Out of reach not true

J.Gleason · May 30, 2010

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Doug Huffman wrote:

Shotgun wrote:

County Prosecutor wrote:

Unpublished does not mean unpersuasive.

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Correct. But the fact that one may not even cite the case makes it unpersuasive. How will you persuade a judge with a case that you cannot cite?

The Alloy case is from 2000, and only unpublished cases from July 1, 2009 or after may be cited.

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Do you mean as SCOTUS shouldn't be persuaded by international/other nations' law?

I do not believe SCOTUS should be persuaded by international/other nations' laws.

Their constitutions may be different then ours and may very well be more stringent. The only thing the SCOTUS should focus on is our constitution. But that is just my .02

paul@paul-fisher.com · May 30, 2010

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J.Gleason wrote:

I do not believe SCOTUS should be persuaded by international/other nations' laws.

Their constitutions may be different then ours and may very well be more stringent. The only thing the SCOTUS should focus on is our constitution. But that is just my .02

We now have 4 cents!!!

Uziel Gal · May 30, 2010

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Lets not forget that Mr. Alloy was found guilty, twice. Although his case is unpublished it does show what kind of argument judges have made in the past to find someone guilty of a firearm related offense. I wouldn't make too many assumptions about what one can and cannot do based on an unpublished guilty verdict. What is your defense if charged with carrying a concealed weapon because the weapon is within reach or "on or about your person? Another interesting unpublished opinion is State of WI vs. Caprice S.I. which will probably not help to clarify the issues here but does deal directly with them.

http://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=32273

I think that to come to the conclusion that a encased firearm trumps all potential legal issues may be foolish.

Maybe.

J.Gleason · May 30, 2010

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So I guess you better not carry shoe strings or a lock. How about keys? I could kill someone with my keys, are they a concealed weapon? What about the arm of my glasses? If I break off the arm of my glasses I could probably stab you in such a way to kill you.

The prosecutor and the judge that convicted this girl should be ran out of town on a rail. This is the problem with this state. The judges and prosecutors have all become so obsessed with getting themselves an OJ case that they will railroad anyone for the smallest infraction of the law hoping that the case will gain some precidence and they will become famous.

Shotgun · May 30, 2010

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J.Gleason wrote:

So I guess you better not carry shoe strings or a lock. How about keys? I could kill someone with my keys, are they a concealed weapon? What about the arm of my glasses? If I break off the arm of my glasses I could probably stab you in such a way to kill you.

What seems to be missing from that case is a discussion whether she actually had a weapon. As I understand it, for something to be regarded as a weapon it has to be either designed as a weapon, or, actually used as a weapon. Padlocks and shoestrings are not designed to be weapons and I didn't notice anything in the decision that implied the girl actually used it as a weapon. Lots of things can be "used" as a weapon, e.g., baseball bat, steak knife, cue stick, broken bottle, a rolled up newspaper, a pencil, a vehicle... but none are weapons until they are employed as such.

davegran · May 30, 2010

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From the opinion cited:

94 C.J.S. Weapons §21 (footnote omitted).
¶6 Wisconsin bases its CCW (carrying a concealed weapon) law on this rationale:
The reason for these statutes, it has been said, is “because persons becoming suddenly angered and having such a weapon in their pocket, would be likely to use it, which in their sober moments they would not have done, and which could not have been done had not the weapon been upon their person.”
In short, carrying a concealed weapon permits a person to act violently on impulse, whether from anger or fear, and that is a prospect the law may discourage.

I wonder where this text originated? This is the "Blood Running in the Streets" and "Shootouts at Stop Lights" argument.

BROKENSPROKET · May 30, 2010

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Shotgun wrote:

J.Gleason wrote:

So I guess you better not carry shoe strings or a lock. How about keys? I could kill someone with my keys, are they a concealed weapon? What about the arm of my glasses? If I break off the arm of my glasses I could probably stab you in such a way to kill you.

Click to expand...

What seems to be missing from that case is a discussion whether she actually had a weapon. As I understand it, for something to be regarded as a weapon it has to be either designed as a weapon, or, actually used as a weapon. Padlocks and shoestrings are not designed to be weapons and I didn't notice anything in the decision that implied the girl actually used it as a weapon. Lots of things can be "used" as a weapon, e.g., baseball bat, steak knife, cue stick, broken bottle, a rolled up newspaper, a pencil, a vehicle... but none are weapons until they are employed as such.

She must have used it, or there never would have been any prosecutional effort. There may have been Assualt & Battery charges also that were not appealed.

Doug Huffman · May 31, 2010

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davegran wrote:

I wonder where this text originated?

State v. Walls (1994), cited at ¶54 of Hamdan, noted in the very ¶6 of Caprice partially quoted.

¶54. In State v. Walls, 190 Wis.2d65, 526 N.W.2d765 (Ct. App. 1994), the court of appeals described the inspiration for CCW laws as follows:

The reason for these statutes, it has been said, is "because persons becoming suddenly angered and having such a weapon in their pocket, would be likely to use it, which in their sober moments they would not have done, and which could not have been done had not the weapon been upon their person."

Id. at 71 (quoting from Williams v. Commonwealth, 261 S.W.2d 807, 807-08 (Ky. 1953), with citations in Williams omitted). In short, carrying a concealed weapon permits a person to act violently on impulse, whether from anger or fear, and that is a prospect the law may discourage.

Mr. Remzy Bitar (y'all do recall who he is and what case, notorious here, he argued) listed this among the rationales for prohibiting CCW in

http://opencarry.mywowbb.com/view_topic.php?id=43349&forum_id=57&highlight=bitar

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.

Doug Huffman · May 31, 2010

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Shotgun wrote:

What seems to be missing from that case is a discussion whether she actually had a weapon.

Not the undisputed facts of ¶1 or even FN[2] and intention?

While the State seems to argue that the padlock, sans shoestring, was the weapon, we will give it the benefit of the doubt and assume it meant to argue that it only need prove that sometime on the day in question, Caprice brought the padlock and shoestring to her locker and secreted it there with the intent to use it as a weapon.

Doug Huffman · May 31, 2010

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Regarding the precedential/persuasion teapot, the Seventh District Hamdan court was evidently persuaded by a Sixth District precedence.

Doug Huffman · May 31, 2010

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BROKENSPROKET wrote:

She must have used it, or there never would have been any prosecutional effort. There may have been Assualt & Battery charges also that were not appealed.

When I was in HS, lockers were subject to and actually periodically searched, sometimes merely by passage of a 'drug dog' and sometimes by mass locker inspections.

Doug Huffman · May 31, 2010

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And finally, as regards the thread topic, "Out of reach not true[sic]", for Ms. Caprice it was true. Her weapon was not readily accessible and her conviction on §941.23 was reversed for that reason.

Who will gain standing to be the test case to see if § 167.31 trumps §941.23? I do not think that it does.

And I agree with Mr. Gal, thank you.

J.Gleason · May 31, 2010

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BROKENSPROKET wrote:

Shotgun wrote:

J.Gleason wrote:

So I guess you better not carry shoe strings or a lock. How about keys? I could kill someone with my keys, are they a concealed weapon? What about the arm of my glasses? If I break off the arm of my glasses I could probably stab you in such a way to kill you.

Click to expand...

What seems to be missing from that case is a discussion whether she actually had a weapon. As I understand it, for something to be regarded as a weapon it has to be either designed as a weapon, or, actually used as a weapon. Padlocks and shoestrings are not designed to be weapons and I didn't notice anything in the decision that implied the girl actually used it as a weapon. Lots of things can be "used" as a weapon, e.g., baseball bat, steak knife, cue stick, broken bottle, a rolled up newspaper, a pencil, a vehicle... but none are weapons until they are employed as such.

Click to expand...

She must have used it, or there never would have been any prosecutional effort. There may have been Assualt & Battery charges also that were not appealed.

Maybe it was a defensive weapon. So then is no one to defend themselves? What a sad world this is getting to be.

Nutczak · May 31, 2010

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Uziel Gal wrote:

Lets not forget that Mr. Alloy was found guilty, twice. Although his case is unpublished it does show what kind of argument judges have made in the past to find someone guilty of a firearm related offense. I wouldn't make too many assumptions about what one can and cannot do based on an unpublished guilty verdict. What is your defense if charged with carrying a concealed weapon because the weapon is within reach or "on or about your person? Another interesting unpublished opinion is State of WI vs. Caprice S.I. which will probably not help to clarify the issues here but does deal directly with them.

http://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=32273

I think that to come to the conclusion that a encased firearm trumps all potential legal issues may be foolish.

Maybe.

The one question that nobody can seem to answer about Mr. Alloy;

Was his encased firearm loaded??
I saw it was, otherwise they would not have had anyhting on the guy.

Doug Huffman · May 31, 2010

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Nutczak wrote:

The one question that nobody can seem to answer about Mr. Alloy;

Was his encased firearm loaded??
I saw it was, otherwise they would not have had anyhting on the guy.

Is loaded an element of either statute under discussion or, indeed, essential to any definition?

BROKENSPROKET · May 31, 2010

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Nutczak wrote:

Uziel Gal wrote:

Lets not forget that Mr. Alloy was found guilty, twice. Although his case is unpublished it does show what kind of argument judges have made in the past to find someone guilty of a firearm related offense. I wouldn't make too many assumptions about what one can and cannot do based on an unpublished guilty verdict. What is your defense if charged with carrying a concealed weapon because the weapon is within reach or "on or about your person? Another interesting unpublished opinion is State of WI vs. Caprice S.I. which will probably not help to clarify the issues here but does deal directly with them.

http://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=32273

I think that to come to the conclusion that a encased firearm trumps all potential legal issues may be foolish.

Maybe.

Click to expand...

The one question that nobody can seem to answer about Mr. Alloy;

Was his encased firearm loaded??
I saw it was, otherwise they would not have had anyhting on the guy.

[align=left]That is not true. See the attached document.[/align]
[align=left]Edited becasue I attached the wrong documnent. I have the correct on now. It has the other chagres he was also went to trial for. Sorry for the confusion. [/align]

minuteman · May 31, 2010

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J.Gleason wrote:

My point exactly, So if a person has a holster which has an attachable case such as with velcro that would entirely encase the firearm even though it is still on your hip and in the holster, as long as the firearm is unloaded you could legally carry this way in your vehicle.

For example, lets look at a Fobus Paddle Holster. The case would slip up under the holster, inbetween the paddle and the holster. The rest of the case ould then be pulled up and over the firearm and attach to a piece of velcro on the back side of the holster where the holster meets the paddle. with elastic around the opening, the material would eclosed the firearm making it encased with no part of the firearm exposed. The case could even have a zipper sewn in so the firearm could be accessed through the zipper as well.

After leaving the vehicle, the carrier would simply release the velcro and peel the case off of the holstered firearm unencasing it. Then all that would be left to do is the loading and unloading ritual.

ETA: This would also be great for motorcyclists

Give me your thoughts on this as I might go forward with this and talk to some holster companies.

How about just a totally enclosed holster? I used to carry my Makarov in this type unloaded, because its not really in the open..

http://www.charleyssurplus.com/M-85 EAST GERMAN MAKAROV HOLSTER RAIN PATTERN CANVAS.JPG

J.Gleason · May 31, 2010

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minuteman wrote:

J.Gleason wrote:

My point exactly, So if a person has a holster which has an attachable case such as with velcro that would entirely encase the firearm even though it is still on your hip and in the holster, as long as the firearm is unloaded you could legally carry this way in your vehicle.

For example, lets look at a Fobus Paddle Holster. The case would slip up under the holster, inbetween the paddle and the holster. The rest of the case ould then be pulled up and over the firearm and attach to a piece of velcro on the back side of the holster where the holster meets the paddle. with elastic around the opening, the material would eclosed the firearm making it encased with no part of the firearm exposed. The case could even have a zipper sewn in so the firearm could be accessed through the zipper as well.

After leaving the vehicle, the carrier would simply release the velcro and peel the case off of the holstered firearm unencasing it. Then all that would be left to do is the loading and unloading ritual.

ETA: This would also be great for motorcyclists

Give me your thoughts on this as I might go forward with this and talk to some holster companies.

Click to expand...

How about just a totally enclosed holster? I used to carry my Makarov in this type unloaded, because its not really in the open..

http://www.charleyssurplus.com/M-85%20EAST%20GERMAN%20MAKAROV%20HOLSTER%20RAIN%20PATTERN%20CANVAS.JPG

But see that is manufactured as a holster. It needs to be manufactured as a Case. Although the shape and definition of the material would work for what I am suggesting. It would only need a few adjustments to be able to be attached around a holstered firearm in such a way that it could be easily removed when not in a vehicle.

Uziel Gal · Jun 1, 2010

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I can't believe I reread that crappy opinion just to find you guys this.

"He argues that, according to Wisconsin precedent, because weapons must be out of reach in the trunk and unloaded, a person is left with no meaningful way to exercise the right to bear arms for self-defense in that context. He asserts that such extensive restrictions act to deny a citizen any way to exercise the right to security and self-defense while riding in an automobile. However, such claims go far beyond the facts of this case. We see no need to examine the assortment of restrictions that may apply to transporting a weapon in a vehicle, because under the facts of this case, the constitutional right to bear arms has clearly not been infringed."

- Supreme Court Opinion in State of Wisconsin v. Phillip Cole

Yes this is the Defendants argument and therefore not a statement of fact but, it is interesting, if out of reach for some unexplained reason has somehow ceased to exist. If anyone has a compelling argument I'd love to hear it and wouldn't it be easier to find a way to satisfy the Hamden exceptions and just carry concealed, maybe a pizza delivery job.

rcawdor57 · Jun 1, 2010

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I especially like this part: ¶7 Wisconsin’s CCW statute is not applied literally. “A statute created to prevent the carrying of a concealed weapon on the body of a person is naturally extended to the area inside an automobile in which a person may reach a concealed or hidden weapon.” Walls, 190 Wis. 2d at 71.

Logically, this extension of the general rule should be applied to any area, not just an automobile, where a concealed or hidden weapon is within reach of an individual.

Use the "logic" in the second paragraph every "dangerous weapon" in your home is concealed (assuming your silverware is in a drawer, guns in gun cabinets/safes, baseball bats in closets....etc.) and if a LEO were in your home you could be charged and arrested for literally hundreds of "concealed weapons".

If I put my hand in my coat pocket out of sight, is that a concealed weapon? According to the logic above, yes.

This is total crap.

Out of reach not true

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