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Thread: Nov 1, Open carry in car?

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    Nov 1, Open carry in car?

    I'm a WI resident, I can apply for a license nov 1, but won't get it until December sometime (hopefully). I just read the section in the DOJ FAQ about carrying in a car, i think it states that you can open carry in a car without a permit. Is anyone else reading the same thing? I'll probably just OC until I get my permit. The big reason I don't OC regularly now is the hassle of loading/unloading when hitting the car.

    If I do not have a CCW license how do I transport weapons in a vehicle?
    A. Handguns
    The law now allows a person to do the following without a CCW permit:
    • place, possess, or transport a handgun in a vehicle without being unloaded or encased. Wis. Stats. § 167.31(2)(b).
    • load a handgun in a vehicle. Wis. Stats. § 167.31(2)(c).
    • operate an all-terrain vehicle (ATV) with a handgun in the operator’s possession. Wis. Stat. § 23.33(3)(a).
    • place, possess, or transport a handgun in or on a motorboat with the motor running without being unloaded or encased. Wis. Stats. § 167.31(2)(a), (b), (c).
    • place, possess, or transport a handgun in or on a noncommercial aircraft.
    IMPORTANT NOTE: Persons who do not have a CCW license may still not carry weapons concealed. In a vehicle this means that the firearm cannot be hidden or concealed and within reach.

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    Founder's Club Member protias's Avatar
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    After Nov 1, you will be able to carry a loaded handgun in a vehicle (watch out for the GFSZ though).
    No free man shall ever be debarred the use of arms. Thomas Jefferson (1776)

    If you go into a store, with a gun, and rob it, you have forfeited your right to not get shot - Joe Deters, Hamilton County (Cincinnati) Prosecutor

    I ask sir, what is the militia? It is the whole people except for a few politicians. - George Mason (father of the Bill of Rights and The Virginia Declaration of Rights)

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    Agreed on the GFSZ topic. Will have to watch that. At least it will be somthing, until our permits start getting issued...

    Still slightly worried tho, that I'd be "concealing it" if my arm/seat belt was covering it...

    Anyone else going to OC more after nov 1 now that it's OK in the car?
    Last edited by svelectric; 09-29-2011 at 02:52 PM.

  4. #4
    Founder's Club Member protias's Avatar
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    Quote Originally Posted by svelectric View Post
    Agreed on the GFSZ topic. Will have to watch that. At least it will be somthing, until our permits start getting issued...

    Still slightly worried tho, that I'd be "concealing it" if my arm/seat belt was covering it...

    Anyone else going to OC more after nov 1 now that it's OK in the car?
    I will be carrying in the car where legal after Nov 1. If you are concerned about "concealing" it, have it mounted on your dash.
    No free man shall ever be debarred the use of arms. Thomas Jefferson (1776)

    If you go into a store, with a gun, and rob it, you have forfeited your right to not get shot - Joe Deters, Hamilton County (Cincinnati) Prosecutor

    I ask sir, what is the militia? It is the whole people except for a few politicians. - George Mason (father of the Bill of Rights and The Virginia Declaration of Rights)

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    This is the part that concerns me:

    IMPORTANT NOTE: Persons who do not have a CCW license may still not carry weapons concealed. In a vehicle this means that the firearm cannot be hidden or concealed and within reach.


    Doesn't current case law indicate that basically any handgun that is below the window line is considered "concealed" in the state of wisconsin? So even though you have it on your hip, or even the seat next to you, that is still considered "concealed"? So while now the handgun can be loaded and unencased, it still has to be out of reach (ie in the trunk).

    In Wisconsin, a gun in plan sight inside a vehicle is both in violation of the encased requirement, Section 167.31, and considered unlawfully concealed.
    State v. Walls, 526 N.W.2d 765 (Wis. App. 1994) (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). See also State v. Keith, 498 N.W.2d 865 (Ct. App. 1993) (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).

    An encased gun is unlawfully concealed in a vehicle if the case is not "out of reach," arguably wingspan plus lunge distance.
    State v. Alloy, 616 N.W.2d 525 (Wis. App. 2000) (affirming concealed carry conviction of man possessing handgun in a vehicle in conformity with Wisconsin Stat. 167.31 because .Alloy's argument is based on the false assertion that he was trapped by a conflict between Wis. Stat. 167.31 and Wis. Stat. 941.23. A person transporting a firearm is governed by both statutes. To comply with 167.31, the person must encase the weapon. To comply with 941.23, he or she must place the enclosed weapon out of reach. See State v. Asfoor, 75 Wis.2d 411, 433-34, 249 N.W.2d 529 (1977). A person complying with 167.31 is not required to violate 941.23. The encased weapon can be lawfully transported out of reach..)


    So correct me if I'm wrong, but basically all that changes is that you can leave the gun loaded and unencased, but it still has to essentially be in the trunk?
    Last edited by bmwguy11; 09-29-2011 at 03:02 PM.

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    Well said bmw, that is worisome... maybe I won't be OC'ing in my car pre permit...

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    Regular Member MilProGuy's Avatar
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    Quote Originally Posted by svelectric View Post
    Well said bmw, that is worisome... maybe I won't be OC'ing in my car pre permit...
    Good call.

    Better to err on the side of caution.

  8. #8
    Regular Member Outdoorsman1's Avatar
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    Snip...

    The big reason I don't OC regularly now is the hassle of loading/unloading when hitting the car.
    I also think the loading/unloading "dance" is a hassle but I have never let it minimize my carrying. I open carry daily wherever it is legal. I feel that excercising a right trumps not excercising that right because of a hassle. Also, I figure it would be a much bigger "Hassle" needing my firearm for protection and NOT having it just because of the hassle of the dance. Just Sayin....

    On point...

    Although I have discussed here in the past about mountintg a holster on (top) of the dash, I have made the decision that come Nov. 1, I will be OC'ing loaded and holstered on my hip while in my vehicle. I will abide by the change in 167.31 that specifically allows that type of carry. I have waited long enough to not have to "dance" every time in get in and out of my car, so If I happen to get stopped I will hope the LEO has no knowledge of previous "Case Law" or at least knowledge of the change in the current law that restricts vehicle carry of a "handgun"... If it comes down to being arrested well I guess I will have to be one of the test cases on the legallity of the "Case Law" or the contridiction from one statute to another. I suppose I will have a empty holster ready to stick on top of the dash (Velcro) if nessesary, per LEO recomendation, to avoid arrest. Part of this decison lies in the fact that I personally belive that a holsterd firearm on top of the dashboard in a moving vehicle would draw more attention from unaware LEO, BG's, and the public in general, all of which I choose to avoid by OC'ing on my hip. I know, I know... I OC now and draw attention from the public in general, but I am of the firm belief that a holstered firearm on top of a dash (in traffic) would generate more MWAG calls (Cell Phones) than just open carrying on the hip during my daily routine... not to mention (on the dash) generating "interest" from any BG's that happen to notice while driving next to me....

    As far as the GFSZ thing, ... Uhhhmmm......nevermind...

    If this post is ever tried to be used against me in a court of law, I state here and now it is not me typing this....

    Outdoorsman1
    Last edited by Outdoorsman1; 09-29-2011 at 03:38 PM.
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    Regular Member TyGuy's Avatar
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    I have a car holster that is made from loop velcro. It comes with a large adhesive backed section of hook velcro. You can put that where needed in your car. It holds great in mine. I can store my Glock 19 upside down and it doesn't fall.

    *BTW this is not how I transport in WI. I live in IL, and the center console is considered a case, so I keep an unloaded G19 in there with the magazine right nearby.

    I like this idea as it is more comfortable and faster to draw when driving, as compared to having it in a IWB holster.

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    Regular Member Outdoorsman1's Avatar
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    My apologies in advance... I seem to be a little cranky today....

    Quote Originally Posted by MilProGuy View Post
    Good call.

    Better to err on the side of caution.
    I wonder which one of our "Founding Fathers" would have said that....????????

    I know, I know, I get your point.... I just hope somebody gets mine.... Something about...

    "Damn The Torpeedo's...." David_Farragut

    Just Sayin....

    Outdoorsman1
    Last edited by Outdoorsman1; 09-29-2011 at 04:13 PM.
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    Regular Member Interceptor_Knight's Avatar
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    Quote Originally Posted by Outdoorsman1 View Post
    ... If I happen to get stopped I will hope the LEO has no knowledge of previous "Case Law" or at least knowledge of the change in the current law that restricts vehicle carry of a "handgun"... ...
    If the LEO can not see it when they walk up to your vehicle, it is concealed "hidden from ordinary view". It doesn't matter if it is a knife or a firearm. No case law needs be known. Unless you happen to encounter a gun nut willing to cut you a break, you are subject to a citation. I encourage you to get the advice of an attorney. I have talked to a few different ones and they have independently stated that the handgun should be in a location which is easily viewable such as the dash so long as it is not obstructing your vision which may get you a totally different citation.

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    Regular Member Outdoorsman1's Avatar
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    Thank you for the sound advice... It is appreciated.

    Outdoorsman1
    "On the Plains of Hesitation bleach the bones of countless millions who, at the Dawn of Victory, sat down to wait - and waiting, died."

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    Quote Originally Posted by svelectric View Post
    Agreed on the GFSZ topic. Will have to watch that. At least it will be somthing, until our permits start getting issued...

    Still slightly worried tho, that I'd be "concealing it" if my arm/seat belt was covering it...

    Anyone else going to OC more after nov 1 now that it's OK in the car?
    I will continue to OC, but CC when feel it's appropriate and convenient.

    This is sentiment. If sitting strong side-in in a booth at a restaraunt doesn't make it CCW, then sitting in a car doesn't either.

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    Regular Member BROKENSPROKET's Avatar
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    Quote Originally Posted by Interceptor_Knight View Post
    If the LEO can not see it when they walk up to your vehicle, it is concealed "hidden from ordinary view". It doesn't matter if it is a knife or a firearm. No case law needs be known. Unless you happen to encounter a gun nut willing to cut you a break, you are subject to a citation. I encourage you to get the advice of an attorney. I have talked to a few different ones and they have independently stated that the handgun should be in a location which is easily viewable such as the dash so long as it is not obstructing your vision which may get you a totally different citation.
    We need a test case. If I am sitting in a booth at a resteraunt, strong-side, in so an approaching officer cannot see it, I cannot be cited for 941.23. So, I argue that in a car, I cannot be either. But I realize that a jury may have to decide that one.

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    Regular Member Interceptor_Knight's Avatar
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    Quote Originally Posted by BROKENSPROKET View Post
    We need a test case. If I am sitting in a booth at a resteraunt, strong-side, in so an approaching officer cannot see it, I cannot be cited for 941.23. So, I argue that in a car, I cannot be either. But I realize that a jury may have to decide that one.
    I would propose that you could be cited for a 941.23 violation.
    Unfortunately, logic and rationalization will not likely help you sway a jury.
    Although you are free to raise any argument you wish when defending yourself, the reality is that jury instruction is very specific. They may not rule whether a law is just. As a matter of fact, they are asked if they have any prejudices against the law during jury selection. They jury may only rule whether the specific law has been violated. They will be plainly and directly asked to rule if the firearm was hidden from ordinary view. There are no exceptions in the law for restaurants. There are only exceptions for your home, business and land you own, lease or "legally occupy".

  16. #16
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    Quote Originally Posted by Interceptor_Knight View Post
    They may not rule whether a law is just. As a matter of fact, they are asked if they have any prejudices against the law during jury selection.
    https://encrypted.google.com/search?...+nullification

    Wisconsin Constitution Article I

    Free speech; libel. SECTION 3. Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be
    passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libel, the truth may be given in evidence, and if it shall appear to the jury that the matter charged as libelous be true, and was published with
    good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.
    Last edited by Herr Heckler Koch; 09-29-2011 at 07:23 PM. Reason: Further research

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    Simple solution. Keep it on the dash and you will always be fine. You will waste alot of time trying to understand the nuances of how different places in the car may be considered "concealed". In the end, just save yourself the trouble and pick the easiest solution that you know will work and move on.

    My dash has a curve to it that allows the gun to be restrained near my front driver side pillar. It just stays in place once I rest it there. Mounting a holster on the dash is also a solution, but I don't want to mess with that.

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    Regular Member oliverclotheshoff's Avatar
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    i had posted this in a different thread but here it is again


    i was told by the jackson county DA that a firearm in a holster on your hip in a vehicle will not be considered a concealed weapon this is not an attempt to argue it is just passing along info i was given by a very pro gun DA during a firearms training class i was part of
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    Regular Member Interceptor_Knight's Avatar
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    Quote Originally Posted by Herr Heckler Koch View Post
    https://encrypted.google.com/search?...+nullification

    Wisconsin Constitution Article I

    Free speech; libel. SECTION 3. Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be
    passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libel, the truth may be given in evidence, and if it shall appear to the jury that the matter charged as libelous be true, and was published with
    good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.
    When someone is charged with a 941.23 violation, the jury does not have the luxury of interpreting the law. The judge will explain the law to the jury and provide the jury instruction which is a document. The jury will simply rule whether or not this law has been violated.
    Last edited by Interceptor_Knight; 09-29-2011 at 09:50 PM.

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    Regular Member HandyHamlet's Avatar
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    Quote Originally Posted by smithman View Post
    Simple solution. Keep it on the dash and you will always be fine.
    What happens in a crash? Is it going to stay there? Or smash your teeth out?

    Just wondering... any EMTs here?
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    Regular Member Motofixxer's Avatar
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    Quote Originally Posted by Herr Heckler Koch View Post

    In all criminal prosecutions or indictments for libel, the truth may be given in evidence, and if it shall appear to the jury that the matter charged as libelous be true, and was published with
    good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.

    Yep it's called Jury Nullification, hmm wonder why judges try to hide it?
    Last edited by Motofixxer; 09-29-2011 at 10:34 PM.
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  22. #22
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    i have heard some talk of going to a shoulder rig, as not to get tangled in the seat belt. i'll probably just go with on the hip, at least initially. it will probably take me 6 months to break the habit of the dance, so i will work on that to start.

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    I am fairly new to OC but with what I have read here it would appear to me that we are taking this to far. For example, if the weapon has to be visible 100% of the time, what happens when walking down the street swinging your arms, your weapon is covered about 50% of the time. What about the LEO on the your week side while walking, he can not see a thing. You are stopped by a tall LEO who can not see your weapon on the dash because he is looking through the tinted section of the windshield. I know that these are extreme ideas but where do we draw the line?
    When talking to a LEO (I know, I know I shouldn't have) he indicated the only question was if the weapon was concealed under the seatbelt, and then he said he would make a judgement call on if you were attempting to conceal it or not. It all depends if he is having a good day or not.
    Hey I just had a thought, if a traffic stop just undo your seatbelt as that is only a $10 fine. Problem solved!!!

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    Quote Originally Posted by smithman View Post
    Simple solution. Keep it on the dash and you will always be fine. You will waste alot of time trying to understand the nuances of how different places in the car may be considered "concealed". In the end, just save yourself the trouble and pick the easiest solution that you know will work and move on.

    My dash has a curve to it that allows the gun to be restrained near my front driver side pillar. It just stays in place once I rest it there. Mounting a holster on the dash is also a solution, but I don't want to mess with that.
    As a note, even then you may not be "fine". Again this all depends on how it would play out with current case law, which seems to indicate it doesn't matter where in the car it is, and definses concealed as "in the car and within reach". They don't say "unless it's on the dash".

    So unless you're ready to be the case that tests current case law and tries to change it, you may not be "fine" per se. Just a thought...
    Last edited by bmwguy11; 09-30-2011 at 09:49 AM.

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    Quote Originally Posted by oliverclotheshoff View Post
    i had posted this in a different thread but here it is again


    i was told by the jackson county DA that a firearm in a holster on your hip in a vehicle will not be considered a concealed weapon this is not an attempt to argue it is just passing along info i was given by a very pro gun DA during a firearms training class i was part of
    Unfortunately that's not an argument one can use in court when there is case law precedent set that defines when a gun is considered concealed inside a vehicle.

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