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Thread: Legal basis for lawsuit against ordinances aand resolutions posting signs

  1. #1
    Regular Member paul@paul-fisher.com's Avatar
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    Legal basis for lawsuit against ordinances aand resolutions posting signs

    After Walworth County voted to pass an ordinance mandating the posting of buildings, I came up with an idea. Please tell me if I wrong.


    Here is the statute:

    66.0409(2)Except as provided in subs. (3) and (4), no political subdivision may enact an ordinance or adopt a resolution that regulates the sale, purchase, purchase delay, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm or part of a firearm, including ammunition and reloader components, unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute.
    (3) (a) Nothing in this section prohibits a county from imposing a sales tax or use tax under subch. V of ch. 77 on any firearm or part of a firearm, including ammunition and reloader components, sold in the county. (b) Nothing in this section prohibits a city, village or town that is authorized to exercise village powers under s. 60.22 (3) from enacting an ordinance or adopting a resolution that restricts the discharge of a firearm. Any ordinance or resolution that restricts the discharge of a firearm does not apply and may not be enforced if the actor’s conduct is justified or, had it been subject to a criminal penalty, would have been subject to a defense described in s.939.45.
    (4) (a) Nothing in this section prohibits a political subdivision from continuing to enforce an ordinance or resolution that is in effect on November 18, 1995, and that regulates the sale, purchase, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm or part of a firearm, including ammunition and reloader components, if the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute. (am) Nothing in this section prohibits a political subdivision from continuing to enforce until November 30, 1998, an ordinance or resolution that is in effect on November 18, 1995, and that requires a waiting period of not more than 7 days for the purchase of a handgun. (b) If a political subdivision has in effect on November 17, 1995, an ordinance or resolution that regulates the sale, purchase, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm or part of a firearm, including ammunition and reloader components, and the ordinance or resolution is not the same as or similar to a state statute, the ordinance or resolution shall have no legaleffect and the political subdivision may not enforce the ordinance or resolution on or after November 18, 1995. (c) Nothing in this section prohibits a political subdivision from enacting and enforcing a zoning ordinance that regulates the new construction of a sport shooting range or when the expansion of an existing sport shooting range would impact public health and safety.
    Since the state has no statute that posts buildings, isn't the act of the local government in violation of this?


    The way I read it, the only way a local government can post is to do it without a statute or resolution. That means, at least in most local governments, it can't be done.


    I understand that each local government would have to be sued individually but if one or two were sucessful, especially if we were to pick the Cities of Milwaukee and Madison, we could use that as further ammunition in our local fights.


    Please feel free to shoot holes in this.
    Last edited by paul@paul-fisher.com; 11-16-2011 at 09:19 AM.

  2. #2
    Founder's Club Member protias's Avatar
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    I've been saying this since cities have been doing this. I personally do not believe they can make the ordinance as it conflicts with preemption, but they cannot post without an ordinance.
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    Regular Member bigdaddy1's Avatar
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    What are the exceptions listed? That may be there ace.
    Last edited by bigdaddy1; 11-16-2011 at 09:10 AM.
    What part of "shall not be infringed" don't you understand?

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    Regular Member paul@paul-fisher.com's Avatar
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    Quote Originally Posted by bigdaddy1 View Post
    What are the exceptions listed? That may be there ace.
    Updated original post but no, no exception for posting.

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    "unless the ordinance or resolution is the same as or similar to, and no more stringent than, A STATE STATUTE"
    "Since the state has no statute that posts buildings,..."

    The absence of a statute allows them to do it, not prohibit them from doing it. If there is no statute banning the posting of buildings, then I think local ordinances that do so are legal. In my humble, non-lawyerly opinion.

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    Regular Member wild boar's Avatar
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    In the PM...

    ...you mentioned city park amenity's. Since a bathroom doesn't meet any restricted areas of state law, I believe that the law in whole could be successfully challenged. boar out.
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  7. #7
    Regular Member paul@paul-fisher.com's Avatar
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    Quote Originally Posted by Max View Post
    "unless the ordinance or resolution is the same as or similar to, and no more stringent than, A STATE STATUTE"
    "Since the state has no statute that posts buildings,..."

    The absence of a statute allows them to do it, not prohibit them from doing it. If there is no statute banning the posting of buildings, then I think local ordinances that do so are legal. In my humble, non-lawyerly opinion.
    The interpretation has always been that if the state has no statute, then the local governments cannot have one. For example, the state has no statute banning open carry walking down a street so therefore the local government doesn't have one either.

  8. #8
    Wisconsin Carry, Inc. Shotgun's Avatar
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    Quote Originally Posted by paul@paul-fisher.com View Post

    Since the state has no statute that posts buildings,

    Please feel free to shoot holes in this.
    The hole is that there IS a statute about posting buildings: Chapter 941.13

    This section outlines when and where the state, local governments and private owners may post.
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    Regular Member paul@paul-fisher.com's Avatar
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    Quote Originally Posted by Shotgun View Post
    The hole is that there IS a statute about posting buildings: Chapter 941.13

    This section outlines when and where the state, local governments and private owners may post.
    Can you provide a specific cite? 941.13 is a mess and I get confused.

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    Founder's Club Member Brass Magnet's Avatar
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    Quote Originally Posted by Shotgun View Post
    The hole is that there IS a statute about posting buildings: Chapter 941.13

    This section outlines when and where the state, local governments and private owners may post.
    This ^

    But I agree that they shouldn't be able to pass an ordinance that requires all buildings to be posted. They can post IMHO, but not pass a blanket ordinance. So, the "vehicle" is the problem IMO.
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    Quote Originally Posted by paul@paul-fisher.com View Post
    The interpretation has always been that if the state has no statute, then the local governments cannot have one. For example, the state has no statute banning open carry walking down a street so therefore the local government doesn't have one either.
    The state has no statute banning the burning of leaves but many local governments do have ordinances that do.

  12. #12
    Regular Member paul@paul-fisher.com's Avatar
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    Quote Originally Posted by Max View Post
    The state has no statute banning the burning of leaves but many local governments do have ordinances that do.
    But there is no 'leaf burning preemption' law.

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    Wisconsin Carry, Inc. Shotgun's Avatar
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    Quote Originally Posted by paul@paul-fisher.com View Post
    Can you provide a specific cite? 941.13 is a mess and I get confused.
    I think one has to read and consider a couple of statutes to get the full picture. 941.235 basically says nobody can take a firearm into a building that is owned or leased by the state or a political subdivision of the state unless meeting one of the exceptions. The important exception for most of us is having a valid CCW license. Political subdivisions are counties, cities, villages, and townships.

    Next we have to look at what allows these units of government to regulate licensed people from carrying inside the buildings. That's in 943.13, specifically 943.13(1m)(c)4 for the portion that pertains to state of Wisconsin and municipal buildings. This section basically says if you've been notified not to enter or remain in those buildings, or portions of buildings, you're trespassing. Governmental units have the option of posting a notification or not. Those that are choosing the option of posting are doing so by passing an ordinance or resolution to do so. When a municipality decides a course of action, it's done via passage of ordinances and resolutions by those elected to make the decisions on behave of the residents. It looks to me that they don't have the option to allow CCW licensees to carry in court rooms, jails, police stations, because 943.13(1m)(c)4 only gives them the option of posting in buildings or portions of building that don't come under 175.60(16)(a) i.e., the portion of the statute that makes some places automatically prohibited.
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    Regular Member tomm1963's Avatar
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    I felt that when the legislature allowed carry into the capital that a preemption suit against local Governments my be feasible. Who's going to spend the money to file suit?

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    Wisconsin Carry, Inc. Shotgun's Avatar
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    Quote Originally Posted by tomm1963 View Post
    I felt that when the legislature allowed carry into the capital that a preemption suit against local Governments my be feasible. Who's going to spend the money to file suit?
    I don't understand the basis for such a suit. How would the decision regarding the Capital be relevant to local governments? As far as I can tell the law that allowed a choice to carry in portions of the Capital is the same law that allows local governments to choose against carry in their buildings. As far as the breakdown of where you can and cannot carry in the Capital building, the decision to allow carry in the building in general was made by the Department of Administration, which reports to the Governor. The decision to allow carry in Senate and Assembly chambers is made by each legislative body respectively. Individual legislators can decide about their offices. The Supreme Court chambers is off-limits to most people by statute. So the "legislature" allows carry insofar as they passed the statutes that authorize all of these varying decisions to be made.
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    Regular Member BROKENSPROKET's Avatar
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    Quote Originally Posted by tomm1963 View Post
    I felt that when the legislature allowed carry into the capital that a preemption suit against local Governments my be feasible. Who's going to spend the money to file suit?
    The Dept. of Administration allows carry in the Capitol. The Senate and Assembly only have authority over the Senate and Assembly Floors and Galleries. The Assembly Committee on Orgnization voted to allow carry on the Floor and Gallery. The Senate Committee on Organization voted to allow carry on the floor, but not in thier gallery. The legislators offices are under the authority of the DOA, and DOA has given the Legislators permission to post thier own individual office if they so choose.

    The Legislators did not put the Capitol as a prohibited place leaving that decision to the DOA. To not, it's not just that Capitol, but all state buildings, with the exception of buildings or parts of buildings that there was a specific reason to prohibit.
    Last edited by BROKENSPROKET; 11-16-2011 at 12:24 PM.

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    Regular Member Interceptor_Knight's Avatar
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    Quote Originally Posted by tomm1963 View Post
    I felt that when the legislature allowed carry into the capital that a preemption suit against local Governments my be feasible. Who's going to spend the money to file suit?
    There are no laws which allow us to carry anywhere by any manner. There are only Statutes which restrict our civil liberty to carry everywhere by any manner of our choosing. All of these Statutes have exceptions to their restrictions.
    The legislature simply decided to change its no-weapon policy not pass a Statute allowing carry. They already did that when 941.235 was amended by Act 35 and exceptions to the restrictions were made.

    Quote Originally Posted by paul@paul-fisher.com View Post
    Since the state has no statute that posts buildings, isn't the act of the local government in violation of this?
    There is no State posting preemption Statute.

    941.235 is *the State Statute which prohibits the carry in any Public Building. *The only way a Statute could be more stringent is if it prohibited carry within a specific number of feet from the building and not just inside the building itself.*
    Last edited by Interceptor_Knight; 11-16-2011 at 12:44 PM.

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    Regular Member BROKENSPROKET's Avatar
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    Paul, can you link you previous thread to this one. The one where you asking an out-of-state resident with a out-of-state permit to help you.

  19. #19
    Regular Member paul@paul-fisher.com's Avatar
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    Quote Originally Posted by BROKENSPROKET View Post
    Paul, can you link you previous thread to this one. The one where you asking an out-of-state resident with a out-of-state permit to help you.
    http://forum.opencarry.org/forums/showthread.php?96129-I-need-to-borrow-a-non-WI-resident-with-a-non-WI-permit-11-8

    I
    ended up open carrying myself since my license showed up.

  20. #20
    Regular Member BROKENSPROKET's Avatar
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    I am reposting this as a reply to this thread.

    Quote Originally Posted by BROKENSPROKET View Post
    res·o·lu·tion - a formal expression of opinion or intention made, usually after voting, by a formal organization, a legislature, a club, or other group.

    What I am saying that if a municipality were to pass a resolution to prohibit by posting any/all public buildings, that is entirely legal. They are allowed to take such action in the trespass statutes what would be enforced is 943.13(am)(c)4.

    A resolution to prohibit w/o out proper posting would be unenforceable, not in the way you might think considering 66.0409, but because there is no enforcement mechanism afforded to a resolution.

    If they pass an ordinance to prohibit firearms and do not properly post the building, then it is illegal and unenforceable under 66.0409 because that would be more stringent than 941.235.

    But, if they adopt a trespass ordinance to prohibit firearms in a public building and properly post, then the ordinance is legal because they do have the lawful authority to post any/all buildings to prohibit firearms. It is the proper posting that allows them to have and enforce such an ordinance. That would all fall apart if the changes that Act 35-2011 made to 943.13 were ever repealed, then such ordinance could not be enforced with permit holders, but it could for non-permit holders.

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    I suspect the issue of posting will be the subject of a lot of court activity Center stage will be the inter-play of 66.0409. The posting issue is probably the most confused part of Act 35 compounded by the information contained in ss943.13 (4). The courts should be busy for quite some time. I have some questions for which I would like to her a court response.

    Note: My questions are restricted to the licensed carry of concealed handguns only.

    The state only prohibits carry of concealed handguns in specific locations.

    1. Any portion of a building that is a police station,
    sheriff’s office, state patrol station, or the office of a division
    of criminal investigation special agent of the department.
    2. Any portion of a building that is a prison, jail,
    house of correction, or secured correctional facility.
    3. The facility established under s. 46.055.
    4. The center established under s. 46.056.
    5. Any secured unit or secured portion of a mental
    health institute under s. 51.05, including a facility designated
    as the Maximum Security Facility at Mendota
    Mental Health Institute.
    6. Any portion of a building that is a county, state, or
    federal courthouse.
    7. Any portion of a building that is a municipal courtroom
    if court is in session.
    8. A place beyond a security checkpoint in an airport.
    9. School property for grades 1 thru 12.

    Question: Do political subdivisions contradict 66.0409 if they add additional locations? By doing so do they make the prohibitions more strict than the state?
    ---------------------------------------------------------------------

    Statute 941.235 makes specific exemption for the carry of licensed concealed weapons in political subdivison buildings.

    941.235  Carrying firearm in public building.
    941.235(1) (1) Any person who goes armed with a firearm in any building owned or leased by the state or any political subdivision of the state is guilty of a Class A misdemeanor.
    941.235(2) (2) This section does not apply to any of the following:
    941.235(2)(a) (a) Peace officers or armed forces or military personnel who go armed in the line of duty or to any person duly authorized by the chief of police of any city, village or town, the chief of the capitol police, or the sheriff of any county to possess a firearm in any building under sub. (1). Notwithstanding s. 939.22 (22), for purposes of this paragraph, peace officer does not include a commission warden who is not a state-certified commission warden.
    941.235(2)(c) (c) A qualified out-of-state law enforcement officer, as defined in s. 941.23 (1) (g), to whom s. 941.23 (2) (b) 1. to 3. applies.
    941.235(2)(d) (d) A former officer, as defined in s. 941.23 (1) (c), to whom s. 941.23 (2) (c) 1. to 7. applies.
    941.235(2)(e) (e) A licensee, as defined in s. 175.60 (1) (d), or an out-of-state licensee, as defined in s. 175.60 (1) (g).

    Question: If a political subdivision disallows the carry of licensed concealed weapons in their buildings are they arguing with 941.235?
    -------------------------------------------------------------------------

    Does allowing a political unit of the state or a political subdivision of the state to post their buildings under statute 943.13(4) contradict the state'e exemption in 943.235(2)(e)(e)?
    -------------------------------------------------------------------------
    Finally:
    The state specifically allows the carry of handguns in State parks. If a political subdivison bans them in city, county, municiple parks are they making an ordinance that is more strict than state statutes. It would be very intersting to hear their argument on this issue. It would probably be a 180 degree reversal. One of the arguments those subdivisions made during the open carry controversies was that because the state banned carry of firearms in state parks, except for when authorized by the DNR, banning carry in local parks was lawful and not more strict than state law.

    I'm not taking a position on these questions. Just voicing them. I'm sure there are some that will go to lengths to discredit my questions to the benifit of the enforcement. But I repeat they are just food for thought. Only the courts hold the answers.

  22. #22
    Regular Member paul@paul-fisher.com's Avatar
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    Quote Originally Posted by Captain Nemo View Post
    I suspect the issue of posting will be the subject of a lot of court activity Center stage will be the inter-play of 66.0409. The posting issue is probably the most confused part of Act 35 compounded by the information contained in ss943.13 (4). The courts should be busy for quite some time. I have some questions for which I would like to her a court response.

    Note: My questions are restricted to the licensed carry of concealed handguns only.

    The state only prohibits carry of concealed handguns in specific locations.

    1. Any portion of a building that is a police station,
    sheriff’s office, state patrol station, or the office of a division
    of criminal investigation special agent of the department.
    2. Any portion of a building that is a prison, jail,
    house of correction, or secured correctional facility.
    3. The facility established under s. 46.055.
    4. The center established under s. 46.056.
    5. Any secured unit or secured portion of a mental
    health institute under s. 51.05, including a facility designated
    as the Maximum Security Facility at Mendota
    Mental Health Institute.
    6. Any portion of a building that is a county, state, or
    federal courthouse.
    7. Any portion of a building that is a municipal courtroom
    if court is in session.
    8. A place beyond a security checkpoint in an airport.
    9. School property for grades 1 thru 12.

    Question: Do political subdivisions contradict 66.0409 if they add additional locations? By doing so do they make the prohibitions more strict than the state?
    ---------------------------------------------------------------------

    Statute 941.235 makes specific exemption for the carry of licensed concealed weapons in political subdivison buildings.

    941.235  Carrying firearm in public building.
    941.235(1) (1) Any person who goes armed with a firearm in any building owned or leased by the state or any political subdivision of the state is guilty of a Class A misdemeanor.
    941.235(2) (2) This section does not apply to any of the following:
    941.235(2)(a) (a) Peace officers or armed forces or military personnel who go armed in the line of duty or to any person duly authorized by the chief of police of any city, village or town, the chief of the capitol police, or the sheriff of any county to possess a firearm in any building under sub. (1). Notwithstanding s. 939.22 (22), for purposes of this paragraph, peace officer does not include a commission warden who is not a state-certified commission warden.
    941.235(2)(c) (c) A qualified out-of-state law enforcement officer, as defined in s. 941.23 (1) (g), to whom s. 941.23 (2) (b) 1. to 3. applies.
    941.235(2)(d) (d) A former officer, as defined in s. 941.23 (1) (c), to whom s. 941.23 (2) (c) 1. to 7. applies.
    941.235(2)(e) (e) A licensee, as defined in s. 175.60 (1) (d), or an out-of-state licensee, as defined in s. 175.60 (1) (g).

    Question: If a political subdivision disallows the carry of licensed concealed weapons in their buildings are they arguing with 941.235?
    -------------------------------------------------------------------------

    Does allowing a political unit of the state or a political subdivision of the state to post their buildings under statute 943.13(4) contradict the state'e exemption in 943.235(2)(e)(e)?
    -------------------------------------------------------------------------
    Finally:
    The state specifically allows the carry of handguns in State parks. If a political subdivison bans them in city, county, municiple parks are they making an ordinance that is more strict than state statutes. It would be very intersting to hear their argument on this issue. It would probably be a 180 degree reversal. One of the arguments those subdivisions made during the open carry controversies was that because the state banned carry of firearms in state parks, except for when authorized by the DNR, banning carry in local parks was lawful and not more strict than state law.

    I'm not taking a position on these questions. Just voicing them. I'm sure there are some that will go to lengths to discredit my questions to the benifit of the enforcement. But I repeat they are just food for thought. Only the courts hold the answers.
    I like it! I will have to re-read it and think about it.

  23. #23
    State Researcher lockman's Avatar
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    Quote Originally Posted by Captain Nemo View Post

    Statute 941.235 makes specific exemption for the carry of licensed concealed weapons in political subdivison buildings.

    941.235  Carrying firearm in public building.
    941.235(1) (1) Any person who goes armed with a firearm in any building owned or leased by the state or any political subdivision of the state is guilty of a Class A misdemeanor.
    941.235(2) (2) This section does not apply to any of the following:
    941.235(2)(a) (a) Peace officers or armed forces or military personnel who go armed in the line of duty or to any person duly authorized by the chief of police of any city, village or town, the chief of the capitol police, or the sheriff of any county to possess a firearm in any building under sub. (1). Notwithstanding s. 939.22 (22), for purposes of this paragraph, peace officer does not include a commission warden who is not a state-certified commission warden.
    941.235(2)(c) (c) A qualified out-of-state law enforcement officer, as defined in s. 941.23 (1) (g), to whom s. 941.23 (2) (b) 1. to 3. applies.
    941.235(2)(d) (d) A former officer, as defined in s. 941.23 (1) (c), to whom s. 941.23 (2) (c) 1. to 7. applies.
    941.235(2)(e) (e) A licensee, as defined in s. 175.60 (1) (d), or an out-of-state licensee, as defined in s. 175.60 (1) (g).

    Question: If a political subdivision disallows the carry of licensed concealed weapons in their buildings are they arguing with 941.235?
    -------------------------------------------------------------------------

    Does allowing a political unit of the state or a political subdivision of the state to post their buildings under statute 943.13(4) contradict the state'e exemption in 943.235(2)(e)(e)?
    My take is that you can not be charged under 941.235(1), because as a permit holder you are exempted. But under 943.13(4) your remaining in the building knowing it is lawfully posted could subject the carrier to other charges such as trespass.

  24. #24
    State Researcher lockman's Avatar
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    This would be worth attempting to get a legislator to run this by the AG:

    Situation: A CCW licensee carries a concealed weapon into a public building, that is not prohibited by state statute, but are posted with a sign prohibiting such carry.

    Can the licensee be charged under 941.235(1) (1) even though a licensee is listed under 941.235(2)(e) (e) as exempt from 941.235(1)(1)?

    If 941.235(1)(1) can not be charged, are their any other provisions that may be charged?

  25. #25
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    Quote Originally Posted by lockman View Post
    This would be worth attempting to get a legislator to run this by the AG:

    Situation: A CCW licensee carries a concealed weapon into a public building, that is not prohibited by state statute, but are posted with a sign prohibiting such carry.

    Can the licensee be charged under 941.235(1) (1) even though a licensee is listed under 941.235(2)(e) (e) as exempt from 941.235(1)(1)?

    If 941.235(1)(1) can not be charged, are their any other provisions that may be charged?
    Violation of posting isn't 941.235. It's 943.13 - trespassing. In this specific case:

    943.13 (1m)(c)(4)
    4. Enters or remains in any part of a building that is owned, occupied, or controlled by the state or any local governmental unit, excluding any building or portion of a building under s. 175.60 (16) (a), if the state or local governmental unit has notified the actor not to enter or remain in the building while carrying a firearm or with that type of firearm. This subdivision does not apply to a person who leases residential or business premises in the building or, if the firearm is in a vehicle driven or parked in the parking facility, to any part of the building used as a parking facility.
    943.13(1m)(c)
    This information is in the WI CCW faq.

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