AG Opinion on OC in Vehicle W/O Permit Has Been Requested

[Trip20]

Current Case law says that a locked glove box or console is within reach and hidden...
The DOJ FAQ obviously supports this point of view. You are correct that a rear passenger can access a firearm in the trunk with a 1/2 fold down rear seat. You could argue that case law supports this premise if you so choose to do..

It is precisely for those people who will choose to forgo a permit that discussion of 941.23 is relevant. 167.31 is irrelevant as it no longer applies to handguns and has zero to do with concealed weapons being hidden, within reach, etc. 167.31 now only applies to long guns and this board is not concerned with long gun carry.
Until someone appeals a conviction and has the courts rule otherwise, current case law is all we have for guidelines...

Emphasis mine.

I was just reading the newer DOJ FAQ and the "important note" really seems to suggest a caveat with open carry in a vehicle. I don't read the law as often as the rest of you but it really looks like a contradiction between what the new Act allows, and the definition of "concealed" according to case law... or am I off base here?

 

[Interceptor_Knight]

Emphasis mine.

I was just reading the newer DOJ FAQ and the "important note" really seems to suggest a caveat with open carry in a vehicle. I don't read the law as often as the rest of you but it really looks like a contradiction between what the new Act allows, and the definition of "concealed" according to case law... or am I off base here?

ACT 35 is the changes to current Statute and new Statutes. You need to address each Statute individually in order to understand all of our limitations. Changes to 167.31 are not exceptions to 941.23. As before, you must comply with both. You may Open Carry so long as the handgun is not "hidden". 167.31 applies to all vehicles and not just cars and trucks where the doors and body may cause your handgun to be "hidden from ordinary view"... The "Important Note" is a reminder that you must still comply with 941.23. There is no contradiction.

 

[Trip20]

ACT 35 is the changes to current Statute and new Statutes. You need to address each Statute individually in order to understand all of our limitations. Changes to 167.31 are not exceptions to 941.23. As before, you must comply with both. You may Open Carry so long as the handgun is not "hidden". 167.31 applies to all vehicles and not just cars and trucks where the doors and body may cause your handgun to be "hidden from ordinary view"... The "Important Note" is a reminder that you must still comply with 941.23. There is no contradiction.

I *think* I get what each statute means on an individual basis. I guess what I mean is that I interpret carrying a loaded handgun in a holster while seated in a vehicle to fall under "possess" [163.31(2)(b)], but then the whole doors/body causing a firearm to be hidden contradicts one's ability to possess in a vehicle. So one can't really possess in what would be considered a reasonable safe way to possess a handgun in a vehicle.

You can possess as long as you don't hide. This takes a normal lawful action of possessing a handgun in a holster and makes it unlawful in a vehicle because the vehicle hides the weapon according to definitions in case law. I just think it's unreasonable. Maybe that's a better word than contradiction.

 

[AaronS]

So with no permit, I would have to put the gun on the dash board, and let it fly around?
I hate bad laws...

 

[Brass Magnet]

So with no permit, I would have to put the gun on the dash board, and let it fly around?
I hate bad laws...

That's exactly what we'd like to get cleared up. It's why a few of us have asked for opinions. Maybe we'll get an answer, maybe we wont. If we don't we'll have to ask our legislature to clean it up. They should have the political will to throw us this small bone.

 

[Trip20]

Yeah AaronS, it's pretty silly.

I will be getting a permit, so not a problem logistically (on principle it's a HUGE problem but that's another thread entirely). However, I was hoping to avoid the dance beginning Nov 1st. Doesn't look possible at this point.

 

[BROKENSPROKET]

Without a permit is when 167 applies to a handgun. With no permit, it must be encased before placing the handgun in or on any vehicle. A cardboard box is a "case" so long as it is fully closed with no portion of the firearm exposed. With no permit, this encased handgun still must not be hidden by placing it in a glove box or console, etc (locked or otherwise) ... which is within reach. A handbag in the trunk is A-OK.

You a competely wrong.

 

[paul@paul-fisher.com]

You a competely wrong.

He's not.

They didn't fix 941.23.

 

[Packfanatic]

Two Thumbs up

Good idea!!!

+1000 good Idea is correct.

 

[Interceptor_Knight]

You a competely wrong.

I am not even going to try and go back to edit that last post right now. Maybe tomorrow. I have several typos between handgun and long gun. 167 applies to long guns with or without a permit. After November 1st handguns do not have to be encased regardless of whether or not you have a permit. What we are still subject to is 941.23 which is where the glove box and console come into play regarding hidden and within reach.

 

[rcawdor57]

How Can We "Possess" A Handgun But Not Wear It In A Holster In Our Vehicle?

My thoughts are we can open carry in a vehicle on or after 1NOV2011 with or without a permit. The law specifically says we can load, unload, possess etc.. in or on a vehicle without a permit. How can we be charged with a 941.23 violation AFTER we load/unload etc AND THEN PUT IT IN A HOLSTER? It makes no sense. We are still "possessing" it. We can specifically load it or unload it INSIDE a vehicle which is already out of "normal view" from the outside of the vehicle.

If the intent of the law is to charge us with a violation of 941.23 AFTER we load the gun and put in in our holster which we are wearing, then I guess we will have to drive holding the gun at all times and continually load/unload it to be in accordance with the law??? I really think we are stretching this concealed weapons violation a bit too far.

 

[Interceptor_Knight]

My thoughts are we can open carry in a vehicle on or after 1NOV2011 with or without a permit. The law specifically says we can load, unload, possess etc.. in or on a vehicle without a permit. How can we be charged with a 941.23 violation AFTER we load/unload etc AND THEN PUT IT IN A HOLSTER? It makes no sense. We are still "possessing" it. We can specifically load it or unload it INSIDE a vehicle which is already out of "normal view" from the outside of the vehicle. ...

No... The law does NOT specifically say you may "load, unload, possess, etc...".
It is legal (as of November 1st) for you to place a loaded handgun on a car, bike, etc simply because it is not prohibited. It may not be prohibited by 167.31 to place a handgun inside of a vehicle and hidden from ordinary view within your reach but it is prohibited by 941.23. Act 35 did not create an exception to 941.23 unless you have a permit.
Once again, people are victims of wishful thinking after reading a FAQ. Remember, a FAQ is a general summary of Statutes and/or Admin Code.
What Act 35 did is remove the "encased" restriction for handguns. That is all it did in relation to 167.31.

 

[BROKENSPROKET]

The body of a car or truck, etc is what hides a firearm or even an encased firearm from ordinary view by someone in the immediate vicinity outside of the car in the opinion of the courts quoted in the Statute annotations.

I don't know who you are, while others may. I get the impression that you are an LEO. You attempt to speak with authority, like a cop would.

To get to you point, if what you think is true, them Open Carry is a fallacy, because any time something blocks our openly carried sidearm from someones view, you would consider it a violation of 941.23. If am a standing behind a wasit high counter. If I enter a dressing room. If I enter the stall in a bathroom. If I sit strong side in a booth in a restauraunt. By you line of thinking, all of these and many more would be 941.23 violations for any Open Carrier.

If is my strong conviction that if the firearm reamains in the holster, then there was no attempt to conceal it. Whereas if I place clothing over it or I remove it from it's holster and place it in the glovebox, center console, under the seat, or under anything that hide it would be considered a 941.23 violation.

 

[paul@paul-fisher.com]

I don't know who you are, while others may. I get the impression that you are an LEO. You attempt to speak with authority, like a cop would.

To get to you point, if what you think is true, them Open Carry is a fallacy, because any time something blocks our openly carried sidearm from someones view, you would consider it a violation of 941.23. If am a standing behind a wasit high counter. If I enter a dressing room. If I enter the stall in a bathroom. If I sit strong side in a booth in a restauraunt. By you line of thinking, all of these and many more would be 941.23 violations for any Open Carrier.

If is my strong conviction that if the firearm reamains in the holster, then there was no attempt to conceal it. Whereas if I place clothing over it or I remove it from it's holster and place it in the glovebox, center console, under the seat, or under anything that hide it would be considered a 941.23 violation.

While I understand and agree with your logical argument, logic has nothing to do with it. It has been ruled by the WI appeals Court that a handgun sitting on the passenger seat in plain view (no case, no clothes, no covering) was concealed because the cop couldn't see it while standing AWAY from the car. As I said, you have to suspend belief to agree with that ruling but with Act 35, it hasn't been overturned.

State v. Walls - Ct App. 1994 (A handgun on the seat of a car that was indiscernible from ordinary observation by a person outside, and within the immediate vicinity, of the vehicle was hidden from view for purposes of determining whether the gun was a concealed weapon under § 941.23)

http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=941.23

If you go to the link above, it has been updated with all the Act 35 changes and it STILL references the case.

 

[BROKENSPROKET]

While I understand and agree with your logical argument, logic has nothing to do with it. It has been ruled by the WI appeals Court that a handgun sitting on the passenger seat in plain view (no case, no clothes, no covering) was concealed because the cop couldn't see it while standing AWAY from the car. As I said, you have to suspend belief to agree with that ruling but with Act 35, it hasn't been overturned.



http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=941.23

If you go to the link above, it has been updated with all the Act 35 changes and it STILL references the case.

What would it take to get that caselaw removed from the statutes? Who decides to put it there?

State v Walls is bad case law from 1994. Any lawyer worth the suit he wears can refute it today for Open Carry in a vehicle.

The whole atomsphere and landscape is different now. Open Carry was virtually nonexistent in 1994. Now there is Article I Section 25 and Open Carry is a protected right, which is was not back in 1994.

We may need a court case to make State v Walls irrelevant if the legislators don't fix it.

 

[paul@paul-fisher.com]

What would it take to get that caselaw removed from the statutes? Who decides to put it there?

State v Walls is bad case law from 1994. Any lawyer worth the suit he wears can refute it today for Open Carry in a vehicle.

The whole atomsphere and landscape is different now. Open Carry was virtually nonexistent in 1994. Now there is Article I Section 25 and Open Carry is a protected right, which is was not back in 1994.

We may need a court case to make State v Walls irrelevant if the legislators don't fix it.

I agree with every single word of this post!!!! :monkey

 

[phred]

No... The law does NOT specifically say you may "load, unload, possess, etc...".

Here is the law 167.31

2) PROHIBITIONS; MOTORBOATS AND VEHICLES; HIGHWAYS AND
ROADWAYS. (a) Except as provided in sub. (4), no person may
place, possess, or transport a firearm, bow, or crossbow in or on
a motorboat with the motor running, unless the firearm is a handgun,
as defined in s. 175.60 (1) (bm), unless the firearm is
unloaded, or unless the bow or crossbow is unstrung or is enclosed
in a carrying case.
NOTE: Par. (a) is shown as amended eff. 11−1−11 by 2011 Wis. Act 35. Prior
to 11−1−11 it reads:
(a) Except as provided in sub. (4), no person may place, possess or transport
a firearm, bow or crossbow in or on a motorboat with the motor running, unless
the firearm is unloaded or unless the bow or crossbow is unstrung or is enclosed
in a carrying case.
(b) Except as provided in sub. (4), no person may place, possess,
or transport a firearm, bow, or crossbow in or on a vehicle,
unless the firearm is a handgun, as defined in s. 175.60 (1) (bm),
unless the firearm is unloaded and encased, or unless the bow or
crossbow is unstrung or is enclosed in a carrying case.
NOTE: Par. (b) is shown as amended eff. 11−1−11 by 2011 Wis. Act 35. Prior
to 11−1−11 it reads:
(b) Except as provided in sub. (4), no person may place, possess or transport
a firearm, bow or crossbow in or on a vehicle, unless the firearm is unloaded and
encased or unless the bow or crossbow is unstrung or is enclosed in a carrying
case.
(c) Except as provided in sub. (4), no person may load a firearm,
other than a handgun, as defined in s. 175.60 (1) (bm), in a
vehicle or discharge a firearm or shoot a bolt or an arrow from a
bow or crossbow in or from a vehicle.
NOTE: Par. (c) is shown as amended eff. 11−1−11 by 2011 Wis. Act 35. Prior
to 11−1−11 it reads:
(c) Except as provided in sub. (4), no person may load or discharge a firearm
or shoot a bolt or an arrow from a bow or crossbow in or from a vehicle.
Subsections (2) (c) and (d) and (3) (b) do not apply to the
discharge of a firearm 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.

The above sections of 167.31 tell me that I may possess, transport, load, and discharge (w/conditions) a handgun from a vehicle. That is, there is no law preventing it. Like someone said earlier on OCDO, there is no law that says I cannot eat lobster on Tuesday, therefore I may eat lobster on Tuesday.

 

[Brass Magnet]

Here is the law 167.31



The above sections of 167.31 tell me that I may possess, transport, load, and discharge (w/conditions) a handgun from a vehicle. That is, there is no law preventing it......

Unless its concealed and you don't have a permit.

I still don't see why 167.31 is entering into the conversation anymore. As long as our firearm is a handgun, we are in compliance with it. Now we just have to make sure we are in compliance with other parts of the statute, like 941.23.

 

[ccwinstructor]

Put it on the dash. Very hard to argue that it is "concealed" there.

Unless its concealed and you don't have a permit.

I still don't see why 167.31 is entering into the conversation anymore. As long as our firearm is a handgun, we are in compliance with it. Now we just have to make sure we are in compliance with other parts of the statute, like 941.23.

I expect to find a holster, probably a Fobus paddle type, that I can fasten to a dash cover easily and securely.

Then I will remove my openly carried handgun from the holster on my belt and transfer it to the holster on the dash of my vehicle.

I already have a couple of out of state CCW permits, so I will not be at legal risk. I think most officials in Wisconsin would prefer that open carriers have their handgun in a holster on their belt rather than on the dash, so this oversight in the law is likely to be fixed next year.

 

[davegran]

Let's make some sense in the real world....

.... I think most officials in Wisconsin would prefer that open carriers have their handgun in a holster on their belt rather than on the dash, so this oversight in the law is likely to be fixed next year.

Especially after they realize the"legal" dashboard gun is pointed at whoever is in front of the car, while an "illegal" belt holster gun is pointed at the floorboards.... That is, unless the AG wants to clarify the interpretation of the law so it makes some sense in the real world....