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Thread: CC on private property questions.

  1. #1
    Regular Member Cobra469's Avatar
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    That is why i said I was asking because I couldn't cite any case law. So rather than state it as factual I was trying to find out if anybody else could. When I originally got the impression about being able to carry concealed on private property was about 6 years ago when my employer, had given me written permission to carry in any manner seen fit on his property. Granted our business was not open to the public and i was a member of middle management who worked all hours and weekends. There were several cases of threats against me from attempted thieves stealing out of our yard by both the common criminal and previous employees. Now with that being said at the time I was not even familiar with OCing and while reading the information available to me I was under the impression that carrying on private property that was not open to the public was perfectly legal. Again though I was unclear if that pertained to openly or concealed. West Milwaukee Police knew from several burglar alarms that I was carrying both concealed and openly during after hours and weekends and never said anything to me until a safe with a pistol and other legal documents was stolen from our office. Then all they said was that it never should have been there and gave me a lecture about putting another gun on the street. Even if it was an old antique.

    So ok if carrying concealed on somebody else's property "may" not be legal what about your own personal property? Also does it matter whether it is inside the house or in say the backyard? My biggest concern as a fairly new OCer is that I would rather ask now than accidentally have a sweater cover it and get popped with a charge that I "ass"umed didn't apply.

    Can anybody state any case law where it may be legal to CC on private property? Say for example if it is your own property or a family members? And yes I know all about the GSFZ, transportation laws, and the general ban on CC. Just wondering if there are any exceptions to the law that I should be aware of.

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    Regular Member Brad_Krause's Avatar
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    Wisconsin Statute 941.23 does not allow for a property owner to give you permission to conceal.

    The WI Supreme Court carved out a set of exceptions across the cases of Hamdan, Vegas, Cole, Fisher, and a few others. They asked the legislature to work out the problems created in banning concealed carry, but the legislature has not done so.

    Brad Krause
    Instructor, Wisconsin Civil Rights Advocate, and someone who still plants trees armed

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    Regular Member bigdaddy1's Avatar
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    Article I, § 25 of the Wisconsin Constitution, adopted in 1998, states: “[t]he people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.”

    In State v. Cole, 2003 WI 112, 264 Wis. 2d 520, 665 N.W.2d 328 (2003), the Supreme Court of Wisconsin rejected an Art. I, § 25 challenge to Wis. Stat. § 941.23, which prohibits the carrying of concealed weapons. Although the court found that the state right to "bear arms" is a fundamental, individual right under Art. I, § 25, the court held that it is subject to reasonable restriction. State v. Cole, 2003 WI 112, ¶ 26, 264 Wis. 2d 520, ¶ 26, 665 N.W.2d 328, ¶ 26. Finding that section 941.23 is "a reasonable regulation on the time, place, and manner in which the right to bear arms may be exercised," the court upheld the statute. State v. Cole, 2003 WI 112, ¶ 28, 264 Wis. 2d 520, ¶ 28, 665 N.W.2d 328, ¶ 28.

    In a companion case to Cole, State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785 (2003), the supreme court carved out an exception to the prohibition on carrying concealed weapons under section 941.23. In Hamdan, defendant owned a convenience store in a high crime area and kept a handgun for protection. Law enforcement officers performing a routine investigation of defendant’s business license discovered the concealed firearm, confiscated it, and prosecuted defendant for violating section 941.23. Defendant argued that the ban on carrying concealed weapons was unconstitutional as applied to him because it interfered with his "right to bear arms" under Art. I, § 25.

    At the outset, the court emphasized that section 941.23 is constitutional and that the state may regulate firearms under its police power. State v. Hamdan, 2003 WI 113, ¶ 46, 264 Wis. 2d 433, ¶ 46, 665 N.W.2d 785, ¶ 46. Furthermore, the court noted that "only if the public benefit in . . . exercise of the police power [to regulate firearms] is substantially outweighed by an individual’s need to conceal a weapon in the exercise of the right to bear arms will an otherwise valid restriction on that right be unconstitutional as applied." Id.

    Following an extensive review of statutory and case law from other jurisdictions pertaining to both the carrying of concealed weapons and the right to "bear arms," the court found that defendant had a constitutional right under Art. I, § 25 to "keep and bear arms for the lawful purpose of security at the time he carried his concealed weapon . . . ." and reversed the conviction. State v. Hamdan, 2003 WI 113, ¶ 84, 264 Wis. 2d 433, ¶ 84, 665 N.W.2d 785, ¶ 84.

    The court noted that "[i]f the constitutional right to keep and bear arms for security is to mean anything, it must, as a general matter, permit a person to possess, carry, and sometimes conceal arms to maintain the security of his private residence or privately operated business, and to safely move and store weapons within these premises." State v. Hamdan, 2003 WI 113, ¶ 68, 264 Wis. 2d 433, ¶ 68, 665 N.W.2d 785, ¶ 68.
    What part of "shall not be infringed" don't you understand?

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    Hamdan pretty much sums it up with concealed carry on private property, But are those rights extended to an authorized agent of the property owner too??

    it may take another arrest, charge, guilty verdict, appeal, and a decision from a higher court and its subsequent case law to determine if the rights of a property owner are also extended to his employees acting as an agent of the actual property owner.
    What is the fine for concealed carry? Fairly low and only a misdemeanor if I remember correctly.
    I am not suggesting you break any laws, but obviously your need for security far outweighs the states prohibition of the act. (Vegas)

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    Regular Member Brad_Krause's Avatar
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    Class A misdemeanor; fine not to exceed $10,000 or imprisonment not to exceed 9 months, or both. See 939.51(3)(a[highlight= blue; color: white; font-weight: bold;])[/highlight]

    Brad Krause
    Instructor, Wisconsin Civil Rights Advocate, and someone who still plants trees armed

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    Regular Member bigdaddy1's Avatar
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    Brad_Krause wrote:
    Class A misdemeanor; fine not to exceed $10,000 or imprisonment not to exceed 9 months, or both. See 939.51(3)(a[highlight= blue; color: white; font-weight: bold;])

    Brad Krause
    Instructor, Wisconsin Civil Rights Advocate, and someone who still plants trees armed
    The court noted that "If the constitutional right to keep and bear arms for security is to mean anything, it must, as a general matter, permit a person to possess, carry, and sometimes conceal arms to maintain the security of his private residence or privately operated business, and to safely move and store weapons within these premises." State v. Hamdan, 2003 WI 113, ¶ 68, 264 Wis. 2d 433, ¶ 68, 665 N.W.2d 785, ¶ 68.





    Privatly owned property would appear to be listed in the above cite.
    What part of "shall not be infringed" don't you understand?

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    Regular Member paul@paul-fisher.com's Avatar
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    But, back to the OP's question, it doesn't look like the owner of a business is allowed to let anyone else CC. If you read the strictest interpretation, if you rent your place of business you can't CC.

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    Regular Member bigdaddy1's Avatar
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    paul@paul-fisher.com wrote:
    But, back to the OP's question, it doesn't look like the owner of a business is allowed to let anyone else CC. If you read the strictest interpretation, if you rent your place of business you can't CC.
    I have read the posted cite several times, where do you find this interpretation? It states privatly operated business, where does it state anything other than what it says?
    What part of "shall not be infringed" don't you understand?

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    Founder's Club Member bnhcomputing's Avatar
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    bigdaddy1 wrote:
    The court noted that "If the constitutional right to keep and bear arms for security is to mean anything, it must, as a general matter, permit a person to possess, carry, and sometimes conceal arms to maintain the security of his private residence or privately operated business, and to safely move and store weapons within these premises." State v. Hamdan, 2003 WI 113, ¶ 68, 264 Wis. 2d 433, ¶ 68, 665 N.W.2d 785, ¶ 68.

    Privately owned property would appear to be listed in the above cite.
    I agree privately owned property is listed in the cite, but that word "HIS" would limit it to the actual owner of said property. It does not say anyone can carry concealed on private property and it doesn't state that the owner can give consent to conceal.

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    And yet one of the charges I was tried for last year and subsequently found not guilty of was concealed carry on my own land.

    The DA charged me and the judge found probable cause to try me on the charge as the witnesses accused me of drawing a handgun from a pocket even though it didn't happen that way.

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    Regular Member bigdaddy1's Avatar
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    Also doesnt state one CANT. You can give someone permission to open carry on your property, so where does it state you can not provide other permissions.

    I am not arguing, but if its allowable I want to know. If not (under the absolute letter of the law) it should beproven. The government uses the letter of the law against us, there are always two sides to every coin.
    What part of "shall not be infringed" don't you understand?

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    Regular Member paul@paul-fisher.com's Avatar
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    Spartacus wrote:
    The DA charged me and the judge found probable cause to try me on the charge as the witnesses accused me of drawing a handgun from a pocket even though it didn't happen that way.
    Did your attorney bring up the Supreme Court ruling?

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    Founder's Club Member bnhcomputing's Avatar
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    bigdaddy1 wrote:
    Also doesnt state one CANT. You can give someone permission to open carry on your property, so where does it state you can not provide other permissions.

    I am not arguing, but if its allowable I want to know. If not (under the absolute letter of the law) it should beproven. The government uses the letter of the law against us, there are always two sides to every coin.
    But don't forget 941.23 Specifically states you cannot carry concealed.

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    Regular Member AaronS's Avatar
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    bigdaddy1 wrote:
    Brad_Krause wrote:
    Class A misdemeanor; fine not to exceed $10,000 or imprisonment not to exceed 9 months, or both. See 939.51(3)(a[highlight= blue; color: white; font-weight: bold;])

    Brad Krause
    Instructor, Wisconsin Civil Rights Advocate, and someone who still plants trees armed
    The court noted that "If the constitutional right to keep and bear arms for security is to mean anything, it must, as a general matter, permit a person to possess, carry, and sometimes conceal arms to maintain the security of his private residence or privately operated business, and to safely move and store weapons within these premises." State v. Hamdan, 2003 WI 113, ¶ 68, 264 Wis. 2d 433, ¶ 68, 665 N.W.2d 785, ¶ 68.





    Privatly owned property would appear to be listed in the above cite.
    I have to agree with Bigdaddy on this one. In the Hamdan case, it clearly says that a privately operated business can sometimes conceal arms to maintain security within these premises. As far as other stores doing this, it goes on to add "the majority of the store owners [in the area] have some type of weapon on the premises based on my experience. " In fact, Officer Gajevic explained that he often checked these weapons to see if they were operating properly.".

    Trust me, when the boss has the day off, he can, and often does let the workers protect his store, and its customersfor him (or her).

    The part about the Hamdan case that scares me is that a jury found him guilty of CC the first time around.

    Thats my $.02, but that is about what it's worth I guess...

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    Let us stay focused on the original question here and not get all bent outa shape and bringing in circumstances that have nothing to do with the original post.
    Bantering about all the "What if's". Even though a particular Law reads blah blah, we can infer one thing or another. It is ultimately up to a Judge to interpit and decide.
    If we stay on track, we all will enjoy a well rounded discussion.


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    Regular Member davegran's Avatar
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    Well, I hate to repeat my self, but here goes....

    See also State
    v. Cole, 2003 WI 112, 264 Wis. 2d 520, 665 N.W.2d 328, 01−0350.
    A challenge on constitutional grounds of a prosecution for carrying a concealed
    weapon requires affirmative answers to the following before the defendant may raise
    the constitutional defense:

    1) under the circumstances, did the defendant’s interest in
    concealing the weapon to facilitate exercise of his or her right to keep and bear arms
    substantially outweigh the state’s interest in enforcing the concealed weapons stat-
    ute? and

    2) did the defendant conceal his or her weapon because concealment was the
    only reasonable means under the circumstances to exercise his or her right to bear
    arms? State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785, 01−0056.

    I don't see where it mentions anything about giving permission to somebody to CC on your property, nor does it say you can CC just because you feel like it. If you can answer the above two questions with a "Yes", then go for it.

    Dave

    Dave
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    Regular Member bigdaddy1's Avatar
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    davegran wrote:
    Well, I hate to repeat my self, but here goes....

    See also State
    v. Cole, 2003 WI 112, 264 Wis. 2d 520, 665 N.W.2d 328, 01−0350.
    A challenge on constitutional grounds of a prosecution for carrying a concealed
    weapon requires affirmative answers to the following before the defendant may raise
    the constitutional defense:

    1) under the circumstances, did the defendant’s interest in
    concealing the weapon to facilitate exercise of his or her right to keep and bear arms
    substantially outweigh the state’s interest in enforcing the concealed weapons stat-
    ute? and

    2) did the defendant conceal his or her weapon because concealment was the
    only reasonable means under the circumstances to exercise his or her right to bear
    arms? State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785, 01−0056.

    I don't see where it mentions anything about giving permission to somebody to CC on your property, nor does it say you can CC just because you feel like it. If you can answer the above two questions with a "Yes", then go for it.

    Dave
    We are not talking about a constitutional defence plea. We are talking about;



    The court noted that "f the constitutional right to keep and bear arms for security is to mean anything, it must, as a general matter, permit a person to possess, carry, and sometimes conceal arms to maintain the security of his private residence or privately operated business, and to safely move and store weapons within these premises." State v. Hamdan, 2003 WI 113, ¶ 68, 264 Wis. 2d 433, ¶ 68, 665 N.W.2d 785, ¶ 68.

    And as stated in the OTHERtopic, the use of the word HIS is arguably not intended to be singular as in only 1 person. If that were the case it would be only for Mr. Hamdan.

    What part of "shall not be infringed" don't you understand?

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    Regular Member davegran's Avatar
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    If you feel that strongly about it then go ahead and CCW and let us know how it turns out.

    Dave
    Dave
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    Fight for "Stand Your Ground " legislation!

    WI DA Gerald R. Fox:
    "These so-called 'public safety' laws only put decent law-abiding citizens at a dangerous disadvantage when it comes to their personal safety, and I for one am glad that this decades-long era of defective thinking on gun issues is over..."

    Remember: Don't make old People mad. We don't like being old in the first place, so it doesn't take much to piss us off.

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    Regular Member paul@paul-fisher.com's Avatar
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    bigdaddy1 wrote:
    And as stated in the OTHER*topic, the use of the word HIS is arguably not intended to be singular as in only 1 person.** If that were the case it would be only for Mr. Hamdan.
    Obviously it doesn't mean Mr. Hamdan only. His means the subject of the sentence which is the

    person to possess, carry, and sometimes conceal arms to maintain the security of his private residence or privately operated business, and to safely move and store weapons within these premises
    In this case, the person is the owner (or renter) of a private residence or the owner of a privately operated business.

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    The court noted that "f the constitutional right to keep and bear arms for security is to mean anything, it must, as a general matter, permit a person to possess, carry, and sometimes conceal arms to maintain the security of his private residence or privately operated business, and to safely move and store weapons within these premises." State v. Hamdan, 2003 WI 113, ¶ 68, 264 Wis. 2d 433, ¶ 68, 665 N.W.2d 785, ¶ 68.







    Granted this does not specifically tell anyone that you as an owner can give permission, it also does not expressly exclude an owner from granting permission to CC on PRIVATE property. I mean, isn't OC in wisconsin lawful due to the sole fact the WI written law simply does not mention it to forbid it??? Yes, we have the right to bear arms, but that doesnt mean the state couldnt start licensing like other states in order to practice that right. And no, I do not want the state to start issuing licenses for us to be able to carry, either OC or CC.

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    Regular Member goforlow's Avatar
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    Brad_Krause wrote: I thought that the fine/punishment for CC in WI was a class "D" misdemeanor and a $250 fine.

    Brad please show more proof of your statement or can someone else prove otherwise.

    Thanks

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    Regular Member AaronS's Avatar
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    941.23Carrying concealed $xhitlist_md=target-id=0-0-0-35319]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.

    I think it is $250 also.




    EDIT:

    Just looked at that post, sorry for the bad link...

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    Regular Member Brad_Krause's Avatar
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    goforlow wrote:
    Brad_Krause wrote:
    Class A misdemeanor; fine not to exceed $10,000 or imprisonment not to exceed 9 months, or both. See 939.51(3)(a)
    I thought that the fine/punishment for CC in WI was a class "D" misdemeanor and a $250 fine.

    Brad please show more proof of your statement or can someone else prove otherwise.
    Thanks
    Not legal advice:

    The Wisconsin Statute I referenced- 941.23 -is the concealed carry prohibition. It does not have an exception allowing a property owner to give permission to conceal, and states the type of crime for violating the statute.

    Many people believe the courts and legislature have erred, in part because Article 1 Section 25 grantees the right to carry firearms for any lawful purpose; the action of concealing a firearm, in and of itself, does not make a person a criminal (941.23 excepted); criminals by definition break the law and sometimes conceal; and firearms prohibitions have a tendency to create defenseless persons which leads to victimization.

    Because there is no mechanism that allows a person to conceal, and given clothing styles, climate, and many other conditions concealing is practical, and there is no justifiable reason to prevent law abiding citizens from actions that do not infringe upon others rights, there is a strong argument that 941.23 is unconstitutional.

    Brad Krause
    Instructor, Wisconsin Civil Rights Advocate, and someone who still plants trees armed
    Last edited by Brad_Krause; 08-21-2010 at 04:37 PM.

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    The way I see it is this.

    If you CC ANYWHERE and are caught by the police, you will probably get arrested. You will "probably" get charged with a crime and given your chance in court.

    It doesn't look like the law is clear at all at this point, and will take someone bringing a case to a high court or our state house getting off their butts and doing something about it.

    If you don't feel like going through the hassle and expense of a long drawn out court battle, don't CC and get caught. YMMV

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    Regular Member bigdaddy1's Avatar
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    As much as I have been harking that CC in/on your private property (home or business) as listed in the State v Hamdan cite may be exempt from the CC law currently, I don't condone people concealed carrying anywhere else. I have CC on my own property and will continue to do so as the Supreme Court states it is not illegal. However outside that narrow margin is still illegal.
    What part of "shall not be infringed" don't you understand?

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