Doug Huffman
Banned
imported post
http://www.doj.state.wi.us/news/files/FinalOpenCarryMemo.pdf
¶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.
http://www.cityofmadison.com/police/documents/Spring2009.pdf
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
statutes.
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
protection.”
• “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.
http://www.doj.state.wi.us/news/files/FinalOpenCarryMemo.pdf
¶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.
http://www.cityofmadison.com/police/documents/Spring2009.pdf
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
statutes.
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
protection.”
• “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.
