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View Full Version : (WI) Federal Judge Declares OC "Disturbing the Peace", Dismisses suit


Gray Peterson
05-12-2010, 9:49 PM
Dismissal of the case (http://www.georgiacarry.com/gonzalez_westmin/Doc%2047%20Order%20on%20MSJs.pdf)

Some gems from this decision:

To determine whether defendants had probable cause to arrest plaintiff for
disorderly conduct, I look to Wisconsin’s definition of that offense. Wis. Stat. § 947.01 provides that an individual commits disorderly conduct by “in a public or private place, engag[ing] in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance . . ..” Plaintiff did not engage in conduct within the specifically enumerated statutory categories, thus the question is whether defendants reasonably believed that his conduct was “otherwise disorderly...under circumstances in which the conduct tends to cause or provoke a disturbance.”

Conduct is “otherwise disorderly” if it is similar to the types of conduct enumerated in the statute in that it has a tendency to disrupt good order. City of Oak Creek v. King, 148 Wis. 2d 532, 540 (1989). Wisconsin courts have emphasized that “it is the combination of conduct and circumstances that is crucial in applying the statute to a particular situation.”
State v. Maker, 48 Wis. 2d 612, 616 (1970).

This “is especially true in regard to the ‘otherwise disorderly’ proscription.” State v. Werstein, 60 Wis. 2d 668, 671-2 (1973).

Convictions under such proscription typically involve conduct that is inappropriate because of the circumstances involved. Id. at 672-73.
Officers Donovan & Young had probable cause to arrest plaintiff for disorderly conduct. Both officers had reason to believe that plaintiff had or was engaged in disruptive conduct under circumstances in which such conduct tended to provoke a disturbance. No reasonable person would dispute that walking into a retail store openly carrying a firearm is highly disruptive conduct which is virtually certain to create a disturbance. This is so because when employees and shoppers in retail stores see a person carrying a lethal weapon, they are likely to be frightened and possibly even panicky. Many employees and shoppers are likely to think that the person with the gun is either deranged or about to commit a felony or both.

Further, it is almost certain that someone will call the police. And when police respond to a “man with a gun” call, they have no idea what the armed individual’s intentions are. The volatility inherent in such a situation could easily lead to someone being seriously injured or killed.

The facts of the present case illustrate the above observations. In both West Milwaukee and Chilton, plaintiff’s conduct caused store employees to become frightened and to notify their managers. The managers also became frightened and called the police, who immediately responded.

The responding officers clearly had reason to believe that the combination of plaintiff’s conduct and the circumstances in which it was committed “tended to provoke a disturbance” and constituted disorderly conduct in violation of§ 947.01. The fact that, for reasons undisclosed in the record, the local district attorneys chose not to prosecute is irrelevant to the question of probable cause. Further, nothing in either the federal or state constitutions suggests a contrary result. 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 under circumstances in which such conduct is likely to alarm others.

This Federal Judge essentially nullified Heller's dicta language about the Muscellero case about bearing arms in case of confrontation, and essentially declared open season by the cops in the state of Wisconsin to go after open carriers.

-Gray

Liberty1
05-12-2010, 9:56 PM
He's on our side by putting us in the appeal 'drivers seat' :tooth:

Window_Seat
05-12-2010, 10:11 PM
Dare I might say, this could be a blessing for the future?

Erik.

dantodd
05-12-2010, 10:35 PM
Dismissal of the case (http://www.georgiacarry.com/gonzalez_westmin/Doc%2047%20Order%20on%20MSJs.pdf)

Some gems from this decision:

Further, it is almost certain that someone will call the police. And when police respond to a “black man in a white neighborhood” call, they have no idea what the black man’s intentions are. The volatility inherent in such a situation could easily lead to someone being seriously injured or killed.


I don't like the sounds of that one bit.

Dr. Peter Venkman
05-12-2010, 10:51 PM
I don't like the sounds of that one bit.

Amazing that some people can't connect the dots. Nay, depressing.

nicki
05-12-2010, 10:54 PM
There is no justice in many Federal District courts. This Fed Judge may have opened the door for concealed carry in Wisconsin.

The only way not to disturb the peace would be concealed carry and people in Wisconsin should have a right to bear arms by the end of Jun Federally.

They should already have it according to their state constitution anyway.

Nicki

Theseus
05-12-2010, 11:15 PM
I always like how a judge can sit in their chairs and exclaim as if they always have a full grasp on what an reasonable person would do.

I have been into many more stores where people didn't panic and call the cops than in ones that have.

So. . . by definition he is saying Californians are not reasonable because a great many of them didn't panic as he suggests a reasonable person would.

hoffmang
05-12-2010, 11:22 PM
I'm not saying this to be intentionally disparaging, but I do want to make sure that folks understand that this is not an atypical response to OC from the Federal judiciary. It's not at all correct, but it is what we're dealing with.

-Gene

Window_Seat
05-12-2010, 11:30 PM
I'm not saying this to be intentionally disparaging, but I do want to make sure that folks understand that this is not an atypical response to OC from the Federal judiciary. It's not at all correct, but it is what we're dealing with.

-Gene

And federal judges aren't ignorant of this either. This Judge is likely aware that his ruling could be looked at as a hail mary pass followed by a false start flag after McDonald, no?

Erik.

dantodd
05-12-2010, 11:52 PM
I'm not saying this to be intentionally disparaging, but I do want to make sure that folks understand that this is not an atypical response to OC from the Federal judiciary. It's not at all correct, but it is what we're dealing with.

-Gene

Yep. And the big stick of lawsuits that you are filing on all of our behalf coupled with a vigorous exercise of those rights that are protected and civil disobedience where proper will help to bring these guys in line. The same way that those of a different color, sex or sexual orientation fought for their rights and to change the views of the courts from racism, sexism and bigotry to one of adjudicating the laws.

Foulball
05-13-2010, 12:13 AM
My guess is that judge just opened himself up for judicial beat down.

--

duldej
05-13-2010, 2:02 AM
It sounds to me that the prosecution dropped the charges in the criminal case and then the criminal court defendant cum civil court plaintiff lost because probable cause did so exist for the leos to arrest the man to begin with.
It's good news because the leos won't likely do that again, but still you can't fight city hall because the probable cause clause leaves the leos not liable for damages to the plaintiff.
He beat the rap but he didn't collect any money from city hall over it.

Mulay El Raisuli
05-13-2010, 9:35 AM
From the idiot judge:

The responding officers clearly had reason to believe that the combination of plaintiff’s conduct and the circumstances in which it was committed “tended to provoke a disturbance” and constituted disorderly conduct in violation of§ 947.01. The fact that, for reasons undisclosed in the record, the local district attorneys chose not to prosecute is irrelevant to the question of probable cause. Further, nothing in either the federal or state constitutions suggests a contrary result. 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 under circumstances in which such conduct is likely to alarm others.[/I]

This Federal Judge essentially nullified Heller's dicta language about the Muscellero case about bearing arms in case of confrontation, and essentially declared open season by the cops in the state of Wisconsin to go after open carriers.


Well, as bad as it is, the judge is right; carrying "outside the home" hasn't been protected yet. Given this reality, the only thing that would have prevented him from deciding as he did was good sense. Which Federal judges aren't known for. So, the beatdown is going to have to wait a while.


The Raisuli

FatalKitty
05-13-2010, 9:39 AM
wow they make it sound like the guy was "carrying" the gun in his hand. not holstered.

any REASONABLE person would not panic - only ignorant yuppies would.

chiefcrash
05-13-2010, 9:56 AM
Does this mean if a cop walking into a store openly carrying a firearm, I can perform a citizen's arrest because the cop is OBVIOUSLY disturbing the peace?

After all, no reasonable person would dispute that walking into a retail store openly carrying a firearm is highly disruptive conduct which is virtually certain to create a disturbance...

:rolleyes:

adamsreeftank
05-13-2010, 1:49 PM
So did the arresting officers leave their guns in the car so they wouldn't frighten the other shoppers?

press1280
05-13-2010, 2:24 PM
I'm not saying this to be intentionally disparaging, but I do want to make sure that folks understand that this is not an atypical response to OC from the Federal judiciary. It's not at all correct, but it is what we're dealing with.

-Gene

But at the same time these judges also pull the line out of Heller about concealed weapons prohibitions being valid under the 2A. So it seems to me they want it both ways, even with substantial case law upholding open carry outside the home.

IrishPirate
05-13-2010, 2:36 PM
i wonder what we're going to talk about after McDonald, Sykes, etc. are all decided in our favor?.....9mm vs .40 vs .45? Mossberg vs Remmington? 12ga vs pistol for HD? bullets penetrating walls? those haven't been beaten to death yet right? All these updates about 2A rights in courts accross the country are pretty interesting and it'll will be a joyfully sad day when they vanish from our pool of topics.

This is but a minor speedbump that the pro 2A lawyers will eventually smooth over. I'm sure the battle will be hard fought, but i'm confident that after McDonald we will see less cases of acute ignorance in the courts in regards to 2A cases. (less, not none)

press1280
05-13-2010, 2:45 PM
There is no justice in many Federal District courts. This Fed Judge may have opened the door for concealed carry in Wisconsin.

The only way not to disturb the peace would be concealed carry and people in Wisconsin should have a right to bear arms by the end of Jun Federally.

They should already have it according to their state constitution anyway.

Nicki

Wisconsin: The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.
Difficult for this judge to interpret this case the way he did. The state amendment is pretty clear.

mej16489
05-13-2010, 3:32 PM
i wonder what we're going to talk about after McDonald, Sykes, etc. are all decided in our favor?.....

Pie is better then Cake! :cool2:

BobB35
05-13-2010, 3:52 PM
Dismissal of the case (http://www.georgiacarry.com/gonzalez_westmin/Doc%2047%20Order%20on%20MSJs.pdf)

Some gems from this decision:

To determine whether defendants had probable cause to arrest plaintiff for
disorderly conduct, I look to Wisconsin’s definition of that offense. Wis. Stat. § 947.01 provides that an individual commits disorderly conduct by “in a public or private place, engag[ing] in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance . . ..” Plaintiff did not engage in conduct within the specifically enumerated statutory categories, thus the question is whether defendants reasonably believed that his conduct was “otherwise disorderly...under circumstances in which the conduct tends to cause or provoke a disturbance.”

Conduct is “otherwise disorderly” if it is similar to the types of conduct enumerated in the statute in that it has a tendency to disrupt good order. City of Oak Creek v. King, 148 Wis. 2d 532, 540 (1989). Wisconsin courts have emphasized that “it is the combination of conduct and circumstances that is crucial in applying the statute to a particular situation.”
State v. Maker, 48 Wis. 2d 612, 616 (1970).

This “is especially true in regard to the ‘otherwise disorderly’ proscription.” State v. Werstein, 60 Wis. 2d 668, 671-2 (1973).

Convictions under such proscription typically involve conduct that is inappropriate because of the circumstances involved. Id. at 672-73.
Officers Donovan & Young had probable cause to arrest plaintiff for disorderly conduct. Both officers had reason to believe that plaintiff had or was engaged in disruptive conduct under circumstances in which such conduct tended to provoke a disturbance. No reasonable person would dispute that walking into a retail store openly carrying a firearm is highly disruptive conduct which is virtually certain to create a disturbance. This is so because when employees and shoppers in retail stores see a person carrying a lethal weapon, they are likely to be frightened and possibly even panicky. Many employees and shoppers are likely to think that the person with the gun is either deranged or about to commit a felony or both.

Further, it is almost certain that someone will call the police. And when police respond to a “man with a gun” call, they have no idea what the armed individual’s intentions are. The volatility inherent in such a situation could easily lead to someone being seriously injured or killed.

The facts of the present case illustrate the above observations. In both West Milwaukee and Chilton, plaintiff’s conduct caused store employees to become frightened and to notify their managers. The managers also became frightened and called the police, who immediately responded.

The responding officers clearly had reason to believe that the combination of plaintiff’s conduct and the circumstances in which it was committed “tended to provoke a disturbance” and constituted disorderly conduct in violation of§ 947.01. The fact that, for reasons undisclosed in the record, the local district attorneys chose not to prosecute is irrelevant to the question of probable cause. Further, nothing in either the federal or state constitutions suggests a contrary result. 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 under circumstances in which such conduct is likely to alarm others.

This Federal Judge essentially nullified Heller's dicta language about the Muscellero case about bearing arms in case of confrontation, and essentially declared open season by the cops in the state of Wisconsin to go after open carriers.

-Gray

This all just sounds like more money to be paid to the lawyers when the city loses. I think when people become judges they lose the ability to actually read their decisions and apply common sense. I think they try to come up with the cleverest ways of pushing their agenda. This is complete garbage and will be thrown out.

Does anyone know if the appeal has been filed yet?

duldej
05-13-2010, 9:51 PM
existence, often enough, in california, say when you're in a public place, can be violating the section 415 (pc) of the penal code but those raps don't always hokd-up in court.
elsewhere and remniscent a little of the (wisconsin 415) you can flip-off a leo and get arrested for indecent exposure.
the codes above embraces a large idea of what is disturbing the peace but the problem is minor and i guess that's one of the gems kind-if like the weakened microbe that causes penicillin but i wouldn't bank-on it.
i mean there was only an allegation that the oc was a minor and not a major but my opinion for what it's worth is that the leos involved were begging the question of what goes on in california but i'm speaking mostly for myself.
they drop minor charges here sometimes, too, but why? you might ask, if you're anything like me.
i've got a hunch that [(wic) (ccr) ]and (wi) are strange bedfellows, and i'd like to add an (f) for you can't (f) ight city hall in either state, although in terms of (f)raud, maybe you can do it in France (cf france v the church of scientology). crazy? maybe, but not a big deal.

Gray Peterson
05-14-2010, 10:33 AM
This all just sounds like more money to be paid to the lawyers when the city loses. I think when people become judges they lose the ability to actually read their decisions and apply common sense. I think they try to come up with the cleverest ways of pushing their agenda. This is complete garbage and will be thrown out.

Does anyone know if the appeal has been filed yet?

I do not know if an appeal will be filed yet or not. The plaintiff in this case, two days before the decision, shot two men, one fatally. The local Milwaukee media has been having the family of the "victims" cry tears that "he was a good boy, there's no reason for him to have been shot". With Gonzalez not talking with the media, and letting his lawyer do all of the talking, the local media has been doing everything they can to destroy Gonzalez' reputation. The Milwaukee Police certainly is giving no quarter to him since he sued them, etc etc etc.

I am assuming that Gonzalez shot the two men in self defense.

Sobriquet
05-14-2010, 10:48 AM
I do not know if an appeal will be filed yet or not. The plaintiff in this case, two days before the decision, shot two men, one fatally. The local Milwaukee media has been having the family of the "victims" cry tears that "he was a good boy, there's no reason for him to have been shot". With Gonzalez not talking with the media, and letting his lawyer do all of the talking, the local media has been doing everything they can to destroy Gonzalez' reputation. The Milwaukee Police certainly is giving no quarter to him since he sued them, etc etc etc.

I am assuming that Gonzalez shot the two men in self defense.

http://www.fox11online.com/dpp/news/crime/jesus-gonzalez-charged-in-danny-john-murder

Not much info - I hope it turns out it was a good shoot.

Liberty1
05-14-2010, 1:39 PM
I know Jesus Gonzalez through some personal contacts. He is a proud American with a great love and conviction for defending our liberties. He is a very brave man and did wonders for the self defense movement by putting himself at risk by being one of the first to exercise and be falsely arrested (twice) for lawful Wisconsin Open Carry (concealed carry is prohibited totally in WI).

I ask everyone here to please keep Jesus in your prayers as he and his family deal with this self defense incident.

(always wished he'd cut his hair if he was going to be so public in his activities but he is who he is...)

Liberty1
05-14-2010, 2:08 PM
http://www.jsonline.com/news/crime/93744194.html

MindBuilder
05-14-2010, 3:19 PM
It is true that a disturbance may follow open carry. But the flaw in the judge's argument is that it is the open carry that causes the disturbance. It's kind of like if there was a KKK rally in a town park in the south, and a black guy across the street kissed his white girlfriend in full view of the KKK members. The KKK members might be enraged to violence, but the violence wouldn't be caused by the innocent couple exercising their rights.

The disturbance of open carry is caused by people's unfamiliarity with the exercise of this right, and by an improper response by 911 operators. When the public sees someone open carrying, they should just note that someone is carrying protection and that they are no significant threat. This is how it is in many states and it's not a problem. There is no rational reason to fear open carriers. The fear is not caused by the object of the irrational fear but rather by the ignorance of the non-threatening nature of open carry. The solution is to let people exercise their rights and let the public get used to it. But the large majority of responsibility for the problem rests with the 911 operators, who should explain that open carry is legal and that unless the person appears to be engaged in illegal activity, then no response is called for. It is actually the police with their guns that are disturbing the peace and creating a dangerous situation where none need exist.