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Thread: Hometown law still states no firearms, period

  1. #1
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    Hometown law still states no firearms, period

    Havent posted much on here, mostly just reading around with stories in the state. I live in Menomonee Falls (North of Milwaukee) and have asked a couple police officers along with checking the laws in the village and the policy is strictly no firearms. Now clearly, this is a violation of my rights. What is recomended as far as possibly trying to OC at a local business or out on a walk? I have read countless stories about being approached by the police and feel comfortable if that were to happen. I just also feel that if there were a complaint, I would be held at gunpoint and forced to the ground immediately. Please advise. Thanks in advance!
    Last edited by Ericy321; 09-15-2010 at 07:49 PM. Reason: spelling

  2. #2
    Regular Member paul@paul-fisher.com's Avatar
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    Quote Originally Posted by Ericy321 View Post
    Havent posted much on here, mostly just reading around with stories in the state. I live in Menomonee Falls (North of Milwaukee) and have asked a couple police officers along with checking the laws in the village and the policy is strictly no firearms. Now clearly, this is a violation of my rights. What is recomended as far as possibly trying to OC at a local business or out on a walk? I have read countless stories about being approached by the police and feel comfortable if that were to happen. I just also feel that if there were a complaint, I would be held at gunpoint and forced to the ground immediately. Please advise. Thanks in advance!
    What I would do is approach your alderman/mayor with the text of what is preempted. Suggest to them that they should repeal it or at the very least tell the police not to enforce it since that will open the city/town/village to civil penalties.

    Here's a letter I wrote to the Town of Burlington. Feel free to copy and modify as needed.

    I saw in the newspaper an issue with one of your residents and the chief of police regarding his right to open carry in public.

    You need to consult with your corporation counsel to verify this, however, your resident is right. The state of Wisconsin does not allow any municipality to have a more restrictive firearm law than the state. In most cases, the only thing a municipality can regulate is the discharge of a firearm. The carrying of the firearm is the pervue of the state.

    State statute 66.0409 is the statute that relates to preemption.

    In addition, the attorney general of the state of WI has issued a memo that declares that solely openly carrying a weapon does not rise to the level of disorderly conduct. If a person is walking down the street with a properly holstered weapon and is doing nothing illegal, even if the police get a man with a gun call, the police cannot even stop and question the person with a gun unless the police believe that the person has or is about to commit a crime, and, by the way, open carrying the gun isn't a crime so that can't be used.

    Specifically, you need to change your ordinance 9.24.010 Discharging of firearms restricted. No person except a sheriff, constable, police officer or their deputies shall fire or discharge any firearm, rifle, spring or air gun within any residential zoned district in the town or have any firearm, rifle, spring or air gun in his possession or under his control unless it is unloaded and knocked down or enclosed within a carrying case or other suitable container. (Prior code 9.02)

    If you remove the words "firearm, rifle," from the part highlighted, I believe your ordinance will be brought into compliance.

    Please take this seriously. Other municipalities have been found civilly liable for enforcing unenforceable laws.

    If I can be of any assistance in this matter, please let me know. I worked with the City of Elkhorn and got their ordinance re-worded.

    http://www.wisconsincarry.org/pdf/Fi...nCarryMemo.pdf is the Attorney General memo.

    --
    Paul L Fisher
    Last edited by paul@paul-fisher.com; 09-15-2010 at 07:55 PM. Reason: Added Town of Burlington sample.

  3. #3
    Regular Member paul@paul-fisher.com's Avatar
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    OK. Looks like it is Section 62-87

    Sec. 62-87. Possession and carrying.
    No person shall carry or have in his possession at any time within the village any weapon as defined in section 62-86 unless it is unloaded and knocked down or unloaded and enclosed within a carrying case or other suitable container except as follows:
    (1) A duly authorized peace officer;
    (2) Within a private residence;
    (3) Within a supervised rifle, pistol, trap, skeet or archery range authorized by the village board;
    (4) When used while hunting as defined in section 62-91.
    (5) A private security person, as defined in Wis. Stats. 440.26(1m), who meets all of the requirements as outlined under Wis. Stats. 167.31(4)(a)4, and the Wis. Admin. Code RL 34.01(1).
    (Code 1963, 10.02(2)(b); Ord. No. 13-O-98, 1, 7-20-98)
    State law references: Carrying concealed weapon, Wis. Stats. 941.23.
    What I would suggest to bring it into compliance with state preemption laws is that they change the definition of weapon under 62-86 to exclude firearms.

    It reads:

    Sec. 62-86. Definitions.
    The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
    Weapons means and includes all instruments and devices used for the purpose of propelling bullets, shot, arrows or other missiles, either by explosion, compression, tension, gas, spring or any other means, and shall include, without limitation for lack of specific enumeration, all forms of guns, rifles, air rifles and air guns, revolvers, bows and arrows, slingshots and other similar type of equipment or device capable of propelling such bullets, shot, arrows or missiles through the air by reason of discharge therefrom.
    (Code 1963, 10.02(2)(a))
    Cross references: Definitions generally, 1-2.
    One more thing, while we are asking, ask them to change the park ordinance 66-51, specifically take the word 'carry,' out of (g) so it will go from:

    (g) Use of firearms and fireworks; hunting with bow and arrow; trapping. No person shall carry, fire or discharge any gun, pistol, firearm, bow and arrow, nor any rocket, torpedo or any other fireworks of any description; nor shall any person engage in trapping; nor shall any person hunt with bow and arrow within any park or parkway except upon written permit. The word "gun" shall include air guns.
    to

    (g) Use of firearms and fireworks; hunting with bow and arrow; trapping. No person shall fire or discharge any gun, pistol, firearm, bow and arrow, nor any rocket, torpedo or any other fireworks of any description; nor shall any person engage in trapping; nor shall any person hunt with bow and arrow within any park or parkway except upon written permit. The word "gun" shall include air guns.
    Last edited by paul@paul-fisher.com; 09-15-2010 at 08:04 PM. Reason: Added park ordinance.

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    Thanks. I was just about to post the code as I found it also. I will be submitting this letter very soon. I would love to bring open carry to my area and get people a little more used to it.

  5. #5
    Regular Member Canard's Avatar
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    In the meantime I wouldn't let the ordinace stop you from carrying there. The leo will say one thing but I would bet they know better than to violate your rights given the AG memo and the lawsuit won by Frank in Racine. Believe me, they are very aware of their limitations they just don't want you to know it.

  6. #6
    Regular Member xenophon's Avatar
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    Agreed, don't wait for a response. Open Carry anyways. Just be mindful of those damn school zones. Especially close to the square!

    They know their limitations.

  7. #7
    Regular Member MKEgal's Avatar
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    I carry relatively frequently toward the north end of MF, I guess it's technically Germantown?
    PnS, Menard's, Fleet, Home Despot, Culver's, Aldi, even my bank... Never had a problem.
    (Not like some communities that I could talk about.) ::whistling innocently::

    Post info for who to write up there, & I'll add another letter to the flurry telling them to change their ways.
    Last edited by MKEgal; 09-15-2010 at 11:37 PM.

  8. #8
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    I've carried in Menomonee Falls a lot. Never occurred to me to ask permission from the police.

    Open-Carry is legal border to border in Wisconsin (save the 5 places you can't carry)

    Local ordinances are pre-empted.

    No one can promise you the police will abide within the law, but there are lots of remedies available to you if they don't. For the thousands of people open carrying every day in Wisconsin we have maybe 4 or 5 cases in the past year where people where treated unlawfully.

    If it makes you feel better write a letter as Paul suggests to the chief of police and CC the city administrators/mayor/whoever (outside the PD)

    Let the police chief know his officers are misinforming the public about the enforceability of their preempted local ordinances. Cite the states firearm preemption law, cite the AG memo and let them know that they are on notice that they are breaking the law if they try to enforce it. Feel free to tell them there is a Carry-rights organization that files lawsuits against municipalities that unlawfully detain/arrest people for OC'ing.

    Do not patronize them, do not ask for permission. INFORM them of the law and let them know you will be going about your law abiding business and to please train their officers in the law before those officers expose the municipality to legal ramifications.

    I don't have time to write letters to every city I go carry in, nor do I have time to research local ordinances everywhere I go and carry. I just carry. Its legal. I know it, they know it. Just do it!

    Carry On,
    Last edited by Wisconsin Carry, Inc. - Chairman; 09-16-2010 at 12:03 AM.
    www.wisconsincarry.org Wisconsin Carry, Inc. is not affiliated with opencarry.org or these web forums. Questions about discussion forum policy or forum moderation should be directed to the owners of opencarry.org not Wisconsin Carry, Inc.

  9. #9
    Founder's Club Member protias's Avatar
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    I've carried a little bit in the Falls without issue.
    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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    Thanks much for the support. I will do exactly that. I have been in Menards and Fleet Farm many times and never thought to carry there. I am going to get the school zones around here figured out for public property and then go for it.

  11. #11
    Founder's Club Member protias's Avatar
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    Quote Originally Posted by Ericy321 View Post
    Thanks much for the support. I will do exactly that. I have been in Menards and Fleet Farm many times and never thought to carry there. I am going to get the school zones around here figured out for public property and then go for it.
    Do not do this. If you do, you can then be charged for a felony if you accidentally walk into a GFSZ as you "knowingly" went there.
    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)

  12. #12
    Regular Member MKEgal's Avatar
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    Quote Originally Posted by paul@paul-fisher.com View Post
    (g) Use of firearms and fireworks; hunting with bow and arrow; trapping. No person shall fire or discharge any gun, pistol, firearm,
    I'd really like to see something in there about "except in self-defense, as defined in WI Statute XXX.XX".

  13. #13
    Founder's Club Member Brass Magnet's Avatar
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    Quote Originally Posted by MKEgal View Post
    I'd really like to see something in there about "except in self-defense, as defined in WI Statute XXX.XX".
    I'm not sure it's really necessary being that claiming the privilege of self defense should forgive the discharge.
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  14. #14
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    would a no guns period ordinance be pre-empted out- period?

  15. #15
    Regular Member JerryD's Avatar
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    Quote Originally Posted by Brass Magnet View Post
    I'm not sure it's really necessary being that claiming the privilege of self defense should forgive the discharge.
    One would hope that would be the case.
    Last edited by JerryD; 10-14-2010 at 11:41 AM.

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