Trip report - Wisc. Town Lawyers Conference, "Constitutional Issues Arising From Guns, Religion

Master Doug Huffman · May 1, 2010

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I'll list the outline headings and only expand into the associated paragraph when I thought it remarkable or worth repeating.

I. FEDERAL AND STATE CONSTITUTIONAL RIGHTS

A. Second Amendment - U. S. Const:

1. Current Constitutional Battleground: Only a handful (12) of Supreme Court interpretive decisions.

B. Landmark Decision in Heller v. District of Columbia, 128 S.Ct. 2783 (2008):... guarantee the individual right ...

Commented that the Justice examined and defined each word and clause of the 2A resolving years of questions and foreclosing debate.

1. Well regulated militia: ... implies nothing more than the imposition of proper discipline and training...

Admits the possibility of "municipal required training".

2. Security of a Free State: ... terms of art in 18th-century political discourse, ...

3. People: ... not an unspecified subset.

4. Bear: ... armed and ready for offensive or defensive action in case of conflict with another person."

5. Keep:

6. Arms: "The 18th-century meaning is no different from the meaning today." ... Another 1771 legal dictionary defined "arms" as "any thing that a man wears for his defense, or takes into his hands, or useth in wrath to cast at or strike another."

C. Wisconsin's Right to Bear Arms: ... A Wisconsin citizen has a constitutionally protected right to openly carry a firearm for any of the enumerated purposes, absent the application of a reasonable regulation properly imposed as an exercise of police power.

D. Fourth Amendment -- U.S. Const:

There is no firearms exception to the Fourth Amendment.

1. Purpose: Protects two fundamental liberty interests -- the right to privacy and freedom from arbitrary invasions.

2. "Search": A search occurs when an expectation of privacy that society considers reasonable is infringed by a governmental employee or by an agent to the government.

3. "Seizure": A seizure refers to the interference with an individual's possessory interest in property. To meet the definition of an unreasonable seizure, the property's owner must have had a reasonable expectation of privacy in the items seized. A person is seized when law enforcement personnel use physical force to restrain the person if a reasonable person in the same or a similar situation would not feel free to leave the situation.

4. Search Warrant Requirements: ... A judge can find probable cause only b[y] examining the totality of the circumstances. See United States v. Sims, 553 F.3rd 580 (7th Cir. 2009)

5. Arrest Exception: Officers can search and seize objects on a person if the officer has placed the person under arrest. Arizona v. Grant, 129 S.Ct. 1710, 1723-1724 (2009) (Police officers' warrantless search of an arrestee's vehicle incidental t his arrest was unconstitutional because (i) the arrestee was not within reaching distance of the vehicle or (ii) the officers did not have a reasonable belief that "evidence of the offense of arrest" might be found int he vehicle.). The exception[DH emphasis] derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations. Id. This exception extends to situations in which the police in good-faith mistakenly arrest someone and seize contraband during the search. See Herring v. United States, 129 S.Ct. 695 (2009) (where suspect was arrested stale search warrant ... "

6. Probable Cause: At times, the law permits officers to make warrantless searches and seizures if they find that they have probable cause. Determining probable cause requires a consideration of the totality of the circumstances to determine whether an officer acted in accord with an objectively reasonable officer prior[DH emphasis] to making the arrest. See Purcell V. Mason, 527 F.3d 615, 626 (7th Cir. 2008) (probable cause barred § 1983 claim); Maryland v. Pringle, 540 U.S. 366, 371 (2003) (probable cause standard is a "practical, nontechnical conception" that deals with the "factual and practical considerations of everyday life on which reasonable and prudent men, not "legal technicians act" and is "a fluid concept" that is "not readily or even usefully reduced to a neat set of legal rules.")

"Legal technicians" contrasted with legal professionals and legal citizens.

"If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he man, without violating the Fourth Amendment, arrest the offender." Atwater v. Lago Vista, 532 U.S. 318, 354 (2001) (arrest for seatbelt violation not unreasonable). If an arrest is otherwise reasonable, the fact that it is not for an arrestable offense does not make it unconstitutional." Virginia v. Moore, 128 S.Ct. 1598, 1606-1607 (2008) (no violation where officers arrested suspect, and subsequently searched, for driving on a suspended license, even though state law prohibited such arrest).

Wisconsin statute chapters numbered 900 and above are considered criminal law.

7. Consent:

8. Terry Stop based on Reasonable Suspicion: A reasonable suspicion exists when a reasonable person under the circumstances, would, based on specific and articulable facts, suspect that a crime has been committed. Terry v. Ohio, 392 U.S. 1 21-22 (1968). ...

a. Florida v. J.L., 529 U.S. 266 (2000)

b. United States v. Ubiles, 244 F.3rd 213 (3rd Circ. 2000)

c. Brown v. Milwaukee, 288 F.Supp.2d 962 (E.D. Wis. 2003)

There was much comment on these cases considered remarkable by the lecturer.

E. Interplay of Right to Bear Arms with Wisconsin's Disorderly Conduct Statute: "Whoever, in a public or a private place, engages in vilent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct is guilty of a Class B misdemeanor." Wis. Stat. 947.01. Two elements to convict: (a) violent, abusive, indecent, profane, boisterous, unreasonably loud, or similar disorderly conduct; (b) the conduct occurred under circumstances where such conduct tends to cause or provoke a disturbance. State v. Douglas d., 2001 WI 47, ¶15, 243 Wis.2d 204, 626 N.W.2d 725

An open case in the Eastern District.

1. Wisconsin Attorney General's Advisory Memorandum April 20, 2009: Continuing ...

J.Gleason · May 1, 2010

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So in retrospect, what will this do for the cities and towns in Wisconsin as far as firearms regulations and enforcing the laws and ordinances say in city parks for example?

Is this a meeting of which all city attorneys attend?

I certainly must say such a meeting should happen annually in this state and the public should be allowed to attend and ask questions.

Master Doug Huffman · May 1, 2010

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I don't recall an open invitation to the general public but the invitation was open to "nonlawyer public officials". At the end of the 'guns' session I barely heard a question from the Madison site, where the teleconference originated, on an encased longgun that came from someone as naive as any in the "general public".

There is no reason to expect, now, that the topic will be addressed again next year at the Annual Town Lawyers Conference, of which this was the thirty-first. ETA I have since rummaged through the lecturer's corporate website that mentions a number of such addresses and none previously on guns.

The meeting was in no way mandatory for town lawyers or "city attorneys". At the Green Bay site there were two attorneys that practiced town law, one for a company with 40 town clients. There were two other nonlawyer town officials and your assh0le non-lawyer.

When I get to the spot in the outline then I expect to remember the comment better in context. The short answer is 'no', I don't expect any great changes in regulations, but more anon.

Master Doug Huffman · May 1, 2010

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E. 1. [Continued] Wisconsin Attorney General's Advisory Memorandum April 20, 2009:

The mere open carrying of a firearm by a person, absent additional facts and circumstances, should not result in a disorderly conduct charge from a prosecutor. "[W]e recognize that under certain circumstances, openly carrying a firearm may contribute to a disorderly conduct charge. But this determination must take into account the constitutional protection afforded by Article I, § 25 of the Wisconsin Constitution." Also, "several law enforcement agencies have asked whether, in light of Article I, § 25, they may stop a person openly carrying a firearm in public to investigate possible criminal activity, including disorderly conduct. We say yes."

2. Objective Analysis Based on all the Circumstances: Objective analysis of each particular case must be undertaken because what may constitute disorderly conduct under some circumstances may not under others. See State v. Maker, 48 Wis. 2d 612, 616, 180 N.W.2d 707 (1970) ("This court's emphasis on relatedness of conduct and circumstances in the statute is no more than a recognition of the fact that what would constitute disorderly conduct in one set of circumstances, might not under some other. When a famed jurist observed, 'The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic,' the comment related to the crowdedness of the theater as well as to the loudness of the shout. It is the combination of conduct and circumstances that is crucial in applying the statute to a particular situation.").

3. Actual Disturbance Not Required: "It is not necessary that an actual disturbance must have resulted" from a person's conduct for that particular conduct to qualify as the "type which tends to cause or provoke a disturbance." See City of Oak Creek v. King, 148 Wis.2d 532, 545, 436 N.W.2d 285 (1989) (upholding the disorderly conduct conviction of a person who had refused to obey a lawful police order).

4. Constitutional Challenges Rejected: The Disorderly Conduct Statute has withstood vagueness and overbreadth challenges. ...

5. Case Law examples: [a half dozen]

F. Fourteenth Amendment's Significance: [passing reference to McDonald which this lecturer apparently referred to as NRA v. City of Chicago with oral arguments before SCOTUS 2 March 2010.]

II. Municipal Regulation of Firearms.

A. Firearm Definition: A "firearm" is statutorily defined as "a weapon that acts by force of gunpowder." See Wis. Stat. §§ 66.0409(1)(a); 167.31(1)(c).

1. Firearms are included in the definition of "dangerous weapon." See Wis. Stat. § 939.22(10) ...

The subsequently cited cases differentiate a "pellet gun is a dangerous weapon" while a "Daisy BB gun was not a weapon ..."

B. Municipal Regulations: Municipal authority to regulate firearms generally is restricted by Wis. Stat. § 66.0409(2) (enacted 1995), which provides in pertinent part as follows: "[N]o political subdivision may ... is similar to, and no more stringent than, a state statute." (emphasis added [in the original]).

1. Generally includes pre-existing municipal regulations. If "the ordinance or resolution is not the same as or similar to a state statute, the ordinance or resolution shall have no legal effect and the political subdivision may not enforce the ordinance or resolution on or after November 18, 1995." Wisc. Stat. § 66.0409(4)(b).

Note the change in the language from § 66.0409(2), "...no political subdivision
may enact an ordinance or adopt a resolution..." to § 66.0409(4)(b), "... the ordinance or resolution shall have no legal effect and the political subdivision may not enforce the ordinance or resolution..." I'll bet that the legislative intent supporting that change is real hard to find.

2. County ordinance regulating firearms...

3. Anticipate challenges to any municipal regulations on grounds that municipal regulation is either (1) not the same -- regulation of time, place or manner is different (e.g., state law regulates firearms in state parks, but state statute silent on municipal parks and thus municipal regulation not the same); or (2) more stringent -- likely to be found invalid. [Bold is original and inconsistent formatting that I tried to correct with the non-bold additions.]

4. Don't Overreach: Key is not to impose additional regulations on the time, place and manner.

5. Discharge of Firearms: Municipalities may enact...

6. Sales or Use Tax:

III. State Statutes Regulating Firearms:

A. Concealed Carry (CCW Statute): The law, in effect since 1872, provides ... Wis. Stat. § 941.23.

1. Wisconsin and Illinois are the only two states ...

2. Four objectives of concealed carry laws, per State v. Hamdan, 2003 WI 113 ¶¶54-56, 264 Wis. 2d 433, 665 N.W.2d 785:

a. Carrying a concealed weapon permits a person to act violently on impulse, whether from anger or fear.

Open carrying is not different. Concealed carry as the theme avoids the current controversy!

b. People should be put on notice when they are dealing with an individual who is carrying a dangerous weapon. Notice permits people, including police, to act accordingly.

c. Related to the previous objective, concealed weapons facilitate the commission of crime by creating the appearance of normality and catching people off guard.

Open carry cannot create the appearance of normality, applying the traditional 'Square of Opposition'?

d. Concealed carry laws promote the preservation of life by affixing a stigma of criminality to those who carry concealed weapons in cases except as those allowed by statute.

Is stigma attached to openly carried weapons?

3. State v. Nollie, 2002 WI 4, 249 Wis. 2d 538, 638 N.W.2d 280: Court confirmed that a person may claim self-defense when charged under the CCW statute. Id., ¶¶18-26. However, in that case, the unsubstantiated threat of four young men nearby, being loud and profane in a "high crime" area, was not "imminent and specific enough" for the defendant to invoke self-defense. Id., ¶¶23-35.

4. State v. Cole, 2003 WI 112, 264 Wis. 2d 520, 665 N.W.2d 328: Court upheld the statute against facial and as-applied constitutional challenges.

a. Police found two concealed handguns...

b. The right to bear arms is clearly not rendered illusory by prohibiting an individual from keeping a loaded weapon hidden either in the glove compartment or under the front seat in a vehicle" Id., ¶ 28. The Court noted the danger of accidents involved in the transport of loaded weapons and noted that those dangers support restrictions on such weapons.

Based on what empirical evidence? Restrict beer bottles too?!

c. [Balance] ... Id., ¶¶22-28

d. [Is reasonable] ...Id., ¶ 43

5. State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785:

a. [ ...] f.

6. State v. Fisher, 2006 WI 44, 290 Wis. 2d 121, 714 N.W.2d 495:

a. [ ...] g.

B. State parks and fish hatcheries, Wis. Stat. § 948.605, and wildlife refuges, Wis. Stat. § 29.091.

Continuing...

Master Doug Huffman · May 2, 2010

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Continued, III. State Statutes Regulating Firearms

C. Public Buildings:

D. Taverns, bars, etc:

E. School Zones:

F. Influence of Intoxicants:

G. Age: ... Wis. Stat § 120.13(1)(bm)

H. Child-safe storage: ... Wis. Stat. § 948.55, § 175.37

I. Felons: ... Wis. Stat. § 941.29(5)(b), §§ 48.341, 973.176

J. Mentally Ill:

K. Persons under abuse or harassment injunctions: ... Wis. Stat. § 813.12(4m), § 813.122(5m), § 813.125(4m)

L. Prohibited firearms:

M. Transportation of Firearms: In general, possessing or transporting a firearm in a motor vehicle, motorboat, all-terrain vehicle, or aircraft is prohibited unless the gun is unloaded and encased. Wis. Stat. §§ 167.31(2) and (3), 23.33(3)(e). An unlawfully transported firearm is a public nuisance. Wis. Stat. § 29.927(6g). See State v. Fisher, 2006 WI 44, ¶67, 290 Wis.2d 121, 714 N.W.2d 495 (declining to address the interplay between the Wisconsin right to carry, the CCW Statute and § 167.31, but observing: "To the extent courts entertain constitutional challenges to § 941.23 for carrying a concealed weapon in a vehicle, the constitutionality of § 167.31 will often be implicated as well.")

N. Boats and Fishing: ... Wis. Admin. Code NR 20.05(2) which prohibits possession of firearms while on waters, banks or shores that might be used for fishing.

O. Intimidation: Wis. Stat. § 941.2965 prohibits the open carry, possession and bearing of facsimile firearms under any circumstances that could reasonably be expected to alarm, intimidate threaten or terrify another person.

P. Sport shooting ranges: Wis. Stat. § 66.0409(4)(c) ... See Town of Avon v. Oliver, 2002 WI App 97, 253 Wis.2d 647, 644 N.W.2d 260

IV. Recent Constitutional Litigation

A. District of Columbia v. Heller, 128 S.Ct. 2783 (2008)

B. NRA v. City of Chicago, 567 F.3d 856 (7th Cir. 2009) (oral argument before Supreme Court March 2, 2010):

C. St. John v. McColley, 653 F. Supp.2d at 1118 2009 WL 2949302 (D.N.M.2009):

D. Szymecki v. City of Norfolk, 2008 WL 4223620 (E.D.VA. 2008):

E. Mead v. Richmond County, United States District Court for the Southern District of Georgia, Case No. 108-CV-145(2008)

Here, remarkably, the lecturer cautioned about organizations such as GCO planning to challenge and test law enforcement.

F. Recent Cases before the Eastern District of Wisconsin:

1. In Gonzalez v. Village of West Milwaukee and City of Chilton, Case No. 09-CV-0384, ... The parties filed cross-motions for summary judgment and await the decision of the court.

2. In Wisconsin Carry Inc. v. Governor Doyle, City of Milwaukee and City of Racine, Case No. 10-CV-2009, ... A portion of the lawsuit involving the Racine plaintiff against the Racine defendants has been dismissed as part of a $10,000 settlement. The case was recently amended to name a number of additional municipalities.

That concludes my partial transcription of the lecture notes. I will answer direct questions or expand elided sections.

Master Doug Huffman · May 2, 2010

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J.Gleason wrote:

So in retrospect, what will this do for the cities and towns in Wisconsin as far as firearms regulations and enforcing the laws and ordinances say in city parks for example?

Well, I have read through all my notes closely and was not reminded of the comment. As I recall, the most direct comment appropriate to your question was to the effect of the SCOTUS McDonald decision, that there will be a flood of litigation on the constitutionality of state and local regulations.

Early in my notes I wrote that 'concealed carry as the theme avoids the current controversy.' I suspect that some here mistake the prominence of openly carried guns in the larger community.

I took the outline notes at III A. 2 as directly controverting Stollenworks' ideas about the appropriateness of tolerating concealed carry as complimentary to OCDO.

Master Doug Huffman · May 3, 2010

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J.Gleason wrote:

I certainly must say such a meeting should happen annually in this state and the public should be allowed to attend and ask questions.

Sounds like an opportunity, for one of these WI XYZ.orgs that are shearing money from the sheeple, to host a Wisconsin Gun Rights Conference about a year from now. 'A year from now', to allow time to solicit submissions and for them to be written.

Theme, topics, keynote speaker, venue, accommodations, submission requirements, speaker qualification, ... ...

Mission: To explore legal paths to liberalized gun carry in Wisconsin.
Vision: Eight hours of professional discursive argument on rationalizing Wisconsin gun law.
Value: Subdued professionalism, armed with facts, studied knowledge and peer reviewed scholarship.

I would solicit interest from Mr. Bitar, VanHollen, Doyle, typical gun rights speakers like Lott, SG Hupp, ...

J.Gleason · May 3, 2010

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Master Doug Huffman wrote:

J.Gleason wrote:

I certainly must say such a meeting should happen annually in this state and the public should be allowed to attend and ask questions.

Click to expand...

Sounds like an opportunity, for one of these WI XYZ.orgs that are shearing money from the sheeple, to host a Wisconsin Gun Rights Conference about a year from now. 'A year from now', to allow time to solicit submissions and for them to be written.

Theme, topics, keynote speaker, venue, accommodations, submission requirements, speaker qualification, ... ...

Mission: To explore legal paths to liberalized gun carry in Wisconsin.
Vision: Eight hours of professional discursive argument on rationalizing Wisconsin gun law.
Value: Subdued professionalism, armed with facts, studied knowledge and peer reviewed scholarship.

I would solicit interest from Mr. Bitar, VanHollen, Doyle, typical gun rights speakers like Lott, SG Hupp, ...

That is one of the best ideas I have heard so far. It would also be an excellent opportunity for WCI to get their foot in the door and show the legislators in this state that their time has come. I think inviting a judge or two as a guest speaker would be great also.

As I stated before we can do this without the NRA. All we have to do is use the same tactics. It works for them it can work for us. Only we will be looking out for our own interests instead of the conglomerate Lobbyist's.

jrm · May 3, 2010

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Master Doug Huffman wrote: Mead v. Richmond County, United States District Court for the Southern District of Georgia, Case No. 108-CV-145(2008)

Here, remarkably, the lecturer cautioned about organizations such as GCO planning to challenge and test law enforcement.

What was the caution?

Master Doug Huffman · May 3, 2010

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DT

Master Doug Huffman · May 3, 2010

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jrm wrote:

Master Doug Huffman wrote: Mead v. Richmond County, United States District Court for the Southern District of Georgia, Case No. 108-CV-145(2008)

Here, remarkably, the lecturer cautioned about organizations such as GCO planning to challenge and test law enforcement.

Click to expand...

What was the caution?

Of the existence of organizations like GCO, by name as I recall, that are planning to test the response of LEA to circumstances like Mead. I'll PM his synopsis of Mead. I am being a bit chary of his copyrights, not wishing to antagonize Mr. Bitar.

Master Doug Huffman · May 3, 2010

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J.Gleason wrote:

without the NRA. All we have to do is use the same tactics. It works for them it can work for us.

The end does not justify the means and adopting NRA means, "tactics", makes us/them no different from the NRA! That is particularly my problem with WGO, anti-NRA but no different for the same tactics and business model.

Master Doug Huffman · May 3, 2010

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Solicit Wisconsin Gun Rights Conference papers from LEA and NRA for balance.

J.Gleason · May 3, 2010

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Master Doug Huffman wrote:

J.Gleason wrote:

without the NRA. All we have to do is use the same tactics. It works for them it can work for us.

Click to expand...

The end does not justify the means and adopting NRA means, "tactics", makes us/them no different from the NRA! That is particularly my problem with WGO, anti-NRA but no different for the same tactics and business model.

I see your point and I agree. But there must be some way to leverage our positions and turn the heads of the politicians and legislators of this state.

I don't think it is too out of line to bring up their voting records to the public and point out just how much these legislators are NOT working for us but against us.

The elections are drawing near and we need to decide if we are just going to let them go by or if we are going to stand up for our rights in this state.

Master Doug Huffman · May 4, 2010

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J.Gleason wrote:

I don't think it is too out of line to bring up their voting records to the public and point out just how much these legislators are NOT working for us but against us.

Consider that our correspondents here are a fine representative sample of the State's electorate, ranging from Lammie (whose absence is much lamented) to others in whom gravity induced loss of consciousness occurs at <1 Gee. Do you imagine 'TinaC getting much beyond, "Guns good", or Lammie not struggling with the whole spectrum of political positions?

No, those that care about records are keeping their own records and counsel.

Master Doug Huffman · May 4, 2010

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J.Gleason wrote:

I see your point and I agree. But there must be some way to leverage our positions and turn the heads of the politicians and legislators of this state.

There is, run for elected office. "All politics is local", so be known locally as a pro-gun elector citizen and office holder.

No one is going to be elected just because they openly carry a gun.

Trip report - Wisc. Town Lawyers Conference, "Constitutional Issues Arising From Guns, Religion

Master Doug Huffman

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jrm

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