Mike
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Madison Police Department Capt. Victor Wahl issues hunting license for all gun owners by stating all gun carriers may be detained by police without even reasonable suspicion of crime.
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http://www.madison.com/tct/news/stories/461607
Court case expected for man cited in carrying handgun downtown
Mike Miller — 8/11/2009 12:07 pm
Madison's ordinance on disorderly conduct and the rights of citizens to carry firearms could be headed for a clash in court after a man was cited Saturday forallegedly openly carrying ahandgun in a holster on his hip near State Street.
Police were sent to the area late Saturday afternoon after a caller reported a man was walking on South Carroll Street toward the busy area with a gun in a holster on his hip. Police found Travis F. Yates, 28, with the gun and issued him a disorderly conduct citation, which will mean a court appearance for Yates in Madison Municipal Court in about a month.
Yates told officers that "he believes law-abiding citizens should be able to openly carry firearms," and said he was making a political statement by doing so, according to a police report, whichstated that the handgun was loaded.
The police, on the other hand, told Yates his actions disturbed others and that is why he was being given a citation for disorderly conduct.
Yates was taken home by an officer so he could "put the gun away," Madison police spokesman Joel DeSpain said.
If Yates, who couldn't be reached for comment,was staging the event to get a test case of the ordinance and the views of state Attorney General J. B. Van Hollen, who earlier this year issued a memo on the subject, he has apparently succeeded. Madison City Attorney Michael May said Tuesday that it is highly unusual for his office to change the citation before an initial appearance, which for Yates will come in about a month.
May declined to comment on the case beyond that, because it is one his office is likely to prosecute as it moves forward.
It could become a challenge to the validity of the ordinance and other such ordinances in various communities, which could also have a ripple effect on the state law against disorderly conduct. All of those contain language which makes it a violation to engage in conduct which tends to create a disturbance. On the other hand, Van Hollen seemed to say that is not illegal to carry a visible weapon in the state, at least in some cases.
State law clearly makes it illegal to carry a concealed weapon, and it prohibits convicted felons from possessing firearms. Recent attempts in the legislature to make it legal to carry concealed weapons have failed.
Except for the regulation of hunting weapons, the law says nothing about openly carrying guns, and gun advocates have argued for years that it is legal and a constitutionally protected right.
Van Hollen appeared to say the same thing in his memo: "mere open carry of a firearm, absent additional facts and circumstances, should not result in a disorderly conduct charge," he wrote.
But Van Hollen seemed to waffle in that assessment when he discussed specific situations in his memo.
"A hunter openly carrying a rifle or shotgun on his property during hunting season while quietly tracking game should not face a disorderly conduct charge," the attorney general wrote. "But if the same hunter carries the same rifle or shotgun through a crowded street while barking at passerby, the conduct may lose . . . its protection."
In a case similar to the Saturday situation in the State Street area, Van Hollen wrote that "a person openly carrying a holstered handgun on his own property while doing lawn work should not face a disorderly conduct charge." But, Van Hollen said, if that same person "brandishes a handgun in public, the conduct may," become a violation.
While nothing indicates Yates "brandished" his gun, his conduct did tend to create a disturbance, police said.
Madison Police Department Capt. Victor Wahl, in writing the Spring edition of the department's "Legal Update," said bluntly that the memo made no difference in how Madison would enforce its law.
"First, it is important to realize that the memorandum is advisory only," wrote Wahl, who has a law degree, and "does not in any way restrict the legal authority of officers to take action or of individual prosecutors to pursue charges."
Wahl said the memo only addresses the disorderly conduct law and ordinances, and not the numerous other firearms laws on the books, that it confirms that in most cases officers can stop a person carrying a gun to investigate possible criminal charges. The central theme of the memo, Wahl says, "is simply that a disorderly conduct charge is not automatically appropriate anytime someone is openly carrying a firearm."
Wahl said Madison Police Department officers should not change how they respond to calls of people with guns, as they did before Van Hollen's memo.
Wahl said the person with a gun should be detained, with officers ensuring both the public's safety as well as their own, and police should then investigate the situation to see if any laws were violated.
"To support a disorderly conduct charge it will continue to be necessary to show that the carrying of the firearm -- under those particular circumstances -- was the type of behavior that caused, or tends to cause, a disturbance," Wahl said.
Such things as the location of the incident, the conduct of the suspect and the reactions of those nearby would all figure into the determination of whether a violation had occurred.
If Yates loses his case in Madison Municipal Court, he could appeal that decision to circuit court, beginning a challenge to the disorderly conduct laws as they apply to those carrying guns visibly.
Madison Police Department Capt. Victor Wahl issues hunting license for all gun owners by stating all gun carriers may be detained by police without even reasonable suspicion of crime.
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http://www.madison.com/tct/news/stories/461607
Court case expected for man cited in carrying handgun downtown
Mike Miller — 8/11/2009 12:07 pm
Madison's ordinance on disorderly conduct and the rights of citizens to carry firearms could be headed for a clash in court after a man was cited Saturday forallegedly openly carrying ahandgun in a holster on his hip near State Street.
Police were sent to the area late Saturday afternoon after a caller reported a man was walking on South Carroll Street toward the busy area with a gun in a holster on his hip. Police found Travis F. Yates, 28, with the gun and issued him a disorderly conduct citation, which will mean a court appearance for Yates in Madison Municipal Court in about a month.
Yates told officers that "he believes law-abiding citizens should be able to openly carry firearms," and said he was making a political statement by doing so, according to a police report, whichstated that the handgun was loaded.
The police, on the other hand, told Yates his actions disturbed others and that is why he was being given a citation for disorderly conduct.
Yates was taken home by an officer so he could "put the gun away," Madison police spokesman Joel DeSpain said.
If Yates, who couldn't be reached for comment,was staging the event to get a test case of the ordinance and the views of state Attorney General J. B. Van Hollen, who earlier this year issued a memo on the subject, he has apparently succeeded. Madison City Attorney Michael May said Tuesday that it is highly unusual for his office to change the citation before an initial appearance, which for Yates will come in about a month.
May declined to comment on the case beyond that, because it is one his office is likely to prosecute as it moves forward.
It could become a challenge to the validity of the ordinance and other such ordinances in various communities, which could also have a ripple effect on the state law against disorderly conduct. All of those contain language which makes it a violation to engage in conduct which tends to create a disturbance. On the other hand, Van Hollen seemed to say that is not illegal to carry a visible weapon in the state, at least in some cases.
State law clearly makes it illegal to carry a concealed weapon, and it prohibits convicted felons from possessing firearms. Recent attempts in the legislature to make it legal to carry concealed weapons have failed.
Except for the regulation of hunting weapons, the law says nothing about openly carrying guns, and gun advocates have argued for years that it is legal and a constitutionally protected right.
Van Hollen appeared to say the same thing in his memo: "mere open carry of a firearm, absent additional facts and circumstances, should not result in a disorderly conduct charge," he wrote.
But Van Hollen seemed to waffle in that assessment when he discussed specific situations in his memo.
"A hunter openly carrying a rifle or shotgun on his property during hunting season while quietly tracking game should not face a disorderly conduct charge," the attorney general wrote. "But if the same hunter carries the same rifle or shotgun through a crowded street while barking at passerby, the conduct may lose . . . its protection."
In a case similar to the Saturday situation in the State Street area, Van Hollen wrote that "a person openly carrying a holstered handgun on his own property while doing lawn work should not face a disorderly conduct charge." But, Van Hollen said, if that same person "brandishes a handgun in public, the conduct may," become a violation.
While nothing indicates Yates "brandished" his gun, his conduct did tend to create a disturbance, police said.
Madison Police Department Capt. Victor Wahl, in writing the Spring edition of the department's "Legal Update," said bluntly that the memo made no difference in how Madison would enforce its law.
"First, it is important to realize that the memorandum is advisory only," wrote Wahl, who has a law degree, and "does not in any way restrict the legal authority of officers to take action or of individual prosecutors to pursue charges."
Wahl said the memo only addresses the disorderly conduct law and ordinances, and not the numerous other firearms laws on the books, that it confirms that in most cases officers can stop a person carrying a gun to investigate possible criminal charges. The central theme of the memo, Wahl says, "is simply that a disorderly conduct charge is not automatically appropriate anytime someone is openly carrying a firearm."
Wahl said Madison Police Department officers should not change how they respond to calls of people with guns, as they did before Van Hollen's memo.
Wahl said the person with a gun should be detained, with officers ensuring both the public's safety as well as their own, and police should then investigate the situation to see if any laws were violated.
"To support a disorderly conduct charge it will continue to be necessary to show that the carrying of the firearm -- under those particular circumstances -- was the type of behavior that caused, or tends to cause, a disturbance," Wahl said.
Such things as the location of the incident, the conduct of the suspect and the reactions of those nearby would all figure into the determination of whether a violation had occurred.
If Yates loses his case in Madison Municipal Court, he could appeal that decision to circuit court, beginning a challenge to the disorderly conduct laws as they apply to those carrying guns visibly.
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