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Wisconsin Attorney General: Open Carry Legal
Van Hollen says carrying guns does not warrant "disorderly conduct"
April 21, 2009
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| Attorney General J.B.Van Hollen |
Madison,Wis. — Following two high-profile cases in which law-abiding citizens were arrested or detained for openly carrying firearms, Wisconsin Attorney General J.B. Van Hollen released a memo emphasizing the legality of open carry in the Badger State.
"The Wisconsin Department of Justice (the Department) believes that the mere open carrying of a firearm by a person, absent additional facts and circumstances, should not result in a disorderly conduct charge from a prosecutor," wrote Van Hollen.
Download the open carry memo here.
The memo was intended to clarify law enforcement response to citizens carrying sidearms openly, which is legal in Wisconsin but has resulted in two cases recently where citizens were detained or arrested.
One of the cases involved West Allis resident Brad Krause, who was arrested for "disorderly conduct" while doing yardwork on his property. Krause had a handgun on his waist, neighbors called the police. Charges against Krause were later dropped.
The other case, involving Jesus Gonzalez of West Milwaukee, is more complex. Gonzalez was first arrested in the parking lot of Menards, after the store manager asked him to leave due to his wearing a pistol. His gun was confiscated.
Later, Gonzalez was again arrested while wearing a handgun in a Chilton Wal-mart. He has now launched a federal civil rights lawsuit for numerous violations of his rights.
Disorderly Conduct Better Defined
The memo accurately defined based on case law what constitutes "disorderly conduct" and specified that openly carrying a firearm does not meet the definition.
The State must prove two elements to convict a defendant under this statute. State v. Douglas D., 2001 WI 47, ¶ 15, 243 Wis. 2d 204, 626 N.W.2d 725. “First, it must prove that the defendant engaged in violent, abusive, indecent, profane, boisterous, unreasonably loud, or similar disorderly conduct.” Id. “Second, it must prove that the defendant's conduct occurred under circumstances where such conduct tends to cause or provoke a disturbance.”
The document went on to make clear that disorderly conduct charges would adversely affect Wisconsin sportsmen, if allowed to stand.
"For example, a hunter openly carrying a rifle or shotgun on his property during hunting season while quietly tracking game should not face a disorderly conduct charge," Van Hollen wrote. "But if the same hunter carries the same rifle or shotgun through a crowded street while barking at a passerby, the conduct may lose its constitutional protection."
Open Carry Legal, But Caution Still Urged
Van Hollen's memo cited Section 25 of the Wisconsin Constitution as the legal basis for open carry; "Under Article I, § 25 of the Wisconsin Constitution, a person has the right to openly carry a firearm for any of the purposes enumerated in that Section,"he wrote.
But the devil is in the details, when he continued, "subject to reasonable regulation as discussed herein."
That discussion involved further direction for law officers encountering armed citizens. "A Wisconsin citizen has a constitutionally protected right to openly carry a firearm for any of the enumerated purposes, absent the application of a reasonable regulation properly imposed as an exercise of police power," the memo said.
Know Your Rights
Citizens who are armed may be contacted by police, the memo said, but the citizen is under no legal obligation to answer questions.
"Finally, several law enforcement agencies have asked whether, in light of Article I, § 25, they may stop a person openly carrying a firearm in public to investigate possible criminal activity, including disorderly conduct. We say yes."
This part of the memo becomes less clear, stating that " An officer may stop and briefly detain a person for investigative purposes (known as an investigative or Terry stop) if he has “reasonable suspicion,” based on articulable facts, of criminal activity."
But as stated earlier in the report, open carry in and of itself, does not constitute criminal activity of any kind.
"Even though open carry enjoys constitutional protection, it may still give rise to reasonable suspicion when considered in totality. It is not a shield against police investigation or subsequent prosecution."
The memo correctly states that officers may contact citizens, but it's the responsibility of citizens to know their rights.
"Accordingly, a law enforcement officer does not violate the Fourth Amendment by approaching an individual in public and asking questions."
So, according to the DOJ memo, police may ask you about the gun on your hip, but "the officer's behavior do not convey to the subject that he must comply with the requests. Bostick, 501 U.S. at 435-36. The person approached need not answer any questions. As long as he or she remains free to walk away, there has been no intrusion on liberty..."
Conclusion
Attorney General J.B.Van Hollen's memo on open carry was much-needed in light of abuses by law enforcement officers who exhibited their anti-gun bias through unwarranted arrest and harassment of armed citizens who had broken no law.
However, the memo is just that — an advisory statement, or letter of recommendation.
Related Story: Open carrying of firearms legal, Van Hollen says (Milwaukee Journal Sentinel
If you're tired of the broken system of compromise and access — a system which has netted gun owners only more gun control — we urge you to Join Wisconsin Gun Owners, Inc. today!
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