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Thread: Howard man, armed w/o CCL, drives SUV into house, arrested, 941.23 not charged

  1. #1
    Herr Heckler Koch
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    Howard man, armed w/o CCL, drives SUV into house, arrested, 941.23 not charged

    http://www.postcrescent.com/article/...ext|APC-News|s

    http://www.greenbaypressgazette.com/...ing-into-house

    Authorities found a loaded .40 caliber handgun in the man’s vehicle. He didn’t have a permit to carry a concealed weapon, the sheriff’s department said, and he is facing charges of endangering safety by use of a dangerous weapon.

  2. #2
    Founder's Club Member protias's Avatar
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    How are the police not aware that a CCL is not required to car carry? And why wasn't he charged with B&E?
    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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    Quote Originally Posted by protias View Post
    How are the police not aware that a CCL is not required to car carry? And why wasn't he charged with B&E?
    A CCL is required to carry in a car IF the weapon was concealed. If the gun was in the glove box and he has no CCL, it's a violation.

    Also, there is no such thing as B&E in Wisconsin.
    Last edited by pkbites; 02-10-2012 at 01:21 PM.

  4. #4
    Founder's Club Member protias's Avatar
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    Quote Originally Posted by pkbites View Post
    A CCL is required to carry in a car IF the weapon was concealed. If the gun was in the glove box and he has no CCL, it's a violation.

    Also, there is no such thing as B&E in Wisconsin.
    Please cite the statute in Act 35 that says car carry requires a CCL. 167.31 was amended to remove the restriction of a loaded handgun in a vehicle. No where does it mention open or concealed.
    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)

  5. #5
    Regular Member RR_Broccoli's Avatar
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    There isn't enough information in the articles to say either way. The guy could have had the gun on the dash, which is legal open carry in a car as long as he stays out of school zones. (See the early November incident with an OCDO member.)

    Hey, I know, let's start a big argument about what color snow is! That'll be fun!
    "I can only be held responsible for my own stupidity." - Captain Nemo

  6. #6
    Founder's Club Member protias's Avatar
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    Quote Originally Posted by RR_Broccoli View Post
    Hey, I know, let's start a big argument about what color snow is! That'll be fun!
    Snow by itself or if something else was mixed in? *pukes*
    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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    The information in ACT 35 concerning vehicle carry of firearms(167.31) is probably not valid. 167.31 was nearly completely rewritten by later ACT 51. In short, it is not unlawful to carry a loaded handgun in or on a vehicle. Also ACT 51 removed the restriction that all firearms need to be encased. If the handgun in this situation was in plain view then there was no violation of Wisconsin vehicle carry or weapons concealment statutes. Of course the issue of "plain view" rears it's ugly head.

    There is an interesting condition between Act 35 and Act 51 in reference to encasement and concealment. Act 35 made the following change to 167.31:
    167.31 (1) (b) “Encased” means enclosed in a case
    that is completely zipped, snapped, buckled,
    tied or otherwise fastened with no part of the firearm
    exposed.

    167.31 (1) (b) “Encased” means enclosed in a case
    that is expressly made for the purpose of containing a
    firearm and that is completely zipped, snapped, buckled,
    tied or otherwise fastened with no part of the firearm
    exposed.

    The emphasis is mine.

    The first definition was carried over to ACT 51. Even though act 51 removed the requirement that firearms be encased when transported in or on a vehicle(only firearms carried on aircraft are now required to be encased). Does the removal of the requirement that an encasement must be specifically made for the purpose of containing a firearm make the carry of a firearm in a glove compartment or center console that can be "otherwise fastened" lawful, if no part of the firearm is visible? If Act 51 does make the transport in a glove compartment or center console a lawful encasement then what does that do to the conditions that define concealment and previous case law?

    I can't fine anywhere that defines "case" to the exclusion of glove compartment or center consoles or for that matter paper bags.

    At this time I don't think any DA wants to chance any concealed carry charge to get to a higher court, especially concealed carry in a vehicle. There is a possibility that the whole of Act 35 could be found unconstitutional.


    My opinion.

  8. #8
    Regular Member davegran's Avatar
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    Quote Originally Posted by Captain Nemo View Post
    The information in ACT 35 concerning vehicle carry of firearms(167.31) is probably not valid. 167.31 was nearly completely rewritten by later ACT 51. In short, it is not unlawful to carry a loaded handgun in or on a vehicle. Also ACT 51 removed the restriction that all firearms need to be encased. If the handgun in this situation was in plain view then there was no violation of Wisconsin vehicle carry or weapons concealment statutes. Of course the issue of "plain view" rears it's ugly head.
    This is where MKEgal's case could bust it wide open if pursued far enough.

    Quote Originally Posted by Captain Nemo View Post
    There is an interesting condition between Act 35 and Act 51 in reference to encasement and concealment. Act 35 made the following change to 167.31:
    167.31 (1) (b) “Encased” means enclosed in a case
    that is completely zipped, snapped, buckled,
    tied or otherwise fastened with no part of the firearm
    exposed.

    167.31 (1) (b) “Encased” means enclosed in a case
    that is expressly made for the purpose of containing a
    firearm and that is completely zipped, snapped, buckled,
    tied or otherwise fastened with no part of the firearm
    exposed.

    The emphasis is mine.
    I hope & believe that the change was made so we could have the freedom to choose where to keep our firearm in a car. Perhaps the bill's author would comment if asked.... Doesn't a forum member know her personally?

    Quote Originally Posted by Captain Nemo View Post
    The first definition was carried over to ACT 51. Even though act 51 removed the requirement that firearms be encased when transported in or on a vehicle(only firearms carried on aircraft are now required to be encased). Does the removal of the requirement that an encasement must be specifically made for the purpose of containing a firearm make the carry of a firearm in a glove compartment or center console that can be "otherwise fastened" lawful, if no part of the firearm is visible? If Act 51 does make the transport in a glove compartment or center console a lawful encasement then what does that do to the conditions that define concealment and previous case law?

    I can't fine anywhere that defines "case" to the exclusion of glove compartment or center consoles or for that matter paper bags.

    At this time I don't think any DA wants to chance any concealed carry charge to get to a higher court, especially concealed carry in a vehicle. There is a possibility that the whole of Act 35 could be found unconstitutional.


    My opinion.
    Let's hope you are correct!
    Last edited by davegran; 02-11-2012 at 10:49 AM.
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  9. #9
    Herr Heckler Koch
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    Quote Originally Posted by norwisman View Post
    The weapon had ammo so the where it was in the vehicle or cased is a moot point.
    Always has been moot to 941.23. The elements of the crime of concealment 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.

  10. #10
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    In the training seminars the DOJ has been putting on around the state for law enforcement, they have been telling us that one needs to have a CCL to conceal in a vehicle:

    (from the FAQ handout from DOJ training, bolding mine)

    Can a citizen transport a concealed, loaded, unsheathed, handgun in his her vehicle?
    Yes. A person with a CCW license can carry a concealed weapon, including a handgun, in their car. Under the new law, even a person without a CCW license can carry a handgun or load a handgun in his/her vehicle, so long as the weapon is not concealed. However long guns (rifles/shotguns) still must be unloaded and encased while in a vehicle, whether the person is a CCW license holder or not.

    If this is incorrect it must be corrected, and soon.

  11. #11
    Herr Heckler Koch
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    Yes, and the test case is pending in Milwaukee County. The appeals process, that may lead to a change in the case law, requires that the defendant be found guilty and with grounds for appeal - error et cetera. Otherwise, not guilty or no grounds for appeal, it is indeed moot. The elements of the crime of concealment will stand.

  12. #12
    Founder's Club Member protias's Avatar
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    Quote Originally Posted by pkbites View Post
    In the training seminars the DOJ has been putting on around the state for law enforcement, they have been telling us that one needs to have a CCL to conceal in a vehicle:

    (from the FAQ handout from DOJ training, bolding mine)

    Can a citizen transport a concealed, loaded, unsheathed, handgun in his her vehicle?
    Yes. A person with a CCW license can carry a concealed weapon, including a handgun, in their car. Under the new law, even a person without a CCW license can carry a handgun or load a handgun in his/her vehicle, so long as the weapon is not concealed. However long guns (rifles/shotguns) still must be unloaded and encased while in a vehicle, whether the person is a CCW license holder or not.

    If this is incorrect it must be corrected, and soon.
    DOJ FAQ is not law.
    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)

  13. #13
    Herr Heckler Koch
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    Quote Originally Posted by protias View Post
    DOJ FAQ is not law.
    That is true. However in this instance, the DoJ FAQ, is a conclusion of case law, State v. Keith, 175 Wis. 2d 75, 498 N.W.2d 865 (Ct. App. 1993).

  14. #14
    Regular Member MKEgal's Avatar
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    Quote Originally Posted by norwisman
    The weapon had ammo so the where it was in the vehicle or cased is a moot point.
    Unless it's a long gun, there's nothing illegal about having a loaded firearm in the car.
    The apparent conflict between "encased" and "concealed" still needs to be cleared up by the legislature.

    Quote Originally Posted by norwisman
    My moot point was directed at the posters who are saying the guy did not need a CCL under Act 35, that he was legal to have a loaded weapon in his vehicle whenever, wherever.
    The alcohol factor wipes out any theories these posters have on legality of car carry.
    Those are 2 separate issues:
    being "materially impaired" &/or having a prohibited BAC (0.08%) while in possession of a firearm
    and
    having a loaded pistol in the vehicle

    The first is illegal, the second is specifically in the law as being legal.

    Quote Originally Posted by pkbites
    (from the FAQ handout from DOJ LEA training)
    ...
    Under the new law, even a person without a CCW license can carry... or load a handgun in his/her vehicle, so long as the weapon is not concealed.
    However long guns (rifles/shotguns) still must be unloaded and encased while in a vehicle, whether the person is a CCW license holder or not.
    IIRC, Act 51 is the one that made uncased transport of unloaded long guns legal in WI.
    (Just in time for hunting season.)
    The major problems with that are:
    school zones (IIRC, it's a federal felony unless unloaded & in a locked case)
    and
    LEO/DAs who misinterpret old law as applying to current situations. That is, relying on old case law from 1995 [?] (saying that because a gun is in the car it's automatically concealed) instead of new written laws passed by the legislature in 2011 (saying that having an unencased firearm in the car is legal, & if it's a pistol it's OK to have it loaded).
    Last edited by MKEgal; 02-12-2012 at 07:50 PM.
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  15. #15
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    Quote Originally Posted by protias View Post
    DOJ FAQ is not law.
    I didn't say it was, did I?

    My post was about the training that is going around (The next session is February 22) and about what needs to be done about misinformation that *might* be being taught about the law. False arrests, delays in freedom of movement, and tax payer dollars paid out for ignorance doesn't do any of us any good, overall!!!!!!!!!!!!!

    *Deleated*
    Last edited by pkbites; 02-12-2012 at 02:18 AM.

  16. #16
    Regular Member MKEgal's Avatar
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    Quote Originally Posted by norwisman
    Well I would say we will find out more about car carry at the March 8 motion hearing in Milwaukee.
    http://wcca.wicourts.gov/caseDetails...w+Case+Details
    Probably have to wait until the trial(s) for a useful ruling that the new law means what it says.

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