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Spary and Spray:
The correct statute number is 941.23 Prohibition of carrying a concealed weapon.
In State v. Fry the Wisconsin Supreme Court found Fry guilty of carrying a concealed weapon because he had a firearm locked in the glove compartment of his automobile. That is probably damaging to your friend's case.
The case you refer to where the confilct between 941.23 and 167.31 was challenged was State v. Nick Alloy. The III District Court of Appeals ruled there wasn't a confilct between the two statutes. A person is required to comply with both statutes and can do so by carrying the encased weapon out of reach. This opinion by the Court of Appeals was unpublished and I belive it istherefore non-precedential and cannot be cited.
My opinion is that the III District of Court of Appeals erred with that judgement. It overlooked thecircumstance wherein firearms are transported on a number of vehicles that are constructed such that carry of an encased weapon out of reach is not possible, therefore under those circumstances the conflict is still alive. Two such vehicles are ATV's and snowmobiles. SS23.33 under the rules of operation restriciton of ATV's state that if a firearm is transported on a ATV it must be encased. That indicates that carry of a firearm on an ATV is not unlawful, however there is no way to do it without running afoul of statutes. If the weapon is uncased it violates 167.31 if it is encased it meets all the conditions of concealment with no way to avoid those conditions by carrying the weapon out of reach, as suggested by the Court of Appeals.
That situation goes against the Wisconsin Supreme Court ruling in Hamdan that the State must allow a person a way to carry a weapon or yield to the amendment Article I section 25. In other words it is unconstitutional for the State toenforce statutes that evicerates a person' right to keep and bear arms.
I think the scenario I wrote is a better argument against the conflict of the two statutes. Especially because the District III Court of Appeals ruling in Alloy is unpublished. Your friend,s lawyer will understand the significance of an unpublished opinion by the courts.
The other charges against Alloy were notrelevant to this ruling. This ruling address only the charge of concealment. It is included below.
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State v. Nick AlloyCOURT OF APPEALS
DECISION
DATED AND FILED
April 4, 2000
Cornelia G. Clark
Acting Clerk, Court of Appeals
of Wisconsin
NOTICE
This opinion is subject to further editing. If published, the official version
will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision
by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
No. 99-2258-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
State of Wisconsin,
Plaintiff-Respondent,
v.
Nick Alloy,
Defendant-Appellant.
APPEAL from a judgment of the circuit court for Brown County: peter j. naze,
Judge. Affirmed.
Before Cane, C.J., Hoover, P.J., and Peterson, J.
¶1 PER CURIAM. Nick Alloy appeals a judgment convicting
him of carrying a concealed weapon, a handgun contained in a zipper case inside
a metal box between the bucket seats of his Jeep Wagoneer.[1] He argues that
the trial court erred and denied him his constitutional right to testify in his
own defense when it disallowed questions designed to show that the handgun was
encased because Wis. Stat. § 167.31(2) (1997-98)[2] requires that a firearm be
encased when it is transported in a vehicle. Because complying with § 167.31
does not provide a defense to a charge of carrying a concealed weapon, the trial
court properly disallowed this irrelevant testimony.
¶2 Alloy’s trial counsel asked him three questions that
the trial court disallowed: whether he thought it was “acceptable conduct” to
carry the pistol as he did in his car; whether he thought he was doing anything
wrong; and whether he intended to arm himself by having that gun. Counsel
explained to the court that she was attempting to present evidence that Alloy
was merely following Wis. Stat. § 167.31 when he encased the handgun. The trial
court correctly ruled that Alloy’s state of mind was irrelevant. See State v.
Dundon, 226 Wis. 2d 654, 664, 594 N.W.2d 780 (1999). Wisconsin Stat. § 941.23
provides “any person except a peace officer who goes armed with a concealed and
dangerous weapon is guilty of a Class A misdemeanor.” While the State must show
that the alloy was aware of the presence of the weapon, his motive for carrying
or concealing it is not relevant.
¶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 State v.
Asfoor, 75 Wis. 2d 411, 433-34, 249 N.W.2d 529 (1977). A person complying with
§ 167.31 is not required 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, 226 Wis. 2d at 674.
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule
809.23(1)(b)5.
[1] The jury acquitted Alloy on charges of attempted first-degree intentional
homicide and first-degree reckless endangerment, but convicted him of false
imprisonment, misdemeanor battery and two counts of carrying a concealed weapon.
This appeal only challenges the conviction for carrying the concealed handgun.
[2] All references to the Wisconsin Statutes are to the 1997-98 version unless
otherwise noted.
[3] While complying with Wis. Stat. § 167.31 might provide a defense to a
person who possessed a concealed weapon immediately after it was encased for
purposes of transporting it, those facts are not present here. We do not
address hypothetical arguments.