few questions about transportation

Just Transport More Cleverly

rcawdor57 said:

Phred is correct, we have been through this countless times. Here is a link to the State Police site. Scroll down to the question about transporting weapons.

http://www.dot.wisconsin.gov/statepatrol/enforcement/faqs-enforcement.htm

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I wish people would stop quoting police websites as authority. Sure it's a good place to start but will not protect you in court any more than (admittedly given) advice from a LEO. It's almost a case of hiding behind mama's skirts. If you want legal advice, contact an attorney. I wouldn't take legal advice from a DOT/State Patrol person anymore than I would let him take out my gallbladder or perform a root canal.

And yes, the concealed weapons law is too broad and pretty much anything can be considered a concealed weapon if it cannot be seen and is within reach. Eg. rock in your hand, gun in your case, gun locked in trunk when you get "within reach" of your trunk. The insanity continues.....technically we can be arrested every time we put our gun in the gun case and close the lid or go to retrieve said weapon. The law is unconstitutional and must be removed from the books.

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You make valid points. Hamdan could probably be used to defend against some of the circumstances you suggest but the law is a convoluted mess. Assuming that 941.23 is not going to be repealed, what modifications would you suggest to make the law more logical?

I carry my Glock on the front seat next to me unloaded and encased with two magazines (loaded) in the case. This only applies in Wisconsin. Be careful traveling in the "Land of No Freedom" Illinois.

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I would suggest that you are in violation of 941.23 and would suffer the same fate as Mr. Keith. Since you think that there is no legal solution, why not put it in the trunk? You are less likely to attract attention and if stopped in IL could tell them you are enroute to Indiana or elsewhere, invoking 18 USC 926A.

apjonas said:

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).

Or Walls?

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).

If you believe that you cannot comply with both laws simultaneously then ask which carries the greater penalty - violation of 941.23 or 167.31? Of course you can comply with both by transporting "out of reach."

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w/respect to the reference of the handgun on the seat of the car. Was it properly encased and unloaded? If it was, then no law was broken. If it was loaded or not encased, then there was an express purpose of concealing it, making it illegal.

w/respect to the going armed reference. If the gun is unloaded and encased, (such as to not violate DNR rules), then again no law is broken. (you are not armed) Otherwise just carrying an uncased gun to and from your vehicle would be illegal and we know that it is not.

IMHO, a specific case of intentionally concealing or hiding the gun, which is loaded and/or not cased is what makes it illegal. In this state, not necessarily all states, having an unloaded and encased firearm makes you legal.

How many lawyers would one have to ask? Does a majority decision count as proof perfect?

My Bottom Line - Concerning vehicle transport, if the gun is unloaded and properly encased, and placed on the front seat of a vehicle, it is not concealed. I can believe nothing else.

Some good reading;
http://www.wisspd.org/html/980case/casesum/crimesagpublichealthsafe.htm

The court goes on to reject Fisher’s more “categorical” arguments—recent (unsuccessful) legislative action to create a licensing system for carrying weapons suggests legislative doubt about constitutionality of the CCW statute, ¶¶50-53; and, a car should be seen as an extension of the owner’s business, ¶¶54-56. These are, in effect, broad attacks on § 941.23 and the court is having none of it, ¶¶58-62. The court, it is clear, has no sympathy for the transport of guns in cars (unless unloaded and encased, see § 167.31(2)(b)):

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In Keith, the court of appeals upheld the CCW conviction of a woman who was carrying a concealed weapon while she was standing on the front porch of the duplex where she was living.

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Was the gun was not properly cased? Of course, the Hamden case might say otherwise now.

If Encasement Were an Issue

the court would have mentioned it. The judges took the time to tick of the elements of carrying concealed. If "dangerous weapon" really meant "uncased and/or loaded dangerous weapon" they certainly knew how to say that. I think part of the problem is that it is difficult to believe that two statutes cannot be in appartent conflict. The fact that 167.31 permits transportation if the pistol is encased does not vitiate the concealed carry statute. As for Keith, I would agree that Hamdan has changed the landscape to a certain degree (not as much as you might like) the issue of encasement is not relevant.

Your Bottom Line - "if the gun is unloaded and properly encased, it is not concealed. I can believe nothing else."

Not only do I not see anything in the statutes and/or court cases that support this position, the statement is silly on its face. Placing a unloaded, encased handgun in your pocket is would not be a concealed carry violation? Encasement and unloaded condition might protect you from a 167.31 violation but doing so has nothing to do with the violation of 941.23. Believe what you like you.

apjonas said:

the court would have mentioned it. The judges took the time to tick of the elements of carrying concealed. If "dangerous weapon" really meant "uncased and/or loaded dangerous weapon" they certainly knew how to say that. I think part of the problem is that it is difficult to believe that two statutes cannot be in appartent conflict. The fact that 167.31 permits transportation if the pistol is encased does not vitiate the concealed carry statute. As for Keith, I would agree that Hamdan has changed the landscape to a certain degree (not as much as you might like) the issue of encasement is not relevant.

Your Bottom Line - "if the gun is unloaded and properly encased, it is not concealed. I can believe nothing else."

Not only do I not see anything in the statutes and/or court cases that support this position, the statement is silly on its face. Placing a unloaded, encased handgun in your pocket is would not be a concealed carry violation? Encasement and unloaded condition might protect you from a 167.31 violation but doing so has nothing to do with the violation of 941.23. Believe what you like you.

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So therefore the guns were not encased? Then not legal.

Silly, you say? I don't think I could put an encased gun in my pocket in the first place. However, I might need to put an encased and unloaded gun in a backpack or bike bag because my hands might be too full to carry it. No other choices.

The thrust of this discussion was about vehicle carry, and the unloaded and encased gun on the front seat. Please don't put the gun in my pocket. In my mind, that would be concealed.

Ok, I see a problem with this whole situation of having to have it encased, out of reach, unloaded, etc etc. while in a car. I can see it generating more 911 calls then just being able to open carry while driving. Imagine what people are going to think as you get out of your car, and then grab your gun, put your ammo in it and then place it on your hip in your holster, it's going to possibly cause panic and fear in people as you get out of your car and grab a gun, they're going to call 911 when no crime has been committed. And we all know the "Disorderly Conduct" is befitting for "causing alarm". I only see one solution, open carry should be allowed in your vehicle.

Let Try Again

phred said:

So therefore the guns were not encased? Then not legal.

So therefore the guns were not encased? Then not legal..

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You misunderstand. The court simply said “dangerous weapon.” You want to include additional conditions such as the gun is loaded and/or uncased before it comes under the ambit of the concealed carry statute. According to this decision it does not matter that the gun is both unloaded and encased.

Silly, you say? I don't think I could put an encased gun in my pocket in the first place. However, I might need to put an encased and unloaded gun in a backpack or bike bag because my hands might be too full to carry it. No other choices.

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You need bigger pockets or a smaller gun . The backpack example works just as well. You made the statement:

"If the gun is unloaded and properly encased, it is not concealed. I can believe nothing else."

If you intended to include the modifying phrase “and placed on the front seat of a vehicle” you should have done so. I understand the general topic of the thread but not everybody reads every post and such a sweeping statement should be as detailed as possible. You are still incorrect but at least everybody knows your position.

The thrust of this discussion was about vehicle carry, and the unloaded and encased gun on the front seat. Please don't put the gun in my pocket. In my mind, that would be concealed.

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So could on the front seat. Now it is possible that another court would rule the gun isn’t concealed because it was observable outside the vehicle. However, this would have nothing to do with whether the gun was loaded or encased.

freedom_fighter_of_america said:

Ok, I see a problem with this whole situation of having to have it encased, out of reach, unloaded, etc etc. while in a car. I can see it generating more 911 calls then just being able to open carry while driving. Imagine what people are going to think as you get out of your car, and then grab your gun, put your ammo in it and then place it on your hip in your holster, it's going to possibly cause panic and fear in people as you get out of your car and grab a gun, they're going to call 911 when no crime has been committed. And we all know the "Disorderly Conduct" is befitting for "causing alarm". I only see one solution, open carry should be allowed in your vehicle.

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No law or statute says it must remain "out of reach." I've had one instance while unloading that caused some alarm to a family. I wasn't facing them by any means, but I could see them out of the corner of my eye.

One carrying a firearm openly cannot be charged with DC in the state of WI. See JB Van Hollen's memo. Currently we cannot carry in our vehicles because of 167.31 and 941.23. Once these two restrictions are rescinded, it will be lawful once again to carry and be in the vehicle.

apjonas said:

If you intended to include the modifying phrase “and placed on the front seat of a vehicle” you should have done so. I understand the general topic of the thread but not everybody reads every post and such a sweeping statement should be as detailed as possible. You are still incorrect but at least everybody knows your position.

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Done!

My Bottom Line - Concerning vehicle transport, if the gun is unloaded and properly encased, and placed on the front seat of a vehicle, it is not concealed. I can believe nothing else.

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It is your opinion that I am incorrect. It is my opinion that you are incorrect.

Mr. Phred

Do you (please answer yes or no for each):

1. Believe the Keith decision has been overturned?
2. Believe the Keith decision doesn't mean what it says?
3. Believe the Keith decision was wrong and can be ignored?
4. Believe that a court decision is not law?
5. Believe that the way you carry on the front seat will not implicate the Keith test?
6. Not know what the Keith decision is?

!!!My sincere apologies these questions to Phred should be about the Walls decision. I have redone the question below.!!!

One carrying a firearm openly cannot be charged with DC in the state of WI. See JB Van Hollen's memo.

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This will be news to the Culver's 5. Also note that the AG memo doesn't state exactly what you say it does.

Toss-Up Question: If you transport an unloaded and encased pistol on the dashboard (visible to everyone), is there a violation of 167.31 or 941.23?

Before I can answer your questions, I need you to answer my earlier question (which was directed to anybody and everybody who would participate in this discussion).

How many people have been prosecuted for having an unloaded and properly encased gun on their front seat since 1999?

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In 1998, Art 1, sec 25 was enacted.

Actually yes, although not directly overturned, I would said Keith has largely been overturned. The Keith case did not set down the elements of what is a "concealed weapon." It merely repeated the elements that were outlined in earlier cases, i.e., State v. Asfoor, 75 Wis. 2d 411, 433-34, 249 N.W.2d 529 (1977) and Mularkey v. State, 201 Wis. 429, 432, 230 N.W. 76 (1930).

Ms Keith's case added the idea that one didn't actually have to "go somewhere" to "go armed." But, after the Hamdan case one actually DOES have to go somewhere to go armed illegally concealing. Keith was convicted of having a gun in her purse while on the porch of her residence. After Hamdan it's rather doubtful anyone could be convicted of having a concealed weapon at their residence (unless they were concealing it for some illegal purpose, such as during the commission of a crime, or to conceal that a felon or other banned person is in possession of a firearm.)

The only case in Wisconsin I'm aware of that involved having a unloaded and encased gun in a vehicle being considered "a concealed weapon" is Alloy. And the Alloy case absolutely did not create new law. A prosecutor
cannot even mention that case in a courtroom without risking a mistrial.

An encased gun is "not within reach" because it is not immediately accessible. Those who interpret the term "within reach" to mean literally "at a distance within arm's length" are not basing the meaning on how the courts seems to use the term. The courts talk about being immediately accessible. A gun unloaded and in a case is at least two steps away from immediately accessible: 1) must first be uncased, 2) secondly it must be loaded. Then and only then is it immediately accessible.

Again for Mr. Phred

I referenced the wrong case above. Sorry about that. The questions should have read:

Do you

1. Believe the Walls decision has been overturned?
2. Believe the Walls decision doesn't mean what it says?
3. Believe the Walls decision was wrong and can be ignored?
4. Believe that a court decision is not law?
5. Believe that the way you carry on the front seat will not implicate the Walls test?
6. Not know what the Walls decision is?

This may change the response of Mr. Shotgun as well. I regret the error.

I Have No Idea

phred said:

Before I can answer your questions, I need you to answer my earlier question (which was directed to anybody and everybody who would participate in this discussion).



In 1998, Art 1, sec 25 was enacted.

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but I would guess the answer would be no, since otherwise it would be an annotation to the statutes. However the 1998 amendment would not have caused the change you suggest. If you look at Hamdan and Fisher, you will see that although neither explicitly or implicity deal with the Walls test, they do show the impact of the amendment upon 941.23. It is reasonable to extend those holdings to conclude Walls would be upheld. So the law as of today is that it is not necessary for a firearm to be loaded or uncased to be a concealed weapon. The Walls test is still valid even if there has been no recent application of it.

apjonas said:

Again for Mr. Phred
I referenced the wrong case above. Sorry about that. The questions should have read:

Do you

1. Believe the Walls decision has been overturned?
2. Believe the Walls decision doesn't mean what it says?
3. Believe the Walls decision was wrong and can be ignored?
4. Believe that a court decision is not law?
5. Believe that the way you carry on the front seat will not implicate the Walls test?
6. Not know what the Walls decision is?

This may change the response of Mr. Shotgun as well. I regret the error.

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Since you insist on personalizing this, I sent you a Personal/ Private Message with my answers.

apjonas said:

but I would guess the answer would be no, since otherwise it would be an annotation to the statutes. However the 1998 amendment would not have caused the change you suggest. If you look at Hamdan and Fisher, you will see that although neither explicitly or implicity deal with the Walls test, they do show the impact of the amendment upon 941.23. It is reasonable to extend those holdings to conclude Walls would be upheld. So the law as of today is that it is not necessary for a firearm to be loaded or uncased to be a concealed weapon. The Walls test is still valid even if there has been no recent application of it.

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The issue in Walls was regarding a gun that on the seat of a vehicle while not in a gun case. As such, his gun was immediately accessible. The court said it was hidden by the car itself, which is strange reasoning considering the court would presumably uphold seizure of drugs on the car seat without a warrant as completely legal since the drugs are "in plain view." Somebody would have to explain to me how two objects in the same place can be hidden in one instance and in plain view in the other instance, depending upon whether the object is a pistol or a bag of drugs.

In any event, I don't think Walls tells us anything other than you need to have your gun in a case-- and not uncased on the seat next to you-- as Mr. Walls did. Nothing particularly new or surprising about that.

I don't read anything in the Walls case that says a unloaded and encased gun on the car seat violates the concealed weapons prohibition. It wasn't a fact nor an issue in Walls, and as we know, lawyers like to deal with very narrow issues.

If anything, I believe that Walls confirms that a firearm transported in compliance with 167.31(2)(b) is in compliance with 941.23. It was Walls' failure to comply with 167.31 that made him in violation of 941.23.

Again, the only case, apparently, involving simultaneous compliance with 167.31 and a violation of 941.23 seems to be Alloy-- which created absolutely no law.

freedom_fighter_of_america said:

Ok, I see a problem with this whole situation of having to have it encased, out of reach, unloaded, etc etc. while in a car. I can see it generating more 911 calls then just being able to open carry while driving. Imagine what people are going to think as you get out of your car, and then grab your gun, put your ammo in it and then place it on your hip in your holster, it's going to possibly cause panic and fear in people as you get out of your car and grab a gun, they're going to call 911 when no crime has been committed. And we all know the "Disorderly Conduct" is befitting for "causing alarm". I only see one solution, open carry should be allowed in your vehicle.

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agreed wholly. we are more often than not judged on mis-perceptions, excessive handling invites mis-perceptions.

Immediately Accessible

is not the test. Keith provides a 3-pronged test:

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).

If you want to make the argument that an encased weapon is "not within reach," you certainly may do so. However no Wisconsin court has ever established such a rule. To be logically consistent a holstered pistol also would be "not within reach." I don't think there is any doubt that Element 1 is one of proximity to the weapon, not how many steps are required to put it in shootable condition. This interpretation is consistent with the "on the defendant's person" language which immediately precedes it.

A "dangerous weapon" is defined in the statutes to include an unloaded pistol. Trying to convince a judge that an pistol is "not within reach" because it is unloaded would be tough. Using your definition a unloaded pistol could never be "within reach" and Element 1 would make no sense. It would have to say a "loaded dangerous weapon."

Likewise with Shotgun's two-step rule, a loaded but encased pistol would not be "within reach" even if it were lying on the front seat inches from you since it is not "immediately accessible" without being uncased. Any single step would suffice. For instance a semi-auto with a full magazine but an empty chamber - requires racking the slide. Thus such a pistol, even if uncased, is "not within reach." Do you guys really believe this? As far as encasement and concealed status is concerned, a pistol that is concealed because it is on the front seat (as in Walls) does not become less concealed because it is in a case.

There seems to be a conflict between the "encased and unloaded" rule and the "immediately accessible" rule. Please clarify. If you have any cases where the "immediately accessible" standard was used, please post them. I would be interested in the thought process of the judge.

Special for Mr. Phred - I posed the questions since you had set forth a rule that I believe is at odds with WI law. I answered your question publicly and was not trying to put you on the spot, so to speak. I read your message, which I found intelligent, polite and somewhat persuasive on certain points. Perhaps we have reached the "agree to disagree" stage. Do remember that just because a LEO does not take action on an issue 12 consecutive times doesn't mean the 13th won't find him in a different frame of mind. If I am going to play the odds, I'll do so in Vegas or AC and I would never stake my freedom in any case as trivial as this. There are just better ways to achieve the same result.

Shotgun & Phred

I am sincerely interested in your responses. If you don't want to go public, please sent me a PM. I think these sorts of exchanges are beneficial so a posted response would be better.

I'm going to chime in to say that this simply hasn't been tested in court. I tend to believe that a person would win in court for being charged with having a properly cased and unloaded handgun within reach BUT, like I said, it hasn't been tested.

I also believe that State V. Walls means very little in the current environment. The element that it provided to 941.23...

(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)...

may be completely moot after article 1 section 25, Hamdan, and other recent cases such as Vegas and Schultz that were decided after the amendment was adopted.

Therefore; your all right and wrong at the same time.

There's just no telling as it would all need to be revisited in light of article 1 section 25; not to mention Heller and Mcdonald.

apjonas said:

I am sincerely interested in your responses. If you don't want to go public, please sent me a PM. I think these sorts of exchanges are beneficial so a posted response would be better.

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ok, I'll take a chance.

I don't know if these words or ideas were from the Hamden case or another since 1998. But I believe one of the statements in the decision basically said that "since there was no alternative" the person had "no other choice to do what was done". Since Art 1, sec 25 allowed a person to keep and bear arms for defense and security, and there was no criminal intent, a person who is doing the best they can to obey the law(s) should be in the clear. I drive a small pickup and every place in the cab is within reach. If I place the gun, encased and unloaded, on the front seat, I am clearly not hiding it. If I were to get stopped for traffic violation and the officer saw the gun case, he/she would assume there is a firearm in the vehicle and probably ask me to step out of the car. I would do so, but lock the car behind me. If I try to have a gun out of reach, I would have to leave the gun at home and my right to defense and security is in effect being denied. My choice to drive is an option, but I don't think I need to walk, carrying my handgun on my hip, 8 miles to town to make sure I am exercising my right.

If Art 1, sec 25 had not been passed, there would be no "fall-back position", but there again, if I drove my truck, there would be no alternative.

If there is a passenger on the front seat, the unloaded and encased handgun goes behind the seat. As Shotgun has said, ready access to my gun is denied because I have to get the case, remove the gun, and load it. Not having ready access is important.

Court cases have set some criteria for legal acts, but the Keith and Walls decisions did not have Art 1,sec 25 for any defense. Hamden did have it as part of the defense, and the decision reflected it.

I am not a lawyer. I am only trying to reason out the situation as logically as I can given the information available to me. I know, logic is not a defense. Maybe we should take this to a Vulcan court.

The fact that no one has been convicted of a crime when a handgun was unloaded and encased and on the front seat must be meaningful. It is not a game of chance anymore. Years of precedent have been set under the same conditions.

In Hamden, the justices said that 941.23 was unworkable in light Art 1 Sec 25. A gedanken experiment (or even a test case) would be to carry a loaded gun in a vehicle for the purpose of security or defense and be arrested for such violation. Is Art 1, Sec 25 strong enough on it's own to support a defense? I don't know (and I am not going to try it). All through history, the WI courts have tried to balance the "security of the person" and personal rights, with the "security of the state". The trump card in the past has been that the state had the stronger argument to maintain civil security and the individual right suffered.
One could also apply the logic to the State Park, GFSZ, etc but if choices can be made by the individual to not break the law(s) without giving up the right, then defense weakens.

One can even extend the argument to open carry. Is a person's right to open carry stronger than the state's obligation to "keep the peace" (therefore DC)? The State AG certainly alluded to the personal right being stronger in the absence of any criminal activity.

(I am also remembering the Jackson Co. DA and the Clark Co. judge.)

I don't think these arguments are new, but you asked for it. ok, I've rambled enough. There may be a sequel.