firearm viewable to be transported in or on any vehicle.

    According to the DNR, I can alsolegally walk down the road withmy cased firearm that is unloaded, when I enter the woods I can uncase and load that firearm to hunt. If I am in a boat with an engine running or under power (sail, motor, rowing Etc Etc.), the firearm must be unloaded and fully closed in a case.

    Lets say I am out hiking, I have a backpack on,and I have a loaded gun stashed in the backpack, I may be illegally concealing it.
    But if the gun is in a case specifically made to house a firearm, and it is unloaded, and then placed in the backpack. I still meet the 3 rules set forth in alloy, but I am considered legal according to other published laws.

    (we still do not know if Alloys gun was loaded , and why his murder, manslaughter, reckless endangerment and other charges for firing that gun at people may have had a bearing on the decision)

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    Despite the chance of being shot, stabbed, beaten and then stomped, I have to remind you all that there is no legal CCW in Wisconsin period and that includes an unloaded fire arm.



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    I was under the impression that the frame is the firearm and all other parts are just that ,parts.If that is so then you can't even carry a frame concealed.It would be a long shot for a cop to arrest you for carrying a concealed frame ,but we do live in Wisconsin.

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    Don't forget State v. Kieth. Kieth was sitting on a chair on her sister's porch with a firearm in a handbag. The handbag was resting on the floor by her side. She was charged and convicted of carrying a concealed weapon. She met all three conditions of concealment. It apparently wouldn't have mattered if the handbag was specifically designed to carry a firearm.

    In researching the question of carrying unloaded or inoperable firearms. I came across this statute.

    941.2965 Restriction on use of facsimile firearms.

    (1)In this section "facsimile firearm" means any replica, toy, starter pistol or other object that bears a reasonable resemblance or that reasonably can be perceived to be an actual firearm. "Facsimile firearm" does not include any actual firearm.

    (2) No person may carry or display a facsimile firearm in a manner that could reasonably be expected to alarm, intimidate, threaten, or terrify another person. Whoever violates this section is subject to a Class C forfieture. (emphasis mine}

    This statute unleashes a number of what ifs. Firearm is defined in statutes as any weapon that propels and object by the force of gunpowder. So when, if ever, does or can, a non-operational or unloaded firearm transition from a firearm to a "facsimile firearm"?

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    I think the only thing knowing the status of loaded vs unloaded in the Alloy case would help determine was if he was also in violation of 167.31 and not just 939.23.

    From what I've found (CCAP, etc), Alloy was charged with violating 941.23, not 167.31 (or both) and I'm sure that was because the firearm was unloaded. A loaded firearm would just mean he was guilty of also violating 167.31, I don't see how it affects anything else?

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    Great conversation guys, this forum has not disappointed!

    Another thought I had was this: What constitutes a case? If memory serves (and I apologize I can't find it for the life of me) a case must velcro, zip or latch shut. It must be designed as a case - IOW, velcroing a handkerchief over your holster doesn't turn it into a gun case.

    With that said why couldn't a guy invent a 'shirt gun case'. Said shirt would be marketed as a gun case and it would zip or velcro shut. The person would use a tuckable holster and the weapon would be fully 'encased'.

    I know I'm reaching way out there and am certainly NOT advocating doing such a thing. Merely expanding on the historical practice of pushing the envelope to bring about change.

    For example I have an email into my County DA asking a number of questions. One of which is, "If I am exercising my right to open carry and have placed my holster at the small of my back and then sit in a chair am I in violation of the law? If I am not and that chair is located at the barber shop and when I get my hair cut and there is a barber's cape over me is this still open carry?" The response has been deafening silence to date. I asked other scenario based questions as well.

    I'm leaving tomorrow for a week of vacation - first vacation in a decade. Looking forward to your thought when I return!

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    Your DA is not bound to respond.

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