johnny amish
Regular Member
I could not agree more.
I don't care if you are off duty LEO, a socker mom, a teacher, preacher or anything else, every law abiding citizen should have the right to protect themselves.
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Is this a violation
- Thread starter Uziel Gal
- Start date
I could not agree more.
I don't care if you are off duty LEO, a socker mom, a teacher, preacher or anything else, every law abiding citizen should have the right to protect themselves.
metalman383
Regular Member
Basically, this comes down to an average citizen, defending themselves with a conceiled weapon. Since no one knew he was an officer, I think this could be used to show, why we feel the need to carry.
bluehighways
Regular Member
Beretta-m9
Regular Member
ok for them but not me ? I think not.
Beretta-m9
Regular Member
Correct no law-abiding citizen should be prosecuted but that does not stop it from happening
if your breaking 948.605 then you aren't actualy law abiding are you.
If it's something they would happily convict me of they should be held to the same standard until said law is actualy changed or THAT is total hippocracy.
Nutczak
Regular Member
Maybe this incident should be used as a cite to the absurdity of the WI GFSZ laws in the challenge that has already been filed by WCI
lockman
State Researcher
Picking and choosing who to prosecute based on occupation with no statutory distinction is an equal protection violation of the type that occurs daily.
The point is the law is an ass and should not be used against anyone exercising their fundamental rights. If the prosecutor did file the case in the current political climate I bet it would be the beginning of the end for the WI GFSZ act.
keepyourreceipt
Regular Member
If anything it just shows why we need constitutional carry. Setting aside the GFSZ issue, had that guy not been an off duty cop and just another innocent law abiding citizen, he would have been the victim to that robber (unless OCing). But because its an off duty cop he has the right to defend himself. That is exactly why we all should have that same right!
GLOCK21GB
Campaign Veteran
they make em up as they go.
Carcharodon
Regular Member
I hate the GFSZ and can't wait to see it repealed. But, it hasn't happened yet. If this was you or me being the shooter, you can bet we would be fighting(and losing) against two felony charges. Not to mention attempted murder. This guy should get the same treatment we would. No matter that we know he was right for carrying to protect himself. I don't like it but that's the way it should work. But I'm sure being an officer will somehow change the outcome.
LR Yote 312
Regular Member
Clearly another case that proves criminals could care less about an imaginary line and are using this imaginary line to their advantage.
LR Yote
LR Yote
kawisixer01
Regular Member
I don't want anyone charged because of the obvious torrent this causes upon their lives. But one of the only ways to get laws changed is through precedence setting caselaw. If this man were to be charged and charges thrown out it sets the precedence for future cases and pushes law to be changed. In all reality if charged this guy would likely get free legal defense, either through his union or other ways, all the while the charges likely will get thrown out and precedence in our favor will be laid down. These types of things aren't easily gotten by asking and pleading, they are set down by hard cases fought and won or lost in the courts. Unfortunately people wrongly charged or overcharged are those who pay the price.
Bill Starks
State Researcher
Uhh you might want to read Title 18 U.S.C. §922(q) School Zones
Title 18 Part 1 Chapter 44 Section 922 (unlawful acts)
United States Code - TITLE 18 - CRIMES AND CRIMINAL PROCEDURE - PART I - CRIMES - CHAPTER 44 - FIREARMS - section 922
BATFE Opinion (2002) on Reciprocity: http://www.handgunlaw.us/documents/batf_school_zone.pdf
The original version of this law, passed in 1990, was struck down by the US Supreme Court in "United States v Lopez (1995)," because Congress had not claimed a connection to "interstate commerce," however the second version, the one which is currently on the books, was upheld as recently as 2005 by the United States Court of Appeals for the Ninth Circuit in the case United States v Dorsey.
One exception to this law, is if the firearm is unloaded and in a locked container.
A second exception is having the firearm "on private property not part of school grounds." Remember, the roads/highways/sidewalks are not private property, so this exception does not apply while driving on public streets.
A third exception, is if the person possessing the firearm has a concealed carry permit issued by the State in which the school zone is located. This means that as the law is written, and as it has been interpreted by BATFE, if a person with a concealed carry permit is in any State other than the State that physically issued their permit, and they drive within 1000 feet of any K-12 school (which is impossible to avoid) with an unlocked gun, they are committing a federal crime. Violation of this law is punishable by up to five (5) years in federal prison and a conviction will bar a person from owning firearms for life
There was even a case in 2000 (United States v Tait) where an Alabama concealed carry permit holder was prosecuted under this federal law, for carrying a firearm in Alabama. The prosecution claimed that Mr. Tait's Alabama permit did not exempt him from the Federal Gun Free School Zones Act, even in Alabama.
In another case, United States v Nieves-Castaño, a woman was actually convicted under the Federal Gun Free School Zones Act for having a firearm in her home! Her home (a third floor apartment) just happened to be within 1000 feet of a school and it happened to be public property (a housing project). She was not a student, and her conduct had absolutely nothing to do with the school. This conviction was upheld by the Federal Appeals Court for the First Circuit in 2007.
Ironically, law enforcement officers carrying a handgun under LEOSA are not exempt from the GFSZA, unless they are acting in their official capacity. This means that a law enforcement officer, carrying under LEOSA while on vacation with their family, can not drive within 1000 feet of a school without risking five years in federal prison.
Also note, there is no exception in the law for the discharge of a firearm by anyone other than a law enforcement officer acting in their official capacity on public property while in a school zone (within 1000 feet of the property line of any K-12 school), under any circumstance. This could conceivably be an issue if you're the victim of a violent crime while on public property such as roads, sidewalks, fair grounds, city parks, etc.
Many people think this law has never been enforced. Unfortunately this is not the case. This revised law has indeed been enforced, against several people, below are a few examples:
United States v Danks (1999) USA v. Jordan Danks
United States v Tait (2000) (Attempted prosecution of an Alabama permit holder) 202 F3d 1320 United States v. Tait | OpenJurist
United States v Haywood (2003) UNITED STATES of America v. Ira HAYWOOD, Appellant.
United States v Dorsey (2005) (Upheld the revised law as constitutional) UNITED STATES of America, Plaintiff-Appellee, v. Nikos Delano DORSEY, Defendant-Appellant.
United States v Smith (2005) USA v. Smith This case says that the mere movement of the gun's component parts in Interstate Commerce is enough to satisfy the jurisdictional element needed for conviction.
United States v Nieves-Castaño (2007) UNITED STATES of America, Appellee, v. Belen NIEVES-CASTAÑO, Defendant, Appellant. A woman was convicted for having a gun in her home; which happened to be within 1000ft of a school.
United States v Weekes (2007) [UNITED]UNITED STATES OF AMERICA v. PHINEHAS WEEKES, Appellant STATES OF AMERICA v. PHINEHAS WEEKES[/url]
United States v Benally (2007) http://caselaw.findlaw.com/us-10th-circuit/1364658.html
United States v Cruz-Rodriguez (2008) Untitled #1668141
United States Code - TITLE 18 - CRIMES AND CRIMINAL PROCEDURE - PART I - CRIMES - CHAPTER 44 - FIREARMS - section 922
BATFE Opinion (2002) on Reciprocity: http://www.handgunlaw.us/documents/batf_school_zone.pdf
The original version of this law, passed in 1990, was struck down by the US Supreme Court in "United States v Lopez (1995)," because Congress had not claimed a connection to "interstate commerce," however the second version, the one which is currently on the books, was upheld as recently as 2005 by the United States Court of Appeals for the Ninth Circuit in the case United States v Dorsey.
One exception to this law, is if the firearm is unloaded and in a locked container.
A second exception is having the firearm "on private property not part of school grounds." Remember, the roads/highways/sidewalks are not private property, so this exception does not apply while driving on public streets.
A third exception, is if the person possessing the firearm has a concealed carry permit issued by the State in which the school zone is located. This means that as the law is written, and as it has been interpreted by BATFE, if a person with a concealed carry permit is in any State other than the State that physically issued their permit, and they drive within 1000 feet of any K-12 school (which is impossible to avoid) with an unlocked gun, they are committing a federal crime. Violation of this law is punishable by up to five (5) years in federal prison and a conviction will bar a person from owning firearms for life
There was even a case in 2000 (United States v Tait) where an Alabama concealed carry permit holder was prosecuted under this federal law, for carrying a firearm in Alabama. The prosecution claimed that Mr. Tait's Alabama permit did not exempt him from the Federal Gun Free School Zones Act, even in Alabama.
In another case, United States v Nieves-Castaño, a woman was actually convicted under the Federal Gun Free School Zones Act for having a firearm in her home! Her home (a third floor apartment) just happened to be within 1000 feet of a school and it happened to be public property (a housing project). She was not a student, and her conduct had absolutely nothing to do with the school. This conviction was upheld by the Federal Appeals Court for the First Circuit in 2007.
Ironically, law enforcement officers carrying a handgun under LEOSA are not exempt from the GFSZA, unless they are acting in their official capacity. This means that a law enforcement officer, carrying under LEOSA while on vacation with their family, can not drive within 1000 feet of a school without risking five years in federal prison.
Also note, there is no exception in the law for the discharge of a firearm by anyone other than a law enforcement officer acting in their official capacity on public property while in a school zone (within 1000 feet of the property line of any K-12 school), under any circumstance. This could conceivably be an issue if you're the victim of a violent crime while on public property such as roads, sidewalks, fair grounds, city parks, etc.
Many people think this law has never been enforced. Unfortunately this is not the case. This revised law has indeed been enforced, against several people, below are a few examples:
United States v Danks (1999) USA v. Jordan Danks
United States v Tait (2000) (Attempted prosecution of an Alabama permit holder) 202 F3d 1320 United States v. Tait | OpenJurist
United States v Haywood (2003) UNITED STATES of America v. Ira HAYWOOD, Appellant.
United States v Dorsey (2005) (Upheld the revised law as constitutional) UNITED STATES of America, Plaintiff-Appellee, v. Nikos Delano DORSEY, Defendant-Appellant.
United States v Smith (2005) USA v. Smith This case says that the mere movement of the gun's component parts in Interstate Commerce is enough to satisfy the jurisdictional element needed for conviction.
United States v Nieves-Castaño (2007) UNITED STATES of America, Appellee, v. Belen NIEVES-CASTAÑO, Defendant, Appellant. A woman was convicted for having a gun in her home; which happened to be within 1000ft of a school.
United States v Weekes (2007) [UNITED]UNITED STATES OF AMERICA v. PHINEHAS WEEKES, Appellant STATES OF AMERICA v. PHINEHAS WEEKES[/url]
United States v Benally (2007) http://caselaw.findlaw.com/us-10th-circuit/1364658.html
United States v Cruz-Rodriguez (2008) Untitled #1668141
In essence, Title 18 U.S.C Part 1 Chapter 44 Section 922(q) known as the Federal Gun Free School Zones Act of 1995 currently on the books, effectively bans all concealed carry reciprocity agreements between States, by making it illegal for any person to have a functional firearm within 1000 Feet of the property line of any Elementary or High School in our country, with very few exceptions.
BROKENSPROKET
Regular Member
Seventeen links. Why couldn't post this when I was unelmployed.
EDITED TO ADD: i an mot tanked, but well by9ond buzzzzzzed. I feeel like a 3rd grader with major ADD.
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eye95
Well-known member
At least one of the links does not illustrate what it is purported as illustrating.
Being from Alabama, I was motivate to actually follow the link to US v Tait. The government was not making a broad argument that a State license should not provide a valid exceptions to the GFSA. They argued specifically that the Alabama permit did not meet the requirements of the GFSA, that the background check was not thorough enough. The court flat ruled against this argument.
The government further argued that the license individually issued was invalid as the defendant was a convicted felon. The court again ruled against this argument, pointing out that the defendant's rights had all been restored by Michigan, where he had been convicted.
This case is an affirmation of the protection that this law provides to license-holders against being convicted under it. It is not proper to use this case to cause concern among license-holders who might carry in a GFSZ.
That someone puts forth an argument is no cause for concern. It is the ultimate ruling that we need to praise or decry. In this case, the outcome was a good one--except for the defendant who likely still went to jail for assault with a deadly weapon, the actual crime that he committed by holding a loaded gun to the head of a student.
Being from Alabama, I was motivate to actually follow the link to US v Tait. The government was not making a broad argument that a State license should not provide a valid exceptions to the GFSA. They argued specifically that the Alabama permit did not meet the requirements of the GFSA, that the background check was not thorough enough. The court flat ruled against this argument.
The government further argued that the license individually issued was invalid as the defendant was a convicted felon. The court again ruled against this argument, pointing out that the defendant's rights had all been restored by Michigan, where he had been convicted.
This case is an affirmation of the protection that this law provides to license-holders against being convicted under it. It is not proper to use this case to cause concern among license-holders who might carry in a GFSZ.
That someone puts forth an argument is no cause for concern. It is the ultimate ruling that we need to praise or decry. In this case, the outcome was a good one--except for the defendant who likely still went to jail for assault with a deadly weapon, the actual crime that he committed by holding a loaded gun to the head of a student.
lockman
State Researcher
This law was already found to be unconstitutional. Why would anyone expect that the same law will be constitutional with no changes in substance. The only difference is the statement that it does affect interstate commerce. The substance of that statement has already been asked and answered by SCOTUS.
Interceptor_Knight
Regular Member
Unless the courts rule it unconstitutional, it will continue to be upheld and used to ruin more lives of innocent gun owners.
Mugenlude
Campaign Veteran
Uziel Gal
Regular Member
Does private property mean taxes are optional?
Although the exact location was disclosed the next day, it is still likely that the officer had to drive through a GFSZ on a public roadway to enter said parking lot, and may have been illegally transporting a firearm as well.
The real question is does the GFSZ Act prohibit "off-duty" law enforcement or are they "licensed by the state". There job allows them to carry concealed weapons in Wisconsin and their ID allows them to carry concealed by the Federal Government. I am not sure that they have a license that exempts them from the Federal or State GFSZ?
Also 167.31 only allows a loaded and uncased firearm for "on-duty" law enforcement or when traveling from their residence to work and not from work to home. I don't know how this reacts with the Federal Law Enforcement Safety Act H.R. 218 but it seems that is only dealing with the ability to carry a concealed weapon.
I have no desire to see anyone protecting their rights harmed by our dysfunctional legal system. I want our legislators spending more time fixing what they broke then drafting more "protections". I want equal protection under the law. I want God given rights to remain his to give and take away.
Although the exact location was disclosed the next day, it is still likely that the officer had to drive through a GFSZ on a public roadway to enter said parking lot, and may have been illegally transporting a firearm as well.
The real question is does the GFSZ Act prohibit "off-duty" law enforcement or are they "licensed by the state". There job allows them to carry concealed weapons in Wisconsin and their ID allows them to carry concealed by the Federal Government. I am not sure that they have a license that exempts them from the Federal or State GFSZ?
Also 167.31 only allows a loaded and uncased firearm for "on-duty" law enforcement or when traveling from their residence to work and not from work to home. I don't know how this reacts with the Federal Law Enforcement Safety Act H.R. 218 but it seems that is only dealing with the ability to carry a concealed weapon.
I have no desire to see anyone protecting their rights harmed by our dysfunctional legal system. I want our legislators spending more time fixing what they broke then drafting more "protections". I want equal protection under the law. I want God given rights to remain his to give and take away.
hardballer
Regular Member
Agreed and it would very likely as you say herald the end of GFSZ.
Agree 100%. This guy would have had a hurt put on him had he not been armed. Yet we have allowed our legislature and DNR to implement statutes that put us in harms way rather than protect us. Laws banning law abiding citizens from self-defense are ludicrous.
Too right you are. How does one get through to the legislature that laws do not stop the law breaker. They are called lawbreakers for a reason. The laws in place now only serve to tie the law abiding citizens hands behind his back and open him up to assault, murder and any other form of mayhem the criminal can bring to mind.
Better to change the statute than ruin a person's finances or life.
Exactly.
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