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Howard man, armed w/o CCL, drives SUV into house, arrested, 941.23 not charged
pkbites
Regular Member
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.
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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.
RR_Broccoli
Regular Member
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! :banghead: That'll be fun!
Hey, I know, let's start a big argument about what color snow is! :banghead: That'll be fun!
Snow by itself or if something else was mixed in? *pukes*
Captain Nemo
Regular Member
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.
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.
davegran
Regular Member
This is where MKEgal's case could bust it wide open if pursued far enough.
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?
Let's hope you are correct!
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H
Herr Heckler Koch
Guest
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.
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.
pkbites
Regular Member
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.
(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.
H
Herr Heckler Koch
Guest
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.
DOJ FAQ is not law.
Sure it is.
H
Herr Heckler Koch
Guest
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).
MKEgal
Regular Member
Unless it's a long gun, there's nothing illegal about having a loaded firearm in the car.norwisman said:
The apparent conflict between "encased" and "concealed" still needs to be cleared up by the legislature.
Those are 2 separate issues:norwisman said:
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.
IIRC, Act 51 is the one that made uncased transport of unloaded long guns legal in WI.pkbites said:
(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).
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pkbites
Regular Member
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*
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Well I would say we will find out more about car carry at the March 8 motion hearing in Milwaukee.
http://wcca.wicourts.gov/index.xsl;jsessionid=0E7543ACB3C5850473C33646B5F64116.render2
Simply enter a person's name and you will be suprised at the info available.
http://wcca.wicourts.gov/index.xsl;jsessionid=0E7543ACB3C5850473C33646B5F64116.render2
Simply enter a person's name and you will be suprised at the info available.
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