Motofixxer
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Nov 1, Open carry in car?
- Thread starter svelectric
- Start date
M
McX
Guest
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.
Kc.38
Regular Member
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!!! :lol:
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!!! :lol:
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...
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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.
Interceptor_Knight
Regular Member
Case law says "hidden from ordinary observation", NOT "inside car". In none of the cases was the handgun viewable by someone unless they stuck their face up to the window. If the handgun is above the door line it should be viewable from the rear and the side in which case it will not be hidden.
Again the difference here is case law. There is no case law where someone got charged for walking OC down the street because "50% of the time their weapon was concealed by their arm". On the other hand, we do have case law that defines when a gun is considered concealed in a vehicle. So you're basically testing your luck as to what officer and DA you get. If they charge you with concealed carrying without a permit (class A misdemeanor by the way) because you had a gun on your dash, they have current case law behind them that proved/defined that as "concealed". It's an uphill battle. So the question is, are you ready for that battle? If not, then keep it in your trunk. One nice thing now is that you can leave it loaded and unencased in the trunk after Nov 1st. Which means it'll be quicker and much less noticeable for you to do the "dance".
Hmm I thought that they ruled that any gun that is not encased and within reach inside a vehicle is considered "concealed"? Let me go double check then, if I'm mistaken I apologize.
BROKENSPROKET
Regular Member
Interceptor_Knight
Regular Member
No... they do not. Case law actually supports the position that on the dash is NOT concealed because it is not hidden.
Interceptor_Knight
Regular Member
There are 3 components listed (for it to be concealed) in the annotations. Hidden, within reach and knowledge that it is there.
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).
So here in this case, the gun was simply sitting on the seat, yet they called that "indiscernible from ordinary observation by a person outside". Sitting wide out in the open on your car seat is, in my opinion, not concealed, yet this case law indicates it was. So I guess maybe the dash would be ok, but my point is before this case happened, I think anyone here would have said sitting in plain sight on your car seat was not concealed either. I think that at least gives credence to the possibility that a liberal DA or officer could use this case to claim a gun on the dash was considered concealed just as much as a gun sitting on a seat?
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svelectric
Regular Member
At least I'm not the only one who saw the ambiguity here... I can't be a test case (job would be on the line). Unfortunately, I'll just have to wait for my permission slip...
Also, I thought FAQ's were supposed to lessen confusion, not highten it!
Also, I thought FAQ's were supposed to lessen confusion, not highten it!
rcawdor57
Campaign Veteran
Nov 1st Coming Soon....
Carrying and Possessing Firearms in Wisconsin LINK: http://legis.wisconsin.gov/lc/publications/im/IM2011_10.pdf
Snip:
“Carry” Versus “Possession”
The majority of the provisions of the bill relate to restrictions on a person’s ability to “carry” a firearm. The bill defines “carrying” a firearm to mean to “go armed with” a firearm. The phrase “go armed with,” as it would relate to a firearm, has been defined by the Wisconsin courts to mean that the firearm was on the individual’s person or was within the individual’s reach and the individual was aware of the presence of the firearm. However, Wisconsin courts generally do not treat having an unloaded and encased firearm within one’s reach as “going armed with” the firearm.3
1 The bill also includes specific provisions related to the places and manner in which law enforcement officers, out-of-state officers, and former officers may possess firearms. These provisions are not described in this memorandum.
2 This memorandum only applies to people that are not prohibited from possessing a firearm under state or federal law.
3 For instance, in State v. Walls, 190 Wis. 2d 65 (Ct. App. 1994), the Court of Appeals recognized that the placement, possession, or transportation of unloaded and encased firearms in vehicles as permitted by § 167.31 (2) (b), Stats., does not constitute going armed with a concealed weapon.
Please note that an unloaded and encased firearm within reach is not a concealed weapon. If it were we would all be arrested every time we are seen in public encasing our firearms; Every time a firearm is purchased or returned to a store it is encased and within reach. It is not a concealed weapon.
As for me what will I do come Nov. 1st? I believe the intent of the law(s) is to provide us with the ability to open carry, load, unload, etc. in or on our vehicles but the legislature (and us) missed or forgot about 941.23 which was not changed. I think if we get stopped with our handguns on or loading/unloading, etc..as the "law" allows we may or may not be charged under 941.23 based on who stops you and where you are in this state. The Constitutional counties will not prosecute, we know that, the majority I think will and we will have quite a few test cases.
So I will wait for my "permit" and also to ensure I don't violate any GFSZ's.
Carrying and Possessing Firearms in Wisconsin LINK: http://legis.wisconsin.gov/lc/publications/im/IM2011_10.pdf
Snip:
“Carry” Versus “Possession”
The majority of the provisions of the bill relate to restrictions on a person’s ability to “carry” a firearm. The bill defines “carrying” a firearm to mean to “go armed with” a firearm. The phrase “go armed with,” as it would relate to a firearm, has been defined by the Wisconsin courts to mean that the firearm was on the individual’s person or was within the individual’s reach and the individual was aware of the presence of the firearm. However, Wisconsin courts generally do not treat having an unloaded and encased firearm within one’s reach as “going armed with” the firearm.3
1 The bill also includes specific provisions related to the places and manner in which law enforcement officers, out-of-state officers, and former officers may possess firearms. These provisions are not described in this memorandum.
2 This memorandum only applies to people that are not prohibited from possessing a firearm under state or federal law.
3 For instance, in State v. Walls, 190 Wis. 2d 65 (Ct. App. 1994), the Court of Appeals recognized that the placement, possession, or transportation of unloaded and encased firearms in vehicles as permitted by § 167.31 (2) (b), Stats., does not constitute going armed with a concealed weapon.
Please note that an unloaded and encased firearm within reach is not a concealed weapon. If it were we would all be arrested every time we are seen in public encasing our firearms; Every time a firearm is purchased or returned to a store it is encased and within reach. It is not a concealed weapon.
As for me what will I do come Nov. 1st? I believe the intent of the law(s) is to provide us with the ability to open carry, load, unload, etc. in or on our vehicles but the legislature (and us) missed or forgot about 941.23 which was not changed. I think if we get stopped with our handguns on or loading/unloading, etc..as the "law" allows we may or may not be charged under 941.23 based on who stops you and where you are in this state. The Constitutional counties will not prosecute, we know that, the majority I think will and we will have quite a few test cases.
So I will wait for my "permit" and also to ensure I don't violate any GFSZ's.
Interceptor_Knight
Regular Member
A gun on the seat is NOT a gun in plan sight inside a vehicle unless your face is up to the glass on a side or the window is open and you stick your head in. Neither are considered "ordinary observation" which is the standard used in case law. You will not find the phrase "in plain sight inside a vehicle" in case law.
Where a gun on the seat is not discernible from ordinary observation, a gun on the dash is. You simply can not equate on the seat which is way below the door line to be similar to on the dash which is viewable through the rear window as you walk up to the vehicle as well as from the side windows as you walk by the vehicle. The key is "ordinary observation".
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Interceptor_Knight
Regular Member
While the FAQ points out that a handgun no longer has to comply with the former unloaded and encased requirements of 167.31, the DOJ FAQ also clearly says that a handgun in a vehicle can still be considered concealed if it is "hidden" from view (ordinary observation). Act 35 changed 167.31 but did not change 941.23 except for licensees.
Outdoorsman1
Regular Member
Snip...
So I guess the "and within reach" thing kinda eliminates the holster on the dash idea..?????
All I will say on this subject is what I have said in my earlier posts in this thread except to add that is is becoming an "Never Ending Story"...
Outdoorsman1
So I guess the "and within reach" thing kinda eliminates the holster on the dash idea..?????
All I will say on this subject is what I have said in my earlier posts in this thread except to add that is is becoming an "Never Ending Story"...
Outdoorsman1
Interceptor_Knight
Regular Member
Please see the other thread. If it is not hidden, there is no AND. Placing it on the dash makes it NOT hidden. It is not "concealed" without being hidden.
MrBubba
Regular Member
I'm not interested in engaging in yet another debate about the applicability of outdated case law from a different time and different court with all the other amateur attorneys here, but I will add what I have on the topic in case anyone is interested. I put these links together for a different thread on this subject to establish the clear intent of the legislature for legal unlicensed open carry in vehicles. These references might be useful for anyone who would like to make up their own mind and even for whoever ends up fighting the inevitable test case to expand all of our freedoms.
The intent of the legislature on this point for substitute amendment 2 of SB93 was clear and unambiguous, from the "WISCONSIN LEGISLATIVE COUNCIL AMENDMENT MEMO on the Senate Substitute Amendment 2, as Amended" which was what the Joint Committee on Finance voted on and approved:
https://docs.legis.wisconsin.gov/201...amendmemo/sb93
"The substitute amendment makes a number of statutory changes with respect to the placement, possession, and transportation of firearms in various types of vehicles, as follows:
- Permits placing, possessing, or transporting a firearm that is a handgun in a vehicle.
- Permits loading a firearm that is a handgun in a vehicle."
From the Milwaukee Journal Sentinel, "Wisconsin Senate passes concealed-carry bill":
http://www.jsonline.com/news/statepo...123826279.html
"The bill would also allow people to carry loaded, uncased guns in their cars. Now, guns are allowed in vehicles only if they are unloaded and encased."
From the NRA fact sheet on the bill as transmitted to the Governor for his signature:
http://www.nraila.org/pdfs/PPA Sum...20Governor.pdf
"Eliminates the prohibition against the possession of uncased, loaded handguns in vehicles, noncommercial aircraft, boats, and ATVs. This expanded freedom applies to both licensees and non-licensees."
The intent of the legislature on this point for substitute amendment 2 of SB93 was clear and unambiguous, from the "WISCONSIN LEGISLATIVE COUNCIL AMENDMENT MEMO on the Senate Substitute Amendment 2, as Amended" which was what the Joint Committee on Finance voted on and approved:
https://docs.legis.wisconsin.gov/201...amendmemo/sb93
"The substitute amendment makes a number of statutory changes with respect to the placement, possession, and transportation of firearms in various types of vehicles, as follows:
- Permits placing, possessing, or transporting a firearm that is a handgun in a vehicle.
- Permits loading a firearm that is a handgun in a vehicle."
From the Milwaukee Journal Sentinel, "Wisconsin Senate passes concealed-carry bill":
http://www.jsonline.com/news/statepo...123826279.html
"The bill would also allow people to carry loaded, uncased guns in their cars. Now, guns are allowed in vehicles only if they are unloaded and encased."
From the NRA fact sheet on the bill as transmitted to the Governor for his signature:
http://www.nraila.org/pdfs/PPA Sum...20Governor.pdf
"Eliminates the prohibition against the possession of uncased, loaded handguns in vehicles, noncommercial aircraft, boats, and ATVs. This expanded freedom applies to both licensees and non-licensees."
Interceptor_Knight
Regular Member
None of your snippets are worth a pinch of salt in a court room if you are trying to defend against a citation. Find a current attorney who agrees with you before trying anything which may get you cited. All of the several actual attorneys I have encountered agree with the DOJ FAQ and none see grounds to challenge it. No changes were made to 941.23 for non-licensees.