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Thread: Federal Suit for deprivation of constitutional right to have a firearm in State Parks

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    Regular Member cowboyridn's Avatar
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    State Suit for deprivation of constitutional right to have a firearm in State Parks

    I emailed the Department of Natural Resources and asked if I could have a firearm with me while camping in Devils Lake State Park, and got the attached reply.

    Today, I wrote a Federal Law Suit following the Nevada wording in their Law Suit (which was posted a couple a days ago) challenging the enforcement of the State Statute and Department of Resources regulation against allowing me to carry a firearms while camping in Devils Lake State Parks.

    My constitutional rights are being violated in not allowing me to have a firearm in a State Park. Wonder if the State of Wisconsin and the DNR will bend and change their State and DNR regulation after I file this suit and allow firearms in State Parks.

    After all the Wisconsin Constitution allows us to open carry and Federal Law allows us to carry in National Parks, why canít we carry in State Parks?

    Let me know what you think about the Law Suit the way itís written. The names were taken out of the suit for obvious reasons.

    I'll be consulting with an attorney about this, but it was fun writting it up. This is not a suit for money, just a suit to get the laws changed.

    I could not attach the .PDF I got the following message:

    File Exceeds your quota by 35.7 KB. Click here to view your attachments

    So, if you want a copy of the suit and DNR answer, pm me your email address


    Don
    Last edited by cowboyridn; 10-30-2010 at 06:50 PM. Reason: change heading

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    Regular Member johnny amish's Avatar
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    This is awesome news, thank you for your effort.

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    Regular Member cowboyridn's Avatar
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    News Article about the case in Navada


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    Regular Member cowboyridn's Avatar
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    Final Draft

    Well, I figured out that if you post a lot of documents on here you use up your allotted space in a hurry, so, I had to delete some .PDF files I had placed on here.

    Anyway, now that I have freed up some space, I can post the Federal Suit I will file in the United States District Court Western District of Wisconsin this month, this one posted has the names blacked out. After I file it I will post it with the names visable. This is not a suit for money, it is a suit to change the statutes so they are constitutional and allow citizens to carry a firearm for self-defense in state parks.

    By posting this it is not my intention to take away from the recent Federal Suit filed by WCI on behalf of the individuals in the open carry incident at Culvers, it just so happens I found the Nevada law suit on the internet and decided to follow the same concept and write up this suit at the same time of the Culvers lawsuit was posted.

    So, if anyone is upset over the posting of this, I apologize, I just couldnít sit around and do nothing when I read such a unique way of having a statute or regulation found unconstitutional without actually receiving a citation.

    The uniqueness in the Nevada case is that they claimed a tent as a temporary residence by stating the following in their suit:

    A tent is a temporary residence to which the guarantees of the Second Amendment apply.

    Their suit was successful in that they negotiated a settlement which stayed the proceedings in court until the terms of the settlement have been met.

    I thought about contacting an attorney for this, but after writing it up, and with my prior experience with defending myself and winning in criminal court for a constitutional violation, I decided to file this myself as, it is also a constitutional violation.

    Iíve been told before on this forum that I should not attempt to file a lawsuit in federal court by myself, so, to those who wish to tell me that I shouldnít be filing a federal law suit in federal court and that it should be left to an experienced attorney, you are wrong.

    First you donít know how much of the constitutional law I understand, or donít know me at all, or what experiences Iíve been through with the legal system in my life, (if you would like to know, pm me and I will send you copies of what motions I have written on my own behalf) other than knowing me from this blog, or meeting me briefly at a picnic.

    So, donít pre-judge me, and give me your advice about not filing this suit on my own, and second, people who are well read in the law and file pro-per do win their cases.

    The plaintiff and Defendant State of Nevada agreed to stay the lawsuit for one year and which will give the parks system a chance to amend its regulations so they comply with the U.S. Constitution's Second Amendment right to possess firearms.

    We have two regulations for possessing a firearm in State Parks, one is a State Statute, and the other is a Department of Natural Resources regulation, both are unconstitutional as they prevent us from open carry in state parks, when at the same time we are allowed to open carry in National Parks in Wisconsin.

    Nevada is a traditional open carry state with complete state preemption of firearms laws, The agreement is valid for one year and will give the parks system a chance to amend its regulations so they comply with the U.S. Constitution's Second Amendment right to possess firearms, said James Manley, an attorney for the Mountain States Legal Foundation who was involved in the litigation.

    IF its unconstitutional in Nevada, it unconstitutional in Wisconsin.

    Don
    Last edited by cowboyridn; 10-03-2010 at 05:50 PM. Reason: change .pdf

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    Regular Member paul@paul-fisher.com's Avatar
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    I didn't have a chance to read it yet but more power to you!

    My only comment is that you need to make sure to not lose. Moving the ball forward is only achieved by winning. If we get a decision against us, it emboldens the antis. This can be shown by the idiots in Madison. I can only assume that they are trying to use the ruling in Jesus's case regarding disorderly conduct as their only foot to stand on. That decision will be fixed on appeal, hopefully soon.

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    Good Luck on your Lawsuit!

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    A few thoughts.

    1) Go back and take out the contractions. For example, instead of "doesn't", use "does not."

    2) I thought McDonald incorporated the 2A against the states via the Due Process Clause, as compared to the Privileges and Immunities Clause. If I am right, you might care to base part of your legal analysis on McDonald and Due Process, instead of P & I.

    You could hunt up the paperwork Alan Gura has filed post-McDonald for some examples of legal analysis.

    Edited to Add:

    Here is the relevant sentence from the holding in McDonald:

    "We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller."

    Page 44, here: http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf
    Last edited by Citizen; 10-03-2010 at 05:50 PM.

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    ∂8 name visible

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    Regular Member cowboyridn's Avatar
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    Thanks

    Quote Originally Posted by Citizen View Post
    A few thoughts.

    1) Go back and take out the contractions. For example, instead of "doesn't", use "does not."

    2) I thought McDonald incorporated the 2A against the states via the Due Process clause, as compared to the Privileges and Immunities clause. If I am right, you might care to base part of your legal analysis on McDonald and Due Process, instead of P & I.

    You could hunt up the paperwork Alan Gura has filed against Chicago and Washington, DC post-McDonald for some examples of legal analysis.
    Thanks, good idea

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    Regular Member cowboyridn's Avatar
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    Name Visible

    Quote Originally Posted by Doug Huffman View Post
    ∂8 name visible
    Fixed, thanks Doug

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    Regular Member AaronS's Avatar
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    I also have talked to a few members of our DNR about my RIGHT to self protection. I do not have any idea why the DNR thinks it's laws should take away my right to protect my family...
    Anyway, I hope this is the start to see it chasnge once and for all. The DNR needs to be put back in it's place.
    Please let us know if you need any help in this. Also, you might get some real info on this from Wi.Carry. I would give them a call and see what help you might get from them. It might be best to wait on this till the elections are done... I don't know...

    If I were to try to "pull" this off alone, I would talk to Nik at WI.Carry, and Doug H. (ya Doug, you are a work, but you do know your stuff), but again, thats just me... Both can be reached by phone, and thats what I would do...

    Best of luck, this win would help me out for sure.

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    Regular Member davegran's Avatar
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    Very impressive. How long should the process take?
    Dave
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    Regular Member RR_Broccoli's Avatar
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    Quote Originally Posted by AaronS View Post
    I also have talked to a few members of our DNR about my RIGHT to self protection. I do not have any idea why the DNR thinks it's laws should take away my right to protect my family...
    Anyway, I hope this is the start to see it chasnge once and for all. The DNR needs to be put back in it's place.
    Please let us know if you need any help in this. Also, you might get some real info on this from Wi.Carry. I would give them a call and see what help you might get from them. It might be best to wait on this till the elections are done... I don't know...

    If I were to try to "pull" this off alone, I would talk to Nik at WI.Carry, and Doug H. (ya Doug, you are a work, but you do know your stuff), but again, thats just me... Both can be reached by phone, and thats what I would do...

    Best of luck, this win would help me out for sure.
    I have been thinking about this a while, and have a theory.

    We also have the "fork" in the law about getting guns in and out of cars, in cases or not. Where it is impossible to a) not have a concealed firearm and b) not have it within easy reach in a car.

    Here's the point, the DNR, and a lot of other "rule making" bodies in WI have been battling with people who use cars to hunt. I.e. driving down the back roads slowly and poaching deer. This spills over into the crazy "lunge" thing, and to restrictions on pistols in cars.

    That concept, plus the ordinary phobia about guns adds up to the laws and rules we have. I agree, defense in an encampment is probably MORE important than it is in Wal-mart (you sleep, have expensive equipment, and some people drink = target), but the DNR is not concerned about you defending yourself, it's concerned about reckless shooting and poaching of wild-life.

    There are some pretty good reasons why they wouldn't want you to do it, but only as leverage to use against people who would be, but got stopped before they could fire out of a car window at some wildlife or other.

  14. #14
    bhancock
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    I totally agree with your argument, I have also been very much convinced of this being a severe deprivation of the right. It may be too late, but in my case we also use a recreational vehicle intended for occupancy. I feel the right should not only include tents but also pull behind campers and dare I say it, motorized campers or 'motorhomes'. It would be nice to include those in the suit if it wouldn't muddle things.

    This suit when won will also correct a lot of Counties who are saying their restriction in county parks is no more stringent than state statute. Go get em, and beat em!

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    Regular Member cowboyridn's Avatar
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    What I found out today

    Quote Originally Posted by AaronS View Post
    I also have talked to a few members of our DNR about my RIGHT to self protection. I do not have any idea why the DNR thinks it's laws should take away my right to protect my family...
    Anyway, I hope this is the start to see it chasnge once and for all. The DNR needs to be put back in it's place.
    Please let us know if you need any help in this. Also, you might get some real info on this from Wi.Carry. I would give them a call and see what help you might get from them. It might be best to wait on this till the elections are done... I don't know...

    If I were to try to "pull" this off alone, I would talk to Nik at WI.Carry, and Doug H. (ya Doug, you are a work, but you do know your stuff), but again, thats just me... Both can be reached by phone, and thats what I would do...

    Best of luck, this win would help me out for sure.
    I discovered by reading the Wisconsin Statute ß 29.089 that the DNR has two ways of declaring a regulation unconstitutional. The first is under 227.40:

    227.40 Declaratory judgment proceedings. (1) Except as provided in sub. (2), the exclusive means of judicial review of the validity of a rule shall be an action for declaratory judgment as to the validity of such rule brought in the circuit court for Dane County. The officer, board, commission or other agency whose rule is involved shall be the party defendant. The summons in such action shall be served as provided in s. 801.11 (3) and by delivering a copy to such officer or to the secretary or clerk of the agency where composed of more than one person or to any member of such agency. The court shall render a declaratory judgment in such action only when it appears from the complaint and the supporting evidence that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, the legal rights and privileges of the plaintiff.

    Sub (2) The validity of a rule may be determined in any of the following judicial proceedings when material therein: (a) Any civil proceeding by the state or any officer or agency thereof to enforce a statute or to recover thereunder, provided such proceeding is not based upon a matter as to which the opposing party is accorded an administrative review or a judicial review by
    other provisions of the statutes and such opposing party has failed to exercise such right to review so accorded; (b) Criminal prosecutions; (c) Proceedings or prosecutions for violations of county or municipal ordinances; (d) Habeas corpus proceedings relating to criminal prosecution;

    In other words, if you get a citation for a violation of ß 29.089(2) or Natural Resources ß 45.09(1) you have to file for a Declaratory rulings to declare the Statute unconstitutional first.

    And the second is to file a complaint with the Secretary of the Department of Natural Resources and request a hearing for a declaratory ruling under 227.41:

    227.41 Declaratory rulings. (1) Any agency may, on petition by any interested person, issue a declaratory ruling with respect to the applicability to any person, property or state of facts of any rule or statute enforced by it. Full opportunity for hearing shall be afforded to interested parties. A declaratory ruling shall bind the agency and all parties to the proceedings on the statement of facts alleged, unless it is altered or set aside by a court. A ruling shall be subject to review in the circuit court in the manner provided for the review of administrative decisions.

    If the agency finds that the regulation is not unconstitutional and does not agree to change the regulation, than the complaint can be filed in State Court.

    At this point I would first file a complaint with the agency and request a hearing, giving them a chance to declare Wisconsin State Statute ß 29.089(2) and Natural Resources ß 45.09(1) unconstitutional; if that donít work, I will file an action in State Court.



    Don

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    Regular Member cowboyridn's Avatar
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    Discussed on this forum befor only it was before McDonald now its time to take action


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    Regular Member cowboyridn's Avatar
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    Changed venue from Federal court to a State court per Wisconsin Statute 227.40

    I had to change the venue from Federal Court to State court per Wisconsin Statute 227.40. I need help with the Jurisdiction, currently I have the following on the State pleading:

    This Court has federal question jurisdiction over Mr. Marsoís claims for relief, pursuant to 28 U.S.C. ß 1331, because the claims arise under the United States Constitution. Additionally, this Court has jurisdiction pursuant to 28 U.S.C. ß 1343(a)(3) and 42 U.S.C. ß 1983 because this action seeks to redress the deprivation, under color of the laws and regulations of the United States, of rights, privileges, or immunities secured by the United States Constitution.

    I listed the jurisdiction above for the federal court in the federal pleading; can I use the same jurisdiction for State court since it is a federal and state constitutional issue, or do I need to change the jurisdiction because it is now a State pleading? I know all about listing Federal jurisdiction, but, donít have the experience with listing State jurisdiction.

    The statutes for CIVIL PROCEDURE ó PLEADINGS, MOTIONS AND PRETRIAL PRACTICE is chapter 802, of the Wisconsin Statutes or does Wisconsin Statute 227.40 give the court jurisdiction? Do I even need to list jurisdiction, Iíve seen other pleading that were filed in State court and didnít see a jurisdiction listed.

    Any help would be appreciated; itís about all I need to make this complaint complete and ready to file. In reading Wisconsin Statute 227.40, It is my understanding of the statute, that I have the option to file directly to State court, or I can go the administrative route, and have a hearing.

    Thinking about it, Iíll take my chances with a judge for a constitutional issue, than have the DNR decide the issue in a in house hearing.


    Don

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    Regular Member cowboyridn's Avatar
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    How Long?

    Quote Originally Posted by davegran View Post
    Very impressive. How long should the process take?
    I don't know how long it would take to get through the courts. The Nevada case was filed on 7-13-10 and by September 22, they had come to a settlement, so, it depends on if they wish to fight or not.


    Don

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    So you're doing a pro-se case?

    Why don't you contact the folks at Mountain States Legal Foundation and see if they can help you with your case?

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    Regular Member cowboyridn's Avatar
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    Thanks

    Quote Originally Posted by Gray Peterson View Post
    Why don't you contact the folks at Mountain States Legal Foundation and see if they can help you with your case?
    I will contact them, and let you know what they say. thanks

    Don

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    Regular Member cowboyridn's Avatar
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    Thank you. Your legal assistance request was received.

    Quote Originally Posted by Gray Peterson View Post
    Why don't you contact the folks at Mountain States Legal Foundation and see if they can help you with your case?
    Sent them the information via their web page.

    Don

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    Regular Member davegran's Avatar
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    Question Motor Homes as Residemce?

    Quote Originally Posted by bhancock View Post
    I totally agree with your argument, I have also been very much convinced of this being a severe deprivation of the right. It may be too late, but in my case we also use a recreational vehicle intended for occupancy. I feel the right should not only include tents but also pull behind campers and dare I say it, motorized campers or 'motorhomes'. It would be nice to include those in the suit if it wouldn't muddle things.

    This suit when won will also correct a lot of Counties who are saying their restriction in county parks is no more stringent than state statute. Go get em, and beat em!
    I'm sitting in our motor home as I write this from the UP. I can't argue that when we're bombing along the road we're a motor vehicle, but when we're parked, this for all intents and purposes is our residence. I haven't been able to find the Wisconsin definition yet, but if anybody tries to break in, they will quickly learn my definition....

    Here are some Wikepedia definitions:

    • A Residence is an establishment where it was originally or currently being used by a host as their main place of dwelling or home.
    • A house is a home, building or structure that is a dwelling or place for habitation by human beings. The term includes many kinds of dwellings ranging from rudimentary huts of nomadic tribes to free standing individual structures.
    • A home is a place of residence or refuge.[1] It is usually a place in which an individual or a family can rest and be able to store personal property. Most modern-day households contain sanitary facilities and a means of preparing food.
    • Refuge is a place or state of safety.

    Sure sounds like a motor home to me.... And since we have paid a fee to occupy this campsite, do my property rights extend from the motor home all the way to its borders? We sure need a Castle Doctrine to eliminate all the speculation and hoo-hah.
    Dave
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    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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    Founder's Club Member Brass Magnet's Avatar
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    Interesting Article

    Here's an exerpt of an intersting article from Colorado that I found here: http://www.bestbackgroundcheck.org/blog/


    People think you need a concealed handgun permit to carry a gun in your car. By law, you can carry a gun in your car because it’s an extension of your house,” he said.
    I wonder which "law" he is speaking of. I wonder if there is caselaw with this basis that applies in Wisconsin?
    Last edited by Brass Magnet; 10-04-2010 at 10:53 AM.
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    Regular Member IcrewUH60's Avatar
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    Quote Originally Posted by Brass Magnet View Post
    Here's an exerpt of an intersting article from Colorado that I found here: http://www.bestbackgroundcheck.org/blog/




    I wonder which "law" he is speaking of. I wonder if there is caselaw with this basis that applies in Wisconsin?
    Same is true in TX. No licesnce required to carry concealed in your car if you are 21 years or older. It may be the Castle Docterine that applies here?
    "In a court trial half the lawyers are wrong." - Captain Nemo

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    Regular Member cowboyridn's Avatar
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    Letter in reply to th Mountain State Legal Foundation

    Quote Originally Posted by Gray Peterson View Post
    Why don't you contact the folks at Mountain States Legal Foundation and see if they can help you with your case?
    Here is the letter I reveived fromn the Mountain States Legal Foundation, I sent the complaint to them to review, hopfully they will take the case.


    Don
    Last edited by cowboyridn; 11-02-2010 at 06:06 PM. Reason: take attachmnet out

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