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Thread: Can you be detained in this situation?

  1. #1
    Regular Member CUOfficer's Avatar
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    Here is an article from an arrest in Vancouver, WA.

    http://www.katu.com/news/local/88892207.html

    I am wondering if Wisconsin has a similar law that we could be cited for while open-carrying. The Washington law says you can be cited if open carrying "manifests an intent to intimidate another or that warrants alarm for the safety of other persons"

    Here is a link to their law.

    http://apps.leg.wa.gov/RCW/default.aspx?cite=9.41.270

    Any ideas?

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    Yeah, Disorderly Conduct §947.01 and with the weapons enhancement.

    But that's just off the top of my head. I may try to give a more thorough answer later.

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    But will it stick? NO, probably not. There was no disorderly conduct involved. They were simply shopping legally.

    I hear the sound of money in their future, Ching Ching!

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    Note that chapters 900 and beyond are the 'criminal statutes'.

    Still searching...

    941.2965 Restrictions on use of facsimile firearms.

    940.46 Attempt prosecuted as completed act.

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    so, if i read this right, and a criminal becomes alarmed, he can complain to the police?

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    Regular Member CUOfficer's Avatar
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    Not a criminal becoming alarmed, but anyone who may view a person open-carrying. It would be comparable to you walking down the street open-carrying and a passerby feels intimidated. The passerby calls the police and you receive a citation.

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    A 'citation' for a criminal violation? Remember, chapter 900 < criminal statutes.

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    Regular Member Interceptor_Knight's Avatar
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    CUOfficer wrote:
    I am wondering if Wisconsin has a similar law that we could be cited for while open-carrying. The Washington law says you can be cited if open carrying "manifests an intent to intimidate another or that warrants alarm for the safety of other persons"

    No Wisconsin does not. We have no such language regarding "safety" in our disorderly conduct Statute. I am betting that the person(s) in Washington will be able to beat the citation as there was nothing wich "warrants" alarm by simply the act of Openly Carrying a firearm.

    §947.01 Disorderly conduct.
    Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor
    [/quote][/quote]



    This is why a citation for disorderly conduct will not stick unless you are exibiting conduct other than simply the act of Openly Carrying a firearm even it a hyper sensitive individual becomes alarmed.

    Thereare local so called brandishing Ordinances. Here is the Green Bay one...


    27.603 WEAPONS
    . (3) POSSESSION OF DANGEROUS OR DEADLY WEAPONS. (a) Generally Prohibited. Except as reasonably necessary to fulfill the exceptions provided elsewhere in this ordinance, no person shall carry or transport any bow or crossbow, or conceal about the person or display in a threatening manner any dangerous or deadly weapon including, but not limited by enumeration to, martial arts weapons such as throwing stars, swords, or nunchiku; slingshots; knuckles of lead, brass, or other metals; or a bowie knife, bow, or crossbow; pistol, revolver, rifle, or shotgun.





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    Regular Member Interceptor_Knight's Avatar
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    CUOfficer wrote:
    Not a criminal becoming alarmed, but anyone who may view a person open-carrying. It would be comparable to you walking down the street open-carrying and a passerby feels intimidated. The passerby calls the police and you receive a citation.
    Fortunately the recent track record is excellent for beating any citations for Open Carry in WI barring other disorderly conduct.

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    CUOfficer wrote:
    Not a criminal becoming alarmed, but anyone who may view a person open-carrying. It would be comparable to you walking down the street open-carrying and a passerby feels intimidated. The passerby calls the police and you receive a citation.
    Lots of people are intimidated simply by another person's appearance, regardless if that person is armed or not. What kind of world would it be if the police could write a citation simply because someone thinks you looks scary?


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    The free man is a warrior. - Nietzsche "Twilight of the Idols"

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    Shotgun wrote:
    Lots of people are intimidated simply by another person's appearance, regardless if that person is armed or not. What kind of world would it be if the police could write a citation simply because someone thinks you looks scary?
    Isn't that what a DWB, Driving While Black, ticket really is? When Mr. Body Modification gets a ticket, what do you think he's really getting a ticket for?

    When I was in HS, I was in a group moving our collection from a backyard herpetarium to the Steinhart Aquarium when we got pulled in IIRC Stonestown suburb of San Francisco. We were using a '31 Hudson to move a hundred poisonous snakes when we got lost. The cop was suspicious until we pulled the tarp back.

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    Founder's Club Member protias's Avatar
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    http://www.jsonline.com/news/wisconsin/43302252.html

    His [Van Hollen] advisory was most clear on that point. "The Department (of Justice) believes that mere open carry of a firearm, absent additional facts and circumstances, should not result in a disorderly conduct charge," the Republican attorney general wrote in the memo.
    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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    Campaign Veteran rcawdor57's Avatar
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    The Constitution shall never be construed... to prevent the People of the United States who are peaceable citizens from keeping their own arms. -- Samuel Adams

    Today, we need a nation of Minutemen. Citizens who are not only prepared to take arms, but citizens who regard the preservation of freedom as the basic purpose of their daily life and who are willing to consciously work and sacrifice for that freedom.

    John F. Kennedy

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    Washington: The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men. Art. I, § 24 (enacted 1889).
    [Self-defense right explicitly protected.]

    Emphasis, mine

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    Campaign Veteran rcawdor57's Avatar
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    I wish EVERY state constitution was written that well. Wow. Looks like the law that the cited the guy on definitely is unconstitutional. I hope the U.S. Supreme court rules soon on the Chicago handgun ban and that we can then incorporate the 2nd Amendment to all of the states.
    The Constitution shall never be construed... to prevent the People of the United States who are peaceable citizens from keeping their own arms. -- Samuel Adams

    Today, we need a nation of Minutemen. Citizens who are not only prepared to take arms, but citizens who regard the preservation of freedom as the basic purpose of their daily life and who are willing to consciously work and sacrifice for that freedom.

    John F. Kennedy

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    rcawdor57 wrote: Bad link!! Can you give a working one?

    Edited to add;
    The keywords are in red!! Emphasis mine.
    Going armed is legal, and I feel the guy was wrongfully arrested because the police must prove an intent to intimidate to get a conviction. You know, I really wish all police departments required a reading comprehension and intelligence test. We would have so many less issues that way.

    1) It shall be unlawful for any person to carry, exhibit, display, or draw any firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or any other weapon apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons.

    (2) Any person violating the provisions of subsection (1) above shall be guilty of a gross misdemeanor. If any person is convicted of a violation of subsection (1) of this section, the person shall lose his or her concealed pistol license, if any. The court shall send notice of the revocation to the department of licensing, and the city, town, or county which issued the license.

    (3) Subsection (1) of this section shall not apply to or affect the following:

    (a) Any act committed by a person while in his or her place of abode or fixed place of business;

    (b) Any person who by virtue of his or her office or public employment is vested by law with a duty to preserve public safety, maintain public order, or to make arrests for offenses, while in the performance of such duty;

    (c) Any person acting for the purpose of protecting himself or herself against the use of presently threatened unlawful force by another, or for the purpose of protecting another against the use of such unlawful force by a third person;

    (d) Any person making or assisting in making a lawful arrest for the commission of a felony; or

    (e) Any person engaged in military activities sponsored by the federal or state governments.


    [1994 sp.s. c 7 § 426; 1969 c 8 § 1.]




    Notes:




    Finding -- Intent -- Severability -- 1994 sp.s. c 7: See notes following RCW 43.70.540.

    Effective date -- 1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439-460: See note following RCW 9.41.010.


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    After doing the research of statutes and case law he says he will do I doubt that the City Attorney will proceed with the Washington case. It appears to me that, as the Washington implies,the statute is unconstitutional. That case does bring up the factthat, regardless existing statutes and constitutional law, nothing stops a legislature from enacting legislation that lies in the face of those laws. They can remain on the books and be enforced until challenged in court and found unenforceable. Until someone has the courage and finances to challenge those laws they remain ad infinitum unless changed by the state legislature.

    We have a similar situation in Wisconsin. Article I section 25, 941.23 and 167.31 present a challenge of constitutionality. I won't go into detail about the laws. They have been debated numerous times and need no furthur definition.

    The situation we have is that in State v Asfoor the state supreme court adressed the apparent conflict between 941.23 and 167.31. It declared that 167.31 did not present a conflict between the statutes because a person could carrya firearm out of reach and avoid one of the conditions that define concealment.

    In State v Cole and State v Hamdan the SSC upheld the constitutionality of 941.23, however, in Hamdan the SSC also ruled that the reach of Article I section 25 is such that the state must provide a manner in which the people can exercise the activities contained in Art I sec 25. Therefore by ruling 941.23 constitutional and ruling that Art I sec 25 mandated a manner of carry and that the only reasonable manners of carry are visible andhidden. By ruling 941.23 constitutional and that art I sec 25 mandated a manner of carry, the SSC endorsed open carry without saying as much.

    Now 167.31 enters the fray. Ss167.31 applies to firearm carry in or on all vehicles that can be driven or drawn on a public road. Many of those vehicles are constucted such that carry out of reach is not possible, dispite what the SSC said in Asfoor. IN Hamdan the SSCstated 941.23 is a strict liability statute. As such concealed carry in or on any vehicle by private citizens is prohibited. Likewise 167.31 prohibits open carry of firearms in or on vehicles. Therefore the only logical conclusion is that because 941.23 has been ruled constitutional, 167.31 must be unconstitutional as applied to certain vehicles. The state has not provided a manner of carry on those vehicles so that Art 1 Sec 25 can be exercised.

    Where this situation bears a similarity to the Washington incident is that the Washington statute stays on the books because, until now, nobody has challenged it. Likewise 167.31 will more than likely stay in our law books until changed by the legislature or until someone is brave enough or has funds enough to challenge it in court. The maximum penalty for carrying an open weapon in or on a vehicle is a $175 fine. That fine is less than one hour of lawyer fees and less than many traffic violations so it is unlikely 167.31 will be challenged in court unless some gun rights organization supplies a fund and "guinea pig" to challenge it. My opinions.



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    Lammie wrote:
    My opinions.
    And good ones, well found.

  19. #19
    Campaign Veteran rcawdor57's Avatar
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    They apparently changed the link. Try this one:

    http://www.columbian.com/news/2010/m...rry-case-near/
    The Constitution shall never be construed... to prevent the People of the United States who are peaceable citizens from keeping their own arms. -- Samuel Adams

    Today, we need a nation of Minutemen. Citizens who are not only prepared to take arms, but citizens who regard the preservation of freedom as the basic purpose of their daily life and who are willing to consciously work and sacrifice for that freedom.

    John F. Kennedy

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