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Thread: Still confused about OC in cars...

  1. #1
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    Still confused about OC in cars...

    So I've become interested in OCing again (in the city of Madison! yeah!) after a few months of just not doing it at all, but now I remember why I was turned off of it: the issue of cars. I read the WI statutes http://www.legis.state.wi.us/statutes/Stat0167.pdf which seemed pretty vague to me actually, and I heard of some unfavorable cases of people having their gun too close to them in the car and the court not agreeing with them, but there still seemed to be debate about it, and the failsafe seemed to be "unloaded, encased, far away as possible from you in the car". And that turns me off a lot, because what if I was violently carjacked? Then the criminal would drive off with not only my car and my kids, but with my unloaded encased gun in the trunk as well. So... what gives?

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    OC in car. NO GO. Gun locked in truck. Not necessary. You can keep it wherever you like.

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    Founder's Club Member bnhcomputing's Avatar
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    Shell:

    I think you understand the law very well. Unloaded and encased is useless and ANY of us who carry run the same risk.

    Likewise your choices are simple, carry or not carry. If you do not carry, then you are guaranteed you WILL be a victim if the hypothetical "car jacking" takes place. Carry, and you MIGHT be able to react.

    The LAW says nothing about "out of reach" and there is only one non-binding court case that talks about "out of reach" in a vehicle.

    Life is a crap shoot. It doesn't matter how the dice land, only how you throw them.

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    Regular Member Vandil's Avatar
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    You can keep something like this though.


    Zero reason you cannot keep tools in the car.
    Last edited by Vandil; 10-01-2010 at 06:40 AM.

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    Quote Originally Posted by Vandil View Post
    You can keep something like this though.


    Zero reason you cannot keep tools in the car.
    Just to play devil's advocate, you could be charged for CCW over that knife here in WI.

    In fact, with the wording of 941.23 and the relevant case law, you could have almost anything become a concealed weapon if you use it for that purpose and intended it to be a weapon. Now, would charges over, say, a Phillips screwdriver actually stick? Probably not. But that doesn't mean you won't get arrested for it.

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    Quote Originally Posted by bnhcomputing View Post
    Shell:

    I think you understand the law very well. Unloaded and encased is useless and ANY of us who carry run the same risk.

    Likewise your choices are simple, carry or not carry. If you do not carry, then you are guaranteed you WILL be a victim if the hypothetical "car jacking" takes place. Carry, and you MIGHT be able to react.

    The LAW says nothing about "out of reach" and there is only one non-binding court case that talks about "out of reach" in a vehicle.
    huh? Did somebody repeal the concealed carry ban and not tell me?

    A handgun concealed in a case within reach is concealed - the appeals court has already said so, this has been discussed many times here.

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    Regular Member Vandil's Avatar
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    Quote Originally Posted by drewdown View Post
    Just to play devil's advocate, you could be charged for CCW over that knife here in WI.

    In fact, with the wording of 941.23 and the relevant case law, you could have almost anything become a concealed weapon if you use it for that purpose and intended it to be a weapon. Now, would charges over, say, a Phillips screwdriver actually stick? Probably not. But that doesn't mean you won't get arrested for it.
    Right, I don't keep it velcro'd under the seat and it's dirt encrusted because I use it for gardening. I just toss the HORI-HORI on the floor board right next to the rest of the tools piled up there. It looks right at home. I'm sure if I stabbed the Mc Donalds drive through lady with it over some nuggets I'd be in deep! Just getting stopped for a traffic offense I'm not really worried about it. They usually ask about the axes and chainsaws first!

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    The Fork in Wisconsin Gun Laws, § 941.23 and § 167.31, video link provided.

    http://www.vimeo.com/6115265

    941.23 Carrying concealed weapon. Any person except
    a peace officer who goes armed with a concealed and dangerous
    weapon is guilty of a Class A misdemeanor. Notwithstanding 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.
    History: 1977 c. 173; 1979 c. 115, 221; 2007 a. 27.

    The burden is on the defendant to prove that he or she is a peace officer and within
    the exception. State v. Williamson, 58 Wis. 2d 514, 206 N.W.2d 613 (1973).

    A defendant was properly convicted under this section for driving a vehicle with
    a gun locked in a glove compartment. State v. Fry, 131 Wis. 2d 153, 388 N.W.2d 565
    (1986).


    To “go armed” does not require going anywhere. The elements for a violation of
    s. 941.23 are: 1) a dangerous weapon is on the defendant’s person or within reach;
    2) the defendant is aware of the weapon’s presence; and 3) the weapon is hidden.

    State v. Keith, 175 Wis. 2d 75, 498 N.W.2d 865 (Ct. App. 1993).


    A handgun on the seat of a car that was indiscernible from ordinary observation
    by a person outside, and within the immediate vicinity, of the vehicle was hidden from
    view for purposes of determining whether the gun was a concealed weapon under this
    section. State v. Walls, 190 Wis. 2d 65, 526 N.W.2d 765 (Ct. App. 1994).


    There is no statutory or common law privilege for the crime of carrying a concealed
    weapon under s. 941.23. State Dundon, 226 Wis. 2d 654, 594 N.W.2d 780 (1999),
    97−1423.

    Under the facts of the case, the privilege of of self−defense was inapplicable to a
    charge of carrying a concealed weapon. State v. Nollie, 2002 WI 4, 249 Wis. 2d 538,
    638 N.W.2d 280, 00−0744.

    The concealed weapons statute is a restriction on the manner in which firearms are
    possessed and used. It is constitutional under Art. I, s. 25. Only if the public benefit
    in the exercise of the police power 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. The right to keep and bear
    arms for security, as a general matter, must permit a person to possess, carry, and
    sometimes conceal arms to maintain the security of a private residence or privately
    operated business, and to safely move and store weapons within those premises. State
    v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785, 01−0056. 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 statute?
    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.

    This section is constitutional as applied in this case. The defendant’s interest in
    exercising his right to keep and bear arms for purposes of security by carrying a concealed
    weapon in his vehicle does not substantially outweigh the state’s interest in
    prohibiting him from carrying a concealed weapon in his vehicle. State v. Fisher,
    2006 WI 44, 290 Wis. 2d 121, 714 N.W.2d 495, 04−2989.

    Judges are not peace officers authorized to carry concealed weapons. 69 Atty. Gen.
    66.



    167.31 Safe use and transportation of firearms and
    bows. (1) DEFINITIONS. In this section:
    (a) “Aircraft” has the meaning given under s. 114.002 (3).
    (b) “Encased” means enclosed in a case that is expressly made
    for the purpose of containing a firearm and that is completely
    zipped, snapped, buckled, tied or otherwise fastened with no part
    of the firearm exposed.
    [ ... ]
    (g) “Unloaded” means any of the following:
    1. Having no shell or cartridge in the chamber of a firearm or
    in the magazine attached to a firearm.
    2. In the case of a cap lock muzzle−loading firearm, having
    the cap removed.
    3. In the case of a flint lock muzzle−loading firearm, having
    the flashpan cleaned of powder.
    (h) “Vehicle” has the meaning given in s. 340.01 (74), and
    includes a snowmobile, as defined in s. 340.01 (58a), and an electric
    personal assistive mobility device, as defined in s. 340.01
    (15pm), except that for purposes of subs. (4) (c) and (cg) and (4m)
    “vehicle” has the meaning given for “motor vehicle” in s. 29.001
    (57).

    (2) PROHIBITIONS; MOTORBOATS AND VEHICLES; HIGHWAYS AND
    ROADWAYS.
    (a) Except as provided in sub. (4), no person may
    place, possess or transport a firearm, bow or crossbow in or on a
    motorboat with the motor running, unless the firearm is unloaded
    or unless the bow or crossbow is unstrung or is enclosed in a carrying
    case.
    (b) Except as provided in sub. (4), no person may place, possess
    or transport a firearm, bow or crossbow in or on a vehicle,
    unless the firearm is unloaded and encased or unless the bow or
    crossbow is unstrung or is enclosed in a carrying case.

    [ ... ]
    (c) A person who violates par. (a) or (b) shall be fined not more
    than $1,000 or imprisoned not more than 90 days or both.

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    Vandil:
    Just be careful if you enter Milwaukee county with such a knife. Milwaukee county ordinance 63.015 prohibits possessionof any knife with a blade longer than 3 inches.

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    § 941.23 includes knives. There is no exception for a concealed knife-weapon.

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    Mike:
    Please cite the appeals court case you refer to. If it is State v Alloy your comment is misleading. Alloy is an unpublished opinion. Being unpublished it has no judicial precedence in the state of Wisconsin.

    809.23(3)
    (3) Citation of unpublished opinions.

    809.23(3)(a)
    (a) An unpublished opinion may not be cited in any court of this state as precedent or authority, except to support a claim of claim preclusion, issue preclusion, or the law of the case, and except as provided in par. (b).

    The State Supreme Court did modify this statute in 2008 and allows unpublished opinion to be cited if they have been ruled after July 1, 2009. All unpublished opinion prior to that date are still not allowed to be cited in a legal brief.
    Last edited by Captain Nemo; 10-01-2010 at 08:22 AM.

  12. #12
    Regular Member Vandil's Avatar
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    Quote Originally Posted by Captain Nemo View Post
    Vandil:
    Just be careful if you enter Milwaukee county with such a knife. Milwaukee county ordinance 63.015 prohibits possessionof any knife with a blade longer than 3 inches.
    So if I go to ACE in Milwaukee, buy a HORI-HORI put it in the shopping bag, put the bag on my passenger seat I'm in violation?

    Here is the Fiskars brand WI product. Little less Knife like but just as sharp.
    Last edited by Vandil; 10-01-2010 at 08:23 AM.

  13. #13
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    If the blade is longer than three inches and you are in possession then you are also in violation of the MKE code.

    If it is hidden, you know it and it is within reach then you are in violation of State Statute.

    A passenger seat or a shopping bag are inconsequential.

    What about the Fiskars' product makes it a "WI product"?
    Last edited by Doug Huffman; 10-01-2010 at 08:35 AM.

  14. #14
    Regular Member Vandil's Avatar
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    Note to self: You are now a criminal every time you drive back from your shared garden plot or parents place and are to lazy to put your gardening/logging crap in the trunk.

    Yeah Fiskars is global but
    "Fiskars Brands, Inc. was formerly known as Fiskars Consumer Products, Inc. The company was founded in 1984 and is headquartered in Madison, Wisconsin"
    Last edited by Vandil; 10-01-2010 at 08:37 AM.

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    Regular Member Interceptor_Knight's Avatar
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    Quote Originally Posted by Mike View Post
    huh? Did somebody repeal the concealed carry ban and not tell me?

    A handgun concealed in a case within reach is concealed - the appeals court has already said so, this has been discussed many times here.
    What has been discussed here and has never been addressed by the appeals court is a legally encased firearm (not otherwise hidden) being within reach. There is no case law regarding such a scenerio.
    The cases people love to use as basis for their premise were either an encased firearm hidden from view by being placed inside another container or a firearm laying on the seat without being encased.

  16. #16
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    Quote Originally Posted by Vandil View Post
    Note to self: You are now a criminal every time you drive back from your shared garden plot or parents place and are to lazy to put your gardening/logging crap in the trunk.
    Tools, a bat, a kitchen knife are not weapons..... Unless when you are pulled over and asked what purpose they serve and you answer "for self defense"..

  17. #17
    Regular Member Vandil's Avatar
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    In honor of still being allowed to carry my garden trowel of freedom I've changed my avatar.

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    Quote Originally Posted by Doug Huffman View Post
    If the blade is longer than three inches and you are in possession then you are also in violation of the MKE code.

    If it is hidden, you know it and it is within reach then you are in violation of State Statute.

    A passenger seat or a shopping bag are inconsequential.

    What about the Fiskars' product makes it a "WI product"?
    So this would make it illegal for a chef to keep his tools in his car with him (knife set)

    Nowhere in WI law does it say a firearm needs to be out of reach, please quit proliferating that myth! It is complete and utter BS!!

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    Nutczak:
    The discussion is about knives not firearms. The water gets pretty muddy when it comes to knives and other dangerous weapons. The vehicle transport statute 167.31 only applies to firearms, bows and crossbows. Vehicle transport of knives and other dangerous weapons can not use compliance with 167.31 as a defense against 941.23 (my opinion). The conditions that the WSC says defines concealement is 1. The weapon is hidden fron ordinary view. 2.The person knows the weapon is present 3. The weapon is within reach. If all conditions are present the state can prosecute for concealment. If the "dangerous weapon is not a firearm, bow, or crossbow statute 167.31 is moot. As I said, my opinion.

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    I think its time we get the clarification for the few doubters that think firearms have to be out of reach.

  21. #21
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    Quote Originally Posted by Springfielddx40 View Post
    I think its time we get the clarification for the few doubters that think firearms have to be out of reach.
    The only way to even begin to get "clarification" is for someone to be charged with concealed carry because an encased firearm was within reach and not otherwise hidden. Anything else is simply an opinion. The odds of the AG publishing another memo are likely next to zero.
    We know that it is unlikely a DNR Warden would cite for concealed carry in such a scenerio as they are primarily concerned about it being legally encased. A concealed weapon citation would likely occur in a larger city and not a small town or village, etc.. It may be a long time before such a citation goes to court and the person is willing to fight it as they were not otherwise violating WI Statutes. We know of several occasions within the past year where board members were not cited for CCW when pulled over by police or just talking to police and their firearm was within reach on the front or rear seat.

    More than one of the cases people like to refer to as "proof" that it must be out of reach involved drug possession, etc... in addition to Concealed Carry.
    Last edited by Interceptor_Knight; 10-01-2010 at 10:16 AM.

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    Quote Originally Posted by Interceptor_Knight View Post

    More than one of the cases people like to refer to as "proof" that it must be out of reach involved drug possession, etc... in addition to Concealed Carry.

    Sheeple have a hard time with such things.

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    As I posted, the area concerning knives and other dangerous weapons is "muddy". Factors taken into consideration is the design and intended use of the weapon and the manner in which it is used if used to commit a crime. The peaceful transport of a set of kitchen knives from the local Wal-Mart would likely be considered harmless by the courts. The transport of knives designed for tactical use i. e. a Hori-Hori, Samurai sword, possibly a hunting knife, tactical knives etc. may be viewed otherwise by the courts. In other words it depends. (my opinion).

    939.22(10)
    (10) "Dangerous weapon" means any firearm, whether loaded or unloaded; any device designed as a weapon and capable of producing death or great bodily harm; any ligature or other instrumentality used on the throat, neck, nose, or mouth of another person to impede, partially or completely, breathing or circulation of blood; any electric weapon, as defined in s. 941.295 (4); or any other device or instrumentality which, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm.

    The definition of " dangerous weapon" appears to require two conditions. First: It must be designed as a weapon. Second: It must be capable of producing death or great bodily harm.

    A point concerning "out of reach" of certain "dangerous weapons":

    The concealed carry prohibition statute 941.23 reads:

    941.23 Carrying concealed weapon. Any person except a peace officer who goes armed with a concealed and dangerous weapon is guilty of a Class A misdemeanor. Notwithstanding 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.

    In State v Walls the WSC ruled that a handgun sitting on the passenger seat of an automobile was out of ordinary view from outside the vehicle and therefore was concealed. A firearm is but one kind of "dangerous weapon". It would seem to imply that "concealment" would apply to any qualified "dangerous weapon" sitting on the passenger seat of a vehicle.

    Caveat: The statutes I reference above are state statutes. Milwaukee county ordinance 63.015 catergorizes any knife with a blade longer than 3 inches as a dangerous weapon. Also bear in mind that the preemption statute 66.0409 does not apply to dangerous weapons other than firearms.

    My opinions.
    Last edited by Captain Nemo; 10-01-2010 at 10:49 AM.

  24. #24
    McX
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    now i am completely confused;unloaded, encased, riding on front seat next to me is concealed?

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    MCX:
    welcome to the club.

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