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[FONT="]I have heard back from our Village Attorney. I had forwarded your two questions (in black below) and he has provided responses to both, which are below in blue. I have also added some comments in red from me which outline what steps the Village is taking that may be of interest to you. Please let me know if you have any further questions.[/FONT]
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[FONT="]1. [/FONT]In Chapter 9.01, the village prohibits the carrying of firearms, which is unenforceable due to state preemption 66.0409, Article 1, Section 25, "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose," as well as when Act 35 goes into law on November 1, 2011. [FONT="]Comments from our Village Attorney:[/FONT] [FONT="]Section 66.0409 of the Wisconsin Statutes do not prohibit the Village from regulating the carrying of firearms outright. Instead the relevant provisions of Section 66.0409 prohibit the Village from adopting or enforcing an ordinance or resolution concerning the “sale, purchase, purchase delay, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation” of firearms “unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute.” Under currently existing provisions of Wisconsin Statute 941.235, it is a crime for a person to go armed with a firearm in any building owned or leased by the state or any political subdivision in the state (which includes the Village of Sussex) unless the person is a law enforcement officer, military personnel or has been authorized by the local sheriff or chief of police. Section 941.235 of the Wisconsin Statutes has been amended by Act 35 to also include an exception for persons who are licensed to carry a concealed weapon. That amendment, however, cannot be viewed in isolation. Section 943.13 of the Wisconsin Statutes has also been amended by Act 35 to permit the Village to post written notice to persons that they may not “enter or remain in a part of that building, or on the grounds of that building, while carrying a firearm or with a particular type of firearm.” Since the Village’s proposed ordinance would be adopted pursuant to the aforementioned State statutes, a constitutional challenge to the Village’s ordinance would also necessitate a challenge of the constitutionality of the State statutes. [/FONT]
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[FONT="]Comments from Melissa Weiss, Assistant to the Administrator:[/FONT][FONT="] The Village’s Public Safety and Welfare Committee has requested that staff provide a draft revision of ordinance Section 9.01 of the Village Code so that it will remain compliant with the provisions of Section 66.0409 of the Wisconsin Statutes as amended by Act 35, and prohibit people from entering or remaining in Village buildings/grounds while carrying a firearm. This draft language will be reviewed by the Public Safety and Welfare Committee on October 5, 2011 at 7pm at Village Hall in the Board Room and it is possible that the Committee will take action on the item at that time. If they make a positive recommendation, the item will go to the October 25 Village Board meeting for action. A copy of the draft ordinance is available on our website by selecting Boards & Commissions and then Agendas & Minutes.[/FONT]
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[FONT="]2. [/FONT]Please review 175.60(b)(c). If the Village decides to post, they can be held liable for the person's injury or death because the person was prohibited from having the means of self defense. [FONT="]Comments from our Village Attorney:[/FONT] [FONT="]Act 35 does not create liability or increase the liability for persons or employers who prohibit the carrying of concealed weapons under the statutory terms created by that Act. Instead, Section 175.60(21)(b) and (c) of the Wisconsin Statutes, as created by Act 35, establish immunities from liability for persons and employers who do not prohibit the carry of concealed weapons. In other words, the mere fact that two classes of individuals receive immunity for not acting to limit weapons does not equate to additional liability exposure for persons who do act to limit weapons. Act 35 does not otherwise affect the negligence laws or laws regarding governmental immunity. In the scenario you present, a claimant would need to be able to prove that the Village was somehow “negligent” by availing itself of its express rights under State law to limit the carrying of firearms in Village buildings by persons other than law enforcement and military personnel. Significantly, such a claimant would also need to overcome existing laws regarding immunity and liability limits that pertain to municipalities.
Needless to say, I will be attending tonight.
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