From the Wisconsin Attorny General

[Stubbe]

http://www.jsonline.com/news/wisconsin/43302252.html

ADVISORY MEMORANDUM WISCONSIN DEPARTMENT OF JUSTICE
Date: April 20, 2009
To: Wisconsin District Attorneys, Deputy DisAttorneys and Assistant District Attorneys
trict
From: J.B. Van Hollen
Attorney General
Subject: The Interplay Between Article I, § 25 Of The Wisconsin Constitution, The Open Carry Of Firearms And Wisconsin’s Disorderly Conduct Statute, Wis. Stat. § 947.01
Summary
¶1. 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, subject to reasonable regulation as discussed herein. 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.
Discussion
¶2. The Department has a duty under Wis. Stat. § 165.25(3) to “[c]onsult and advise with the district attorneys when requested by them in all matters pertaining to the duties of their office.” We have received multiple inquiries from state prosecutors on the interplay between Article I, § 25, the open carry of firearms and Wisconsin’s disorderly conduct statute, Wis Stat. § 947.01.1 In response, we offer this informal Advisory Memorandum2 for your consideration. Please feel free to use it for law enforcement training within your jurisdictions.
1 The Department has also received requests from individuals and legislators for a formal Opinion of the Attorney General on the legality of openly carrying firearms in Wisconsin. We declined these requests, principally because (a) the individual requestors were not entitled to a formal opinion under Wis. Stat. §§ 59.42(1)(c), 165.015(1), or 165.25(3), and (b) the circumstances involved “an issue that [was] the subject of current or reasonably imminent litigation, since an opinion of the attorney general might affect such litigation.” 77 Op. Att’y Gen. Preface (1988), at 3.D. While we acknowledge the recent filing of a federal civil lawsuit pertaining to open carry in the Eastern District of Wisconsin—Gonzalez v. Village of West Milwaukee, et al., No. 09-CV-384-LA—we note that the State of Wisconsin is not a party to this federal action. We further note that, as explained below, this informal Advisory Memorandum does not carry the same legal significance as a formal Opinion of the Attorney General on a matter of state law.
2 This informal Advisory Memorandum does not constitute a formal opinion of the Wisconsin Attorney General or the Wisconsin Department of Justice under Wis. Stat. § 165.015(1). The Department offers this Advisory Memorandum for educational and informational purposes only. It does not prevent the Attorney General, the Wisconsin Department of Justice, or any Wisconsin district attorney, special prosecutor or municipal prosecutor from bringing any particular charge or making any particular argument in the course of litigation. It does not create any rights beyond those
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¶3. As amended in 1998, the Wisconsin Constitution provides that “[t]he people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.” Wis. Const. art. I, § 25. 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. See, e.g., Wis. Stat. § 941.29 (preventing certain classes of persons from possessing firearms); State v. Thomas, 2004 WI App 115, ¶ 16, 274 Wis. 2d 513, 683 N.W.2d 497 (“[T]he right to bear arms is a qualified right, subject to reasonable restrictions under the state’s police power”). 3
¶4. In State v. Schwebke, 2002 WI 55, ¶ 24, 253 Wis. 2d 1, 644 N.W.2d 666 (footnote omitted), the Wisconsin Supreme Court established the contours of Wisconsin’s disorderly conduct statute:
Wisconsin Stat. § 947.01 . . . states as follows: “Whoever, in a public or private place, engages 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 is guilty of a Class B misdemeanor.” 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.” Id. An objective analysis of the conduct and circumstances of each particular case must be undertaken because what may constitute disorderly conduct under some circumstances may not under others. See State v. A.S., 2001 WI 48, ¶ 33, 243 Wis. 2d 173, 626 N.W.2d 712.
See also State v. Maker, 48 Wis. 2d 612, 616, 180 N.W.2d 707 (1970) (footnote omitted):
This court's emphasis upon the relatedness of conduct and circumstances in the statute is no more than a recognition of the fact that what would constitute
established under the constitutions, statutes, regulations and administrative rules of the United States of America and the State of Wisconsin.
3 Prosecutors and law enforcement officers should bear in mind that, in addition to the felon-in-possession statute, other statutory limitations on possession of firearms remain in full force and effect. They apply to certain situations involving both open and concealed carry. See, e.g., Wis. Stat. §§ 167.31 (specifying manner in which persons may lawfully use and transport firearms); 941.20 (endangering safety by use of dangerous weapon, various circumstances); 941.235 (carrying firearm in public building); 941.237 (carrying handgun where alcohol may be sold and consumed); 948.60 (possession of firearm by juveniles, with sporting exceptions); 948.605 (possession and use of firearms in school zones).
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disorderly conduct in one set of circumstances, might not under some other. When a famed jurist observed, ‘The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic,’ the comment related to the crowdedness of the theater as well as to the loudness of the shout. It is the combination of conduct and circumstances that is crucial in applying the statute to a particular situation.
¶5. The decision to charge a defendant with disorderly conduct necessarily depends on the totality of the circumstances. Reasonableness, not bright-line rules, should guide your decision. See, e.g., State v. Werstein, 60 Wis. 2d 668, 671-72, 211 N.W.2d 437 (1973) (“Wisconsin’s disorderly conduct statute proscribes conduct in terms of results which can reasonably be expected therefrom, rather than attempting to enumerate the limitless number of anti-social acts which a person could engage in that would menace, disrupt or destroy public order”) (footnote omitted). Even when an act facially resembles the exercise of a protected right, the facts and circumstances of a case may give rise to a disorderly conduct charge. For example, the First Amendment of the United States Constitution and Article I, § 3 of the Wisconsin Constitution both protect the right to freedom of speech. Yet it has long been recognized that speech-only activity can cross the line between protected expression and disorderly conduct. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942) (“[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances”); accord State v. Zwicker, 41 Wis. 2d 497, 510, 164 N.W.2d 512 (1969). See also Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949) (noting that some categories of speech are “likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest”).
¶6. Applying these principles to open carry matters, we recognize that under certain circumstances, openly carrying a firearm may contribute to a disorderly conduct charge. But this determination must take into account the constitutional protection afforded by Article I, § 25 of the Wisconsin Constitution. The Department believes that mere open carry of a firearm, absent additional facts and circumstances, should not result in a disorderly conduct charge. 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. 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. See Werstein, 60 Wis. 2d at 672-73 (collecting cases illustrating disorderly conduct) (“In each of these cases, convictions for being ‘otherwise disorderly’ resulted from the inappropriateness of specific conduct because of the circumstances involved”) (emphasis added).4
4 While Werstein preceded the adoption of Article I, § 25, we believe the emphasized principle still applies.
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¶7. The same concepts should apply to handguns. The state constitutional right to bear arms extends to openly carrying a handgun for lawful purposes. As illustrated by a recent municipal court case in West Allis, a person openly carrying a holstered handgun on his own property while doing lawn work should not face a disorderly conduct charge.5 If, however, a person brandishes a handgun in public, the conduct may lose its constitutional protection. Again, “[i]t is the combination of conduct and circumstances that is crucial in applying the [disorderly conduct] statute to a particular situation.” Maker, 48 Wis. 2d at 616.
¶8. 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. 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. Illinois v. Wardlow, 528 U.S. 119, 123 (2000); United States v. Sokolow, 490 U.S. 1, 7 (1989); Terry v. Ohio, 392 U.S. 1, 30 (1968). The existence of reasonable suspicion depends on the totality of the circumstances, including the information known to the officer and any reasonable inferences to be drawn at the time of the stop. United States v. Arvizu, 544 U.S. 266 (2002) (reaffirming “totality of the circumstances” test). 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. See State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763 (1990) (police officers not required to first eliminate the possibility of innocent behavior before making investigatory stop).
¶9. And “even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, [and] ask to examine the individual's identification,” as long as the police do not convey a message that compliance is mandatory. Florida v. Bostick, 501 U.S. 429, 434-35 (1991). The Fourth Amendment does not prevent police from making voluntary or consensual contact with persons engaged in constitutionally protected conduct. See United States v. Mendenhall, 446 U.S. 544, 553-54 (1980). Accordingly, a law enforcement officer does not violate the Fourth Amendment by approaching an individual in public and asking questions. Florida v. Royer, 460 U.S. 491, 497 (1983). An officer may approach and question someone as long as the questions, the circumstances and 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 requiring a particularized and objective Fourth Amendment justification. See Mendenhall, 446 U.S. at 554.
5 See Linda Spice, “West Allis Man Not Guilty In Open Carry Gun Case,” Milwaukee Journal-Sentinel, Feb. 17, 2009, online at < http://www.jsonline.com/news/crime/39722082.html> (last visited March 26, 2009).
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¶10. For further information on this subject, please feel free to contact Assistant Attorneys General Greg Weber at 608.266.3935, or Roy Korte at 608.267.1339.
JBV:RPT:KMS:GMW:cma

[Fast351]

From the article:

The legal aspects of Van Hollen's memorandum were less important than the potential public health impacts, in the mind of Stephen Hargarten, the director of the Firearm Injury Center at the Medical College of Wisconsin.

"What kind of training are these people going to have, and what kind of firearms are they going to be carrying?" Hargarten asked.

Well, they had the chance to address this in 2007. Because of two spineless legislators, the governors veto was upheld. This is the result of that action. Just like Minnesota requires more training with it's more liberal carry permitting process, so did the proposed legislation in Wisconsin.

[WWJD]

This part disturbed me!

[quote](“[T]he right to bear arms is a qualified right, subject to reasonable restrictions under the state’s police power”). 3
[/quote]

Why do they ALWAYS leave out the "Shall not be infringed"

[John S.]

Drunk?

After all, it is Wisconsin.............................

[Stubbe]

I might test it out this weekend I am going to visit my Brother in law (ex cop) and My sister in law (ex DA) now private practice so what the hell

[Seismic Sam]

WOW!! I didn't see this one coming!! And as somebody who lives in Afton and can LITERALLY see cheezland out my kitchen window, it certainly has relevance for me. That being said, I am going to hang back on this one until I see a few other people do it. I regularly go to Fleet Farm and Menard's, and while I have patronized the Oakdale ones because they are Minnnesota and I can carry there, Hudson is closer.

I think the one thing that is obvious is that you cannot count on the cops to wise up to this fact immediately, so anyone who is going to do this should have at least TWO printed copies of this decision in their car. (One for the cop who first hassles you, and then another one or his partner who jacks you around after his partner "suddenly looses" his copy.)

I suppose the other option is to try this with an unloaded airsoft 1911 first in case the heater gets confiscated no mattter what the Cheez AG has to say on the matter, so you'e out $50 instead of $500.

Keep printed copies of this in your car!!!

[JFettig]

Don't try it though!

Milwaukee Chief to officers: Ignore gun memo

Milwaukee's police chief said Tuesday he'll go on telling his officers to take down anyone with a firearm despite Attorney General J.B. Van Hollen's finding that people can carry guns openly if they do it peacefully.

Read About It: The Associated Press

[Stradawhovious]

Don't try it though!

Milwaukee Chief to officers: Ignore gun memo

Milwaukee's police chief said Tuesday he'll go on telling his officers to take down anyone with a firearm despite Attorney General J.B. Van Hollen's finding that people can carry guns openly if they do it peacefully.

Read About It: The Associated Press

For hammAR

MILWAUKEE -- Milwaukee's police chief said he'll go on telling his officers to take down anyone with a firearm despite Attorney General J.B. Van Hollen's finding that people can carry guns openly if they do it peacefully.

Chief Ed Flynn said officers can't assume people are carrying guns legally in a city that has seen nearly 200 homicides in the past two years.

He said that means officers seeing anybody carrying a gun will put them on the ground, take the gun away and then decide if the person has a right to carry it.

Flynn said it's irresponsible to send a message that if someone carries a weapon openly no one can bother them.

Van Hollen issued a memo to the state's district attorneys this week saying someone openly carrying a gun can't automatically be charged with disorderly conduct. But he also said police have full rights to stop and question the person.

Flynn said his officers will do more than that in their efforts to fight crime.

[emphasis mine] I think it's irresponsible for Flynn to employ a "guilty until proven innocent" use of force approach to try and prove this, all while the legal residents supposedly have the right to carry based on the Wisconsin Constitution.

[1911fan]

I wrote a letter to the guy they list for contact, asking about my driving from here to GB and beyond whilst open carrying this summer....and or what he considers safe transport of my legal firearms back and forth from my property in Wisc. (its the parents but I want to know their position.

[WastingAmmo]

I wonder if this will aid the efforts of CC in WI?..... naaaaaaaaaaa
As a WI resident, i seem to spend more time over the bridge in MN.. it would be nice to have some of the same carry laws over in the really really Blue state too..

[1911fan]

Actually I do think this will help, if OC is legal, and people start to see bob the barber or tom the Pharmacist with a gun on their hip and GASP!!! nothing happens, that resolve to stop it will erode. The biggest issue will come down to precinct by precinct allocation of red and blue.


There are a lot of people who continue to point mainly at Florida and Texas as the states where all the doom and gloom, "shootouts at the fender bender" kind of baloney never panned out. As more and more states are returning Rights to the Citizens, and no horrible results are occuring, its slowly sinking in that its not the object, its the operator.

[WastingAmmo]

I'm with you! and I certainly hope your right.
actually this latest document from the attny Gen is the closest thing to good news i've heard in WI in a long time...

Here's to hoping!!!!

[John S.]

The biggest roadblock I can see in WI, is man, that state like it's booze! If they start allowing the RIGHT TO CARRY with no requirements to "learn/earn the RIGHT TO CARRY", (read training), I can kind of see not so good things coming from it. I really hoping I'm just being a pessimist with the subject here, and best of luck to Wisconsin!

Most states that require a permit make it pretty clear about alcohol and carrying a weapon, but, open carry without any kind of permit, COULD, end up in a bad place if alcohol were to be added to the mix........................

[jgalt]

The biggest roadblock I can see in WI, is man, that state like it's booze! If they start allowing the RIGHT TO CARRY with no requirements to "learn/earn the RIGHT TO CARRY", (read training), I can kind of see not so good things coming from it. I really hoping I'm just being a pessimist with the subject here, and best of luck to Wisconsin!

Most states that require a permit make it pretty clear about alcohol and carrying a weapon, but, open carry without any kind of permit, COULD, end up in a bad place if alcohol were to be added to the mix........................

'Cause, you know, we are constantly hearing about all the drunkin' shootings in Vermont & Alaska...

[WWJD]

I'm with you! and I certainly hope your right.
actually this latest document from the attny Gen is the closest thing to good news i've heard in WI in a long time...

Here's to hoping!!!!

Get rid of Doyle and get the hunters onboard, then IL will be the only no carry state