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Thread: Battle of the memos! Madistan's Ch. Wray takes on AG Van Hollen.

  1. #1
    Join Date
    Jun 2006
    Washington Island, across Death's Door, Wisconsin, USA

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    ¶8. Finally, several law enforcement agencies have asked whether, in light of Article I, § 25, they may stop a person openly carrying a firearm in public to investigate possible criminal activity, including disorderly conduct. We say yes. An officer may stop and briefly detain a person for investigative purposes (known as an investigative or Terry stop) if he has “reasonable suspicion,” based on articulable facts, of criminal activity. Illinois v. Wardlow, 528 U.S. 119, 123 (2000); United States v. Sokolow, 490 U.S. 1, 7 (1989); Terry v. Ohio, 392 U.S. 1, 30 (1968). The existence of reasonable suspicion depends on the totality of the circumstances, including the information known to the officer and any reasonable inferences to be drawn at the time of the stop. United States v. Arvizu, 544 U.S. 266 (2002) (reaffirming “totality of the circumstances” test). Even though open carry enjoys constitutional protection, it may still give rise to reasonable suspicion when considered in totality. It is not a shield against police investigation or subsequent prosecution. See State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763 (1990) (police officers not required to first eliminate the possibility of innocent behavior before making investigatory stop).
    ¶9. And “even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, [and] ask to examine the individual's identification,” as long as the police do not convey a message that compliance is mandatory. Florida v. Bostick, 501 U.S. 429, 434-35 (1991). The Fourth Amendment does not prevent police from making voluntary or consensual contact with persons engaged in constitutionally protected conduct. See United States v. Mendenhall, 446 U.S. 544, 553-54 (1980). Accordingly, a law enforcement officer does not violate the Fourth Amendment by approaching an individual in public and asking questions. Florida v. Royer, 460 U.S. 491, 497 (1983). An officer may approach and question someone as long as the questions, the circumstances and the officer's behavior do not convey to the subject that he must comply with the requests. Bostick, 501 U.S. at 435-36. The person approached need not answer any questions. As long as he or she remains free to walk away, there has been no intrusion on liberty requiring a particularized and objective Fourth Amendment justification. See Mendenhall, 446 U.S. at 554.

    Disorderly Conduct—Visible Weapons

    Wisconsin’s Attorney General recently released an advisory
    memorandum discussing the applicability of the disorderly
    conduct statute to individuals openly carrying firearms. The
    central point of the memorandum was: “mere open carry of a
    firearm, absent additional facts and circumstances, should
    not result in a disorderly conduct charge.” Many have asked
    what impact, if any, this has on MPD officers’ decisions
    when confronted with these types of situations. The short
    answer is that this does not change the way in which MPD
    officers respond to reports of people openly carrying
    firearms. A few points:

    First, it is important to realize that the memorandum is
    advisory only, and is for “educational and informational”
    purposes. It does not in any way restrict the legal authority
    of officers to take action or of individual prosecutors to
    pursue charges.

    Second, the memo only addressed the applicability of the
    disorderly conduct statute to the open carrying of a firearm.
    It did not in any way address any other firearm-related

    Third, the memo confirms that officers in most
    circumstances can stop a person openly carrying a firearm in
    public to investigate possible criminal activity.
    Finally, a close reading of the memo makes it clear that the
    Attorney General’s position is simply that a disorderly
    conduct charge is not automatically appropriate anytime
    someone is openly carrying a firearm. The examples
    provided by the memo illustrate this:

    • “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. But if the same hunter
    carries the same rifle or shotgun through a crowded street
    while barking at passerby, the conduct may lose…its

    • “A person openly carrying a holstered handgun on his own
    property while doing lawn work should not face a disorderly
    conduct charge…if, however, a person brandishes a handgun
    in public, the conduct may lose its…protection.”

    So, MPD officers responding to reports of an individual
    openly carrying a firearm should continue to respond as was
    the case prior to this memo’s release. The suspect should
    generally be detained, using proper tactics to ensure officer
    and community safety. Officers should then conduct an
    investigation to determine whether an arrest is appropriate.
    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. The location of
    the incident, the behavior of the suspect and the reactions of
    witnesses will all be relevant to this determination.

  2. #2
    Campaign Veteran
    Join Date
    Jun 2009
    Madison, WI

    Post imported post

    In plain english, he's basically saying that they're going to keep giving out tickets at any opportunity in the hopes that people will not want to fight the charges, and increase their quotas.

    For what it's worth, I just got back from OCing for the first time since the Yates arrest. I didn't even feel this much trepidation the first time. However, all I got were a few looks, a couple of stares, and a smile from the register clerk who knows me.

    Everyone in Madison: It's our duty to keep OCing to show the police that they will not bully us.

  3. #3
    Founder's Club Member springfield 1911's Avatar
    Join Date
    Jun 2008
    Racine, Wisconsin, USA
    Thank you Doug For posting this way back when.

    In the ashes burns an ember of liberty, We are the fuel to ignite the ember into a flame of liberty.

    The embodiment of our founding fathers will not be found in one man , But in Many.

    ****** give it away ( Our rights ) prostitutes sell it (Mandated training).

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