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

[BROKENSPROKET]

I agree. What would even be the point of making that change in the law, if it wasn't to allow one to do exactly this?

Exactly. If that was not the intention of making open carry in a vehicle legal, they never would have touched 167.31 (2)(a), (2)(b), (2)(c). They would have just added a licensee or out-of-state licensee to 167.31(4) .

Thanks Shotgun, you just put last nail in this coffin(debate). All the caselaw under 941.23 does not apply to a handgun in an open carry holster.

I_K, did you get that.

 

[Interceptor_Knight]

Exactly. If that was not the intention of making open carry in a vehicle legal, they never would have touched 167.31 (2)(a), (2)(b), (2)(c). They would have just added a licensee or out-of-state licensee to 167.31(4) .

All the caselaw under 941.23 does not apply to a handgun in an open carry holster. .

Not every "vehicle " is an automobile or pickup truck. We communicated that on this forum years ago.
All of the language and intentions prior to Senate Substitute Amendment is irrelevant. If the consensus of those proposing Senate Substitute Amendment 2 were that carrying a holstered firearm in a car were not concealed carry, they would have inserted language in 941.23 explicitly stating this. They felt strongly enough about Open Carry in public to add language to 947.01 explicitly stating that it is not disorderly conduct in the absence of other disorderly acts and they deliberately chose to not do the same with 941.23.

 

[bmwguy11]

Asking a prosecutor what is and isn't legal is like putting a fox in charge of a hen house! They may be able to choose whether or not to prosecute an individual, but they don't have any authority to decide the legality of anything.



The intent of the legislature on this point for substitute amendment 2 of SB93 was clear and unambiguous:

From the "WISCONSIN LEGISLATIVE COUNCIL AMENDMENT MEMO on the Senate Substitute Amendment 2, as Amended" which was what the Joint Committee on Finance voted on and approved:
https://docs.legis.wisconsin.gov/2011/related/lcamendmemo/sb93

"The substitute amendment makes a number of statutory changes with respect to the placement, possession, and transportation of firearms in various types of vehicles, as follows:
- Permits placing, possessing, or transporting a firearm that is a handgun in a vehicle.
- Permits loading a firearm that is a handgun in a vehicle."

From the Milwaukee Journal Sentinel, "Wisconsin Senate passes concealed-carry bill":
http://www.jsonline.com/news/statepolitics/123826279.html

"The bill would also allow people to carry loaded, uncased guns in their cars. Now, guns are allowed in vehicles only if they are unloaded and encased."

From the NRA fact sheet on the bill as transmitted to the Governor for his signature:
http://www.nraila.org/pdfs/PPA Summary 2011 Final Version to Governor.pdf

"Eliminates the prohibition against the possession of uncased, loaded handguns in vehicles, noncommercial aircraft, boats, and ATVs. This expanded freedom applies to both licensees and non-licensees."

Now all those amateur attorneys and professional prosecutors out there can cry and pout all they want about punctuation in the statutes and perverse precedent from vanquished left-wingbat courts, but the intent of the legislature on this matter is clear and has been widely publicized. I'm not saying that this won't require a painful test case for those brave enough to go through the system, but freedom has never been advanced by cowards or bureaucrats.

You are forgetting a very important fact. All of those statements above are precluded with "If you have a CCW permit..." As for the NRA's stance on it, I don't see where they have any information that supports that point of view. You can have a point of view all you want, that doesn't mean it's correct. As the new bill is worded, it's pretty simple. You cannot carry a weapon concealed without a permit. This is fact. The definition of a concealed weapon in a vehicle is essentially any weapon that is below the window line, such as on the seat, etc. This is fact, and even supported by case laws.

 

[bmwguy11]

Not every "vehicle " is an automobile or pickup truck. We communicated that on this forum years ago.
All of the language and intentions prior to Senate Substitute Amendment is irrelevant. If the consensus of those proposing Senate Substitute Amendment 2 were that carrying a holstered firearm in a car were not concealed carry, they would have inserted language in 941.23 explicitly stating this. They felt strongly enough about Open Carry in public to add language to 947.01 explicitly stating that it is not disorderly conduct in the absence of other disorderly acts and they deliberately chose to not do the same with 941.23.

I really think this is important. There is a difference between what their "intent" was vs what they actually passed. If everything was taken as "intended" we'd live in a very different world. 941.23 is a statute that remains intact and untouched by SB93. There is nothing in SB93 that contradicts or "cancels out" 941.23.

 

[MrBubba]

You are forgetting a very important fact. All of those statements above are precluded with "If you have a CCW permit..."

No, none of the statements I quoted where preceded by that. (Forgive me if you meant something different by "precluded with" that I don't understand.) Feel free to check them out. Sheesh, I even included links!

As for the NRA's stance on it, I don't see where they have any information that supports that point of view.

You are free to take that up with the NRA if you wish.

You can have a point of view all you want, that doesn't mean it's correct.

I will certainly take the published statements of the NRA over the opinions of anyone on an anonymous internet forum like this one!

As the new bill is worded, it's pretty simple. You cannot carry a weapon concealed without a permit. This is fact.

Actually, the new law or even the legislative council substitute amendment memo didn't say anything like that. The law generally didn't make prohibitions. It simply created exemptions in the current law with a few other legal constructions.

The definition of a concealed weapon in a vehicle is essentially any weapon that is below the window line, such as on the seat, etc. This is fact, and even supported by case laws.

Really, a fact you say? Where is this definition documented in the statutes? Furthermore, where is the window line even mentioned in case law?

I really think this is important. There is a difference between what their "intent" was vs what they actually passed. If everything was taken as "intended" we'd live in a very different world. 941.23 is a statute that remains intact and untouched by SB93. There is nothing in SB93 that contradicts or "cancels out" 941.23.

It's funny that with all this talk about case law ad nauseam people are still critical of legislative intent. Case law is primarily judicial interpretation of legislative intent. Legislative intent is the basis for all law. If the legislature which originally drafted the prohibition against concealed carry in Wisconsin had truly intended to ban open carry in vehicles "below the window line", they would have said so. Almost all of the hassle we open carriers have faced has been due to a narrow and almost nonsensical ruling by a long gone leftwing court. Again, the legislative intent of the past year will certainly be considered relevant to all future decisions in this area. The legislature was quite clear about their intent to make open carry in vehicles legal in Wisconsin. There is a great deal of documentation and reporting about this that I have already linked to.

I certainly did not intend for my suggestion earlier in the thread about putting open carry disclosure stickers on the outside of vehicles to become a protracted legal debate. Come November 1st, open carriers will have some new uncharted legal waters to navigate if they wish. Those people who prefer to live under the strictest interpretation possible of antiquated case law are free to stay in harbor and do so. Those of us who wish to enjoy the hard won freedoms we have only now obtained will sail off at our own peril. I am personally considering having some magnetic open carry disclosure decals made, but I am no longer interested in arguing about the legality of untested legal areas with legal minimalists. I anticipate that all of this will be sorted out in short order, and with all branches of government safely in gun friendly hands, I am very hopeful that it will be resolved completely in our favor.

 

[WD57]

If I open carry into a diner and sit in a booth with firearm towards wall, is firearm now concealed? That is not the intent. I would believe same for open carry in auto. I also think that putting decals on vehicle to warn of open carry in vehicle would not look good in court if you had to use lethel force for self defense.

 

[paul@paul-fisher.com]

If I open carry into a diner and sit in a booth with firearm towards wall, is firearm now concealed? That is not the intent. I would believe same for open carry in auto. I also think that putting decals on vehicle to warn of open carry in vehicle would not look good in court if you had to use lethel force for self defense.

Other than there is no case law that deals with diners and there is for 'concealing' in a vehicle.

 

[paul@paul-fisher.com]

.... Lot's of stuff

I understand what you are saying but you are wrong. The precedent, unless overturned by a subsequent court or by legislation, stands. Here is the letter I got back from my Senator, Neal Kedzie, who actually supported true Constitutional Carry.

August 15, 2011

Dear Paul,

Thank you for contacting me regarding Wisconsin’s right-to-carry law, 2011 Wisconsin Act 35.

As noted, I do not have the ability to make a request of the Attorney General for a formal opinion in this regard. Such a request would have to come from either the Senate Organization Committee or the Assembly Rules Committee, or the head of a state agency.

I did, however, make a request to the Wisconsin Legislative Council, and they believe Act 35 does not invalidate Wisconsin case law with respect to construction of the term “concealed” within the context described in your message below. The Legislative Council has opined that it is not clear how that construction will evolve over time in subsequent court cases, given the enactment of Act 35, but as of now, prior precedent remains in place. Please keep in mind, the opinion of the Legislative Council is not a binding opinion.

I hope this information is helpful, and would like to thank you again for taking time to write.

Sincerely,

Neal Kedzie
State Senator
11th Senate District

NJK: dw
August 15, 2011

So... no matter what legislative intent was, it wasn't acted on.

You are also right that it is up to us to challenge the precedent. If someone after Nov 1 gets' charged for concealed carry in a vehicle, I will be one of the 1st in line to donate to the defense fund. I am still formulating in my mind what I am going to do in the time between Nov 1 and the time they issue me my permit.

 

[Teamtnt2004]

I understand what everyone is saying. All I want to be able to do is NOT disarm when I get in my vehicle. No unloading/loading. Therefor I will not. When I get into my car it'll be on my hip. Period. If I'm #1 to get a ticket or arrested, please donate to my defense fund! Ill need it!!!! LOL Carry on Everyone

 

[Interceptor_Knight]

I understand what everyone is saying. All I want to be able to do is NOT disarm when I get in my vehicle. No unloading/loading. Therefor I will not. When I get into my car it'll be on my hip. Period. If I'm #1 to get a ticket or arrested, please donate to my defense fund! Ill need it!!!! LOL Carry on Everyone

Why do you not just wait to get your permit? Velcro a holster to your dash so that you can simply take your handgun off of your hip and place it in another holster which is viewable from outside of the vehicle? I have spoken to 3 different attorneys and the Chief of police within the last week in anticipation of November 1st. If it is on your hip and you are sitting in the car, you risk a Concealed citation and you have no defense since a permit is available to you.

 

[TaurusToter]

Which can be a misdemeanor and bar you from getting your permit

 

[paul@paul-fisher.com]

Which can be a misdemeanor and bar you from getting your permit

Nope.

175.60 (3) RESTRICTIONS ON ISSUING A LICENSE. The departmentshall issue a license under this section to an individual
who submits an application under sub. (7) unless any
of the following applies:
(a) The individual is less than 21 years of age.
(b) The individual is prohibited under federal law
from possessing a firearm that has been transported in
interstate or foreign commerce.
(c) The individual is prohibited from possessing a
firearm under s. 941.29.
(d) The court has prohibited the individual from possessing
a dangerous weapon under s. 969.02 (3) (c) or
969.03 (1) (c).
(e) The individual is on release under s. 969.01 and
the individual may not possess a dangerous weapon as a
condition of the release.
(f) The individual is not a Wisconsin resident.
(g) The individual has not provided proof of training
as described under sub. (4) (a).

941.29 Possession of a firearm. (1) A person is subject to
the requirements and penalties of this section if he or she has been:
(a) Convicted of a felony in this state.
(b) Convicted of a crime elsewhere that would be a felony if
committed in this state.
(bm) Adjudicated delinquent for an act committed on or after
April 21, 1994, that if committed by an adult in this state would
be a felony.
(c) Found not guilty of a felony in this state by reason of mental
disease or defect.
(d) Found not guilty of or not responsible for a crime elsewhere
that would be a felony in this state by reason of insanity or mental
disease, defect or illness.
(e) Committed for treatment under s. 51.20 (13) (a) and
ordered not to possess a firearm under s. 51.20 (13) (cv) 1., 2007
stats.
(em) Ordered not to possess a firearm under s. 51.20 (13) (cv)
1., 51.45 (13) (i) 1., 54.10 (3) (f) 1., or 55.12 (10) (a).
(f) Enjoined under an injunction issued under s. 813.12 or
813.122 or under a tribal injunction, as defined in s. 813.12 (1) (e),
issued by a court established by any federally recognized Wisconsin
Indian tribe or band, except the Menominee Indian tribe of
Wisconsin, that includes notice to the respondent that he or she is
subject to the requirements and penalties under s. 941.29 and that
has been filed under s. 806.247 (3).
(g) Ordered not to possess a firearm under s. 813.125 (4m).
(2) A person specified in sub. (1) is guilty of a Class G felony
if he or she possesses a firearm under any of the following circumstances:
(a) The person possesses a firearm subsequent to the conviction
for the felony or other crime, as specified in sub. (1) (a) or (b).
(b) The person possesses a firearm subsequent to the adjudication,
as specified in sub. (1) (bm).
(c) The person possesses a firearm subsequent to the finding
of not guilty or not responsible by reason of insanity or mental disease,
defect or illness as specified in sub. (1) (c) or (d).
(d) The person possesses a firearm while subject to the court
order, as specified in sub. (1) (e), (em), or (g).
(e) The person possesses a firearm while the injunction, as
specified in sub. (1) (f), is in effect.
(3) Any firearm involved in an offense under sub. (2) is subject
to s. 968.20 (3).
(4) A person is concerned with the commission of a crime, as
specified in s. 939.05 (2) (b), in violation of this section if he or
she knowingly furnishes a person with a firearm in violation of
sub. (2).
(5) This section does not apply to any person specified in sub.
(1) who:
(a) Has received a pardon with respect to the crime or felony
specified in sub. (1) and has been expressly authorized to possess
a firearm under 18 USC app. 1203; or
(b) Has obtained relief from disabilities under 18 USC 925 (c).
(6) The prohibition against firearm possession under this section
does not apply to any correctional officer employed before
May 1, 1982, who is required to possess a firearm as a condition
of employment. This exemption applies if the officer is eligible
to possess a firearm under any federal law and applies while the
officer is acting in an official capacity.
(7) This section does not apply to any person who has been
found not guilty or not responsible by reason of insanity or mental
disease, defect or illness if a court subsequently determines both
of the following:
(a) The person is no longer insane or no longer has a mental
disease, defect or illness.
(b) The person is not likely to act in a manner dangerous to public
safety.
(8) This section does not apply to any person specified in sub.
(1) (bm) if a court subsequently determines that the person is not
likely to act in a manner dangerous to public safety. In any action
or proceeding regarding this determination, the person has the
burden of proving by a preponderance of the evidence that he or
she is not likely to act in a manner dangerous to public safety.
(9) (a) This section does not apply to a person specified in sub.
(1) (e) if the prohibition under s. 51.20 (13) (cv) 1., 2007 stats., has
been canceled under s. 51.20 (13) (cv) 2. or (16) (gm), 2007 stats.,
or under s. 51.20 (13) (cv) 1m. c.
(b) This section does not apply to a person specified in sub. (1)
(em) if the order under s. 51.30 (13) (cv) 1. [s. 51.20 (13) (cv) 1.]
is canceled under s. 51.20 (13) (cv) 1m. c., if the order under s.
51.45 (13) (i) 1. is canceled under s. 51.45 (13) (i) 2. c., if the order
under s. 54.10 (3) (f) 1. is canceled under s. 54.10 (3) (f) 2. c., or
if the order under s. 55.12 (10) (a) is canceled under s. 55.12 (10)
(b) 3.
NOTE: The correct cross−reference is shown in brackets. Corrective legislation
is pending.
(10) The prohibition against firearm possession under this
section does not apply to a person specified in sub. (1) (f) if the
person satisfies any of the following:
(a) The person is a peace officer and the person possesses a
firearm while in the line of duty or, if required to do so as a condition
of employment, while off duty. 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.
(b) The person is a member of the U.S. armed forces or national
guard and the person possesses a firearm while in the line of duty.

Being charged/convicted of a 941.23 violation is a class A misdemeanor doesn't meet any of that.

 

[BROKENSPROKET]

Thank you, Paul.

Fighting misinformation one post at a time.

 

[sheller]

Nope.





Being charged/convicted of a 941.23 violation is a class A misdemeanor doesn't meet any of that.

Ahhhh, Herr Koch has some challenges.