Federal Court Rules Open Carrying Disorderly

[Wisconsin Carry Inc. - Chairman]

imported post

The Federal Judge doesn't make law in WI, but this case is a strong indicator of what cops can get away with. Now they know that arresting for someone for open carrying a handgun will not result in a civil rights violation.

Not true. What this means is that a case at the district level heard by Judge Adelman will not result in a civil rights violation.

The precedent is not binding, its a poorly written decision, the decision is not published. Another federal district judge even in the same district is free to decide differently. An appellate court, the same.

This case was about the right to bear arms in WI.

only in the most tangential of contexts

I'm sorry to say, but the right to bear arms in WI is non-existant if the federal court didn't rule for the plantiff.

Again, you are categorically wrong (though I may cut you a little slack on this one because you aren't familiar with Wisconsin's state constitution) Wisconsin's state constitution guarantees us the right to keep and bear arms for security, self defense, hunting, recreation and any other lawful purpose.

You are drastically misrepresenting this decision.

 

[kwikrnu]

imported post

Wisconsin Carry, Inc. - Chairman wrote:

The Federal Judge doesn't make law in WI, but this case is a strong indicator of what cops can get away with. Now they know that arresting for someone for open carrying a handgun will not result in a civil rights violation.

Not true. What this means is that a case at the district level heard by Judge Adelman will not result in a civil rights violation.

The precedent is not binding, its a poorly written decision, the decision is not published. Another federal district judge even in the same district is free to decide differently. An appellate court, the same.

This case was about the right to bear arms in WI.

only in the most tangential of contexts

I'm sorry to say, but the right to bear arms in WI is non-existant if the federal court didn't rule for the plantiff.

Again, you are categorically wrong (though I may cut you a little slack on this one because you aren't familiar with Wisconsin's state constitution) Wisconsin's state constitution guarantees us the right to keep and bear arms for security, self defense, hunting, recreation and any other lawful purpose.

You are drastically misrepresenting this decision.

It isn't binding, but now we know and cops know that at least one federal judge doesn't give a damn about your right to carry a handgun in WI. Apparently your constitution means nothing because as the judge stated, "The Supreme Court has never held that the Second Amendment protects the carrying of guns outside the home. See District of Columbia v. Heller, 128 S. Ct. 2783, 2816-17 (2008). And nothing in Article I, § 25 of the Wisconsin Constitution authorizes a person to openly carry a firearm undercircumstances in which such conduct is likely to alarm others." What good is your Constitution if you can carry, but not if some could likely be alarmed?

Anyone who tries to bring a 1983 suit for open carry is going to be met with resistance when trying to find an attorney. No attorney will take a potential loser on contingency. People who wish to bring a 1983 suit using their own money will look at this and have to consider that losing $10k+ on a suit may not be worth it.

 

[PT111]

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I am afraid that right now appealing this decision is probably not even on the mind of Mr. Gonzalez. I think he has other more pressing concens.

 

[Nutczak]

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kwikrnu wrote:

Wisconsin Carry, Inc. - Chairman wrote:

The Federal Judge doesn't make law in WI, but this case is a strong indicator of what cops can get away with. Now they know that arresting for someone for open carrying a handgun will not result in a civil rights violation.

Not true. What this means is that a case at the district level heard by Judge Adelman will not result in a civil rights violation.

The precedent is not binding, its a poorly written decision, the decision is not published. Another federal district judge even in the same district is free to decide differently. An appellate court, the same.

This case was about the right to bear arms in WI.

only in the most tangential of contexts

I'm sorry to say, but the right to bear arms in WI is non-existant if the federal court didn't rule for the plantiff.

Again, you are categorically wrong (though I may cut you a little slack on this one because you aren't familiar with Wisconsin's state constitution) Wisconsin's state constitution guarantees us the right to keep and bear arms for security, self defense, hunting, recreation and any other lawful purpose.

You are drastically misrepresenting this decision.

It isn't binding, but now we know and cops know that at least one federal judge doesn't give a damn about your right to carry a handgun in WI. Apparently your constitution means nothing because as the judge stated, "The Supreme Court has never held that the Second Amendment protects the carrying of guns outside the home. See District of Columbia v. Heller, 128 S. Ct. 2783, 2816-17 (2008). And nothing in Article I, § 25 of the Wisconsin Constitution authorizes a person to openly carry a firearm undercircumstances in which such conduct is likely to alarm others." What good is your Constitution if you can carry, but not if some could likely be alarmed?

Anyone who tries to bring a 1983 suit for open carry is going to be met with resistance when trying to find an attorney. No attorney will take a potential loser on contingency. People who wish to bring a 1983 suit using their own money will look at this and have to consider that losing $10k+ on a suit may not be worth it.

Kwik, You are way off base in your assumptions. The ruling in that rights violation case will have absolutely no bearing on anything happening in this state. I have a feeling Adelmen created a situation that will come back and haunt him over and over.

Exercising your rights is not disorderly! Nor is having tattoo's, long hair, piercings or anything else that is a protected right.

If the anti O-C cops use that ruling to continue on their campaign of harrassment against O-C'ers, they will only end up on the wrong side of the courtroom too.

 

[Master Doug Huffman]

imported post

http://www.columbian.com/news/2010/may/12/defendant-in-open-carry-case-appears-in-court/



It was a perfunctory court appearance on a much larger debate.

Kurk Kirby, cited while carrying a handgun in a Vancouver Albertsons grocery store on March 19, made his first appearance Wednesday in Clark County District Court. The hearing was to schedule a trial date, but Kirby, 26, of Vancouver waived his right to a speedy trial.

Judge Kelli Osler set a review hearing for July 19, at which time a trial date will be set.
Kirby, dressed in a sleek tan suit and openly smiling for a TV cameraman and photographer, did not make a statement to the judge.

When approached by a reporter, he declined comment, saying his attorney advised him against speaking to the media.

Kirby is charged with unlawfully carrying a weapon, a gross misdemeanor punishable by up to one year in jail and a $5,000 fine.

Last month, Kirby’s attorney, Christopher Dumm, entered a not guilty plea on his client’s behalf.

 It is legal to carry a firearm openly in the state of Washington, but prosecutors with the Vancouver city attorney’s office filed the charge — which makes it unlawful to display a weapon in a manner “that either manifests an intent to intimidate another or warrants alarm” — based on witness observations.

Witnesses, including two men who have concealed weapons permits, told police Kirby looked like “Wyatt Earp, ready to draw.” Witnesses also said he was “giving everyone the eyeball with his hand on the gun,” according to police reports.

Police reports indicate that officers spotted Kirby outside the store, wearing a skin-tight T-shirt that didn’t cover the large holstered gun. The Springfield Armory XP pistol had a round in its chamber and several more in the magazine snapped into its handle. More cartridges, totaling 35, were in the two magazines.

Initial reports stated Kirby made no menacing statements or gestures to anyone while he was at the strip mall at 5000 E. Fourth Plain Blvd. He simply stood around for 10 or 15 minutes before someone called 911.

But further investigation found witnesses who said they felt Kirby was “going into the draw position,” according to police reports.

Kirby told responding officers he was within his rights to carry the gun openly, reports said. He also has a concealed weapons permit.

The case has drawn attention of people nationwide on both sides of the open-carry debate, including advocates on OpenCarry.org.

 

[paul@paul-fisher.com]

The appeal of this case is being argued tomorrow morning at 9:30 am in Chicago. It is believed that this ruling was the basis for Madison issuing the DC tickets. When this is overturned, which it should be, the only leg left for Madison to stand on will have been kicked out from under them.

I am not sure the physical mechanics of this but am planning on showing up to hear the arguments. Rulings are usually not issued the same day.

 

[hardballer]

Thank you Paul, Please update us. Glad you're following it.

 

[apjonas]

First of all,

Judge Adelman did not rule that open carry equates to disorderly conduct. He, in a sense, made that assumption for the purposes of this case, to kick it without a hearing on the merits. What he couldn't do but what the 7th Circuit is likely to do is either suspend the case while the state law issue is settled (since that is a threshold issue that must be settled before the federal issues come into play) or more likely, certify the question to the Wisconsin Supreme Court (probably a faster method) under Wis. Stat. 821.01. The Court of Appeals will, in essence, say "Hey, Wisconsin Supreme Court, under WI state law, is openly carrying a firearm under these circumstances disorderly conduct or not?" Once they have the answer, they can deal with the federal questions involved. Of course, as a bonus we get a definitive answer (sort of) on the issue. It could be that the Culver's case get there first and that result would guide the Gonzalez case. This is a good lesson in why state law issues should be directed to state courts. You can always file the federal case afterwards. Whichever way, I doubt if there will be a ruling before 2012. What does one do in the meantime? Carry to Culver's? Somebody in a position to do so ought to seek a declaratory ruling on the OC=DC question. A positive outcome will force the opposition to appeal. A negative outcome could get resolved a lot sooner than waiting for the 7th Circuit or the Madison/Culver's case, especially if the WI Court of Appeals can be bypassed.

 

[paul@paul-fisher.com]

Went down and watched the proceedings. I got to meet John Monroe. It was an interesting civics lesson.

The 3 judges that heard the case definitely read all or at least most of the documents provided to them about the case. At 1st I was thinking 'our' side was in deep trouble by the questions being asked by the judges, however, they asked the same types of pointed questions to the other attorney as well.

The basic slant I got out of the arguments are as follows:

1. One judge did not like the equating of a man with a gun with a person wearing Muslim garb carrying a Koran. Her point was that the Koran couldn't quickly kill someone.
2. There is a question whether Jesus still has standing in getting an order that basically tells WI LEO to not issue DC if he OC's again. The reasoning is that at the moment he is not allowed to be around any guns as part of his bail. This is a technical argument that was actually not even brought up by either lawyer but by a judge who did her homework.
3. The part of the suit dealing with gathering Social Security numbers is open for interpretation which they will look at. My impression in the arguments and questions is that the law isn't explicit as to whether local governments are precluded from 'forcing' someone from providing that information.

Anyhow, I might of gotten some of this wrong but this is what I 'understood' of the proceeding.

In talking to John Monroe, he indicated it would probably be 3-6 months before an opinion/ruling is released.

 

[KBCraig]

Thanks for the report, Paul.

 

[bigdaddy1]

Good info Paul. Did the attorney give an idea of what how he thought it went?

 

[paul@paul-fisher.com]

Good info Paul. Did the attorney give an idea of what how he thought it went?

He was non-committal, you know how attorneys are

He is on this forum so I'll let him answer if he wishes.

As I said, I watched on case before 'ours' and the judges were hard on both sides in both cases, taking opposing arguments depending on who was 'in the box' so even their comments/questions don't necessarily predict their thoughts.

The case that got argued 1st, for example, had an existing judgement that assumed an increase of revenue of 20% per year. When the lawyer who got the judgement was in the box, the judges all basically questioned him how any one could assume that 20% per year growth would be sustainable. When the opposing attorney was in the box, they said how could the company force the other party to commit to an 84% sales increase for the 1st year.

 

[apjonas]

Sounds Typical

Went down and watched the proceedings. I got to meet John Monroe. It was an interesting civics lesson.

The 3 judges that heard the case definitely read all or at least most of the documents provided to them about the case. At 1st I was thinking 'our' side was in deep trouble by the questions being asked by the judges, however, they asked the same types of pointed questions to the other attorney as well.

Most "good" judges challenge both sides in order to distill and clarify the issues. The questions are not necessarily an indication of their mindsets. It shows a willingness to explore the issue and decide the case on the law not personal prediliction. After all, the U.S. Supreme Court is rarely unanimous so somebody must be "wrong."

The basic slant I got out of the arguments are as follows:

1. One judge did not like the equating of a man with a gun with a person wearing Muslim garb carrying a Koran. Her point was that the Koran couldn't quickly kill someone.

I suppose it would be impolitic to point out which group (OCer or Muslim) has killed more Americans in recent times. In any event, the statute doesn't talk about theoretic ability to inflict death as a element of disorderly conduct. Irrational fear (a phobia) is irrational fear.

2. There is a question whether Jesus still has standing in getting an order that basically tells WI LEO to not issue DC if he OC's again. The reasoning is that at the moment he is not allowed to be around any guns as part of his bail. This is a technical argument that was actually not even brought up by either lawyer but by a judge who did her homework.

The conditions of bail are a temporary matter. It would make no sense in terms of judicial economy to come back after that restriction is lifted. Plus this situtation is likely to recur with a whole lot more people. Kicking the case on standing would only be done if the court just didn't want to deal with the issue. I wouldn't give very many points to the judge. This was known to all the judges, only one thought it of any importance. I doubt the other members of the panel would go that route.

3. The part of the suit dealing with gathering Social Security numbers is open for interpretation which they will look at. My impression in the arguments and questions is that the law isn't explicit as to whether local governments are precluded from 'forcing' someone from providing that information.

Did a judge really say that? All laws are open to interpretation. That is why we have judges. A cursory look at relevant decisions shows that local governments are covered and can only "force" disclosure to the extent the PA allows.

Anyhow, I might of gotten some of this wrong but this is what I 'understood' of the proceeding.

In talking to John Monroe, he indicated it would probably be 3-6 months before an opinion/ruling is released.

I still think they are going to punt to the Wisconsin Supreme Court on the question of what constitutes disorderly conduct. But I have been wrong before. At least 2 or 3 times.

P.S. Who were the judges on the panel?

P.P.S. The oral arguments are online at http://www.ca7.uscourts.gov/fdocs/docs.fwx?caseno=10-2356&submit=showdkt

 

[paul@paul-fisher.com]

Did a judge really say that? All laws are open to interpretation. That is why we have judges. A cursory look at relevant decisions shows that local governments are covered and can only "force" disclosure to the extent the PA allows.

P.S. Who were the judges on the panel?

P.P.S. The oral arguments are online at http://www.ca7.uscourts.gov/fdocs/docs.fwx?caseno=10-2356&submit=showdkt

Thanks for finding the audio. I was going to record it myself, however, I wasn't sure about the wiretaping laws and such. I will let you draw your own conclusions as to your 1st question above.

 

[apjonas]

Comments on the Oral Argument

You are quite welcome. I figured somebody would put it up eventual but since I was going to comment on it, having it available would be a good idea.

Almost Random Comments - Not An Analysis

The one judge seemed to be obsessed with the “private property” vs. “in public” location. If a person truly engages in disorderly conduct then the location is largely irrelevant. Now there may be a difference in deciding whether DC has occurred depending upon the place but she was not making that distinction.

The Koran/gun dichotomy was not the best choice as Islam is protected by political correctness. A better example might be someone wearing a t-shirt with the male genitalia embroidered on it. I don’t think a picture of a penis and scrotum ever killed anybody but I have no doubt it would cause many Menard’s customers stress. In fact the comparison was a unnecessary diversion. It is not a question of whether or not an object can do harm (although that my play a role) but whether or not the conduct tends to provoke a disturbance, etc. As mentioned, a person in Muslim garb, holding a Koran might very well cause some people to believe that some act of violence is forthcoming. Whether or not this is a rational (reasonable) reaction is for you to decide. But one might wryly observe that “nobody needs to carry a Koran in Menard’s.”

I think the Gonzalez lawyer did a fair job of dealing with the standing/injunction issue. The judge surely does not believe that this is a one-time situation. The fact that JG subsequently visited Walmart without incident is nice but does not change the history. If a store manager throws out a customer because he doesn’t like the person’s race or color, the fact that the manager later (after talking to his lawyer) welcomes the customer with open arms and a sloppy wet kiss probably isn’t going to stop the discrimination suit.

One thing stands out. Everybody agrees to an appreciable degree that the Wisconsin law on disorderly conduct and open carry is a confused mess. The CA7 briefly discussed the question of joining the state law issue to a federal civil rights case. While it seems reasonable to do so under the facts of this case, the fact that the state law is such a mess points to the need to get WiSC involved. The judge misstates (I think) that JG posits that there is “an alloyed right to carry a firearm.” I hope that this was just a foray into Socratic thinking not a belief. I assume that Court of Appeals judges are a lot smarter than most of us but some of the questions and comments were really dopey. Do people get “mowed down” in Walmarts very often? If so, does the shooter go shopping first?

The issue not explored as much as I would have like was the proposition that the DC statute, no matter how convolutedly interpreted cannot be used to defeat a constitutional right. The starting point is that a person may carry anywhere, at any time, in any manner. Then we have 941.23. The exception for federal building is federal law, even if there is a corresponding state provision. There are exceptions for government buildings, school zone and the like. The private property exception is different in that the person must be somehow informed (as the law does for the other places) but it exists. So we have a constitution right that has been severely whittled down as it is. To restrict the right to openly carry (which is for all practical purposes the only carry permitted), based upon the concern that some person, somewhere, at sometime may get nervous is absurd. This is much different than restricting a defined place. It is impossible to determine in advance what set of people will be at a Menard’s and how they will react to a holstered firearm. Despite what the attorney for the municipalities said about a sporting goods store, it is a fair bet that there will be at least one person who gets sweaty palms at the sight of a weapon. Should that one person be invested with a veto?

I hope that Mr. Monroe is free and inclined to comment on these (and any other) issues of the case.

 

[Flipper]

Thanks for posting the audio. The focus on "distubance created on private property when asked leave or remove weapon" was informative. As as been said before here, when asked to leave by the owner or manager of private property, be courteous and leave.

My feeling is that its better to attempt to discuss the reason for the request to leave and the reasons to carry with the owner or manager at a later date, after passions have cooled and fears have been alleviated.

If the focus will be on the Menards "distrubance", it will be interesting to see how the court approaches Chilton where Jesus was not asked to leave by store management, but was "stalled" from leaving.