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Thread: Open carry arrest in Milwaukee

  1. #1
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    Hi everyone. Sorry its been so long since I posted. But now Im hoping I am through theworst of it. On June 6th, 2009, I had a open carry experience in Milwaukee that I hope no one would have to go through. I have done my research and do my best to follow the laws for oc. I was arrested at my house for oc in milwaukee. The police had gotten a phone call from a woman who seen me walk into a gas station while oc'ing. An hour later the police showed up at my house, disarmed me, and after a short interrogation, they decided to arrest me. Another problem, I had my daughter for the weekend and my wife was at work. But still, that didnt matter. They took me in and called my x-wife to get her. The police said they were going to charge me with disorderly conduct, oc'ing in a school zone, ccw, illegal transportation of firearm, and transport of a loaded firearm. Which I was in violation of none. After 20 hours of being detained, all charges were dropped and I was released. As far as getting my firearm back, thats a another story. So I file a petition for return of property. When Iwent downtown to serve the appropiate papers to the different departments required of me, the very next day the D.A. issues me a ticket through the Department of Natural Resources. And managed to set all court dates before the return of property date. So I put in a plea of not guilty, and fought the ticket. When I motioned for discovery, they had nothing and the ticket was dismissed. Now finally, after all the song and dance I figured I would get my gun back, seeing as I did not break any laws or use the gun in any unlawfull manner. Today was my court date and the petition was denied. I am very displeased with the outcome and cant believe how this happened in the first place. I plan on filing an appeal but have very little hope of getting my gun back.

  2. #2
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    I hate to say it but I think at least a consult with an attorney may be in order. I'm not sure what the procedures are. Jesus might know better. I don't know if you've spoken with him. From our conversation sounds like you 'drew' a bad luck draw on your judge.

    You've done nothing wrong, every charge against you was either never filed or the one that was was dropped.

    You deserve your gun back.

    Perhaps contact the NRA also.

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    And people wonder why people build killdozers.......

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    I would try talking to the State, as far as I can see, the Milw. PD. has once again broken the law. I am thinking that now that we know that the gun was not used or part of any crimes, and all charges are gone, that if the Milw. PD will not give it back, you should file charges against them. I am also thinking that you should fins a lawyer, fast. I am a bit shocked you did not talk to one before your court date.

    Do not give up or the man will have won...

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    I didnt contact a lawyer before cause number 1, money is kinda tight. And 2, I was pretty confident I could beat the ticket. Which I did. After that, I kinda figured they would just give it back. I sat there most of the day and herd alot of other cases. and if the gun was used unlawfully the person didnt get it back. But the judge made it sound as if open carrying was illegal and disorderly. I'm just guessing that was the basis on not giving it back. And now after this, if I can sue, I will. As far as Im concerned the city just stole my gun.

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    Call the ATF and report it stolen.

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    GlocksRfun wrote:
    Call the ATF and report it stolen.
    He's not kidding. And, since it appears that you were unlawfully arrested, I would contact a good constitutional lawyer and look at a 4A civil rights case against the city.
    Ecclesiastes 10:2 - "A wise man's heart inclines him to the right, but the fool's heart to the left."

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    He is right, you have a strong case against the city. Make sure you have all your ducks in order though. They will most likely try to delay, delay, delay..this is the way they try to beat people. They could not prosecute you legally so, this is their way of winning. Good luck! And thank you for standing your ground.

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    Thanks guys. I didnt plan on giving up.

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    dvnsyd wrote:
    Hi everyone. Sorry its been so long since I posted. But now Im hoping I am through theworst of it. On June 6th, 2009, I had a open carry experience in Milwaukee that I hope no one would have to go through. I have done my research and do my best to follow the laws for oc. I was arrested at my house for oc in milwaukee. The police had gotten a phone call from a woman who seen me walk into a gas station while oc'ing. An hour later the police showed up at my house, disarmed me, and after a short interrogation, they decided to arrest me. Another problem, I had my daughter for the weekend and my wife was at work. But still, that didnt matter. They took me in and called my x-wife to get her. The police said they were going to charge me with disorderly conduct, oc'ing in a school zone, ccw, illegal transportation of firearm, and transport of a loaded firearm. Which I was in violation of none. After 20 hours of being detained, all charges were dropped and I was released. As far as getting my firearm back, thats a another story. So I file a petition for return of property. When Iwent downtown to serve the appropiate papers to the different departments required of me, the very next day the D.A. issues me a ticket through the Department of Natural Resources. And managed to set all court dates before the return of property date. So I put in a plea of not guilty, and fought the ticket. When I motioned for discovery, they had nothing and the ticket was dismissed. Now finally, after all the song and dance I figured I would get my gun back, seeing as I did not break any laws or use the gun in any unlawfull manner. Today was my court date and the petition was denied. I am very displeased with the outcome and cant believe how this happened in the first place. I plan on filing an appeal but have very little hope of getting my gun back.
    Sounds like gun confiscation and disarmament to me. File suit!

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    James is DEAD on. Your gun is clearly unlawfully confiscated.

    This is de facto conviction.

    You never committed a crime. No charges were filed. But they had your gun. A month later you filed a petition for return of property and a day and a half later, you receive a citation which you subsequently went to court and got dismissed.

    But after all that, they keep a $500 gun. Perfect. No need for a conviction on anything when you can just keep your property. This is as wrong as wrong can be.

    The police never need a conviction to stick if they can just arrest and confiscate guns from law abiding citizens because a shill at the circuit court doesn't recognize open-carry as our legal means to exercise our STATE constitutional rights.

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    I would definitely file an open records request for this case and include all information on the chain of evidence and property so you have proof as to the where abouts of your fire arm.

    Act quickly before they dispose of it.

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    Contact the city atty. in Milwaukee. Tell them you want to file a claim against the city. It most likely will be denied. They should tell you that you can then appear before the JudLeg (Judiciary & Legislation) committee. They will most likely deny your claim. The good part about that is that you then can file a case in circuit court. The bad part is that will require an atty. but there may be someone who could take it on contingency.

    Last year, in what can only be called a home invasion, MPD served a search warrant on a home on the northwest side. The homeowner sold antiques online and as they searched for drugs valuable items were broken. They also found a.22 rifle and a blast box(detonator) which was about 100yrs. old and inoperable. They seized those items and I know he went to JudLeg and was denied. I'm sorry I don't know his name or what happened after that.
    The worst part of the whole situation is that they served the warrant on the wrong house and the suspect named in the warrant was black and the innocent homeowner was white. Yet they continued the search even after knowing the whole situation was f----d up.

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    dvnsyd wrote:
    Now finally, after all the song and dance I figured I would get my gun back, seeing as I did not break any laws or use the gun in any unlawfull manner. Today was my court date and the petition was denied. I am very displeased with the outcome and cant believe how this happened in the first place. I plan on filing an appeal but have very little hope of getting my gun back.
    You need to find an attonrey.

    in the future, for similar gun confiscation cases, I suggest asking WI barred attorney to consider filing a Section 1983 claim infederal court for failure to provide a post-deprivation due process hearing - I am pretty sure that state statutes that require you to sue to get uyour prooerty back violate Fifth Amendment dur process and so your atty may be able to win and get atty fees paid by the city

  15. #15
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    It sure is nice having Mike in Law School. If I stumbled on a boat load of money (meaning that I wouldn't have to work for a few years), I'd go and get my J.D. as well.
    Ecclesiastes 10:2 - "A wise man's heart inclines him to the right, but the fool's heart to the left."

  16. #16
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    dvnsyd:

    First I am not a lawyer, not even a law student, so none of the following is legal advice it is only my researched opinion.

    Hire a lawyer then make sure the lawyer reads Judge Blacks disposition in Matthew A. St Jon case # 6:08-cv-00994-BB-LAM, also case US v, Hill, 199, f, 3d 1143(10th circuit,199). I believe both have application to your incident.

    One lawyer that may offer assistance or advice may be Suzanne Hagopian. She is as far as I know a 13 year lawyer with the Wisconsin Public Defender office. She was the defense lawyer in the case of State v. Adam Gonzales. Gonzales was arrested and charged with carrying a concealed weapon and disorderly conduct on Nov. 6 1998. Article I section 25, our constitutional right to keep and bear arms, was ratified by the voters on November 3, 1998. Gonzales supposedly committed his crimes on November 6, 1998, three days after the voters approved the amendment. Hagopians argument was that Gonzales' arrest was unconstitutional because Article I section 25 voided the concealed carry prohibition. Unfortunately she was not allowed to present that argument because the state Supreme Court ruled in it's opinion, http://www.wicourts.gov/sc/opinions/01/pdf/01-0224.pdf , that Article I section 25 did not become law until it was confirmed by the state election board and that did not take place until November 30. 1998. Article I section 25 was not in effect at the time Gonzales was arrested on November 6 therefore the constitutionality question concerning ss941.23 was not allowed and the conviction of Gonzales carrying a concealed weapon was affirmed.

    I acknowlege that Gonzales' case involved concealed carry and not the issue of open carry. I mention it as endorsement of Ms. Hagopian knowlege of Wisconson's firearm laws and the constitutional impact of Article I section 25 on them. I think she prepared a very well researched and impressive brief. One, unfortunately, she was not allowed to argue before the Court. Even though it is quite long for this forum I include a copy of her brief. Make your own judgement as to its value. It may well be that with the Gonzales defeat she would be willing to review your case and get involved or perhaps refer you to a lawyer she has confidence in.

    The email address I was able to find for her is hagopians@odp.wi.gov

    STATE OF WISCONSIN

    C O U R T O F A P P E A L S

    DISTRICT II

    Case No. 01-0224-CR

    STATE OF WISCONSIN,

    Plaintiff-Respondent,

    v.

    ADAM S. GONZALES,

    Defendant-Appellant.

    ON APPEAL FROM A JUDGMENT OF CONVICTION

    AND AN ORDER DENYING POSTCONVICTION RELIEF

    ENTERED IN THE KENOSHA COUNTY CIRCUIT

    COURT, THE HONORABLE

    MICHAEL S. FISHER, PRESIDING

    BRIEF AND APPENDIX

    OF DEFENDANT-APPELLANT

    SUZANNE HAGOPIAN

    Assistant State Public Defender

    State Bar No. 1000179

    Office of the State Public Defender

    Post Office Box 7862

    Madison, WI 53707-7862

    (608) 267-5177

    -2-

    Attorney for Defendant-Appellant

    -i-

    TABLE OF CONTENTS

    Page

    RELEVANT CONSTITUTIONAL

    AND STATUTORY PROVISIONS..................................1

    ISSUES PRESENTED......................................... ...................2

    POSITION ON ORAL ARGUMENT

    AND PUBLICATION....................................... ................4

    STATEMENT OF THE CASE.............................................. ..4

    SUMMARY OF ARGUMENT.......................................... .....5

    ARGUMENT.......................................... .................................7

    I. THE PLAIN LANGUAGE OF THE

    CONSTITUTIONAL AMENDMENT

    CREATING A RIGHT TO BEAR ARMS IS

    INCOMPATIBLE WITH THE BROAD

    STATUTORY RESTRICTION ON

    CARRYING CONCEALED WEAPONS

    AND, CONSEQUENTLY, ART. I, § 25

    EFFECTIVELY REPEALED WIS. STAT. §

    941.23............................................ ........................7

    II. BECAUSE THE SWEEPING STATUTORY

    PROHIBITION ON CARRYING

    CONCEALED WEAPONS IS NOT

    NARROWLY TAILORED AND IMPINGES

    THE RIGHT GUARANTEED BY ART. I, §

    25, WIS. STAT. § 941.23 IS AN

    UNCONSTITUTIONAL EXERCISE OF

    POLICE POWER............................................. .. 16

    A. Constitutional limits on a state’s

    police power........................................... 16

    -ii-

    B. Because the constitutional right set

    forth in art. I, § 25 postdates §

    941.23, the presumption of

    constitutionality does not apply. .......... 18

    C. The CCW statute is subject to

    heightened scrutiny because it

    burdens a fundamental,

    constitutional right. ............................... 20

    1. At a minimum, the court must

    apply an intermediate level of

    scrutiny. ...................................... 20

    2. Article I, § 25 creates a

    fundamental, individual right

    to bear arms for self-defense,

    among other purposes. .............. 23

    D. The CCW statute is not narrowly

    tailored to achieve a significant,

    much less compelling, government

    purpose. ............................................... 26

    E. The legislature and voters were

    informed that the right to bear

    arms amendment might render §

    941.23 unconstitutional..................... 29

    1. The legislature’s intent........... 31

    2. The voters’ intent.................... 34

    III. IN LIGHT OF THE CONSTITUTIONAL

    RIGHT TO POSSESS AND CARRY

    WEAPONS, WIS. STAT. § 941.23 IS

    UNCONSTITUTIONAL AS APPLIED TO

    MR. GONZALES WHERE, AT MOST, HE

    HAD CROSSED THE THRESHOLD OF

    HIS APARTMENT DOOR WITH AN

    UNLOADED GUN IN HIS JACKET. .............. 37

    -iii-

    CONCLUSION........................................ ............................ 41

    APPENDIX .................................................. ......................100

    CASES CITED

    Bd. of Educ. of Westside Community Schools

    v. Mergens
    , 496 U.S. 225 (1990) ..................................14

    Brandmiller v. Arreola
    ,

    199 Wis. 2d 528, 544 N.W.2d 894 (1996) ......16 passim

    City of Lakewood v. Pillow
    ,

    180 Colo. 20, 501 P.2d 744 (1972)...............................22

    In re Air Crash Disaster Near Roselawn, Ind.
    ,

    96 F.3d 932 (7
    th Cir. 1996)............................................. 14

    In re Baby Girl K.
    ,

    113 Wis. 2d 429, 335 N.W.2d 846 (1983) ...................29

    Kayden Industries, Inc. v. Murphy
    ,

    34 Wis. 2d 718, 150 N.W.2d 447 (1967) ............. 7, 9,23

    Lutz v. City of York, Pennsylvania
    ,

    899 F.2d 255 (3
    rd Cir. 1990)...........................................17

    Matter of Contempt in State v. Simmon
    ,

    150 Wis. 2d 178, 441 N.W.2d 308 (Ct. App. 1989) ......8

    Professional Guardianships, Inc. v. Ruth E. J.
    ,

    196 Wis. 2d 794, 540 N.W.2d 213

    (Ct. App. 1995)............................................. .............16, 29

    -iv-

    Reginald D. v. State
    ,

    193 Wis. 2d 299, 533 N.W.2d 181 (1995) ...................13

    Schmeling v. Phelps
    ,

    212 Wis. 2d 898, 569 N.W.2d 784

    (Ct. App. 1997)............................................. .........9, 10, 15

    State ex rel. Carnation M.P. Co. v. Emery
    ,

    178 Wis. 147, 189 N.W. 564 (1922).............................15

    State ex rel. City of Princeton v. Buckner
    ,

    180 W. Va. 457, 377 S.E.2d 139 (1988) ..........10 passim

    State ex rel. Commissioners of Public Lands

    v. Anderson
    ,

    56 Wis. 2d 666, 203 N.W.2d 84 (1973)........................29

    State ex rel. Ekern v. Zimmerman
    ,

    187 Wis. 180, 204 N.W. 803 (1925).............................23

    State ex rel. La Follette

    v. Board of Supervisors of Milwaukee County
    ,

    109 Wis. 2d 621, 327 N.W.2d 161 (Ct. App. 1982) ....10

    State ex rel. Skinkis v. Treffert
    ,

    90 Wis. 2d 528, 280 N.W.2d 316 (Ct. App. 1979).........5

    State ex rel. Zillmer v. Kreutzberg
    ,

    114 Wis. 530, 90 N.W. 1098 (1902)......................14, 18

    State v. Bertrand
    ,

    162 Wis. 2d 411, 469 N.W.2d 873 (Ct. App. 1991) ......6

    State v. Briggs
    ,

    218 Wis. 2d 61, 68, 579 N.W.2d 783 (Ct. App. 1998) ..5

    State v. C&S Management
    ,

    198 Wis. 2d 844, 544 N.W.2d 237 (Ct. App. 1995) ....16

    -v-

    State v. Delgado
    ,

    298 Or. 395, 692 P.2d 610 (1984) ................................22

    State v. Dundon,

    226 Wis. 2d 654, 594 N.W.2d, 780 (1990) ....................7

    State v. Fry
    ,

    131 Wis. 2d 153, 388 N.W.2d 565 (1986) .............. 7, 21

    State v. Hall
    ,

    207 Wis. 2d 54, 557 N.W.2d 778 (1997) .......................8

    State v. Hanson
    ,

    182 Wis. 2d 481, 513 N.W.2d 700 (Ct. App. 1994) ....30

    State v. Interstate Blood Bank, Inc.
    ,

    65 Wis. 2d 482, 222 N.W.2d 912 (1974) .....................13

    State v. Keith
    ,

    175 Wis. 2d 75, 498 N.W.2d 865

    (Ct. App. 1993)............................................. .........7 passim

    State v. Kessler
    ,

    289 Or. 359, 614 P.2d 94 (1980)...................................22

    State v. Mata
    ,

    199 Wis. 2d 315, 544 N.W.2d 578

    (Ct. App. 1996)............................................. ............... 7, 31

    State v. Ruesch
    ,

    214 Wis. 2d 548, 571 N.W.2d 898 (Ct. App. 1997) ....16

    State v. Walls
    ,

    190 Wis. 2d 65, 526 N.W.2d 765 (Ct. App. 1994).. 7, 21

    United States v. Miller
    ,

    307 U.S. 174 (1939)............................................ ............19

    -vi-

    CONSTITUTIONAL PROVISIONS

    AND STATUTES CITED

    United States Constitution

    Second Amendment .................................................. .......18

    Wisconsin Constitution

    Art. I, § 25 .................................................. ............1 passim

    Art. I, § 9m................................................ ..........................9

    Art. XIV, § 13................................................ ......................9

    Wisconsin Statutes

    66.092(2) & (5) (1997-98) ............................................24

    809.30(2)(h) .................................................. ...................29

    939.22(10)........................................ ..................................7

    939.51(3)(a) .................................................. ...................21

    941.23 .................................................. ..................1 passim

    941.237........................................... ....................................7

    947.01 .................................................. .............................21

    Other State Constitutions

    Alaska Const. art. I, § 19................................................ ..25

    Ark. Const. art. II, § 5 .................................................. .....25

    Colo. Const. art. II, § 13 .................................................. ..8

    Fla. Const. art. I, § 8(a) .................................................. ..25

    Ga. Const. art. I, § 1................................................. .........25

    Hawaii Const. art. I, § 15 .................................................2 5

    Idaho Const. art. I, § 11................................................ ......9

    Ill. Const. art. I, § 22 .................................................. ......25

    Ky. Bill of Rights § 1 .................................................. .......9

    La. Const. art. I, § 11................................................ ..........9

    Mass. Const. Part I, art. XVII ..........................................25

    Miss. Const. art. III, § 12 .................................................. .9

    Mo. Const. art. I, § 23 .................................................. ......8

    Mont. Const. art. II, § 12................................................ ....8

    N.C. Const. art. I, § 30 .................................................. .....8

    N.M. Const. art. II, § 6 .................................................. .....9

    Okla. Const. art. II, § 26................................................ .....9

    S.C. Const. art. I, § 20 .................................................. ....25

    -vii-

    Tenn. Const. art. I, § 26................................................ ....25

    Tex. Const. art. I, § 23................................................ ......25

    Va. Const. art. I, § 13................................................ ........25

    Utah Const. art. I, § 6 .................................................. .....25

    W. Va. Const. art. III, § 22 ...............................................10

    Other State Statutes

    W. Va. Code, 61-7-1 (1975)...........................................1 1

    OTHER AUTHORITIES CITED

    1995 Assembly Joint Resolution 53 .................................25

    1999 Senate Bill 293 .................................................. .........22

    Assembly Substitute Amendment 2 to

    1995 Assembly Joint Resolution 53 .......................18, 25

    Assembly Substitute Amendment 3 to 1997 Assembly

    Joint Resolution 11................................................ ..........18

    Annot., 86 A.L.R. 4
    th 931 (1991)........................................15

    Barnet,
    Gun “Control” Laws Violate the Second

    Amendment and may Lead to Higher Crime Rates
    ,

    63 Mo. L. Rev. 155, 180 (1998).....................................20

    Bill History for Assembly Joint Resolution 11
    ,

    drafting record to 1997 AJR 11......................................26

    Don Salm & Shaun Haas, Wisconsin Legislative Council

    Staff Memorandum,
    Discussion of Possible Effects of

    1997 Senate Joint Resolution 5, Relating to the Right

    to Keep and Bear Arms (Second Consideration), on

    Selected Statutes Regulating "Arms," such as

    Firearms,
    February 5, 1998...............................17, 24, 26

    -viii-

    Fred Risser,
    Shoot Down Gun Amendment,

    Capital Times, Oct. 31, 1998 ..........................................28

    Gun Legislation Considered
    ,

    Wis. State J., Jan. 22, 1996 .............................................27

    Gun Lobby on the March
    ,

    Capital Times, Jan. 22, 1996 ...........................................27

    Jefren E. Olsen & Peter J. Dykman,
    Drafter’s Note from

    the Legislative Reference Bureau
    , drafting record to

    1995 Assembly Joint Resolution 53 .......................19, 20

    Keep Sense on Gun Limits
    ,

    Capital Times, Jan. 22, 1998 ...........................................27

    Kopel, Cramer & Hattrup,
    A Tale of Three Cities: The

    Right to Bear Arms in State Supreme Courts
    ,

    68 Temp. L. Rev. 1177 (1995)........................................22

    Laws of 1872, ch. 7, § 1 .................................................. ...7-8

    Senate Amdt. 2 to 1997 AJR 11..........................................25

    Senate Clears Way for Gun Amendment Vote
    ,

    Capital Times, March 13, 1998.......................................28

    Shaun Haas, Wisconsin Legislative Council Staff

    Memorandum,
    Analysis of 1995 Assembly Joint

    Resolution 53 and 1995 Senate Joint Resolution 7,

    Relating to the Right to Keep and Bear Arms (First

    Consideration),
    October 11, 1995....................18, 19, 25

    The End of Gun Control or the Protection Against

    Tyranny?: The Impact of the New Wisconsin

    Constitutional Right to Bear Arms on State Gun

    Control Laws
    ,

    2001 Wis. L. Rev. 249........................................23-24, 27

    -ix-

    The Wisconsin Bear Arms Amendment and the Case

    Against an Absolute Prohibition on Carrying

    Concealed Weapons
    ,

    19 N. Ill. U. L. Rev. 709 (1999)......................................23

    To Preserve Reasonable Gun Curbs, Vote ‘No,’

    Milwaukee J. Sentinel, Nov. 1, 1998..............................27

    Webster’s Third New International Dictionary
    (1976)...8

    Wis JI-
    Criminal 1335 (1997) ....................................... 7, 31

    STATE OF WISCONSIN

    C O U R T O F A P P E A L S

    DISTRICT II

    Case No. 01-0224-CR

    STATE OF WISCONSIN,

    Plaintiff-Respondent,

    v.

    ADAM S. GONZALES,

    Defendant-Appellant.

    ON APPEAL FROM A JUDGMENT OF CONVICTION

    AND AN ORDER DENYING POSTCONVICTION RELIEF

    ENTERED IN THE KENOSHA COUNTY CIRCUIT

    COURT, THE HONORABLE

    MICHAEL S. FISHER, PRESIDING

    BRIEF OF DEFENDANT-APPELLANT

    RELEVANT CONSTITUTIONAL

    AND STATUTORY PROVISIONS

    Wisconsin Constitution, Art. I, § 25:

    § 25 Right to keep and bear arms

    The people have the right to keep and bear arms

    for security, defense, hunting, recreation or any

    other lawful purpose.

    Wisconsin Statute § 941.23:

    -2-

    941.23 Carrying concealed weapon.
    Any

    person except a peace officer who goes armed with

    a concealed and dangerous weapon is guilty of a

    Class A misdemeanor.

    ISSUES PRESENTED

    1. DID THE RIGHT TO BEAR ARMS AMENDMENT

    EFFECTIVELY REPEAL WIS. STAT. § 941.23

    BECAUSE THE PLAIN LANGUAGE OF ART. I, §

    25, WHICH GUARANTEES CITIZENS THE

    RIGHT TO BEAR ARMS FOR SECURITY AND

    DEFENSE, AMONG OTHER PURPOSES, IS

    INCONSISTENT WITH THE SWEEPING

    LANGUAGE OF § 941.23, WHICH PROHIBITS

    CITIZENS FROM CARRYING CONCEALED

    WEAPONS UNDER ANY CIRCUMSTANCES?

    The trial court answered: No.

    2. IS WIS. STAT. § 941.23 AN

    UNCONSTITUTIONAL EXERCISE OF THE

    STATE’S POLICE POWER BECAUSE IT IS NOT

    NARROWLY TAILORED AND, INSTEAD,

    SWEEPS SO BROADLY AS TO IMPINGE THE

    RIGHT GUARANTEED BY ART. I, § 25?

    The trial court answered: No.

    3. IN LIGHT OF THE CONSTITUTIONAL RIGHT TO

    POSSESS AND CARRY WEAPONS, IS WIS.

    STAT. § 941.23 UNCONSTITUTIONAL AS

    APPLIED IN THIS CASE WHERE, AT MOST, MR.

    GONZALES CROSSED THE THRESHOLD OF HIS

    APARTMENT DOOR WITH AN UNLOADED

    GUN IN HIS JACKET?

    The trial court answered: No.

    -3-

    POSITION ON ORAL ARGUMENT

    AND PUBLICATION

    The clash between the constitutional right to bear

    arms and the statutory restriction on carrying concealed

    weapons presents a significant constitutional question that

    is certain to recur. In fact, similar challenges have been

    raised in at least two other cases pending in this court.

    State v. Hamden
    , No. 01-0056-CR (Dist. I); State v. Cole,

    No. 01-0350-CR (Dist. I). Moreover, this court

    recognized the likely precedential value of this case when

    it granted a three-judge panel. Both oral argument and

    publication are warranted.

    STATEMENT OF THE CASE

    The state charged the defendant-appellant, Adam S.

    Gonzales, with disorderly conduct, carrying a concealed

    weapon and felon in possession of a firearm, all as a repeat

    offender (1). At trial, the jury convicted Mr. Gonzales of

    the first two charges and acquitted him of the third (55-

    57). The trial court imposed consecutive prison sentences

    of 30 months on the disorderly conduct and 24 months on

    the carrying a concealed weapon (65; App. 101).

    The charges stemmed from a disturbance at the

    apartment building where Mr. Gonzales resided. A

    neighbor testified that at 3 a.m. Mr. Gonzales knocked on

    her door, made threats and tried to enter her apartment

    (46:29-32). She said Mr. Gonzales, who was wearing a

    black leather coat, had a dark object in his hand and was

    “whirling” it around (46:30, 32). She could not identify the

    object (46:32).

    The charge of carrying a concealed weapon was

    premised on what occurred later, after the police arrived.

    Officer Arnold Pederson testified that as he approached

    the woman’s apartment, he watched as a man, later

    identified as Mr. Gonzales, exited another apartment and

    -4-

    “came out into the hallway.” (46:36). Mr. Gonzales was

    wearing a leather jacket (46:37). The officer approached

    Mr. Gonzales and asked for identification. Officer

    Pederson testified that as he ran a check on the

    identification, Mr. Gonzales “took off his coat, put it on

    the back of the kitchen table that was inside and came back

    standing right in front of me in front of the threshold.”

    (46:37-38). In the course of a patdown, the officer found a

    gun magazine in Mr. Gonzales’ pants pocket (46:39).

    Subsequently, another officer obtained consent to search

    the Gonzales apartment (46:49). In the search, the officer

    found a black leather jacket draped over a kitchen chair

    (46:50). There was a gun in the pocket of the jacket (
    id.).

    In closing argument, the prosecutor argued that the

    crime of carrying a concealed weapon occurred when Mr.

    Gonzales “had it in his pocket when he came out [into] the

    hallway and encountered the police officer.” (50:22).

    In a postconviction motion, Mr. Gonzales sought to

    vacate his conviction for carrying a concealed weapon

    because Wis. Stat. § 941.23 is unconstitutional on its face

    and as applied to him, in light of the constitutional right to

    bear arms (73). In a brief oral decision, the trial court

    rejected Mr. Gonzales’ claims but commented that it is a

    matter “that obviously the appellate courts are going to

    have to wrestle with ….” (82:11-12; App. 102-03). Mr.

    Gonzales filed a notice of appeal from the judgment of

    conviction and the order denying postconviction relief

    (84).

    SUMMARY OF ARGUMENT

    In November of 1998 the people of Wisconsin

    expanded the state constitution’s Declaration of Rights, for

    only the fourth time in the state’s history, to create the

    right to keep and bear arms. Seventy-four percent of the

    voters approved the amendment, which had passed both

    houses of the legislature in successive sessions. The

    -5-

    amendment, art. I, § 25, guarantees that “[t]he people have

    the right to keep and bear arms for security, defense,

    hunting, recreation or any other lawful purpose.” As shown

    below, that broad constitutional right is incompatible with

    the broad statutory restriction on carrying concealed

    weapons. Under Wis. Stat. § 941.23 (“the CCW statute”),

    it is a crime for any person, other than a peace officer, to

    carry a concealed weapon in any place, at any time or for

    any purpose. Such a sweeping prohibition is incompatible

    with the constitutional right to carry weapons for security

    and defense.

    Mr. Gonzales raises two facial challenges to Wis.

    Stat. § 941.23. First, because the plain language of the

    constitutional amendment is inconsistent with the statutory

    restriction, art. I, § 25 superceded and effectively repealed

    § 941.23. Second, the CCW is an unconstitutional

    exercise of the state’s police power because it is not

    narrowly tailored to serve its purpose but, instead, sweeps

    so broadly so as to severely impinge the fundamental right

    to bear arms as guaranteed by art. I, § 25. Although these

    claims were not raised before trial, they are not waived

    because a challenge to the facial constitutionality of a

    statute is an issue of subject matter jurisdiction and,

    therefore, cannot be waived.
    State ex rel. Skinkis v.

    Treffert
    , 90 Wis. 2d 528, 536-39, 280 N.W.2d 316 (Ct.

    App. 1979);
    see also State v. Briggs, 218 Wis. 2d 61, 68,

    579 N.W.2d 783 (Ct. App. 1998)(conviction for

    nonexistent crime, attempted felony murder, vacated even

    though the conviction was pursuant to a plea agreement).

    Mr. Gonzales will also demonstrate that the CCW

    statute is unconstitutional as applied to the facts of this

    case, where he was arrested for carrying a concealed

    weapon after the police found an unloaded gun in a jacket

    that was tossed over a chair in Mr. Gonzales’ own kitchen.

    This court should exercise its authority to decide this

    claim.
    State v. Bertrand, 162 Wis. 2d 411, 415, 469

    N.W.2d 873 (Ct. App. 1991)(court in its discretion may

    consider constitutional claim that was not raised before

    -6-

    trial). It should reverse Mr. Gonzales’ conviction for

    carrying a concealed weapon where, at most, he had

    crossed the threshold of the door to his apartment with an

    unloaded gun in his jacket before re-entering the apartment

    and leaving the gun and his jacket in the kitchen of his

    home.

    ARGUMENT

    I. THE PLAIN LANGUAGE OF THE

    CONSTITUTIONAL AMENDMENT CREATING

    A RIGHT TO BEAR ARMS IS INCOMPATIBLE

    WITH THE BROAD STATUTORY

    RESTRICTION ON CARRYING CONCEALED

    WEAPONS AND, CONSEQUENTLY, ART. I, §

    25 EFFECTIVELY REPEALED WIS. STAT. §

    941.23.

    On November 3, 1998, three days before Mr.

    Gonzales’ arrest for carrying a concealed weapon, the

    voters of this state ratified a constitutional amendment

    creating a right to keep and bear arms, as follows:

    The people have the right to keep and bear arms for

    security, defense, hunting, recreation or any other

    lawful purpose.

    The statute under which Mr. Gonzales was convicted, Wis.

    Stat. § 941.23, is a sweeping prohibition on carrying

    concealed weapons. It provides:

    Any person except a peace officer who goes armed

    with a concealed and dangerous weapon is guilty of

    a Class A misdemeanor.

    The statute is an absolute prohibition against any

    person, other than a peace officer, carrying a concealed

    weapon. It applies even if a firearm is unloaded. Wis. Stat.

    § 939.22(10). And a firearm is deemed “concealed” even

    when it is lying on the front seat of a car.
    State v. Walls,

    190 Wis. 2d 65, 73, 526 N.W.2d 765 (Ct. App. 1994). An

    -7-

    individual need not have the weapon on his or her person to

    violate § 941.23. The statute merely requires that the

    weapon be within the defendant’s reach. Wis JI-
    Criminal

    1335 (1997);
    see State v. Fry, 131 Wis. 2d 153, 182, 388

    N.W.2d 565 (1986)(conviction affirmed where gun was in

    the glove compartment of a vehicle driven by the

    defendant). Moreover, a person “goes armed” within the

    meaning of § 941.23 even when she goes nowhere. In

    State v. Keith
    , 175 Wis. 2d 75, 79, 498 N.W.2d 865 (Ct.

    App. 1993), this court held that a woman who had a gun in

    her purse while she was on the porch of her own home was

    properly convicted of carrying a concealed weapon.
    See

    also State v. Mata
    , 199 Wis. 2d 315, 321, 544 N.W.2d

    578 (Ct. App. 1996)(Wis. Stat. § 941.237, which permits

    tavern owner to go armed with a handgun in the owner’s

    tavern, did not preclude prosecution of tavern owner for

    carrying a concealed weapon in the owner’s tavern).

    Finally, the defense of privilege is unavailable to a person

    accused of violating the CCW statute.
    State v. Dundon,

    226 Wis. 2d 654, 594 N.W.2d 780 (1990). The statute’s

    broad proscription against carrying a concealed weapon in

    any place, at any time or for any purpose is incompatible

    with the constitutional right to bear arms for any lawful

    purpose, including security and defense, and, consequently,

    the statute has been effectively repealed.

    Obviously, “a constitutional amendment is of the

    highest dignity and prevails over legislative acts and court

    rule to the contrary.”
    Kayden Industries, Inc. v. Murphy,

    34 Wis. 2d 718, 733, 150 N.W.2d 447 (1967).

    Constitutional amendments that deal with the substantive

    law of the state are presumed self-executing in nature and

    prospective in effect.
    Id. at 731. In addition, it is well

    established that “such amendments repeal inconsistent

    statutes and common law which arose under the

    constitution before the amendment.”
    Id. The CCW statute

    predates art. I, § 25 by more than 100 years. Laws of 1872,

    ch. 7, § 1. The right to bear arms amendment became

    effective upon its ratification by the voters on November 3,

    -8-

    1998. At that moment, it repealed § 941.23 because that

    statute is inconsistent with the plain language of the

    constitutional amendment.

    When interpreting a statute or constitutional

    provision, the court first looks to the words of the

    provision. If the language is unambiguous, the court need

    not look beyond the words of the provision to ascertain its

    meaning.
    State v. Hall, 207 Wis. 2d 54, 84, 557 N.W.2d

    778 (1997). Whether a provision is clear or ambiguous is

    a question of law.
    Matter of Contempt in State v.

    Simmon
    , 150 Wis. 2d 178, 181, 441 N.W.2d 308 (Ct. App.

    1989).

    Article I, § 25 is unambiguous. It guarantees the

    right to keep and
    bear arms for security and defense,

    among other purposes. The word “bear” means: “to move

    while holding up or supporting often with effort or special

    care: CARRY” or “to be accoutered or fitted out with:

    carry as equipment”.
    Webster’s Third New International

    Dictionary
    , p. 191 (1976). Accordingly, the constitutional

    amendment guarantees that the people of this state have the

    right to possess and
    carry weapons for security and

    defense.

    The amendment contains no exception for

    concealed weapons, even though at least five states

    included an exception for concealed weapons in their right

    to bear arms amendments. Colo. Const. art. II, § 13

    (“nothing herein contained shall be construed to justify the

    practice of carrying concealed weapons”); Mo. Const. art.

    I, § 23 (“this shall not justify the wearing of concealed

    weapons”); Mont. Const. art. II, § 12 (“nothing herein

    contained shall be held to permit the carrying of concealed

    weapons”); N.C. Const. art. I, § 30 (“Nothing herein shall

    justify the practice of carrying concealed weapons, or

    prevent the General Assembly from enacting penal statutes

    against that practice.”); N.M. Const. art. II, § 6 (“nothing

    herein shall be held to permit the carrying of concealed

    weapons”). The amendment also contains no language

    -9-

    authorizing the legislature to prohibit the carrying of

    concealed weapons, even though at least ten states

    expressly reserve to the legislature, in their right to bear

    arms amendment, the power to restrict the carrying of

    concealed weapons. Idaho Const. art. I, § 11 (“this

    provision shall not prevent the passage of laws to govern

    the carrying of weapons concealed on the person”); Ky.

    Bill of Rights § 1, par. 7 (“subject to the power of the

    general assembly to enact laws to prevent persons from

    carrying concealed weapons”); La. Const. art. I, § 11 (“this

    provision shall not prevent the passage of laws to prohibit

    the carrying of weapons concealed on the person”); Miss.

    Const. art. III, § 12 (“the legislature may regulate or forbid

    carrying concealed weapons”); Okla. Const. art. II, § 26

    (“nothing herein contained shall prevent the Legislature

    from regulating the carrying of weapons”).

    In other contexts, the Wisconsin Legislature has

    included language expressly preserving pre-existing

    statutes or common law.
    See, e.g., art. XIV, § 13

    (preserving the common law of the territory). In fact, the

    victims’ rights amendment to the Wisconsin Constitution,

    which was ratified in 1993, expressly provides that the

    amendment does not “limit any right of the accused which

    may be provided by law.” Art. I, § 9m. The right to bear

    arms amendment contains no language preserving the CCW

    statute. The plain language of art. I, § 25 is inconsistent

    with, and therefore supercedes, § 941.23.

    Where, as here, there is no ambiguity in the literal

    terms of a constitutional amendment, there is no room for

    judicial construction.
    Kayden Industries, Inc., 34 Wis. 2d

    at 732. The court “may not venture outside the plain

    meaning of a provision in order to create an ambiguity ….”

    Id
    . Rather, when the plain language of a constitutional

    amendment conflicts with a pre-existing statute, “[t]he

    question thus becomes: “Which provision takes

    precedence?’”
    Schmeling v. Phelps, 212 Wis. 2d 898,

    908, 569 N.W.2d 784 (Ct. App. 1997). The answer, of

    course, is the constitutional amendment.
    Id., citing State

    -10-

    ex rel. La Follette v. Board of Supervisors of Milwaukee

    County
    , 109 Wis. 2d 621, 327 N.W.2d 161 (Ct. App.

    1982).

    In
    Schmeling, this court was faced with a conflict

    between a constitutional amendment giving county

    executives veto authority over ordinances and a preexisting

    statute providing that county zoning ordinances

    become effective upon passage by the county board.

    Schmeling
    , 212 Wis. 2d at 907-08. The plaintiff argued

    that the court must presume that the constitutional

    amendment did not amend the statute by implication. This

    court rejected that claim and relied instead on the plain

    language of the constitutional provision. Because its plain

    language was inconsistent with the pre-existing statute, the

    court held that the statute “must yield to the constitutional

    grant of executive veto authority.”
    Id. at 908. This court

    should apply the same analysis here. Because the plain

    language of the right to bear arms amendment conflicts

    with the plain language of the CCW statute, this court may

    not “construe” the constitutional amendment but, rather,

    must apply it. The constitutional amendment takes

    precedence over § 941.23. In other words, § 941.23 was

    effectively repealed by art. I, § 25.

    The West Virginia Supreme Court applied precisely

    that reasoning when it declared unconstitutional a state

    statute prohibiting the carrying of a dangerous weapon

    without a license.
    State ex rel. City of Princeton v.

    Buckner
    , 180 W. Va. 457, 377 S.E.2d 139 (1988). In

    1986, the people of West Virginia amended their state

    constitution to create a right to bear arms that is virtually

    identical to the amendment subsequently adopted in

    Wisconsin. It reads:

    A person has the right to keep and bear arms for

    defense of self, family, home and state, and for

    lawful hunting and recreational use.

    -11-

    W. Va. Const. art. III, § 22. A few months after the

    amendment was ratified, the state sought to charge the

    defendant with carrying a dangerous weapon without a

    license in violation of a state statute.
    1 After being stopped

    for drunk driving, police found a pistol in the jacket pocket

    of the driver, who did not have a license to carry the gun.

    Buckner
    [font="Times New Roman"], 180 W. Va. at 459. The state could not pursue

    the charge because the supreme court declared the statute

    unconstitutional.

    The supreme court held that the plain language of

    the constitutional right to bear arms was inconsistent with

    the statutory prohibition on carrying dangerous weapons

    [align=left]without a license.
    [/font

  17. #17
    Banned
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    Great post Lammie! You should be a state researcher.

  18. #18
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    The opinion of the SSC on the Gonzales case goes to prove the extent Shirley Abrahamson and her troops will go toin order to affirm a convictionof concealed weapons. In my opinion the certification of the state election board should only come into play if the certification overides the initial raw tally of votes. In the case of the Right to Carry amendment the voter approval vote was more than 70%.

  19. #19
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    Umm, what about a 42 usc 1983 lawsuit for unlawful seizure????

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