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Congrats to Dane County Sheriff's Office

Motofixxer

Regular Member
Joined
May 14, 2010
Messages
965
Location
Somewhere over the Rainbow
This is a Sheriff's Office Memo regarding Open Carrying. It seems they are trying to make policy clear.

TO: Field Services Staff

FROM: Capt. Jeff Hook

REF: Open Carry

With the increased publicity of the “Open Carry” Law and a high probability for persons to exercise this right, it is necessary to outline the Dane County Sheriff’s Office response to these incidents.

It is the responsibility of the Dane County Sheriff’s Office to:

Preserve and protect public safety.
Investigate and determine whether a crime has been committed or is about to be committed.
Protect the constitutional rights of those involved.

It is difficult to balance all three of these responsibilities when it comes to resolving incidents involving the “Open Carry” Law.

When determining whether to charge or cite someone who is openly carrying a firearm, there must be additional facts and circumstances present to substantiate a charge. Most statutes regarding firearms clearly define the combination of conduct and circumstances that limit the right to possess firearms. They are as follows:

Endangering Safety by Use of a Firearm (Wis. Stat.  941.20)
Carrying a Concealed Weapon (Wis. Stat.  941.23)
Carrying Firearms in a Public Building (Wis. Stat.  941.235)
Carrying a Firearm Where Alcoholic Beverages are Sold or Consumed (Wis. Stat.  941.237)
Possession of a Firearm by a Juvenile (Wis. Stat.  948.60)
Possession of a Firearm in a School Zone (Wis. Stat.  948.605)
Felon in Possession of a Firearm (Wis. Stat.  941.29)
Safe Use and Transportation of a Firearm (Wis. Stat.  167.31)

However, when applying Disorderly Conduct (947.01) to an “Open Carry” incident there is no clearly defined rule or standard. Wisconsin Attorney General J.B. Van Hollen stated in a memorandum to Wisconsin District Attorneys regarding the “Open Carry” Law, Article I,  25 of the Wisconsin Constitution, “The Wisconsin Department of Justice believes that mere open carry of a firearm, absent additional facts and circumstances, should not result in a disorderly conduct charge.” It is impossible to specify every circumstance or conduct that would be considered disorderly. In cases of persons openly carrying a firearm, they must also engage in “violent, abusive, indecent, profane, boisterous, unreasonably loud, or similar conduct” and the conduct “occurred under circumstances where such conduct tends to cause or provoke a disturbance”.

While conducting an investigation, a deputy may stop and identify a person openly carrying a firearm in public for investigative purposes. Without “reasonable suspicion” of criminal activity based on articulable facts, the contact must be voluntary and consensual. Therefore, the subject can refuse to answer questions or identify themselves. However, if during contact with a person openly carrying “reasonable suspicion” is developed, the deputy may detain and demand answers to questions and identification (Terry stop). Reasonable suspicion is based upon the totality of the circumstances, including any information known to the officer and any reasonable inferences that can be drawn from the persons conduct at the time of the stop, that criminal activity has just taken place or is about to take place.

It is also important to note, businesses or owners of privately owned property can determine open carrying of a firearm is not permitted on their premises. The notification can be done by posting signs or verbally informing individuals of the policy.

Therefore, it is not the position of the Dane County Sheriff’s Office to automatically cite or arrest someone when legally exercising their constitutional right to openly carry a firearm. There must be additional facts, conduct, and circumstances to justify enforcement action. In addition, contact must be voluntary with persons openly carrying a firearm unless there is “reasonable suspicion” of criminal activity.

To read the Attorney General’s memorandum go to http://www.doj.state.wi.us/news/files/FinalOpenCarryMemo.pdf or read the discussions at http://www.wilenet.org/
 

Captain Nemo

Regular Member
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Apr 11, 2010
Messages
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Somewhere, Wisconsin, USA
I don't mean to throw cold water on this memo. Wouldn't be wonderful if 71 more sheriffs issued such a memo? However there is one error in the memo. The reference to statute 941.237 in the memo reads; --sold or consumed-- The words in the statue read --sold and consumed--. A minor detail but one that could lead to confusion. For example: if a person were to be stopped by sheriff deputies while open carrying in a liquor store.
 

MKEgal

Regular Member
Joined
Jan 8, 2010
Messages
4,383
Location
in front of my computer, WI
What if we used this as a catalyst to get each of our local county sheriffs to issue a similar memo?
Do we have members in each county yet?

Write a nice letter asking that Sheriff X reaffirm her/his support for the laws of the state & country, as well as update the deputies on staff about issues which have recently caused problems for other departments.
 

since9

Campaign Veteran
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Jan 14, 2010
Messages
6,964
Location
Colorado Springs, Colorado, USA
It's certainly a large step in the right direction!

I'd ask for clarification on: "In addition, contact must be voluntary with persons openly carrying a firearm..."

Does that mean "voluntary on the part of the person openly carrying a firearm" or "voluntary on the part of the law enforcement officer?"

Furthermore, what happens then? If I were to say "Hello," or "Good evening" to a law enforcement officer in Wisconsin, would that somehow give them the right to stop/detain me for further questioning along the long lines of the many reasons the sheriff cited for further detention and arrest?

I don't think any state's open carriers will be out of the woods until that state has a law on the books which specifically prohibits law enforcement from making contact or conducting a stop, detention, or arrest based solely on open carry status. Furthermore, another hurdle that is in a few states, and should be in all states, is that any charge be "specifically articulable," that is, "I saw the individual crossing the middle of the road i.e. jaywalking when a crosswalk was within 60 feet distance."

Even then, the charge would be jaywalking, not open carry! (which is a legal action in most states, after all). Commensurate with that, however, I was both surprised and pleased that the sheriff specifically mentioned the activities which, when conducted while possessing a firearm, are only then considered illegal. He was clear distinguish these from the simple act of open carry, which is, by itself, a law-abiding activity.

As I said - it's a big step in the right direction, and that sheriff deserves recognition for his leadership in this area.
 

Captain Nemo

Regular Member
Joined
Apr 11, 2010
Messages
1,029
Location
Somewhere, Wisconsin, USA
Good idea MKEgal. Already done on my part. I sent a copy of the memo and asked if the sheriff of my county concurred and planned to release a similar memo. Sure wish Dane county had done this sooner. There are a number of sheriffs running for re-election.
 

Doug Huffman

Banned
Joined
Jun 9, 2006
Messages
9,180
Location
Washington Island, across Death's Door, Wisconsin,
Another A Dios. "I think I've done my best for a while, so I'll let things rest "

May someone else take up the fight commensurate with Federal and CRS law, six ways to Sunday, never hold back, EVER.

EVER.

Period, bare none. You're defending our law and Constitutional rights, so ride on!!
Hasta lumbago, Diego. Don't let the door hit ya' where the Good Lord made you in His Image.
.
It's certainly a large step in the right direction!

I'd ask for clarification on: "In addition, contact must be voluntary with persons openly carrying a firearm..."

Does that mean "voluntary on the part of the person openly carrying a firearm" or "voluntary on the part of the law enforcement officer?"

Furthermore, what happens then? If I were to say "Hello," or "Good evening" to a law enforcement officer in Wisconsin, would that somehow give them the right to stop/detain me for further questioning along the long lines of the many reasons the sheriff cited for further detention and arrest?

I don't think any state's open carriers will be out of the woods until that state has a law on the books which specifically prohibits law enforcement from making contact or conducting a stop, detention, or arrest based solely on open carry status. Furthermore, another hurdle that is in a few states, and should be in all states, is that any charge be "specifically articulable," that is, "I saw the individual crossing the middle of the road i.e. jaywalking when a crosswalk was within 60 feet distance."

Even then, the charge would be jaywalking, not open carry! (which is a legal action in most states, after all). Commensurate with that, however, I was both surprised and pleased that the sheriff specifically mentioned the activities which, when conducted while possessing a firearm, are only then considered illegal. He was clear distinguish these from the simple act of open carry, which is, by itself, a law-abiding activity.

As I said - it's a big step in the right direction, and that sheriff deserves recognition for his leadership in this area.
 

Doug Huffman

Banned
Joined
Jun 9, 2006
Messages
9,180
Location
Washington Island, across Death's Door, Wisconsin,
Good idea MKEgal. Already done on my part. I sent a copy of the memo and asked if the sheriff of my county concurred and planned to release a similar memo. Sure wish Dane county had done this sooner. There are a number of sheriffs running for re-election.
I have asked for authentication from the Dane Co. SO. Believe nothing that you read or hear without verifying it yourself unless it fits your preexisting worldview.
 

Brass Magnet

Founder's Club Member
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Apr 23, 2009
Messages
2,818
Location
Right Behind You!, Wisconsin, USA
This part is key, and the way Madison should have handled it:
In cases of persons openly carrying a firearm, they must also engage in “violent, abusive, indecent, profane, boisterous, unreasonably loud, or similar conduct” and the conduct “occurred under circumstances where such conduct tends to cause or provoke a disturbance”.

:
However, if during contact with a person openly carrying “reasonable suspicion” is developed, the deputy may detain and demand answers to questions and identification (Terry stop).
Although this isn't wrong, this part is incomplete. He should remind his officers that even if they can demand the ID, they have no legal recourse if anyone refuses. Since detainment during a Terry stop must be for a reasonable amount of time they could only hold them that amount, trying to get ID out of them and let them go.
 
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Motofixxer

Regular Member
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May 14, 2010
Messages
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Location
Somewhere over the Rainbow
I have asked for authentication from the Dane Co. SO.

Don't worry Doug, it's authenticated!!! The origination is authentic, but there is always the issue of officer discretion, and there are no guarantees for that. I do know there are deputies that don't necessarily agree with it. Some have been schooled on it. I'm sure there are others that still need to be, as with any department.
 

JoeSparky

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Joined
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Pleasant Grove, Utah, USA
Quote Originally Posted by Motofixxer View Post
In cases of persons openly carrying a firearm, they must also engage in “violent, abusive, indecent, profane, boisterous, unreasonably loud, or similar conduct” and the conduct “occurred under circumstances where such conduct tends to cause or provoke a disturbance”.

This is fine as it is, BUT with the addition of, "if they were NOT armed." to be placed right at the end of the above! So the activity engaged in absent the presence of a firearm would be enough by it self!

I hope the above makes sense to others and not just to me!
 
Last edited:

Spartacus

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Dec 13, 2009
Messages
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La Crosse, Wisconsin, USA
Quote Originally Posted by Motofixxer View Post
In cases of persons openly carrying a firearm, they must also engage in “violent, abusive, indecent, profane, boisterous, unreasonably loud, or similar conduct” and the conduct “occurred under circumstances where such conduct tends to cause or provoke a disturbance”.

This is fine as it is, BUT with the addition of, "if they were NOT armed." to be placed right at the end of the above! So the activity engaged in absent the presence of a firearm would be enough by it self!

I hope the above makes sense to others and not just to me!

Sure.

The charge of disorderly conduct is independent of the possession of a handgun. This is what the cops are becoming aware of.
 

Brass Magnet

Founder's Club Member
Joined
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Messages
2,818
Location
Right Behind You!, Wisconsin, USA
This is fine as it is, BUT with the addition of, "if they were NOT armed." to be placed right at the end of the above! So the activity engaged in absent the presence of a firearm would be enough by it self!

I hope the above makes sense to others and not just to me!

I don't see a problem the way they have it worded. You can not COMPLETELY ignore the handgun. For instance, a man walking down the street with a gun in his holster, waving his hands around is fine. If he's got a gun in his hand and is waving it around, it's not.

Not that I like the disorderly conduct statute.........
 
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