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Thread: Vehicle Transportation

  1. #1
    Founder's Club Member protias's Avatar
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    I was just looking at the vehicle transportation law, it mentions nothing (strictly speaking) of having to be "out of reach." Can someone help me understand this a little better?

    http://opencarry.mywowbb.com/forum57/27414.html

    http://www.legis.state.wi.us/statutes/Stat0167.pdf

    167.31 (2)
    No free man shall ever be debarred the use of arms. Thomas Jefferson (1776)

    If you go into a store, with a gun, and rob it, you have forfeited your right to not get shot - Joe Deters, Hamilton County (Cincinnati) Prosecutor

    I ask sir, what is the militia? It is the whole people except for a few politicians. - George Mason (father of the Bill of Rights and The Virginia Declaration of Rights)

  2. #2
    Founder's Club Member bnhcomputing's Avatar
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    This has been discussed on several threads before, but what you are missing is the concealed carry prohibition statute:

    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.
    Notwithstanding s.
    939.22 (22), for purposes of this section, peace officer does not
    include a commission warden who is not a state−certified commission
    warden.
    History: 1977 c. 173; 1979 c. 115, 221; 2007 a. 27.
    The burden is on the defendant to prove that he or she is a peace officer and within
    the exception. State v. Williamson, 58 Wis. 2d 514, 206 N.W.2d 613 (1973).
    A defendant was properly convicted under this section for driving a vehicle with
    a gun locked in a glove compartment. State v. Fry, 131 Wis. 2d 153, 388 N.W.2d 565
    (1986).
    To “go armed” does not require going anywhere. The elements for a violation of
    s. 941.23 are: 1) a dangerous weapon is on the defendant’s person or within [highlight= #88ffff]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).

    The state Supreme Court has ruled that:

    To “go armed” does not require going anywhere. The elements for a violation of
    s. 941.23 are: 1) a dangerous weapon is on the defendant’s person or within [highlight= #88ffff]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).



    Technically is is illegal toplace afirearm in a vehicle Wisconsin. Right after you case it, but before you put it in the car, it is "on your person" you are "aware of its presence" and it is "hidden from ordinary view."

    Doug did a goo video on it: http://www.vimeo.com/6115265

    Locked glove boxes, consoles, etc. are within reach.


  3. #3
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    The following is a paragraph from the III District Court of Appeals ruling in State V. Nick Alloy (2000). 99-2258-CR




    ¶3 Much of Alloy’s argument is based on the false assertion that he was

    trapped by a conflict between WIS. STAT. § 167.31 and WIS. STAT. § 941.23. A

    person transporting a firearm is governed by both statutes. To comply with

    § 167.31, the person must encase the weapon. To comply with § 941.23, he or she must place the enclosed weapon out of reach. See [/i]State v. Asfoor[/i][/b], 75 Wis. 2d 411, 433-34, 249 N.W.2d 529 (1977). A person complying with § 167.31 is notrequired to violate § 941.23. The encased weapon can be lawfully transported out of reach.3 The trial court properly disallowed testimony in support of the invalid defense that § 167.31 compelled Alloy to “go armed” with a concealed handgun.

    See Dundon[/i][/b], 226 Wis. 2d at 674.



    By the Court.[/i]—Judgment affirmed.

    This opinion will not be published. See [/i]WIS. STAT. RULE

    809.23(1)(b)5.3

    Note that the court did not take into accounttransport in vehicles constructed such that carry out of reach is not possible.






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    And 'unpublished', by the 809.23 Appellate rule, the Alloy court's ¶3 conclusion as stare decisis is moot. Correct?

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    Don't know if it's stare decisis or obiter dicta. I suspect it might be binding precident because i think in Wisconsin the Court of Appeals is a type of clearing house for the State Supreme Court.

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    809.23 Rule (Publication of opinions). (1)
    CRITERIA FOR

    PUBLICATION.
    (a) While neither controlling nor fully measuring the court’s discretion, criteria for publication in the official reports

    of an opinion of the court include whether the opinion:

    1. Enunciates a new rule of law or modifies, clarifies or criticizes an existing rule;

    2. Applies an established rule of law to a factual situation significantly different from that in published opinions;

    3. Resolves or identifies a conflict between prior decisions; 4. Contributes to the legal literature by collecting case law or

    reciting legislative history; or

    5. Decides a case of substantial and continuing public interest.

    (b) An opinion should not be published when:

    1. The issues involve no more than the application of well−settled rules of law to a recurring fact situation;

    2. The issue asserted is whether the evidence is sufficient to support the judgment and the briefs show the evidence is sufficient;

    3. The issues are decided on the basis of controlling precedent and no reason appears for questioning or qualifying the precedent;

    4. The decision is by one court of appeals judge under s.752.31 (2) and (3);

    5. It is a per curiam opinion on issues other than appellate jurisdiction or procedure;

    6. It has no significant value as precedent.

  7. #7
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    ETA: Sorry, I was working on the same idea, a fuller reading of 809.23. I have not previously read much of the Eight Hundreds.

    809.23 Rule (Publication of opinions).

    (1) CRITERIA FOR PUBLICATION.

    (a) While neither controlling nor fully measuring
    the court’s discretion, criteria for publication in the official reports
    of an opinion of the court include whether the opinion:
    1. Enunciates a new rule of law or modifies, clarifies or criticizes
    an existing rule;
    2. Applies an established rule of law to a factual situation significantly
    different from that in published opinions;
    3. Resolves or identifies a conflict between prior decisions;
    4. Contributes to the legal literature by collecting case law or
    reciting legislative history; or
    5. Decides a case of substantial and continuing public interest.

    (b) An opinion should not be published when:
    1. The issues involve no more than the application of well−
    settled rules of law to a recurring fact situation;
    2. The issue asserted is whether the evidence is sufficient to
    support the judgment and the briefs show the evidence is sufficient;
    3. The issues are decided on the basis of controlling precedent
    and no reason appears for questioning or qualifying the precedent;
    4. The decision is by one court of appeals judge under s.
    752.31 (2) and (3);
    5. It is a per curiam opinion on issues other than appellate
    jurisdiction or procedure;
    6. It has no significant value as precedent.

    (2) DECISION ON PUBLICATION. The judges of the court of
    appeals who join in an opinion in an appeal or other proceeding
    shall make a recommendation on whether the opinion should be
    published. A committee composed of the chief judge or a judge
    of the court of appeals designated by the chief judge and one judge
    from each district of the court of appeals selected by the court of
    appeals judges of each district shall determine whether an opinion
    is to be published.

    (3) UNPUBLISHED OPINIONS NOT CITED. An unpublished opinion
    is of no precedential value and for this reason may not be cited
    in any court of this state as precedent or authority, except to support
    a claim of claim preclusion, issue preclusion, or the law of the
    case.

    (4) REQUEST FOR PUBLICATION.
    (a) Except as provided in par.(b), any person may at any time file a
    request that an opinion not recommended for publication or an
    unreported opinion be published in the official reports.
    (b) No request may be made for the publication of an opinion
    that is a decision by one court of appeals judge under s. 752.31 (2)
    and (3) or that is a per curiam opinion on issues other than appellate
    jurisdiction or procedure.
    (c) A person may request that a per curiam opinion that does
    not address issues of appellate jurisdiction or procedure be withdrawn,
    authored and recommended for publication. That request
    shall be filed within 20 days of the date of the opinion and shall
    be decided by the panel that decided the appeal.
    (d) A copy of any request made under this subsection shall be
    served under s. 809.80 on the parties to the appeal or other proceeding
    in which the opinion was filed. A party to the appeal or
    proceeding may file a response to the request within 5 days after
    the request is filed.
    History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii;
    1981 c. 390 s. 252; Sup. Ct. Order, 109 Wis. 2d xiii (1982); Sup. Ct. Order, 118 Wis.
    2d xiii (1984); 1991 a. 189, Sup. Ct. Order No. 96−10, 208 Wis. 2d xiii (1997), Sup.
    Ct. Order No. 01−04, 2001 WI 135, filed 12−20−01, eff. 7−1−02.

    Judicial Council Committee’s Note, 1978: As with Rule 809.22 on oral argument,
    a former practice of the Supreme Court is written into this Rule and formal criteria
    established for it. The trend toward nonpublication of opinions is nationwide
    and results from the explosion of appellate court opinions being written and published.
    Many studies of the problem have concluded that unless the number of opinions
    published each year is reduced legal research will become inordinately time−
    consuming and expensive. Some argue that even accepting the premise that a court
    may properly decide not to publish an opinion this should not prevent that opinion
    from being cited as precedent since in common law practice any decision of a court
    is by its nature precedent. Others argue that a court may try to hide what it is doing
    in a particular case by preventing the publication of the opinion in the case.
    There are several reasons why an unpublished opinion should not be cited: (1) The
    type of opinion written for the benefit of the parties is different from an opinion written
    for publication and often should not be published without substantial revision; (2)
    If unpublished opinions could be cited, services that publish only unpublished opinions
    would soon develop forcing the treatment of unpublished opinions in the same
    manner as published opinions thereby defeating the purpose of nonpublication; (3)
    Permitting the citation of unpublished opinions gives an advantage to a person who
    knows about the case over one who does not; (4) An unpublished opinion is not new
    authority but only a repeated application of a settled rule of law for which there is
    ample published authority.
    If it is desirable to reduce the number of published opinions, the only alternative
    to having some opinions unpublished is to decide cases without written opinions.
    This would be far worse because it would compound the problems of nonpublication
    and at the same time take away from the parties the benefit of a written opinion
    Section 752.41 (3) authorizes the Supreme Court to establish by rule the procedure
    under which the Court of Appeals decides which of its opinions are to be published.
    Sub. (1) provides for a committee of judges of the Court of Appeals to make this decision.
    As a safeguard against any mistakes as to nonpublication, sub. (4) adopts the procedure
    of the United States Court of Appeals for the Seventh Circuit in permitting a person
    to request that an unpublished opinion be published. [Re Order effective July 1,
    1978]
    Judicial Council Committee’s Note, 1979: Sub. (4) is amended to delete the prior
    requirement that a motion had to be filed in order to ask the Court of Appeals to have
    one of its unreported opinions published in the official reports of the Court of
    Appeals. Requiring a motion to be filed led to confusion in some instances because
    the person requesting the opinion to be published may not be a party to the appeal
    decided by the opinion and uncertainty can occur as to who should be served with a
    copy of the motion and given an opportunity to respond. The requirement to file a
    motion has been replaced by the need to simply make a request to the Court of
    Appeals for publication of an unreported opinion. [Re Order effective Jan. 1, 1980]
    Court of Appeals Note, 1997: A request under this paragraph [sub. (4) (c)] does
    not affect the time under sec. (Rule) 809.62 for filing a petition for review. As in the
    case of reconsideration of a Court of Appeals decision or opinion, withdrawal of an
    opinion renders that opinion a nullity. Accordingly, a petition for review of that opinion
    filed prior to its withdrawal is of no effect, except that the petitioner may incorporate
    it by reference in a petition for review of the opinion subsequently issued in the
    appeal or proceeding.
    Court of Appeals Note, 1997: The Court of Appeals recognizes that many of its
    opinions are issued as per curiam opinions that should not be published under sec.
    (Rule) 809.23(1)(b)5, Stats. This amendment [of sub. (4)] establishes a procedure
    whereby a person may request that a per curiam opinion be withdrawn, authored and
    recommended for publication. The amendment also expressly states that an opinion
    issued by a single judge of the Court of Appeals under sec. 752.31(2) and (3), Stats.,
    will not be published.
    Citing an unpublished opinion of the court of appeals subjected the attorney to a
    $50 fine. Tamminen v. Aetna Casualty & Surety Co. 109 Wis. 2d 536, 327 N.W.2d
    55 (1982).
    Sub. (3) does not ban citation to circuit court opinions. Brandt v. LIRC, 160 Wis.
    2d 353, 466 N.W.2d 673 (Ct. App. 1991).
    Citation to an unpublished court of appeals decision to show a conflict between districts
    for purposes of s. 809.62 (1) (d) is appropriate. State v. Higginbotham, 162 Wis.
    2d 978, 471 N.W.2d 24 (1991).
    A party’s invitation to the court of appeals to consider an unpublished opinion, or
    even a naked citation to it, violates the letter and spirit of sub. (3). Kuhn v. Allstate
    Co. 181 Wis. 2d 453, 510 N.W.2d 826 (Ct. App. 1993).
    Only the supreme court has the power to overrule, modify, or withdraw language
    from a published opinion of the court of appeals. Cook v. Cook, 208 Wis. 2d 166, 560
    N.W.2d 246 (1997), 95−1963.
    The rule against citing unpublished cases is essential to the reduction of the overwhelming
    number of published opinions and is a necessary adjunct to economical
    appellate court administration. Unless and until the nonpublication rule is changed,
    violations of this rule will not be tolerated. State v. Milanes, 2006 WI App 259, 297
    Wis. 2d 684, 727 N.W.2d 94, 06−0014.
    The noncitation rule and the concept of stare decisis. Walther. 61 MLR 581 (1978).
    Publication of court of appeals’ opinions. Scott. WBB July 1988.
    Citing Unpublished Opinions in Wisconsin State and Federal Tribunals. Sefarbi
    & Zaporski. Wis. Law. Nov. 2004.

  8. #8
    Founder's Club Member protias's Avatar
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    Thanks for the help. I am forgetful at times.
    No free man shall ever be debarred the use of arms. Thomas Jefferson (1776)

    If you go into a store, with a gun, and rob it, you have forfeited your right to not get shot - Joe Deters, Hamilton County (Cincinnati) Prosecutor

    I ask sir, what is the militia? It is the whole people except for a few politicians. - George Mason (father of the Bill of Rights and The Virginia Declaration of Rights)

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