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Thread: Madison PD had posted a "legal update" regarding Act 35

  1. #1
    Wisconsin Carry, Inc. Shotgun's Avatar
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    Madison PD had posted a "legal update" regarding Act 35

    Here's a link to Madison PD's latest "legal update" which is published a various times throughout the year. This issue is of particular interest because it covers Act 35, with a second section regarding the department's take on how to handle "citizen encounters", i.e., armed citizens.

    The author is Captain Vic Wahl. It is my understanding that he has a law degree, which would put a greater burden on him to be familiar with the law-- in my opinion.

    Anyway, here's a link. I think the more people who read it the better to identify any possible concerns or errors.

    http://www.cityofmadison.com/police/...LUfall2011.pdf
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  2. #2
    McX
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    printed it out, will study it, and carry it, might be a handy reference document in the future. something to stuff in the gun case.

  3. #3
    Founder's Club Member Brass Magnet's Avatar
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    Huh, it's really not all that bad. I was suspecting much worse from Madistan. I did notice some things that aren't necessarily wrong but are suspect. For instance, if someone calls and tells them someone is carrying a concealed weapon.

    Let's say an anonymous caller tells them someone of your description is carrying a concealed weapon. Do they really have RAS for a stop? I don't think they even know. It would be more clear if it was not anonymous of course. Further, if they do have RAS in this situation; are you required to show them your license and ID if you are carrying? I'd say no in your private dwelling or place of business and probably yes if you are in another allowable area that requires a permit.

    I find it interesting that they don't mention a possible CCW violation for non-permitees here:
    Transporting Firearms
    Under the Act, CCW license holders can carry concealed
    weapons (handguns, electric weapons, knives or billy clubs)
    in a vehicle. Non-license holders may place, possess, load
    or transport a handgun in a vehicle without it being unloaded
    or encased. However, long guns still need to be unloaded
    and encased while being transported in a vehicle.
    No mention of the Walls case law so that's a win.

    I think that their take on OC is accurate as far as the DC statutes are concerned.

    However, in other contexts, open carry is less likely to create
    reasonable suspicion justifying a stop. The amendment to
    the disorderly conduct statute included in Act 35 limits the
    applicability of 947.01 to open carry situations; only if
    “other facts and circumstances indicate a criminal or
    malicious intent on the part of the person” might open carry
    be considered a violation (even if others are disturbed).
    They seem to be saying that we aren't required to produce ID and a license during a consensual encounter which I believe to be correct. This makes it more important than ever to just not have a consensual encounter with the police and walk away if able. This also makes OC even more favorable because as long as you aren't in an area that requires the permit they have no legal authority to ask you to provide these things. They seem to be saying as much as well.

    Consensual contacts with potentially armed subjects can
    arise in two primary ways: open carry situations where no
    reasonable suspicion exists; or other consensual contacts
    done for investigative purposes. During a consensual
    encounter, officers may ask for identification and may ask if
    the subject is armed or carrying a concealed weapon. The
    subject is under no obligation to answer questions, provide
    identification or even remain with the officer. If the subject
    is lawfully armed (an open carry situation, for example) the
    officer may ask to separate the weapon from the subject, but
    the subject is generally under no obligation to comply.
    It may be nit picky but I'm not quite sure this is completely correct.

    CCW license holders who are carrying a concealed weapon
    are not required to inform law enforcement that they are
    armed during police encounters. However, if asked by a law
    enforcement officer whether they are armed a CCW license
    must display his/her license and a photo ID. So, in many
    circumstances it may be wise for officers to ask suspects who
    have been detained if they are armed.
    Aren't we only required to show the CCW and ID if asked for the CCW and ID? Not that they wouldn't ask that in a follow-up question but it's not automatic from "are you armed" to "here's my papers".

    I like that they put this in as it makes sense and I hope they follow; emphasis mine:
    If a detained suspect indicates that they are a CCW license
    holder who is carrying a concealed weapon (either by
    volunteering the information or in response to an officer’s
    question), generally the officer should temporarily separate
    the weapon from the suspect while the validity of the CCW
    license is verified. The officer should remove the weapon
    him/herself (do not direct the subject to handle the weapon)
    and secure it during the stop while the license is verified. In
    some situations, it might be safer to allow the subject to
    retain the weapon, and provide verbal directions to control
    their hands, movement, etc.
    Which option is selected should
    depend on the circumstances
    Overall, I don't see any terribly glaring issues. I think this is NTB coming from these guys.
    Last edited by Brass Magnet; 10-21-2011 at 02:22 PM.
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    I sure hope they are giving away guns ALLOWED signs to go along with the taxpayer funded prohibited ones


    Overall by just skimming its not a bad overview of the law and I may print out some copes for people who are asking, should be easier then explaining.

    Was it just me or did it seem to have a little anti feel overall?


    Oh yea, thanks for posting!

    Sent from my DROID2 GLOBAL using Tapatalk
    Last edited by Jason in WI; 10-21-2011 at 02:35 PM.

  5. #5
    Regular Member Interceptor_Knight's Avatar
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    Schools: A CCW license holder may not carry a concealed
    weapon on school grounds (though the limitation on being
    armed within 1000 feet of a school does not apply to a CCW
    license holder).
    State Statute only prohibits firearms on School Grounds. There are no prohibitions for billy clubs, knives or electric weapons. Local ordinances may be more stringent for other "weapons" since preemption only applies to firearms.
    Last edited by Interceptor_Knight; 10-21-2011 at 02:40 PM.

  6. #6
    Regular Member McNutty's Avatar
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    So, the disorderly conduct statute (and corresponding city
    ordinance) clearly may no longer be applied to simply
    carrying a firearm in public. However, if other factors are
    present (indicating a criminal or malicious intent) then the
    statute might apply.
    I'm glad that the DC statute has been amended but I thought this fact was clear enough already w/ the AG opinion, etc. Apparently MPD really wasn't sure but it is nice that they are acknowledging it at this point.

  7. #7
    Regular Member Outdoorsman1's Avatar
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    This kinda is reason for some concern.....

    Snip...

    As indicated, Act 35 does not require CCW license holders
    who are armed to notify law enforcement of that fact during
    an encounter. They do, however, need to produce their
    license and photo ID if requested. DOJ has put forth some
    initial recommendations for CCW license holders to follow if
    contacted by law enforcement while carrying a concealed
    weapon:
    1. Immediately tell the officer that you're carrying a concealed
    weapon and where it's located.
    2. Keep your hands where the officer can see them.
    3. Cooperate fully with the officer.
    4. Don't make any quick movements, especially toward the
    weapon.
    5. If you're in a vehicle:
    • Roll down your window and place your hands in plain
    view on the steering wheel
    • If it is at night, turn on the vehicle's dome light.
    • Calmly tell the officer you have a CCW license and that
    you have a weapon with you. Ask the officer if they have
    particular instructions concerning the weapon.
    • Do not touch or attempt to touch the weapon unless
    specifically told to do so by the officer.
    • Do not leave your vehicle unless specifically told to do so
    by the officer.
    In certain circumstances, a law enforcement officer may ask to take
    temporary possession of the weapon or may seize the weapon
    during interaction with the individual to ensure the safety of the
    officer and others or to secure the weapon as evidence.
    The officer
    will return the weapon at the end of the stop unless the individual is
    placed under arrest for a violation of the law that allows the weapon
    to be seized.
    Ask the officer....?????? As in, how high do you want me to jump.... sir...???..
    Safety... Would it not be MOST SAFE if not touched and left in the holster.....
    Secure the weapon as evidence.... Well ok, evidence for what in a LEGAL carry situation....????

    I suppose most of the article is pretty straight forward and accurate....

    Just Sayin.....

    Outdoorsman1
    Last edited by Outdoorsman1; 10-21-2011 at 03:03 PM.
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  8. #8
    Founder's Club Member Brass Magnet's Avatar
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    Quote Originally Posted by Outdoorsman1 View Post
    This kinda is reason for some concern.....

    Snip...



    Ask the officer....?????? As in, how high do you want me to jump.... sir...???..
    Safety... Would it not be MOST SAFE if not touched and left in the holster.....
    Secure the weapon as evidence.... Well ok, evidence for what in a LEGAL carry situation....????

    I suppose most of the article is pretty straight forward and accurate....

    Just Sayin.....

    Outdoorsman1
    The above stuff you quoted is actually from the DOJ website and a recommendation only AFAIK.
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    Regular Member Outdoorsman1's Avatar
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    Quote Originally Posted by Brass Magnet View Post
    The above stuff you quoted is actually from the DOJ website and a recommendation only AFAIK.
    Agreed... it is even mentioned in the "legal update" that they are recomendations only... but still... in print = in the mind of any LEO who has read them...

    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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  10. #10
    Anti-Saldana Freedom Fighter Venator's Avatar
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    It ain't that great either. I'm wondering about this portion below. If asked if you have any weapons, can't you refuse to answer that question or for that matter any questions? The LEO can ask away, but until you say you have a firearm or are carrying concealed they can't demand the CPL.... Isn't that a correct assumption? Or is Wisconsin law different in this regard?

    CCW license holders who are carrying a concealed weaponare not required to inform law enforcement that they arearmed during police encounters. However, if asked by a lawenforcement officer whether they are armed a CCW licensemust display his/her license and a photo ID. So, in manycircumstances it may be wise for officers to ask suspects who
    have been detained if they are armed.
    An Amazon best seller "MY PARENTS OPEN CARRY" http://www.myparentsopencarry.com/

    *The information contained above is not meant to be legal advice, but is solely intended as a starting point for further research. These are my opinions, if you have further questions it is advisable to seek out an attorney that is well versed in firearm law.

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    Quote Originally Posted by Interceptor_Knight View Post
    State Statute only prohibits firearms on School Grounds. There are no prohibitions for billy clubs, knives or electric weapons. Local ordinances may be more stringent for other "weapons" since preemption only applies to firearms.
    You are correct that 948.605 Gun-free school zones only prohibits firearms (excluding bee-bee and pellet guns), and allows those carrying firearms with the USC 922(q)(2)B)etc. exceptions, as well as the
    948.605(2)(b)1r. Except if the person is in or on the grounds of a school, a licensee, as defined in s. 175.60 (1) (d), or an out-of-state licensee, as defined in s. 175.60 (1) (g).


    HOWEVER, this Wisconsin statute prohibits other dangerous weapons on the grounds of a grade 1-12 school facility:


    948.61 Dangerous weapons other than firearms on school premises.
    (no exceptions for CCW holder)

    and uses the "Dangerous weapon" definition (with firearms, bee-bee and pellet guns excluded) from

    923.22(10) "Dangerous weapon" means any firearm, whether loaded or unloaded; any device designed as a weapon and capable of producing death or great bodily harm; any ligature or other instrumentality used on the throat, neck, nose, or mouth of another person to impede, partially or completely, breathing or circulation of blood; any electric weapon, as defined in s. 941.295 (1c) (a); or any other device or instrumentality which, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm.
    Last edited by E6chevron; 10-21-2011 at 03:41 PM.

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    Founder's Club Member Brass Magnet's Avatar
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    Quote Originally Posted by Venator View Post
    It ain't that great either. I'm wondering about this portion below. If asked if you have any weapons, can't you refuse to answer that question or for that matter any questions? The LEO can ask away, but until you say you have a firearm or are carrying concealed they can't demand the CPL.... Isn't that a correct assumption? Or is Wisconsin law different in this regard?

    CCW license holders who are carrying a concealed weaponare not required to inform law enforcement that they arearmed during police encounters. However, if asked by a lawenforcement officer whether they are armed a CCW licensemust display his/her license and a photo ID. So, in manycircumstances it may be wise for officers to ask suspects who

    have been detained if they are armed.
    From my reading and understanding, if it is a consensual encounter you don't have to do anything. The memo seems to make that pretty clear actually. Yes, in a "stop" Terry or otherwise, we are required to display the documents if asked. The key is they must ask under lawful authority. Also, if you are OC, and not in a place that requires a CCW, they don't have seem to have the legal authority to demand it either since you don't need it. IANAL of course.
    Last edited by Brass Magnet; 10-21-2011 at 03:31 PM.
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    Regular Member Interceptor_Knight's Avatar
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    Quote Originally Posted by E6chevron View Post
    ...
    HOWEVER, this prohibits other dangerous weapons in a GFSZon school premises:


    948.61 Dangerous weapons other than firearms on school premises.....
    Oops.. Temporary insanity. I knew about that Statute and spaced it out...

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    Regular Member Trip20's Avatar
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    Quote Originally Posted by Brass Magnet View Post
    I find it interesting that they don't mention a possible CCW violation for non-permitees here:

    Transporting Firearms
    Under the Act, CCW license holders can carry concealed
    weapons (handguns, electric weapons, knives or billy clubs)
    in a vehicle. Non-license holders may place, possess, load
    or transport
    a handgun in a vehicle without it being unloaded
    or encased. However, long guns still need to be unloaded
    and encased while being transported in a vehicle.
    No mention of the Walls case law so that's a win.
    Do you think there's just a semantics angle here? They specifically say "carry" for permit holders and do not do so for non-license holders.

  15. #15
    Founder's Club Member Brass Magnet's Avatar
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    Quote Originally Posted by Trip20 View Post
    Do you think there's just a semantics angle here? They specifically say "carry" for permit holders and do not do so for non-license holders.
    Although I understand what you are getting at, it also specifically says this in relation to permit holders:

    CCW license holders can carry concealed
    weapons (handguns, electric weapons, knives or billy clubs)
    in a vehicle.
    So I can't see anything ulterior right of the bat.
    Last edited by Brass Magnet; 10-21-2011 at 04:31 PM.
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    Regular Member Interceptor_Knight's Avatar
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    Quote Originally Posted by Brass Magnet View Post
    ..

    I find it interesting that they don't mention a possible CCW violation for non-permitees here:

    ...
    It is just another inadequate FAQ. What else would you expect from Madison? The DOJ FAQ clearly states that nothing has changed regarding concealment in a vehicle unless you are a licensee. The case law is still relevant.

  17. #17
    Wisconsin Carry, Inc. Shotgun's Avatar
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    Quote Originally Posted by Jason in WI View Post
    Was it just me or did it seem to have a little anti feel overall?
    Yes, but considering this is the department that gave the world the Culver's 5 due to their bungled handling of that incident, indeed even making an incident out of it, this represents a much more level-headed and sober view of the rights of gun carriers than they showed a year ago. Let's hope the officers on the street take it to heart and real progress has been made. I think it is clear that they recognize that the past ambiguities of the disorderly conduct statute that they relied upon in the past have been taken away from them. In reality, there wasn't any real ambiguity in the disorderly conduct statute, but there were those who pretended there are ambiguities in order to give justification for unreasonable actions.
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  18. #18
    McX
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    disappointing that they made no mention of the segment in my signature; unlawful to use excessive force against permit holders, cop may face fine and/or jail time. we all know madison never uses excessive force, nor violates citizen rights.......yeah, sure.

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