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Thread: Am I violating 167.31

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    I bought my wife a Pink Taurus Pro 9mm this week and here I sit at Gander Mountain asking myself if I walk out the store with the gun cased(CONCEALED) and in arms reach is it consider a violation? This is just a question because I have been reading this forum almost nonstop all week. LOL





    THE ATF should be a convenience store NOT a agency!!!!

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    Regular Member BROKENSPROKET's Avatar
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    hduc2005 wrote:
    I bought my wife a Pink Taurus Pro 9mm this week and here I sit at Gander Mountain asking myself if I walk out the store with the gun cased(CONCEALED) and in arms reach is it consider a violation? This is just a question because I have been reading this forum almost nonstop all week. LOL





    THE ATF should be a convenience store NOT a agency!!!!
    A firearm in a 'gun case' is not concealed if you are carrying it to and from your vehicle. IF it is in a purse, under your clothing, or ina case that is not recognizable as a gun case, would be a Concealed Carry offense.

    Some will argue that 'within a vehicle' it must be out of reach. Though I feel that is just an opinion, it is the 'safe way' to go.

    I will argue that full inarguable compliance with 167.31 will not get a 941.23 charge, regardless of where in the vehicle it is. But that is my gamble to take. If one is not comfortable with it, DON'T.

    I have gained friends and advasries alike, because I am one to challenge and push the issue when others won't.

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    Founder's Club Member bnhcomputing's Avatar
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    First, I am not an attorney, and I don't play one on TV either (saw somebody else write something to that affect here once). So this is just opinion, not legal fact.

    In the instances (case law) that we can find where "hidden from ordinary view", "you know it is there", and "within reach" was used to find people guilty of carrying concealed, I believe it was because the firearm was NOT properly cased to begin with.

    I drive a van. I place the properly cased firearm in the back of the van (out of reach). If you have a car, place it in the trunk.

    So although there IS case law, I would tend to agree with "sproket," unloaded and in a case made specifically for a firearm, should be sufficient. If you actually were to find some overzealous LEO who wanted to try to ticket you, for such a thing, that would effectively BAN the transportation of firearms.

    I think you/we/me would win that one hands down.

    You should be fine IF Unloaded, and in a case. I am sure there will be others who will argue differently, but I cannot find a single case where an individual was charged SOLELY with violation of 167.31 while transporting an unloaded firearm in an appropriate (OBVIOUS) case.

    Read up, Load up, Holster up, and Carry On!

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    thanks guys

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    Yeah I have to agree with the other guys. As it seems as of now in my minimal important or knowledgable perspective that carrying the firearm in a easily discernable case will not constitue a CCW charge in understandable circumstances. I remember when Greg had the Greenfield picnic most of us carried our guns in our cases from our car on the street since it was "edging" a school zone and we were on public property till we got to Greg's private property. Those unmarked crown vics had no problem with that. But ya never know.... when an officer might decide to make it a problem...

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    Just throw it in trunk, you'll be fine.
    Nemo Me Impune Lacesset

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    BROKENSPROKET wrote:
    Some will argue that 'within a vehicle' it must be out of reach. Though I feel that is just an opinion . . .
    Um, right, it sure is an opinion - it's a Wisconsin Appeals Court Opinion! See State v. Alloy, 616 N.W.2d 525 (Wis. App. 2000) (affirming concealed carry conviction of man possessing handgun in a vehicle in conformity with Wisconsin Stat. § 167.31 because .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..)


    The opinion should be overturned by statute - there is a risk of carrying any firearm even in a locked case within arms reach in Wisconsin - unfortunately, gun owners seem think it's OK to do, and thus a statutory fix is not a prioority for the legislature.

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    Only one question Mike. How does one carry an unloaded and properly encased firearm "out of reach" on an ATV or motorcycle?

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    Or van,or wagon or pickup or any vehicle that does not have a trunk?

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    Mike wrote:
    BROKENSPROKET wrote:
    Some will argue that 'within a vehicle' it must be out of reach. Though I feel that is just an opinion . . .
    Um, right, it sure is an opinion - it's a Wisconsin Appeals Court Opinion! See State v. Alloy, 616 N.W.2d 525 (Wis. App. 2000) (affirming concealed carry conviction of man possessing handgun in a vehicle in conformity with Wisconsin Stat. § 167.31 because .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..)


    The opinion should be overturned by statute - there is a risk of carrying any firearm even in a locked case within arms reach in Wisconsin - unfortunately, gun owners seem think it's OK to do, and thus a statutory fix is not a prioority for the legislature.
    Case Law does carry weight, but not nearly as much State Statute. You and I agree that State vs. Alloy was a bad opinion.

    Here's the question. Has anyone in inarguable full compliance with 167.31 been convicted of 941.23?

    If anyone can get me a case number, I will donate$100 to WisconsinCarry in thier name, which would make them a Founder's Member.Thats not the samea one hundred dollar bill in your pocket, but that is what I am offereing.

    State vs. Alloy is not game. Nick Alloy's defense, in his appeal, argued that he was trapped between 167.31 and 941.23. What a joke, he was not even close to full compliance. First, he was under a domestic abuse restraining order which prohibited him from possessing a firearm. When he was aressted, he was also charged with 1st Degree Intentional Homicide, Ist Degree Recklessly Endangering Safety, False Imprisonment, Battery and two counts of Carrying a Concealed Weapon. A jury found him guilty off all the charges except the 1 st Degree Intentional Homicide and 1st Degree Resklessly Endangering Safety. Look at this from a DA point of view. Ifa guy got off from the two biggest charges, would you then let him win an appeal for one of the lesser charges. This is, what I believe, influenced the Court to issue a bad opinion.

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    hduc2005 wrote:
    I bought my wife a Pink Taurus Pro 9mm..... is it consider a violation?
    Yes! A violation of good taste! :P

    Just kidding! Carry On!
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    Stat v. Alloy is an unpublished opinion by the III district Court of Appeals. As an unpublished opinion it has no precedential value.It may not be cited by or to the courts if the decision was made prior to July 1, 2009..



    Wisconsin statute 809.23

    3)Citation of unpublished opinions.
    (a) An unpublished opinion 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, and except as provided in par. (b)
    .

    (b) In addition to the purposes specified in par. (a)
    , an unpublished opinion issued on or after July 1, 2009, that is authored by a member of a three-judge panel or by a single judge under $xhitlist_md=target-id=0-0-0-326671]s. 752.31 (2) may be cited for its persuasive value. A per curiam opinion, memorandum opinion, summary disposition order, or other order is not an authored opinion for purposes of this subsection. Because an unpublished opinion cited for its persuasive value is not precedent, it is not binding on any court of this state. A court need not distinguish or otherwise discuss an unpublished opinion and a party has no duty to research or cite it.

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    Lammie wrote:
    Stat v. Alloy is an unpublished opinion by the III district Court of Appeals. As an unpublished opinion it has no precedential value.It may not be cited by or to the courts if the decision was made prior to July 1, 2009..



    Wisconsin statute 809.23

    3)Citation of unpublished opinions.
    (a) An unpublished opinion 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, and except as provided in par. (b)
    .

    (b) In addition to the purposes specified in par. (a)
    , an unpublished opinion issued on or after July 1, 2009, that is authored by a member of a three-judge panel or by a single judge under $xhitlist_md=target-id=0-0-0-326671]s. 752.31 (2) may be cited for its persuasive value. A per curiam opinion, memorandum opinion, summary disposition order, or other order is not an authored opinion for purposes of this subsection. Because an unpublished opinion cited for its persuasive value is not precedent, it is not binding on any court of this state. A court need not distinguish or otherwise discuss an unpublished opinion and a party has no duty to research or cite it.
    Thank You. I thought there was an Emoticon of a smillie repeatively bowing down. I would have used several of them here.

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    the law says unloaded and cased..........and the loaded clip can be in the case (not in gun).............i go to the range or my gun club and have the gun on the seat next to me........the within reach thing seems pretty gray

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    Lammie wrote:
    Only one question Mike. How does one carry an unloaded and properly encased firearm "out of reach" on an ATV or motorcycle?
    the law does not appear to allow it. that is why the legislature must be lobbied hard to pass statutes to overrule these court decisions - e.g., (1) that an openly carried gun in a vehicle is not concealed"; (2) that an encased gun ina locked case is not concealed; and 3), that a gun need not be encased ina vehicle if openly carried.

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    After thinking about this for a while, I thought, why not make a case in the shape of a gun. Hard to confuse that. next, bolt it down to the hood of your pickup or the trunk of your car. Now, the case can not be confused with anything else. Oh, also, it wood be nice if you were to stencil the words Gun Inside Case, on the case. No confusion whatsoever. You might also stencil those words on the fenders, both sides with an arrow pointing at the gun case.

    Bolted to the hood or trunk, there would be no way possible to lunge or grab the case from the drivers seat. That way, it is not concealed, Quite the contrary and it is out of reach. Unless you are riding on the hood or trunk.

    What does everyone else think. Good idea, huh?

    Yup, yup!
    Hokey religions and ancient weapons are no match for a good blaster at your side, kid. Han Solo

    http://buffaloholstercompany.blogspot.com/ Concealment holsters IWB, SOB, and belt slide. Open Carry too. New from Buffalo Holster, Women's holsters for concealment and or belt carry.

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    Nope. Bad idea. Every crook in the area would be chasing your pickup with screwdrivers and wrenches.

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    southside wrote:
    the law says unloaded and cased..........and the loaded clip can be in the case (not in gun).............i go to the range or my gun club and have the gun on the seat next to me........the within reach thing seems pretty gray
    Gray as you future jail cell maybe - the law also bans concealed about your person, and the law is in Wisconsin that a case coceales your gun, see State v. Alloy, 616 N.W.2d 525 (Wis. App. 2000).

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    Brokensproket: For your info. This post is not to contest or argue with you. It is presented for information only. I like you feel there is a conflict between 941.23 amd 167.31 and that one or both must go. I have been working hard on the issue for five years.So far without effect because apparently the gun advocates do not think it warrants much support.

    Nick Alloy was arrested and charged with two counts of carrying a concealed weapon. He was convicted of such by jury trial in Brown county circuit court on 11/04/1997. He appealed the conviction to the District III Circuit Court of Appeals. The opinion of the Circuit Court is unpublished and can not be used as precedential(i.e. in regards to placement of the firearm in a vehicle). What is important is that the District III Court of Appeals upheld the judgement of the Brown county circuit court. The Court of Appeals documents that Alloy had a gun in a zippered case inside the console of his Jeep. The gun was unloaded and in a zippered and closed case in what would appear to be full compliance to 167.31.

    The following is paragraph 1 from the Court of Appeals opinion.

    ------------------------------------------------------------------------------------------------------------

    ¶1 PERCURIAM.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.[size=[1]][/size] 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)[size=[2]][/size] 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.

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    southside wrote:
    the law says unloaded and cased..........and the loaded clip can be in the case (not in gun).............i go to the range or my gun club and have the gun on the seat next to me........the within reach thing seems pretty gray



    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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    To add more confusion: It would appear that by case law a person can not carry a firearm in or on a vehicle unless it is unloaded, encased and carried out of reach. On a number of vehicles, including ATV's, it is not possible to carry a firearm "out of reach". However, Statute 33.33 (3)(e) implies that one of the restrictions of the rules of operation of an ATV is that carry of a firearm is allowed providing the firearm is unloaded and encased, presumably encased in accord with 167.31.

    33.33 ALL terrain Vehicles

    (3)
    RULES OF OPERATION. No person may operate an all−terrain

    vehicle:

    (a) In any careless way so as to endanger the person or property

    of another.

    (c) On the private property of another without the consent of

    the owner or lessee. Failure to post private property does not

    imply consent for all−terrain vehicle use.

    (d) On Indian lands without the consent of the tribal governing

    body or Indian owner. Failure to post Indian lands does not imply

    consent for all−terrain vehicle use.

    (e) With any firearm in his or her possession unless it is

    unloaded and enclosed in a carrying case, or any bow unless it is

    unstrung or enclosed in a carrying case.

    (f) To drive or pursue any animal except as a part of normal

    farming operations involving the driving of livestock.

    (g) When within 150 feet of a dwelling at a speed exceeding

    10 miles per hour.

    (h) On the frozen surface of public waters within 100 feet of

    a person not in or on an all−terrain vehicle or motor vehicle or

    within 100 feet of a fishing shanty at a speed exceeding 10 miles

    per hour.

    (i) In a manner which violates rules promulgated by the department



    Can someone protect us from our protectors?

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    protias wrote:
    southside wrote:
    the law says unloaded and cased..........and the loaded clip can be in the case (not in gun).............i go to the range or my gun club and have the gun on the seat next to me........the within reach thing seems pretty gray



    Don't sweat the little stuff......

    When you can get Ruger, Remington, etc to use the correct nomenclature in their advertising, owners' manuals, etc... My give-a-crap meter will start to register when people use the terms clip and magazine interchangeably in casual conversation.......






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    Nick Alloy was arrested, charged and went to trial on ALL of the following charges:

    940.01(1) 1st Degree Intentional Homicide

    941.30(1) 1st Degree Recklessly Endangering Safety

    940.30 False Imprisonemt

    940.19(1) Battery

    941.23 Carrying a Concealed Weapon

    941.23 Carrying a Concealed Weapon



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    According to the court summary they were all separate charges any of which he could have been found not guilty by the jury. On counts five and six he was found guilty by the jury for carrying a concealed weapon even though it is apparent that the weapon was properly encased in accordance with 167.31.

  25. #25
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    Lammie wrote:
    According to the court summary they were all separate charges any of which he could have been found not guilty by the jury. On counts five and six he was found guilty by the jury for carrying a concealed weapon even though it is apparent that the weapon was properly encased in accordance with 167.31.
    He was found guilty of counts 3, 4, 5 and 6.

    The summary states that the gun was in a metal box. It does not state that is was a gun case. What you stated was that it was in the center console, which is not legal.

    I really wish that eveyone could put State vs. Alloy into context.



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