AG Opinion on OC in Vehicle W/O Permit Has Been Requested

Trip20 · Aug 5, 2011

Glock34 said:
Thats why we pay taxes, remeber the AG works for US as long as WE pay Taxes.

No no no no you have it all wrong. We pay taxes to help the underprivileged raise kids like these, and so these great young people have programs and such to keep them out of trouble. It's obviously working.................. sorry just so pissed about the story that I can't stand it.

:cuss:

Deadscott · Aug 5, 2011

Trip20 said:
No no no no you have it all wrong. We pay taxes to help the underprivileged raise kids like these, and so these great young people have programs and such to keep them out of trouble. It's obviously working.................. sorry just so pissed about the story that I can't stand it.

:cuss:

This is the most accurate post in this thread.

Captain Nemo · Aug 5, 2011

165.015
165.015 Duties. The attorney general shall:

165.015(1)
(1) Give opinion to officers. Give his or her opinion in writing, when required, without fee, upon all questions of law submitted to him or her by the legislature, either house thereof or the senate or assembly committee on organization, or by the head of any department of state government.

State departments are (17)

Administration
Agriculture, Trade and Consumer Protection
Commerce
Corrections
Employee Trust Funds
Financial Institutions
Health and Family Services
Justice
Military Affairs
Natural Resources
Public Instruction
Regulation and Licensing
Revenue
Tourism
Transportation
Veterans Affairs
Workforce Development

The heads of the departments are appointed positions by the governor.

I have been down this road a number of times. Under the above statute the Attorney is not allowed to give an official opinion to anyone without specific authority. He must give an oppinion to any of the heads of the above department if asked. He also must give an opinion to the chair of legislative committees. He must give an opinion to the Houses of the legislature if requested by the majority leader of those houses. He also must give an opinion to district attorneys because they are members of the law enforcement community of which he is the top dog.

By law, not by personnel decision, the attorney general can not give official published opinions to private citizens or individual members of the legislature speaking on the behalf of their constituents.

I have personal letters from the Attorney General Office supporting what I have posted.

The law is wrong. With present communication resources it is outdated. I can possibly understand it if the AG position was a governor appointment but it is not. It is an elected position and in my opinion that makes the AG answerable to "The People".

Bottom line: Forget trying to get your senator or representative to obtain an AG opinion. By law the AG can't give him/her one. The only way to make it happen is to find a gun friendly District Attorney. Perhaps a county sheriff may get a AG opinion. Or a gun friendly county sheriff may be able to put pressure on a DA to get one. That's a big perhaps though.

My opinion:

BROKENSPROKET · Aug 5, 2011

Captain Nemo said:
165.015
165.015 Duties. The attorney general shall:

165.015(1)
(1) Give opinion to officers. Give his or her opinion in writing, when required, without fee, upon all questions of law submitted to him or her by the legislature, either house thereof or the senate or assembly committee on organization, or by the head of any department of state government.

State departments are (17)

Administration
Agriculture, Trade and Consumer Protection
Commerce
Corrections
Employee Trust Funds
Financial Institutions
Health and Family Services
Justice
Military Affairs
Natural Resources
Public Instruction
Regulation and Licensing
Revenue
Tourism
Transportation
Veterans Affairs
Workforce Development

The heads of the departments are appointed positions by the governor.

I have been down this road a number of times. Under the above statute the Attorney is not allowed to give an official opinion to anyone without specific authority. He must give an oppinion to any of the heads of the above department if asked. He also must give an opinion to the chair of legislative committees. He must give an opinion to the Houses of the legislature if requested by the majority leader of those houses. He also must give an opinion to district attorneys because they are members of the law enforcement community of which he is the top dog.

By law, not by personnel decision, the attorney general can not give official published opinions to private citizens or individual members of the legislature speaking on the behalf of their constituents.

I have personal letters from the Attorney General Office supporting what I have posted.

The law is wrong. With present communication resources it is outdated. I can possibly understand it if the AG position was a governor appointment but it is not. It is an elected position and in my opinion that makes the AG answerable to "The People".

Bottom line: Forget trying to get your senator or representative to obtain an AG opinion. By law the AG can't give him/her one. The only way to make it happen is to find a gun friendly District Attorney. Perhaps a county sheriff may get a AG opinion. Or a gun friendly county sheriff may be able to put pressure on a DA to get one. That's a big perhaps though.

My opinion:

I will call Gerald Fox's office, Jackson County DA, and ask him to request an opinion.

paul@paul-fisher.com · Aug 6, 2011

Captain Nemo said:
Bottom line: Forget trying to get your senator or representative to obtain an AG opinion. By law the AG can't give him/her one. The only way to make it happen is to find a gun friendly District Attorney. Perhaps a county sheriff may get a AG opinion. Or a gun friendly county sheriff may be able to put pressure on a DA to get one. That's a big perhaps though.

My opinion:

Thanks Captain. Do we know a chairperson of a committee? Hmmm... My Senator, Kedzie, is the chairperson of the Committee on Natural Resources and Environment (Chair)

He has been supportive of the ORIGINAL SB93.

paul@paul-fisher.com · Aug 6, 2011

OK, this is what I sent him. Not really smoothly written but I was in a hurry.

Senator Kedzie,

Can you please ask Attorney General JB Van Hollen for an official opinion on car carry without a permit? The basic question is whether Act 35 gives us the right to carry as we see fit inside a car.

Here's the rub. Act 35 fixed 167.35 to allow loaded, unencased weapons in cars. However, 941.23, the concealed carry statute only allows concealing with a permit. So.... the precedent outlined in State v Fry 1986, State v Keith 1993 and State v Walls 1994 still apply. Basically, that body of case law states that it 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 § 941.23
[FONT=Arial, Times, serif]
[/FONT]
[FONT=Arial, Times, serif]So.... without a permit, we would have to put our handgun on the dashboard or hang it so that someone can see it from the outside.
[/FONT]
[FONT=Arial, Times, serif]
[/FONT]
[FONT=Arial, Times, serif]That means, once again without a permit, I could not leave it in my holster because it would not be viewable from outside the vehicle.
[/FONT]
[FONT=Arial, Times, serif]
[/FONT]
[FONT=Arial, Times, serif]As the chairman of a committee[/FONT][FONT=Arial, Times, serif], 165.015(1) gives you the authority to ask for the opinion and the AG must respond to you. As a private citizen, I cannot ask and as 'just' a Senator, you cannot either, actually, we can ask all we want but he doesn't have to respond.[/FONT]

165.015(1) (1) Give opinion to officers. Give his or her opinion in writing, when required, without fee, upon all questions of law submitted to him or her by the legislature, either house thereof or the senate or assembly committee on organization, or by the head of any department of state government.

Getting a binding opinion before 11/1 would help a lot especially since DOJ won' be issuing permits immediately and people unfamiliar with the intricacies of WI concealed carry statutes can be caught committing a crime without realizing it.

Thanks!

BROKENSPROKET · Aug 6, 2011

paul@paul-fisher.com said:
Thanks Captain. Do we know a chairperson of a committee? Hmmm... My Senator, Kedzie, is the chairperson of the Committee on Natural Resources and Environment (Chair)

He has been supportive of the ORIGINAL SB93.

According to the statute cited by Captian Nemo, it would have to be the chair of the Senate or Assembly Committee on Organization, not any other committee. But if I am wrong, it would be better that Sen. Zipperer, chair of the Senate Judiciary Committee to request the opinion. Sen. Kedzie and Sen. Galloway are memebers of that committee and could aske Sen. Zipperer to make the request. That action may have to be voted on in committee, IDK.

paul@paul-fisher.com · Aug 6, 2011

BROKENSPROKET said:
According to the statute cited by Captian Nemo, it would have to be the chair of the Senate or Assembly Committee on Organization, not any other committee. But if I am wrong, it would be better that Sen. Zipperer, chair of the Senate Judiciary Committee to request the opinion. Sen. Kedzie and Sen. Galloway are memebers of that committee and could aske Sen. Zipperer to make the request. That action may have to be voted on in committee, IDK.

I see your point, however don't understand why the Chairman of the Judiciary committee would be different than the Natural Resource and Environment? Both AREN'T the committee on organization.

Brass Magnet · Aug 6, 2011

Why don't we get D.A. Fox (the guy who won't prosecute CCW) to get an opinion then?

BROKENSPROKET · Aug 6, 2011

paul@paul-fisher.com said:
I see your point, however don't understand why the Chairman of the Judiciary committee would be different than the Natural Resource and Environment? Both AREN'T the committee on organization.

I know, but it's my opinion that it would be better for the request to come from the committee where SB93 originated, not a committee that had nothing to do with it. I do see a connection between an opinion on 167.31 and a committee on natrual resources, but I don't think it is as sginificant. It's just my opinion.

BROKENSPROKET · Aug 6, 2011

Brass Magnet said:
Why don't we get D.A. Fox (the guy who won't prosecute CCW) to get an opinion then?

I thought about visiting his office on Monday and delivering a request. IF some wants wirte a request to request an AG opinion, I will hand dleiver it to D.A. Fox's office. I have a feeling the Gerald and J.B. are friends, but on the other hand, J.B. may think, what is the use in giving an opinion to a DA that wouldn't even prosecute without other crimes

I will put my email in my signature again if anyone want to send me such request.

Interceptor_Knight · Aug 8, 2011

In light of the recent FAQ published by the DOJ, I believe we have gotten the only "opinion" we can reasonably expect to receive without going through the courts. The AG is not going to issue an opinion contrary to that of the DOJ opinion as expressed in the FAQ. Also, since the DOJ chose to mention "hidden" and "encased" separately, one can reasonably state that the simple act of being encased does not equate to being hidden. The encased firearm would have to be further hidden from view to be considered concealed. The body of a car or truck, etc is what hides a firearm or even an encased firearm from ordinary view by someone in the immediate vicinity outside of the car in the opinion of the courts quoted in the Statute annotations.

However, long guns are still subject to the requirement of being fully encased and
unloaded, not hidden and not within reach.

Brass Magnet · Aug 8, 2011

BROKENSPROKET said:
I know, but it's my opinion that it would be better for the request to come from the committee where SB93 originated, not a committee that had nothing to do with it. I do see a connection between an opinion on 167.31 and a committee on natrual resources, but I don't think it is as sginificant. It's just my opinion.

You could use the letter in the OP. That letter is a short and sweet version of what I sent my representative. He shortened it and sent it on.

Brass Magnet · Aug 10, 2011

Well.........

I emailed my contact at my Rep's office today and he said he was aware that an individual legislator is not "entitled" to an opinion. His response however was "The AG hasn't said 'No' yet" and that there is nothing preventing him from issuing one if he wants to. I'm not holding my breath of course but there are a number of informal opinions that are not requested by "entitled persons"

http://www.doj.wi.gov/ag/opinions/opinions_informal.asp

Informal opinions still would surely help you in court if it ever got that far.

Captain Nemo · Aug 10, 2011

167.31 certainly needs a legal opinion. How and by whom I am not sure. When I read the new 167.31(1)(b) I no longer have any idea what a lawful encasement is. As I read it a plain cardboard box that is taped shut is a lawful container. So then would a locked glove box i.e. Fry or a locked center console in a jeep i.e. Fisher or even a handbag i.e. Kieth. (Granted Kieth didn't involve vehicle transport but what about carrying a handgun in a purse that is fastened shut) constitute lawful encasement under the rewritten statute?

On the issue of the DoJ using both hidden and encasement in it's FAQ. If a firearm is placed in a lawful encasement and placed in the trunk so it is out of reach is it then considered to be hidden? It would not be considered concealed because the within reach aspect isn't present but I ask the question only to show that there is still a dilemma even though 167.31 was modified. Probably one only the courts can resolve.

What about case law? Supreme court decisions are made based on the statutes as they exist at the time of the opinion. What do changes in statutes do to the validity of previous opinions and what authority do they now have in court?

Finally: The DoJ FAQ is only an opinion of the DoJ it has no validity in court. In fact it should be scruitinzed very carefully before blindly adhereing to it. For one example: It recommends that if stopped by law enforcement you immediately tell them you are carrying a concealed firearm. That is a blatant disregard for a person's fifth amendment rights. The only thing you have to tell the cops are your name and address anything else can be twisted to an admission of guilt.

Interceptor_Knight · Aug 11, 2011

Captain Nemo said:
When I read the new 167.31(1)(b) I no longer have any idea what a lawful encasement is. As I read it a plain cardboard box that is taped shut is a lawful container. So then would a locked glove box i.e. Fry or a locked center console in a jeep i.e. Fisher or even a handbag i.e. Kieth. (Granted Kieth didn't involve vehicle transport but what about carrying a handgun in a purse that is fastened shut) constitute lawful encasement under the rewritten statute?

---edit--- A cardboard box is a "case" so long as it is fully closed with no portion of the firearm exposed. With no permit, this encased handgun still must not be hidden by placing it in a glove box or console, etc (locked or otherwise) ... which is within reach. A handbag in the trunk is A-OK.

Captain Nemo · Aug 11, 2011

IK:
Where in the world did you come up with that rationale. I presume your "etc." included a trunk of a vehicle, because what is the difference between a trunk, console and/or glove compartment in the regards to being hidden. Even the issue of "out of reach" is exasserbated by modern vehicles. In my Lincoln Zephyr and the previous Taurus's I have owned all one needs to do is fold down the back seat and they have ready access to anything in the trunk and remember the courts have never defined "out of reach"of whom. In the regards to danger it is even more dangerous to have a firearm within reach of passengers. The driver is reoccupied with driving. The passengers have much more freedom of movement. The bottom line is we have to put hard pressure on the legislature to eliminaate 167.31 altogether. It is written as it is now just to appease the DNR.

Please do not respond with your usual "they never intended" or "any reasonable person" or "what they meant to say" or "you will never". I am only interested in how the statute reads. A person can never second guess the liberal Wisconsin court system. Even the case of Walls, as referenced in this thread, is corrupt. At the jury trial Walls was found guilty of carrying a concealed weapon because he was carrying an Uzi on the front seat of his car which was not visible from a passing vehicle. The liberal appeals court changed that to read that he was guilty of carrying a concealed weapon because it was not eaily visible from outside the immediate vicinity of the vehicle. There is a whale of difference between the two but the appeals court interpretation is the one that prevails. I don't want to get in a discussion on which interpretation is most severe. I only list the differences to example how the Wisconsin upper courts will wordsmith opinion so as to support their own agenda, it is even more obvious in Hamdan and Cole. When analysing statutes "woulda", "coulda", "shoulda" doesn't count. It is what "is" that must be the first line of defense.

IK are you a lawyer or are your posts only an opinion? You write them as if they are advice.

My opinion

Captain Nemo · Aug 11, 2011

Sometimes we get involved in ridiculous discussion on this forum, my self included. Aside from campaigning to git rid of 167.31 altogether what practical point is there to discussing the minute details concerning what is hidden, within reach or concealed. Because of the restrictions on GFSZ travel, reciprocity and carry convienience how many on this forum intend to not get a cc permit? A permit that will allow vehicle carry of uncased and loaded handguns, concealed or not. Even MCX has indicated that he would probably apply. His motto has been "No steenkin' permits". Sometimes we argue just to argue. I think our energies should be concentrated on three issues. Getting constitutional carry enacted, getting 167.31 repealed altogether, and getting the castle doctrine passed. Instead of using the keyboard to bicker among ourselves we should use it to send messages to those that can make change happen.

Now is a good time to get at it. The legislature is probably in a mood to take on controversial issues now that the balance of power in the Senate is ascertained. The attorney General even though he can't respond officially to our request is well aware that he holds an elected office. If he gets enough "noise" he might just issue an informal opinion as he did with the open carry memo. Likewise, the republicans hold the power in the Senate by only one seat at this time. Some are well aware they are in swing districts. They and the party itself have only one driving goal and that is to get re-elected and to retain political power in the legislature. They are probably in a better mood to listen to use now than they were before the recall elections.

paul@paul-fisher.com · Aug 11, 2011

Captain Nemo said:
Sometimes we get involved in ridiculous discussion on this forum, my self included. Aside from campaigning to git rid of 167.31 altogether what practical point is there to discussing the minute details concerning what is hidden, within reach or concealed. Because of the restrictions on GFSZ travel, reciprocity and carry convienience how many on this forum intend to not get a cc permit? A permit that will allow vehicle carry of uncased and loaded handguns, concealed or not. Even MCX has indicated that he would probably apply. His motto has been "No steenkin' permits". Sometimes we argue just to argue. I think our energies should be concentrated on three issues. Getting constitutional carry enacted, getting 167.31 repealed altogether, and getting the castle doctrine passed. Instead of using the keyboard to bicker among ourselves we should use it to send messages to those that can make change happen.

Now is a good time to get at it. The legislature is probably in a mood to take on controversial issues now that the balance of power in the Senate is ascertained. The attorney General even though he can't respond officially to our request is well aware that he holds an elected office. If he gets enough "noise" he might just issue an informal opinion as he did with the open carry memo. Likewise, the republicans hold the power in the Senate by only one seat at this time. Some are well aware they are in swing districts. They and the party itself have only one driving goal and that is to get re-elected and to retain political power in the legislature. They are probably in a better mood to listen to use now than they were before the recall elections.

Good idea!!!

Interceptor_Knight · Aug 11, 2011

Captain Nemo said:
IK:
Where in the world did you come up with that rationale. I presume your "etc." included a trunk of a vehicle, because what is the difference between a trunk, console and/or glove compartment in the regards to being hidden. Even the issue of "out of reach" is exasserbated by modern vehicles. ...

Current Case law says that a locked glove box or console is within reach and hidden...

941.23 Carrying concealed weapon.
A defendant was properly convicted under this section for driving a vehicle with a gun locked in a glove compartment. State v. Fry,

The DOJ FAQ obviously supports this point of view. You are correct that a rear passenger can access a firearm in the trunk with a 1/2 fold down rear seat. You could argue that case law supports this premise if you so choose to do..

Captain Nemo said:
Aside from campaigning to git rid of 167.31 altogether what practical point is there to discussing the minute details concerning what is hidden, within reach or concealed. Because of the restrictions on GFSZ travel, reciprocity and carry convienience how many on this forum intend to not get a cc permit? A permit that will allow vehicle carry of uncased and loaded handguns, concealed or not. Even MCX has indicated that he would probably apply. His motto has been "No steenkin' permits". Sometimes we argue just to argue.

It is precisely for those people who will choose to forgo a permit that discussion of 941.23 is relevant. 167.31 is irrelevant as it no longer applies to handguns and has zero to do with concealed weapons being hidden, within reach, etc. 167.31 now only applies to long guns and this board is not concerned with long gun carry.
Until someone appeals a conviction and has the courts rule otherwise, current case law is all we have for guidelines...

AG Opinion on OC in Vehicle W/O Permit Has Been Requested

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