School Zone Law - what is there to it really?

[Agent1187]

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Going back to the topic of easements and such from the beginning of this thread, If I recall correctly from my days of working with the city this past summer, City Right Of Way exists 50ft from the center of the road. Therefore all city roads would also be under some sort of easement and also TECHNICALLY private property. So correct me on this one, but to my understanding, so long as you don't walk across any county highway or on municipal property (including the school, a park, or city garage) the school zone law won't hold water? *With a good lawyer, of course* Sounds too good to be true. Either that, or it's like these towns that keep restrictive carry laws on the books even though they know darn well they can't enforce them.

 

[pkbites]

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Rick Finsta wrote:

pkbites - can you walk me through the reasoning that off-duty cops are covered? I'd be interested to see the case law there, as I reached a different conclusion altogether. I can understand to and from work being "in official capacity," but I can't see a departmental requirement to carry off-duty as still being "in an official capacity." That's a bit of a stretch, IMHO...

Where the heck did I say anything about "a departmental requirement to carry off-duty"?:question:

That's not what H.R. 218 is about at all. http://www.leaa.org/218/218text.html

It appears that unless an off-duty cop went onto the actual property of a government owned property (like a school) he/she'd be exempt from the school zone law. Being 500 feet away is not being on the actual property.

As always: I am not a lawyer, that is not legal advice.

​

 

[Rick Finsta]

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I don't see how HR218 does anything for cops with our school zone law; it exempts anywhere but public property, which is the exact same exemption that non-LEOs hold in WI with the 1000' inclusion zone. I was hoping you had found some case law that said that it was only buildings themselves or something. I'm not trying to be standoffish here, I had an earnest query.

I was extrapolating the fact that even if "to and from work" was "acting in official capacity," any off-duty carry policy by a departmentshould be hard pressed tofit under"official capacity,"so as to fit under the WI statutory exemption that you have informed us "traveling to and from work" does. I wasn't trying to put words in your mouth, just thinking out loud, really.

Don't get me wrong, I don't think a cop would ever be charged for this, but that doesn't mean what they are doing is legal under the letter of the law. If the legislators would stop writing hasty and generally bad laws, we wouldn't have any of these gray areas.

 

[bnhcomputing]

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Shotgun wrote:

If you act like an ass-- armed or not-- you deserve any trouble that comes your way.

Amen,

I agree 100%!

My next stop, the city clerks office. After all, it won't hurt to ask.

 

[pkbites]

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Rick Finsta wrote:

I don't see how HR218 does anything for cops with our school zone law;

Because it lists being ON the property itself, not just 1000 feet from it. So an off-duty being right in front of a public school, but not on the grounds itself, appears to be shielded.

I don't buy this argument some are making that being on a sidewalk is going to work as a successful defense against a felony charge.
But I am not a lawyer, this is not legal advice.

I sent an email to Assistant Attorney General Dave Perlman asking for his opinion, but he hasn't gotten back to me yet.

 

[bnhcomputing]

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Here is a question I haven't seen addressed on this issue:

If open carry within 1000ft ofa school is FORBIDDEN, and there is no permitting system, then how is it our veterans are able to carry uncased and loaded (although blanks) firearms in parades. Most parade routes go within 1000ft of a school at some point.

 

[Shotgun]

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bnhcomputing wrote:

Here is a question I haven't seen addressed on this issue:

If open carry within 1000ft ofa school is FORBIDDEN, and there is no permitting system, then how is it our veterans are able to carry uncased and loaded (although blanks) firearms in parades. Most parade routes go within 1000ft of a school at some point.

I've thought about that too. The local Memorial Day parade here starts at one school (Monona Grove H.S.) and ends at another (LaFollette H.S.)

I've toyed with the idea of entering the parade as a 2nd amendment or OC organization for years.

 

[Lammie]

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Hmm. Parades. Another interesting conundrum. As well as example of the stupidity of the "school zone law". I suppose the application of the statute depends on whether or not the parade staging area is on school or private property and whether or not the streets the parade travels are considered private or public property.

 

[Lammie]

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I have not been able to find any solid information as to if Wisconsin considers city streets and sidewalks private property or public property. The closest I have come to any locality giving a clear definition is the city of Seattle Washington. Seattle considers city streets and sidewalks as private propertythat arededicated as public rights-of-way. I suspect that is the generalsituation of city streets and sidewalks but I have not found any such black and white definition concerning Wisconsin cities and towns. I did find where boulevard trees are considered private property even if planted by the city. I would presume that to mean the boulevards themselves are private property. Sure would be nice to find a final answer to the question of street and sidewalk ownership.

 

[Rick Finsta]

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pkbites-

OK, I'll try to say this another way; sometimes type is not the easiest media with which to work. So, in our state, we have a exception in the positive, where a citizen is exempt from the carry laws in a school zone so long as they are on private property. So, where I can openly carry a gun in a school zone is expressed as P.

A policeman from Utah is in that same school zone, but HR 218 gives him an exeption in the negative, as he is said to be able to carry when he is not "on any State or local government property, installation, building, base, or park." So, where he can carry a concealed weapon in a school zone is equal to not Q.

P = not Q, because the same property where I am exempt from the law (private property) is the same place he is exempt from the state law (not public property). Therefore, a cop is given no exemption from carry on any public lands in WI by HR 218 that would not apply to open carry by any citizen.

For instance, is there a LEO exemption for carry in state parks here? If not, then no cop may carry there, subject to the same exception as I am (unloaded and encased). I'm not sure if there is a LEO exemption in state parks, I'm just using it as another hypothetical. Now, I understand this can be discussed on itsapplication (no way a cop is ever going to be cited for this), but I feel I have made a compelling case for the logical merits of my argument.

Thoughts, anyone?

 

[S.E.WI]

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Shotgun wrote:

Well, almost zero CHL's.

And there already is an exemption for firearm carry contained in the school zone law but the question is whether it is ever granted or remains theoretical. I suspect it's only words and not a reality, but I intend to find out.

(b) Paragraph (a) does not apply to the possession of a firearm:
1. On private property not part of school grounds;
2. If the individual possessing the firearm is licensed to do so
by a political subdivision of the state or bureau of alcohol, tobacco
and firearms in which political subdivision the school zone is
located, and the law of the political subdivision requires that,
before an individual may obtain such a license, the law enforcement
authorities of the political subdivision must verify that the
individual is qualified under law to receive the license;

Interesting that this "school zone" law comes under "crimes against children" although it's not a crime to have a gun within 1000 feet of a child, but instead within a 1000 feet of a parcel of land.

Truly one of the most stupid laws for many reasons.

Federal law, Gun Free School Zone Act (re-enacted) 1996. (2) reads;

(2) if the individual possessing the firearm is licensed to

do so by the State in which the school zone is located or a

political subdivision of the State, and the law of the State or

political subdivision requires that, before an individual obtains

such a license, the law enforcement authorities of the State or

political subdivision verify that the individual is qualified under

law to receive the license;

Federal law gave the states a way to provide 2A rights through licensing. If we could get one of these licenses from the state we wouldn't have to be concerned about the political subdivisions..."no laws more restrictive than state law".

WI law has deprived us of U.S. and WI Constitutional rights while in those zones. It isa federal crime to do this. Some questions: How do I get a "license" that is referred to in the statute? Does this create a "special relationship" between state actors while in a school zone because you can't defend yourself? Did WI legislators read the federal findings that school zones are more dangerous?

 

[Shotgun]

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The federal law provides for state licensing to make an exhemption to the federal law, not the state law. One would need to be exhempt from both federal and state laws to avoid prosecution.

 

[Parabellum]

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Shotgun wrote:

The federal law provides for state licensing to make an exemption to the federal law, not the state law. One would need to be exempt from both federal and state laws to avoid prosecution.

US Title 18, 922 (q)

(2)

(A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.

(B) Subparagraph (A) does not apply to the possession of a firearm—

(i) on private property not part of school grounds;

(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;

(iii) that is—
(I) not loaded; and
(II) in a locked container, or a locked firearms rack that is on a motor vehicle;


(iv) by an individual for use in a program approved by a school in the school zone;

(v) by an individual in accordance with a contract entered into between a school in the school zone and the individual or an employer of the individual;

(vi) by a law enforcement officer acting in his or her official capacity; or

(vii) that is unloaded and is possessed by an individual while traversing school premises for the purpose of gaining access to public or private lands open to hunting, if the entry on school premises is authorized by school authorities.

WI Statutes 948.605(2)

(2) Possession of firearm in school zone .

948.605(2)(a)
(a) Any individual who knowingly possesses a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone is guilty of a Class I felony.


948.605(2)(b)
(b) Paragraph (a) does not apply to the possession of a firearm:


948.605(2)(b)1.
1. On private property not part of school grounds;


948.605(2)(b)2.
2. If the individual possessing the firearm is licensed to do so by a political subdivision of the state or bureau of alcohol, tobacco and firearms in which political subdivision the school zone is located, and the law of the political subdivision requires that, before an individual may obtain such a license, the law enforcement authorities of the political subdivision must verify that the individual is qualified under law to receive the license;


948.605(2)(b)3.
3. That is not loaded and is:


948.605(2)(b)3.a.
a. Encased; or


948.605(2)(b)3.b.
b. In a locked firearms rack that is on a motor vehicle;


948.605(2)(b)4.
4. By an individual for use in a program approved by a school in the school zone ;


948.605(2)(b)5.
5. By an individual in accordance with a contract entered into between a school in the school zone and the individual or an employer of the individual;


948.605(2)(b)6.
6. By a law enforcement officer or state-certified commission warden acting in his or her official capacity; or


948.605(2)(b)7.
7. That is unloaded and is possessed by an individual while traversing school grounds for the purpose of gaining access to public or private lands open to hunting, if the entry on school grounds is authorized by school authorities.


948.605(2)(b)8.
8. By a person who is legally hunting in a school forest if the school board has decided that hunting may be allowed in the school forest under s. 120.13 (38).

The Wisconsin School Zone statute is almost a mirror image of the Federal School Zone equivalent. Doing any of the exceptions in one of them would qualify for both if it had the same wording. The highlighted sections correspond with each other and would provide exception under both laws.

However, if I were to get a Milwaukee County License, it would not be good in any other county as far as the WI statute is concerned, but the federal statute would be exempted.

If I were to get a City of Milwaukee License, then I would be out of luck in West Milwaukee or any other neighboring town, but the federal law would be exempted in the entire state.

The WI statutecan be construed to mean that having a license from ANY political subdivision of the state would exempt you from the school zone law in EVERY school zone in the state. Notice that the WI statute states "a political subdivision" "or" "ATF in the same political subdivision as the school in question"(im giving myinterpretation, this is not factnor should it be relied upon as such).

The US code literally is read to mean that a political subdivisionlicense is good throughout the state. It states "State in which the schoolzone is located" "or" "a political subdivision of the state" without prerequisite as to the school zone being located there.(again my interpretation)

If one were to get a state license, federal law is exempted but the school zone restriction of the state lawwould still be in effect because theWI school zonelaw doesn't provide for the exception of a state license.

Iam just trying to explain Shotgun's statementabout needing to satisfy both laws to be safe from prosecution, and explain myown view on the laws. Considering we've been talking about this for three pages now it mightbe a good idea to have them cited.

WI Statute

http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=948.605

US Code

http://www.law.cornell.edu/uscode/18/922(q).html

 

[Agent1187]

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I just have to laugh to myself a little, as the state law does not apply when a firearm is:
948.605(2)(b)3.a.
a. Encased; or
948.605(2)(b)3.b.
b. In a locked firearms rack that is on a motor vehicle
Even though 3b is illegal in Wisconsin without 3a.

 

[S.E.WI]

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Shotgun wrote:

The federal law provides for state licensing to make an exhemption to the federal law, not the state law. One would need to be exhempt from both federal and state laws to avoid prosecution.

Federal law gave the states a way to provide 2A rights through licensing. If we could get one of these licenses from the state we wouldn't have to be concerned about the political subdivisions..."no laws more restrictive than state law".

WI law has deprived us of U.S. and WI Constitutional rights while in those zones. It isa federal crime to do this. Some questions: How do I get a "license" that is referred to in the statute? Does this create a "special relationship" between state actors while in a school zone because you can't defend yourself? Did WI legislators read the federal findings that school zones are more dangerous?

Everyone seems to miss the point. WI could pass legislation giving us a way to be licensed by the state and since local laws can't be more restrictive it would cover us statewide. What about answers to the questions I asked? I see those applying the WI statute committing a federal crime because it deprives us of a constitutional right....Any thoughts?

 

[GRB]

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I knew that the city would not give me a lincense to carry in a school zone. I wanted it in writing so I sent them an email. This is what I got back. I am going to call the ATF tomorrow moring to see if they will give me one, but i am not going to hold my breath.

The statute allows a person to possess a firearm in a school zone in Sheboygan 
if: 

1.      They hold a license issued by either: 
a.      the City of Sheboygan, or 
b.      the ATF; 

AND, 

2.      We require by ordinance, before issuing a license, that the individual's 
qualifications to receive such a license be verified. 

Unless I am missing something, Sheboygan neither issues such license nor has 
such a verification requirement. 

I suspect this may relate to municipalities that may issue some sort of gun 
license to retired officers and/or peace officers who are not law enforcement 
officers (those terms overlap, but aren't exactly the same.)  We do neither of 
these.  Thus, my read is that this particular exception is not possible to meet 
in Sheboygan. 

Thus, if Mr. Ballogh wishes to brandish a weapon in a school zone in Sheboygan 
he'll have to find some other exception to the law.  (For example, sub(4) is the 
section that allows people to use the gun range at Urban Middle School.) 

Chuck Adams 
Assistant City Attorney

When he says that Sheboygan neither issues such a license or has the verification requirement, Is it not there job to have that in place? Or am I wrong about that.

 

[Shotgun]

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That's an interesting and somewhat laughable reply you got GRB. I wonder if he knows what it means to "brandish a weapon?"

Clearly the school-zone licensing is in no manner related to issuing permits to retired police, since it pre-dates that practice by many years.

As far as the "verification" requirement. Nothing in the statute explains what that means. The law says that law enforcement should verified that the individual is "qualified under law." The only thing I guess that means is that they run a records check to verify that you can legally possess a firearm. What else could it mean?

 

[trailblazer2003]

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Shotgun wrote:

That's an interesting and somewhat laughable reply you got GRB. I wonder if he knows what it means to "brandish a weapon?"

Clearly the school-zone licensing is in no manner related to issuing permits to retired police, since it pre-dates that practice by many years.

As far as the "verification" requirement. Nothing in the statute explains what that means. The law says that law enforcement should verified that the individual is "qualified under law." The only thing I guess that means is that they run a records check to verify that you can legally possess a firearm. What else could it mean?

The guy probably does know the meaning of brandishing, but is just interjecting his slanted opinion into the equation.

 

[GRB]

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Dear Chuck Adams,

The reason I would like a license to have in my possession of a firearm within a school zone is for personal protection . As I am allowed to do under Article I section 25 of the WI Constitution, [As created Nov. 1998] The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose. [1995 J.R. 27, 1997 J.R. 21, vote November 1998] . In the state of WI as you know concealed carry is illegal, but the WI Supreme court has ruled in the State vs. Hamdan the necessity to provide for a manner of carry other than concealed or wield to the (WI 25th) amendment. So in WI we have visible or open carry of firearms. There are certain restrictions to this one of them being the school zone. The city would issue such a license to carry a firearm in a school zone for personal protection or any other lawful purpose. I would not be able to enter a school building as statue 941.235 possession of firearm in public building would not allow me to do so. The city of Sheboygan can not have any city ordinance’s that any more stringent than the state because of the WI Pre-Emption of Firearm Law, 66.0409(2) Except as provided in subs. (3) and (4), no political subdivision may… regulate the sale, purchase, purchase delay, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm… unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute. As far a the verification requirement of statue 948.605(2)(b)2 I would think that not being a felon and having that checked out by the law enforcement of the city of Sheboygan should be all the verification that the city would need. If the city will not issue a license to carry in a school zone, I see the school zone law could be challenge on its constitutionally as I am not able to exercise my right to keep and bear arms for the lawful purpose of personal protection in certain areas of the city. It would be the city’s opinion that in my yard which is located within a school my life is worth protecting, because it is private property, but as soon as I step into the street or take my dog on a walk around the block, I would have to call the police, wait for them to arrive if someone threaten my life with a firearm. I also think that carrying a firearm is a great deterrent for criminals which would be less work for the police department.


Sincerely,

George Ballogh

I am going to write the Assistant city Attorney back and this what I have. Dose any think of anything I should be in the letter. Thanks for the input

 

[Rick Finsta]

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Typo - your house is in a school zone, not "in a school." Otherwise, it looks good. You might want to take the speculative closing statement(s) out; this is not about the police, this is about your rights.