Wisconsin Man Peacefully Open Carrying on His Property charged w/ disorderly conduct

[Liberty1]

http://www.lakelandtimes.com/main.asp?SectionID=9&SubSectionID=9&ArticleID=8970

1/20/2009 900 AM


'Open-carry' becoming central gun-rights issue
Visible firearms bring disorderly conduct charges

Richard Moore
Investigative Reporter

News Analysis

For most of this decade, the most contentious gun issue in Wisconsin has been that of concealed carry, or the legal sanction to carry a firearm in public in a hidden manner, either on the body or in close proximity.

But this year that affair may take a backseat to a rapidly intensifying debate about the legality of open carry, or the act of publicly carrying a firearm in plain view.

Ostensibly, Wisconsin is an open-carry state, meaning there is no law against a law-abiding citizen openly carrying a legal firearm. Theoretically, at least, one could strap on a holster and pistol and go buy groceries, or plant trees in one's own yard, whether or not such an action might be wise.

Indeed, Wisconsin remains one of only two states in the nation not to allow some form of concealed carry, and one of the most-repeated arguments used by concealed-carry opponents is that it is not necessary because citizens can openly carry their guns.

Then attorney general Jim Doyle used that precise argument before the state Supreme Court in Wisconsin v Hamdan, in which the state carved out a concealed weapon exemption for small business owners.

As governor, Doyle reportedly reiterated his belief at a Lake Delton press conference, in which The Wisconsin Dells Events quoted him as saying, "If you want to carry a gun in Wisconsin, wear it on your hip."

Then again, maybe not, if the attitudes of other state officials, not to mention more than a few police actions, are any indication.

Doyle's proclamation notwithstanding, others in his administration take a wary view of wearing a gun openly on the hip, and their message is, if you do it, you're inviting trouble.

For example, Wisconsin Department of Natural Resources hunter education administrator Timothy Lawhern wrote last year that openly carrying a gun would likely provoke an unsympathetic and severe response from law enforcement officers.

"Note that the officer on the street doesn't expect to see firearms openly exposed," Lawhern wrote in the April 2008 issue of the Wisconsin Hunter Education newsletter. "In most cases when they do see a firearm, they draw theirs and tell the person 'Let me see your hands! Don't move!' In some cases they yell, 'Put the gun down,' or 'Drop the gun!'"

Him or them?

So whom should the public believe, the governor or his underlings?

Those who are inclined to place faith in the governor's words and legal contentions might want to consider the case of West Allis resident Brad Krause, whose experience last summer while wearing his legal firearm on his own property eerily recalled Lawhern's stern admonition.

According to multiple reports, on Aug 22, 2008, Krause was at home planting trees - with a holstered firearm on his side. That prompted a neighbor to call the police to ask if that was legal.

It wasn't, at least to the West Allis police. The department dispatched two squad cars to his residence and, after approaching him with their weapons drawn, ultimately arrested him for disorderly conduct, says Gene German, a gun-rights advocate who has followed the case closely.

"The police had him standing in handcuffs on his own property for 45 minutes with squad cars parked in front of his residence while they tried to figure out a way to arrest him," says German, who is the state director of the American Association of Certified Firearms Instructors and one of the founders of Wisconsin Patriots, a grassroots organization whose declared mission is to "encourage our fellow citizens to restore, exercise and preserve their individual rights, including the right to be safe."

"They shortly discovered Brad had no criminal record and was lawfully openly carrying on his own property, but instead of releasing him and returning his weapon, they tried to figure out how to arrest him. A call to the supervising lieutenant provided the answer: claim his action of carrying a weapon is disorderly conduct, and haul him down to the station. His firearm was taken away from him without a receipt, and it has not been returned. The police have effectively banned his exercise of his right by disarming him."

German says the case involves a host of important issues.

"We are concerned about Brad being on his own property because the right to bear arms is not nor should it be limited to bearing arms on one's own property," he said. "The issue of his being on his own property should only make the unconstitutional infringement of his right more distasteful to people."

Then, too, there's the overriding question of whether open carry is even legal in the state, which calls second-amendment rights into question, given the illegality of concealed carry.

"The (WI) Supreme Court has said if the right to keep and bear arms amendment in the constitution is to mean anything, then there must be some reasonable means to exercise that right, and if the sight of a firearm is all it takes for the police to deny your right - they took his gun - that right is [infringed]," German said.

A disorderly end run

The disorderly conduct charge makes the issue even more complicated. That's because, while open carry is ostensibly legal, police have used disorderly conduct as the principal means by which to forestall the practice, which a September 2000 Legislative Reference Bureau memorandum pointed out for anybody thinking about doing so.

"Wisconsin law does not specifically prohibit the open carrying of loaded or unloaded firearms in public, but a person doing so may risk being arrested, and charged with disorderly conduct, on the grounds that the display threatens the public peace or safety," the brief stated.

That rankles open-carry advocates, many of whom believe that defining the very act of carrying a legal firearm openly as disorderly conduct - without any associated provocation, illegality, or disturbance - creates a new and de facto law against open carry.

"When you're dealing with a protected right, you can't use the same standard that would apply to someone being disorderly in a bar," German told The Lakeland Times last week. "You can't apply the legal standard to disorderly conduct for someone who is just being obnoxious in a bar as being the same standard that we use to measure [whether the state can] use its police powers to deny someone the exercise of a protected right. You have no protected right to be disorderly in a bar, so the standard they can use to stop that behavior is much lower. It doesn't fit [in open-carry cases]. You're talking about stopping a right, not just stopping disorderly conduct."

German said the state Legislature never intended to ban the open carry of firearms, and, in fact, the law against concealed carry was meant to underscore that right.

"The fact is, the concealed weapon [ban], the reason it was enacted was not to ban the carry of guns," he said. "That is the open-carry statute. The legislative intent was to prohibit people from carrying a concealed weapon. The Legislature was really trying to force people to openly carry them."

Still, those arguments have not stopped police agencies around the state from arresting people just as the Legislative Reference Bureau forewarned, or acting as Lawhern predicted they would.

The charge is in fact common enough: in addition to Krause, another man in the Milwaukee area was charged with disorderly conduct last year after he entered a West Milwaukee retail outlet with an openly displayed gun, according to Milwaukee Magazine.

Federal court

However, a Dec. 4, 2008, declaratory judgment in the United States District Court for the Southern District of Georgia could rattle the law enforcement establishment's legal underpinning.

In a case involving Zachary Nelson Mead, the court adopted a settlement in a case similar to Krause's, declaring that seizing a firearm for no reason except that it was openly carried violated the Fourth Amendment's protection again unreasonable search and seizure.

Mead filed a federal civil rights action after a Richmond County sheriff's deputy, Tadum Townsend, stopped him outside a Kroger grocery store as Mead was returning to his car from shopping, according to federal court records. Mead was carrying an exposed handgun in a holster on his belt.

[Liberty1]

...

In Georgia, a person must have a firearms' license to carry such a firearm openly, though Mead had a military exemption from the law. Even so, he had the license.

Without his consent, the court stated, the deputy seized the pistol, even though Mead handed the officer both his military identification and the firearms' license.

Though the sheriff's department eventually returned the firearm, Mead sued, contending the deputy had no probable cause to believe Mead had or was about to commit a crime and had no reasonable 'articulable' suspicion that he was committing or about to commit a crime.

As the court noted in summarizing Mead's arguments, federal case law allows officers to conduct investigatory stops without a warrant only if "the officer has a reasonable, articulable suspicion that criminal activity is afoot." To make a showing that he or she in fact had reasonable suspicion, the court continued, "[t]he officer must be able to articulate more than an 'inchoate and unparticularized suspicion or hunch of criminal activity.'"

So, the court wondered - and this is where the Georgia case becomes relevant - does the mere existence of an openly carried firearm represent reasonable articulable suspicion that "criminal activity is afoot"?

Or, to rephrase the question using the Wisconsin context, does the mere existence of an openly carried firearm represent conduct that an officer might reasonably believe is causing or provoking a disturbance by its presence only, or is likely to, to use the statutory definition of disorderly conduct?

"While plenty of case law exists on what conduct justifies a stop under the Fourth Amendment, there is no case law in the Eleventh Circuit on whether the Fourth Amendment is violated when a person is stopped merely for the presence of a pistol in a holster, with no accompanying facts indicating the commission of a crime," the judgment stated.

And, it continued, though the U.S. Supreme Court has concluded that there is no automatic 'firearms exception" to the Fourth Amendment, "[t]he present case presents the situation of whether the officer had authority to make the initial stop . . ."

The court then cited a number of precedents in which the mere presence of a gun did not justify a stop.

For example, the court noted, in United States v. Dudley, the court held that "a radio call alerting police to the presence of two people in a vehicle with firearms did not provide reasonable suspicion of a crime justifying a stop, because possession of firearms is not, generally speaking, a crime."

Then, too, in United States v. Ubiles, the district court observed, the Third Circuit Court of Appeals unanimously held that a tip that a celebrant at a festival was carrying a pistol was not sufficient to justify a stop of the celebrant.

"For all the officers knew, even assuming the reliability of the tip that Ubiles possessed a gun, Ubiles was another celebrant lawfully exercising his right . . . to possess a gun in public," the Ubiles decision stated.

As in both Dudley and Ubiles, the court observed, Mead contended he was stopped merely for possessing a firearm, and, going beyond the facts in those cases, the firearm was seized even after the investigation revealed no crime whatsoever.

"Plaintiff further contends that at the time of the initial stop, Deputy Townsend was not in possession of any facts that would lead him to believe that Plaintiff was committing or about to commit a crime, and Deputy Townsend was not aware of any facts that would tend to indicate that Plaintiff was carrying the firearm or possessing the firearm unlawfully," the court summarized.

Obnoxious but not disorderly

Of course, the sheriff's department had its arguments, too.

According to the deputy, who was on routine patrol in the Kroger parking lot, "he was waved down by a customer who indicated there was an individual in Kroger acting in a bizarre and obnoxious manner and carrying a firearm."

The deputy was also told that another man wearing a sombrero and carrying a guitar accompanied the man with the gun. The deputy further said he received complaints from another shopper and a store employee.

Outside the store, the deputy stated, he approached Mead, and seized his firearm for the deputy's "protection and safety."

"Deputy Townsend believed that he could smell alcohol on Plaintiff and questioned the Plaintiff about whether he had been drinking," the judgment states. "Plaintiff denied that he had been drinking but the officer noted that Plaintiff had purchased alcoholic beverages from the Kroger store. In the abundance of precaution, Deputy Townsend seized the firearm, gave the Plaintiff a property receipt and informed him that he could retrieve the firearm from the Sheriffs Office."

No charges were filed, though - not even disorderly conduct - and the case never proceeded to trial because the sheriff's department dropped its arguments and conceded it had acted inappropriately.

The case achieves some importance because the court granted Mead a declaratory judgment. In such a judgment, a judge delivers a determination of the rights of each litigant. It must be dispositive of a real-life and not hypothetical dispute within the court's jurisdiction, but it is conclusive and legally binding.

"Pursuant to the agreement and the terms of a settlement between the parties, plaintiff's prayers for declaratory judgment are granted, in part, against Townsend and the Court declares that Deputy Townsend by the seizure of Plaintiff's firearm and requiring him to retrieve it at a later date from the Sheriff's Office under the facts and circumstances of this case violated Plaintiff's Fourth Amendment rights of the United States Constitution," the court declared in the Mead judgment.

Similarities

The declaratory judgment, while limited in legal value, does provide a look at the trend in federal legal doctrine, based as it is in part on the court's interpretation of existing case law. Accordingly, it provides some limited instruction not just on the Krause case but on the general legitimacy of using disorderly conduct charges to prosecute the open carry of firearms.

In the Mead case, the court concluded, the officer had no right to seize the firearm because the officer "under the facts and circumstances of the case" had no articulable reason to believe a crime was being committed but was instead acting solely on complaints from other shoppers.

Similarly, in the Krause case, officers acted solely on a phone call from a neighbor who was inquiring about the legality of Krause's firearm.

Then, too, in Mead, police continued to hold the weapon even after the officer ascertained no crime was being committed; in Krause, too, seizure continued after officers determined Krause was committing no crime beyond what they considered to be the illegal presence of the gun.

In some ways, Krause's arguments could be considered more potent than Mead's. For example, unlike Mead, Krause was on his own property and there were no complaints about drinking or obnoxious behavior.

But the most critical issue is more general than Krause - whether the mere presence of the gun constitutes disorderly conduct.

In the eyes of the federal district court in Georgia, the answer was no.

Indeed, applying the conclusions in the Dudley and Ubiles cases, that coloring of the disorderly conduct statute would seem to wander beyond the lines. Specifically, if reporting that people have firearms is not sufficient for the police to stop them because it is not sufficient by itself to establish the likelihood of a crime, then merely having an open firearm is therefore not a crime and, at least in the logic of federal law, could not be considered disorderly conduct.

Nor could the presence of the firearm be sufficient to conclude that it would likely provoke or cause a disturbance..

In fact, German says, in his experience, exactly the opposite is true.

"In the five years, six months and 13 days, give or take a few, that I have been openly carry a gun [in Minnesota], when people see my gun, number one, they don't go running and screaming the other way," he said. "They generally ask me if I am a cop or a bounty hunter - I used to have a pony tail - but the point is that there are all sorts of good guys carrying guns. Nobody has ever come up to me and asked, 'Are you a criminal or a bank robber?' And you know why? Because I'm not acting like one."

First, a local decision

As for Krause, he is not in federal district court, nor even in state court. He is in municipal court, scheduled for another hearing Feb. 17, in a case German says is likely to be appealed

"No matter who wins we certainly believe it will be appealed because we don't believe the city of West Allis is just going to roll over and let people openly carry guns, the way they handled this one, and if Brad loses, we don't want that, either," German said last week.

And while many think the case is headed for the Wisconsin Supreme Court, it could go even further - to federal court.

[Liberty1]

...

One way or another, the Krause case has sharpened attention over an issue that has been seething beneath the surface for years. German says that's not because he and others haven't tried to call media attention to it.

"Civil rights are very important - all of them - which is why they are protected from governmental actions just like this," he said. "The media would be all over this story if a voter had been wrongly arrested while waiting in line to vote, or a worshipper had been arrested while attempting to enter their place of worship, or a reporter was arrested while writing an article."

German said the Wisconsin Supreme Court has determined that an otherwise reasonable exercise of police power cannot be invoked in a way that 'destroys,' 'frustrates,' or 'nullifies' the constitutional right to bear arms, yet that is exactly what is being done by law enforcement departments all over Wisconsin.

In the end, he said, the Krause case is about a whole lot more than guns. "It's about liberty," German said. "The intended purpose is to re-establish freedom and liberty in Wisconsin. It's not about the tool or about the fact that it may involve a firearm. Rights are being unlawfully infringed upon by law enforcement officers and the Supreme Court has agreed that if you're going to eviscerate someone's right, you better have a good reason. Disorderly conduct does not rise to that reason."

That's still to be decided, of course, and it may be a while before citizens know whether the police will be able to continue to arrest people at the mere sight of a gun or demand that they turn it over for no reason, as the DNR suggests, or whether Doyle's words can be taken at face value.

In the meantime, it might not be wise to wear your pistol while planting trees or buying groceries, especially if you are accompanied by a man wearing a sombrero and carrying a guitar - apparently a dead giveaway for disorderly conduct, if ever there was one.

http://www.lakelandtimes.com/main.asp?SectionID=9&SubSectionID=9&ArticleID=8985

Wisconsin attorney general Van Hollen is declining to issue a legal opinion about whether the practice is legal.

In a Nov. 6, 2008, letter to then state Rep. Terry Musser (R-Black River Falls), deputy attorney general Raymond Taffora acknowledged a number of requests for just such an opinion, as well as a growing number of arrests for carrying firearms in plain view, mostly on the charge of disorderly conduct.

On behalf of an unnamed constituent, Musser had specifically asked for an opinion about the open carrying of firearms for personal defense, but Taffora told him there were prudent legal reasons for the attorney general not to get involved.

For one thing, Taffora said, many requests for a formal opinion had been prompted by disorderly conduct charges brought by district attorneys. In general, he wrote to Musser, private citizens wanted an opinion to cite at trial or at the appellate level to defeat the charge.

There are procedural reasons not to give them those citations, Taffora wrote.

First, he noted, state statutes provide that the attorney general can only provide formal opinions to the governor, the Legislature, state officers and agencies, corporation counsels, and district attorneys. The attorney general cannot issue formal opinions to cities, towns, villages or other municipal attorneys or private citizens.

"We also discourage authorized requestors from acting as proxies for private citizens seeking a formal opinion," he wrote. Musser was in fact acting as such a proxy when he asked for the opinion.

Moreover, Taffora went on, an opinion should not be requested on an issue that is the subject of current or reasonably imminent litigation, since an opinion of the attorney general might affect the case.

"That limitation protects the right of Wisconsin litigants to obtain a definitive ruling on their matter of controversy," Taffora stated. "A formal opinion of the Wisconsin attorney general is not a judicial ruling. While formal opinions may be considered persuasive authority, they are not precedent for any court."

Indeed, Taffora said, the attorney general's office is aware of "various court actions" in which the defendants may challenge the factual basis for a disorderly conduct citation, or raise constitutional challenges to the charge. Given that, he stated, the attorney general should not issue an opinion.

Finally, Taffora said, the attorney general is cautious about offering opinions on the propriety of bringing or not bringing charges in a particular class of cases because the Wisconsin Supreme Court has concluded that state officers cannot direct a district attorney's exercise of charging discretion, whether it is to bring a charge or decline to bring a charge.

Taffora cites a case, Kurkierewicz v Cannon, in which the court determines that district attorneys are constitutional officers and are endowed with a discretion that approaches the quasi-judicial. Therefore, the Kurkierewicz ruling states, district attorneys do not have to prosecute all complaints filed with them or all apparent violations of the law, and they are answerable to no authority other than the people in elections.

"We believe Kurkierewicz stands for the proposition that state officials - including the Wisconsin attorney general - cannot compel a district attorney to charge or decline to charge a class of cases in a particular manner," Taffora wrote. "Even if the procedural bars described above were not in place, Kurkierewicz would strongly counsel against our attempting to influence criminal charging in the manner sought by [your constituent]."

That does not leave citizens without judicial recourse, Taffora concluded.

"If a district attorney lacks a proper or sufficient factual basis to bring a particular criminal charge, then the defendant may challenge the charge in both the trial and appellate courts," he wrote. "And if the county's citizens disagree with a district attorney's exercise of charging discretion over the run of cases, Kurkierewicz is a reminder that a district attorney must ultimately respond to the citizens concerns in the electoral process."

Some open-carry advocates, among them Gene German, see the attorney general's refusal to get involved as so much political jockeying.

In particular, German said, Van Hollen could be eyeing the West Allis case of Brad Krause, which could end up in state court. Krause was arrested for disorderly conduct for wearing a holstered firearm on his own property.

"Jim Doyle (when he was attorney general) has done more for us than Van Hollen will do," says German, who is the state director of the American Association of Certified Firearms Instructors and one of the founders of Wisconsin Patriots, a grassroots organization whose declared mission is to "encourage our fellow citizens to restore, exercise and preserve their individual rights, including the right to be safe."

"The reason they (the attorney general's office) blew Musser off, I think, is that if J.B. says open carry is in fact lawful and then West Allis appeals, the state will be representing the city and he's going to end up creating a problem for himself defending the city's actions when he has already said what Brad did was lawful. So he's not going to put himself in jeopardy and open his mouth, although he should."

Whatever his motivation, the attorney general certainly has a surfeit of case law and DOJ briefs to form an opinion, if he chose to do so.

As German alluded to and The Lakeland Times has reported, both Doyle, as attorney general, and the Supreme Court recognized open-carry rights in State of Wisconsin v Hamdan, in which the High Court carved out a concealed weapon exemption for small storeowners.

In a brief signed by Doyle, the Department of Justice argued against the exemption, citing the ability of citizens to already possess and carry an open weapon: "The State argues that even under the strictest enforcement of the [concealed carry] statute, a person lawfully in possession of a firearm will always retain the ability to keep the firearm in the open - holding the weapon in the open, keeping the weapon in a visible holster, displaying the weapon on the wall, or otherwise placing the weapon in plain view," the court stated in summing up the DOJ's brief.

In her dissent of the final decision, chief justice Shirley Abrahamson went even further.

"That is, [the law] does not prevent anyone from carrying a firearm for security, defense, hunting, recreation, or other lawful purposes," Abrahamson wrote. "Rather, it limits the manner of carrying weapons, by requiring that a weapon that is on a person or within a person's reach not be concealed. The gist of the offense is the concealment."

What's more, the state Supreme Court has already ruled on what can be and cannot be considered disorderly conduct, in the case, State v. Douglas D.

"To prosecute a defendant for a violation of this statute, the State has the burden to prove two elements," the court determined. "First, it must prove that the defendant engaged in violent, abusive, indecent, profane, boisterous, unreasonably loud or similar disorderly conduct. Second, it must prove that the defendant's conduct occurred under circumstances where such conduct tends to cause or provoke a disturbance. Under both elements, it is the combination of conduct and circumstances that is crucial in applying the statute to a particular situation."

How the very act of a carrying a visible legal firearm fits or does not fit that judicial criteria is a matter screaming for clarification.

With the attorney general on the sidelines, that will likely happen in court, probably the Supreme Court, and take months, if not years. In the meantime, more open carry arrests for disorderly conduct and more contested court cases can be expected.

[rrr70]

That's absolutely despeakable!

[dreyna14]

Wow, good read.

I recently had a thought, the subject of which is pretty sad and pathetic. I bet if you made of book of everything that was legal to do and put it next to a book containing things that are unlawful to do, the former would be significantly thinner.

[freakshow10mm]

Glad I moved out of WI when I did. West Allis is very commie.

I smell a lawsuit, a court ruling, and a big settlement by the agency (or their insurance company).

[sorensen440]

That really pisses me off

[383green]

I hope that Krause and his lawyer will have the will and resources to push this case as far as it needs to go!

[Seesm]

I hope that Krause and his lawyer will have the will and resources to push this case as far as it needs to go!

Here here....

[RobG]

I'd like to be suprised but, sadly, I am not. How are you disorderly planting a tree?

[MP301]

I would hope that the pro gun powers that be (NRA, etc.) are assisting here. Unless Im missing something, it looks like a "clean" case that meets the criteria and warrants their assistance.

I see these types of events as a good thing because it puts things are track to get them fixed. Nothing like a good spanking when there is an abuse of power and a violation of rights, eh?

[freakshow10mm]

I contacted Dick Baker from the WI Concealed Carry Association. They are assisting with legal council if he wants this to go to the state supreme court.

[Mute]

What is the possibility of pursuing civil suits against individual officers? If we can make the rank and file unwilling to follow illegal orders, it'd be much harder for these kind of policies to be implemented.

[Liberty1]

What is the possibility of pursuing civil suits against individual officers? If we can make the rank and file unwilling to follow illegal orders, it'd be much harder for these kind of policies to be implemented.

No Second A. issues until that fed. circuit court or SCOTUS incorporates. If he is found not guilty or if charges were dropped he'd then have 4th A. violations for his arrest. Takes $$$$$ mostly.

[IGOTDIRT4U]

Some of you OC guys may want to add these cases laws to your OC flyer while you are carrying.

""While plenty of case law exists on what conduct justifies a stop under the Fourth Amendment, there is no case law in the Eleventh Circuit on whether the Fourth Amendment is violated when a person is stopped merely for the presence of a pistol in a holster, with no accompanying facts indicating the commission of a crime," the judgment stated.

And, it continued, though the U.S. Supreme Court has concluded that there is no automatic 'firearms exception" to the Fourth Amendment, "[t]he present case presents the situation of whether the officer had authority to make the initial stop . . ."

The court then cited a number of precedents in which the mere presence of a gun did not justify a stop.

For example, the court noted, in United States v. Dudley, the court held that "a radio call alerting police to the presence of two people in a vehicle with firearms did not provide reasonable suspicion of a crime justifying a stop, because possession of firearms is not, generally speaking, a crime."

Then, too, in United States v. Ubiles, the district court observed, the Third Circuit Court of Appeals unanimously held that a tip that a celebrant at a festival was carrying a pistol was not sufficient to justify a stop of the celebrant."