Open Carry In A Vehicle

[protias]

Dude... It's irrefutable truth. it is published case law.... Here is the actual quote from the WI Statute...
http://legis.wisconsin.gov/statutes/Stat0941.pdf

What is not case law is the definition of "hidden". This is the only thing left to debate.

Under 941.23, but not under 167.31. 167.31 says nothing about being within reach.

 

[BROKENSPROKET]

Dude... It's irrefutable truth. it is published case law.... Here is the actual quote from the WI Statute...
http://legis.wisconsin.gov/statutes/Stat0941.pdf

What is not case law is the definition of "hidden". This is the only thing left to debate.

Dude, case law is not irrefutable truth. Any court or attorney can refute it.

 

[Shotgun]

Oh not this stuff again! Where is there a court case that can be cited in court that says an encased gun is considered "within reach?" That's why the DNR wanted them to be encased in the first place, to keep them inaccessible and "out of reach."

 

[BROKENSPROKET]

Oh not this stuff again! Where is there a court case that can be cited in court that says an encased gun is considered "within reach?" That's why the DNR wanted them to be encased in the first place, to keep them inaccessible and "out of reach."

Shotgun, we are talking about Open Carry in a vehicle.

 

[Shotgun]

I know, I read it. But it's dredging up the worn-out discussion about vehicle transport that has been rehashed a thousand times here.

I think that the new statutes will make that entire discussion moot.

 

[Brass Magnet]

I know, I read it. But it's dredging up the worn-out discussion about vehicle transport that has been rehashed a thousand times here.

I think that the new statutes will make that entire discussion moot.

Agreed that in the context of carrying a handgun for self defense, the old 167.31 issues are moot. 941.23 isn't unfortunately nor is State v. Walls; at least by the lower courts.

So, open carrying in a vehicle without a permit may open oneself up to charges under 941.23 even with SB93 as law. Well, I guess you could always try putting it on the dash.....

 

[rcawdor57]

Open Carry In Vehicle? Yes. See SB 93 FAQ.

This question has been answered by Anne Stapenfield, Senior Staff Attorney on page 10. Notice that the question is for a "Person", not a "Licensee" so no license needed to open carry in a vehicle once the law takes effect.

Link: http://legis.wisconsin.gov/senate/sen11/news/images/0930_001 FAQ.pdf

As for currently transporting a firearm in your vehicle we have hashed this out many times before.

When you transport you are not in violation of 941.23. If that were the "case" then EVERYTIME you put your gun in a case, bag, safe, etc...you are violating 941.23. Once again, you CANNOT follow both laws simultaneously. Yes, I know 167.31 is a DNR rule and 941.23 is criminal code.

My firearm will always be on the seat next to me legally encased and WITHIN reach.

Link to state patrol for how to transport a firearm: http://www.dot.wisconsin.gov/statepatrol/enforcement/faqs-enforcement.htm

Scroll down to "misc" questions. It says nothing about out of reach.

 

[Interceptor_Knight]

Not true. Any future court could change the debate on anything that you have argued. The mindset of the court has been shifting towards the Constitution. I would argue that it will continue to do so.

You would have to get cited, found guilty and then appeal it for this to change in the Statute.
We all know that a LEO may choose to not cite or a prosecutor may choose to not charge or a judge may find you not guilty regardless of what the Statute and annotations say. Reality is that the best chance of beating a charge is to beat the premise that it was "hidden".
A handgun being Open Carried in a holster which is not covered by clothing is considered plain view and not concealed for licensed security guards in armored cars, etc. The difference between us and them is that WI Statute 440.26 gives the Administrative code the authority to regulate the carry of weapons. This does not negate the fact that the interpretation of "hidden" does not include a holstered handgun not otherwise obstructed from view.

RL 34.011 Conditions relating to transporting a
loaded firearm in a vehicle. No owner or employee of an
agency may transport a loaded firearm in a vehicle, unless all of
the following apply:
(1) The firearm is in plain view. In this section “in plain view”
means it is visible from ordinary observation to a person outside
the vehicle.
Note: A firearm located in a glove compartment, in a briefcase, under a seat of a
vehicle, or covered by the clothing of an occupant, is not “in plain view.”
(2) If the firearm is a handgun, the owner or employee transports
the firearm in a holster which is in plain view.
(3) If the firearm is other than a handgun, the owner or
employee transports the firearm in a device inside the vehicle
which locks the firearm in position and prevents an unauthorized
person from removing the firearm from the locking device and
which is in plain view.
(4) The owner or employee complies with the requirements in
s. RL 34.01.
History: Cr. Register, January, 1977, No. 493, eff. 2−1−97; am. (intro.), Register,
November, 1997, No. 503, eff. 12−1−97.

 

[Captain Nemo]

There is nothing in NR10 that addresses vehicle transport of firearms.

This is what the statutes in the DNR chapter say about DNR rule making authority.

29.014(2)(b)
(b) All of the rules promulgated under this chapter are prima facie reasonable and lawful until found to be otherwise in a final determination by a court.

 

[BROKENSPROKET]

You would have to get cited, found guilty and then appeal it for this to change in the Statute.
We all know that a LEO may choose to not cite or a prosecutor may choose to not charge or a judge may find you not guilty regardless of what the Statute and annotations say. Reality is that the best chance of beating a charge is to beat the premise that it was "hidden".
A handgun being Open Carried in a holster which is not covered by clothing is considered plain view and not concealed for licensed security guards in armored cars, etc. The difference between us and them is that WI Statute 440.26 gives the Administrative code the authority to regulate the carry of weapons. This does not negate the fact that the interpretation of "hidden" does not include a holstered handgun not otherwise obstructed from view.

Thank you. Now you are making alot more sense.

 

[Interceptor_Knight]

There is nothing in NR10 that addresses vehicle transport of firearms.

That is why it makes no sense for people to refer to the "Safe Transportation" Statute as a "DNR Rule".

 

[Shotgun]

It doesn't make much sense to me to interpret the changes in 167 to say you can now load a handgun inside your vehicle, but... oh... you have to do it while it's out of reach.

 

[Interceptor_Knight]

It doesn't make much sense to me to interpret the changes in 167 to say you can now load a handgun inside your vehicle, but... oh... you have to do it while it's out of reach.

What the changes "say" is that you may now load a handgun inside your vehicle so long as the handgun is not hidden....
You must keep in mind that this is not a Constitutional Carry bill. This is a permit to carry bill with some changes which make Open Carry easier. In order to carry a concealed firearm in a vehicle, there had to be both an exception to 947.23 (concealed carry) AND 167.31 (safe transportation). You may open carry in or on a vehicle so long as the firearm is not hidden. The point of contention is the condition of being "hidden", not with being within reach. It must be hidden in order to be considered concealed.

 

[Brass Magnet]

We need to stop thinking about 167.31 as it pertains to this issue. It's only the concealed weapons statute that matters in this discussion.


Wow, I'm actually agreeing with IK...............

However, I agree with Shotgun that legislative intent is to make it legal to OC in your vehicle without a permit.

Unfortunately the statutes themselves with their previous case law make it unclear and may cause someone to eventually be cited for CC while OC in a car.

 

[rcawdor57]

Has Anyone Read SB93 FAQ? It States We Can Open Carry In A Vehicle Without A Permit

See page 10. Link: http://legis.wisconsin.gov/senate/sen11/news/images/0930_001 FAQ.pdf

Notice it states "Person" where in other sections it states "Licensee". Looks to me like it is clear; after the bill becomes law and the "wait" is over we can open carry in a vehicle without a permit (but you still cannot enter or pass through those GFSZ's).

 

[Brass Magnet]

See page 10. Link: http://legis.wisconsin.gov/senate/sen11/news/images/0930_001%20FAQ.pdf

Notice it states "Person" where in other sections it states "Licensee". Looks to me like it is clear; after the bill becomes law and the "wait" is over we can open carry in a vehicle without a permit (but you still cannot enter or pass through those GFSZ's).

Have you read the bill itself?

The FAQ isn't the bill; obviously, but I think that it would go a long way to show legislative intent if this ever (and it's unlikely I agree) ends up in court.

 

[rcawdor57]

I Agree. Please read the first paragraph under the date on the FAQ pdf...

Have you read the bill itself?

The FAQ isn't the bill; obviously, but I think that it would go a long way to show legislative intent if this ever (and it's unlikely I agree) ends up in court.

It states...this memorandum, prepared at your request (Pam Galloway), describes the major provisions....etc....in a question and answer format. And please notice who wrote the FAQ response; the senior staff attorney.

Seems pretty clear to me. We can open carry in our vehicles once the bill is law and the wait is over except for the GFSZ's.

I have read the entire bill twice (the latest version) and again this morning. I have it printed on my desk in front of me. It certainly takes a while to go through it and reference back to other statutes and DNR rules to see what it means but...I am certain it provides for us to open carry without a permit.

To open carry without a permit in a vehicle was one of our biggest issues due to the "dance" we have to do now. I know senator Galloway and Kedzie were aware of this and fought to keep it in the bill.

 

[Mugenlude]

sounds like someone needs to send this information onto Sen. Galloway... if we need to change some other laws as they are written get them inline with the new law then lets get it done.

We all know what the current change in law was supposed to do, so do they...

 

[Uziel Gal]

My favorite topic will not go away.

Congrats on the passage of SB93.

My 2 cents.

The new law dramatically alters 167.31 in regards to handguns by allowing them to be placed, possessed, or transported in a motor vehicle without a case and when loaded. Since 941.23 was not repealed and only amended to allow exceptions previous case law still has precedence. There are only two major cases that impact this discussion Fry and Walls. In State v. Fry a violation to 941.23 was found for having a dangerous weapon in a locked glove compartment and in State v. Walls a weapon on a car seat was determined to be concealed when it was not observable by a person outside the vehicle. Lets say I'm an open carrier after Nov 1, and I am not a licensee cause I hate stinkin permits. I now have the ability to transport loaded and place my handgun in and around my car which gives me a lot more freedom. I can without question unholster, leave it loaded, and put in the trunk or on a seat with the door open. Can I put the handgun in the glovebox or drive around with it on the passenger seat? I would say that under the new law the answer is "NO". Without a permit a handgun in a glovebox or on a passenger seat is still a violation of 941.23. Can I have it on my hip and drive around? Still "No". Now at this point if you still hate stinkin permits your probably pissed and understandably so but it isn't all bad. God created dashboards for a reason and in my opinion you can drive around all day with it openly carried on the dash. If I wasn't getting a permit I would probably install a serpa right to the dashboard with some of that 3M no residue. To hell with basic gun safety when the legislature can't respect our God given rights. Perhaps It needs a bracket or something to keep the muzzle down. Open driver door remove openly carried handgun, insert into dasholster(TM 2011 uziel), get in, and rock and roll.

P.S. At the moment Anne Sappenfield statement regarding open carry in a vehicle is misleading. To be in a vehicle like a car or truck the handgun must be in the open. You can't have it concealed. The courts have made it clear that doors, glove boxes, and center consoles are a method of concealment. Keep it in the window or get a stinkin permit.

 

[Brass Magnet]

Congrats on the passage of SB93.

My 2 cents.

The new law dramatically alters 167.31 in regards to handguns by allowing them to be placed, possessed, or transported in a motor vehicle without a case and when loaded. Since 941.23 was not repealed and only amended to allow exceptions previous case law still has precedence. There are only two major cases that impact this discussion Fry and Walls. In State v. Fry a violation to 941.23 was found for having a dangerous weapon in a locked glove compartment and in State v. Walls a weapon on a car seat was determined to be concealed when it was not observable by a person outside the vehicle. Lets say I'm an open carrier after Nov 1, and I am not a licensee cause I hate stinkin permits. I now have the ability to transport loaded and place my handgun in and around my car which gives me a lot more freedom. I can without question unholster, leave it loaded, and put in the trunk or on a seat with the door open. Can I put the handgun in the glovebox or drive around with it on the passenger seat? I would say that under the new law the answer is "NO". Without a permit a handgun in a glovebox or on a passenger seat is still a violation of 941.23. Can I have it on my hip and drive around? Still "No". Now at this point if you still hate stinkin permits your probably pissed and understandably so but it isn't all bad. God created dashboards for a reason and in my opinion you can drive around all day with it openly carried on the dash. If I wasn't getting a permit I would probably install a serpa right to the dashboard with some of that 3M no residue. To hell with basic gun safety when the legislature can't respect our God given rights. Perhaps It needs a bracket or something to keep the muzzle down. Open driver door remove openly carried handgun, insert into dasholster(TM 2011 uziel), get in, and rock and roll.

P.S. At the moment Anne Sappenfield statement regarding open carry in a vehicle is misleading. To be in a vehicle like a car or truck the handgun must be in the open. You can't have it concealed. The courts have made it clear that doors, glove boxes, and center consoles are a method of concealment. Keep it in the window or get a stinkin permit.

^This is how I read it too.

However; having letters like Anne Sappenfield's would probably help you get the case law changed if you were ever prosecuted for this as the intent of the new statutes were pretty clear even if the caselaw of 941 didn't get re-written.