Madison Open Carry Arrest. Paging Travis Yates

[GlockMeisterG21]

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Brad_Krause wrote:

The Wisconsin Patriots do not deserve the unwarranted criticism; no group has recently accomplished more in defending and promoting pre-existing rights.(1)

It is disingenuous to minimize the efforts of any individual or group that helped change Wisconsin's legal landscape because of petty differences. Many people stepped forward, from the first person not to be intimidated to those who continue to attend city council meetings. Every individual with a positive contribution is important, and an organized group of individuals is no different.(2)

It is further unproductive to attack a successful form of education to promote a personal preference. Some people may benefit more from personal research, others from taking a class, reading a book, or from a combination of approaches. If someone suggests one approach it should not prompt another person to promote their preference and belligerently exclude all others.(3)

I faced potential felony and later municipal charges for lawfully carrying a holstered firearm while planting a tree on private property I owned. Mr. Yates faces significantly lessened conditions for walking down State Street, while most other cities respect Attorney General Van Hollen's memorandum. This is a notable accomplishment resulting from the continuing efforts of many people.

Individual rights, our rights, should not be taken lightly. People have fought and died to protect our rights and continue to do so. If your intent is to make a positive contribution, please do so. If that is not your intent, perhaps you should consider moving to a country that does not afford the freedoms our Constitution guarantees.

Brad Krause



(1) "Nothing will change until we have a new governor" was expressed by other groups and echoed on this website until the first "open carry" case was won.

(2) The first "open carry" case was won because of unified support for inherent rights; subtracting any of the support may have resulted in a loss. It is not my intention to elevate the importance of any individual or group over another.

(3) This is seen in many topics on this website.

I have three questions Brad. First is what have the WI Patriots done? I mean specifically. My second question is what is your opinion on the commonly held idea that the only way that cities like Madison will respect our right to carry is if they make too many wrongful arrests and have to pay out lawsuits? It seems to make sense to me. Lessons are not learned unless purchased. Finally, why have you filed no such suit? If nothing else one would think that you'd like to recoup the costs of your defense.

 

[Nutczak]

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GlockMeisterG21 wrote:

I have three questions Brad. First is what have the WI Patriots done? I mean specifically. My second question is what is your opinion on the commonly held idea that the only way that cities like Madison will respect our right to carry is if they make too many wrongful arrests and have to pay out lawsuits? It seems to make sense to me. Lessons are not learned unless purchased. Finally, why have you filed no such suit? If nothing else one would think that you'd like to recoup the costs of your defense.

I am with GlockMeisterG21on this, I appreciate you standing up for your rights and I feel sorry that you had to endure what happened to you, but what is next?Is there plans to file suit against the city? if no, than why not?

I looked at the WI patriots site several times over the last few months and have not seen any updates, no current news or comments. No way to interact with members or leadership of the organization. All I see is a donation link. and a visit counter that has barelyexceeded 2,000 views since it's inception. From the outside it looks like "the grumpy old mans club" and I have no idea of their inner workings or the direction they want to go. I believe I have seen some comments with a stance against the practice of Open-carry too.

We have the legal ability toopen-carry, that is all we have. lets strengthen the protections we already have against unlawful arrest here first. Then lets go after other options. I feel most would like the ability to conceal iftheir surroundings dictate the need. But concealed-carry in Wisconsin is a "Pie in the sky fantasy" right now.
Lets work with what we got, shore that up tight. and then move on to other things.

The pastures are not always greener on the other side of the fence, Work with what you got, make it untouchable and then strive for other options.

 

[cheezhed]

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I am unemployed but I will donate to Travis's defense fund. It won't be much but it will be as much as I can afford.

 

[Tree_Planter]

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You probably should contact Gene German regarding the Wisconsin Patriots, they have done more than I know about.

For the person being arrested, one wrongful arrest is too many. Some communities were not aware their ordinances were unenforceable and voted to remove them. Others said they would arrest people but have not. Madison seems to be unique in this respect, and there are not similar previous settlements as a guideline.

I am not qualified to discuss legal aspects related to an arrest. If I were, I would not do so in public.

 

[DanM]

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GlockMeisterG21 wrote:

Lessons are not learned unless purchased. . . .why have you filed no such suit?

+1. Brad?

 

[Doug Huffman]

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I disagree with "Lessons are not learned unless purchased."

That is a corruption, that is taught by the likes of the NRA, of 'lessons are worth their cost' and a corollary of 'free advice is worth its cost' . Cost goes beyond money purchase.

 

[hugh jarmis]

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Finally, why have you filed no such suit?

+3

Brad?

 

[bnhcomputing]

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This deals directly with this, so I will post on this thread as well and risk being labeled as a spammer:

LEO's are getting BAD LEGAL ADVICE from someone.

Individuals aren't immune for the results of their official conduct simply because they were enforcing policies or orders. Where a statute authorizes official conduct which is patently violation of fundamental constitutional principles, an officer who enforces that statute is not entitled to qualified immunity. (Grossman v. City of Portland, (9th Cir. (1994))

If the law was clearly established at the time the action occurred, a police officer is not entitled to assert the defense of qualified immunity base on good faith since a reasonably competent public official should know the law governing his or her conduct. (Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))

Highlighted in read above,is why LEO tends to get a bad rap/reputation on these boards. When ordinary citizens know more about the law than LEO, what does that say about the LEO's competence?

These two cases are the the basis of the argument as to why we SUE the officers directly. Once LEO realizesthey can havetheir wages garnished because oftheir failure to know how to dotheir job, then things will change.

I am not anti LEO, just pointing out case law that shows these officers are getting BAD LEGAL ADVICE.

 

[pvtschultz]

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I agree with bnhcomputing and I'll go one step further. I think that the "WI Chapter" of OCDO needs to put together a legal defense fund for fighting precident setting (appellate and supreme court level) and federal civil rights cases here in WI. It would also be nice to get legal counsel on board too that are willing to work for a good cause at a reduced rate :shock:. But I know that is a stretch.

 

[bigus]

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bnhcomputing wrote:

This deals directly with this, so I will post on this thread as well and risk being labeled as a spammer:

LEO's are getting BAD LEGAL ADVICE from someone.

Individuals aren't immune for the results of their official conduct simply because they were enforcing policies or orders. Where a statute authorizes official conduct which is patently violation of fundamental constitutional principles, an officer who enforces that statute is not entitled to qualified immunity. (Grossman v. City of Portland, (9th Cir. (1994))

If the law was clearly established at the time the action occurred, a police officer is not entitled to assert the defense of qualified immunity base on good faith since a reasonably competent public official should know the law governing his or her conduct. (Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))

Highlighted in read above,is why LEO tends to get a bad rap/reputation on these boards. When ordinary citizens know more about the law than LEO, what does that say about the LEO's competence?

These two cases are the the basis of the argument as to why we SUE the officers directly. Once LEO realizesthey can havetheir wages garnished because oftheir failure to know how to dotheir job, then things will change.

I am not anti LEO, just pointing out case law that shows these officers are getting BAD LEGAL ADVICE.

To play a bit of devil's advocate, what the city will be arguing in this case is that the law on the issue at hand is far from settled. I'm sure it's settled in the minds of everyone on this board, but there is no binding precedent outlining when exactly the open carry of a firearm becomes disorderly conduct. Logically, it's clear that at some point, some action with an openly carried firearm will rise to the level of disorderly conduct. While it's clear to us that what Mr. Yates did in no way rises to that level, the State does not agree. In the absence of appellate precedent, they feel free to take that stance and will, if faced with a civil suit, be arguing immunity with some merit. It may take some appellate work to stop these disorderly conduct charges by making a civil suit more viable; the other option perhaps is a string of dismissals by prosecutors or judges that make it clear that these types of charges are not to be pursued.

Again, none of this should be read as specific legal advice.

 

[comp45acp]

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bigus wrote:

bnhcomputing wrote:

This deals directly with this, so I will post on this thread as well and risk being labeled as a spammer:

LEO's are getting BAD LEGAL ADVICE from someone.

Individuals aren't immune for the results of their official conduct simply because they were enforcing policies or orders.  Where a statute authorizes official conduct which is patently violation of fundamental constitutional principles, an officer who enforces that statute is not entitled to qualified immunity. (Grossman v. City of Portland, (9th Cir. (1994))

 

If the law was clearly established at the time the action occurred, a police officer is not entitled to assert the defense of qualified immunity base on good faith since a reasonably competent public official should know the law governing his or her conduct.  (Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))

Highlighted in read above, is why LEO tends to get a bad rap/reputation on these boards.  When ordinary citizens know more about the law than LEO, what does that say about the LEO's competence?

These two cases are the the basis of the argument as to why we SUE the officers directly.  Once LEO realizes they can have their wages garnished because of their failure to know how to do their job, then things will change.

I am not anti LEO, just pointing out case law that shows these officers are getting BAD LEGAL ADVICE.

To play a bit of devil's advocate, what the city will be arguing in this case is that the law on the issue at hand is far from settled.  I'm sure it's settled in the minds of everyone on this board, but there is no binding precedent outlining when exactly the open carry of a firearm becomes disorderly conduct.  Logically, it's clear that at some point, some action with an openly carried firearm will rise to the level of disorderly conduct.  While it's clear to us that what Mr. Yates did in no way rises to that level, the State does not agree.  In the absence of appellate precedent, they feel free to take that stance and will, if faced with a civil suit, be arguing immunity with some merit.  It may take some appellate work to stop these disorderly conduct charges by making a civil suit more viable; the other option perhaps is a string of dismissals by prosecutors or judges that make it clear that these types of charges are not to be pursued.

Again, none of this should be read as specific legal advice.

Wisconsin Supreme Court Explanation of what constitutes Disorderly Conduct in Case No. 99-1767-FT State of Wisconsin v Douglas D.

Section 947.01 provides: "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. To prosecute a defendant for a violation of this statute, the State has the burden to prove two elements. First, it must prove that the defendant engaged in violent, abusive, indecent, profane, boisterous, unreasonably loud, or similar disorderly conduct.
See State v. Zwicker, 41 Wis. 2d 497, 514, 164 N.W.2d 512 (1969). Second, it must prove that the defendant's conduct occurred under circumstances where such conduct tends to cause or provoke a disturbance. Id. Under both elements,"t 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, 180 N.W.2d 707 (1970).

 

[bigus]

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comp45acp wrote:

Wisconsin Supreme Court Explanation of what constitutes Disorderly Conduct in Case No. 99-1767-FT State of Wisconsin v Douglas D.

Section 947.01 provides: "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. To prosecute a defendant for a violation of this statute, the State has the burden to prove two elements. First, it must prove that the defendant engaged in violent, abusive, indecent, profane, boisterous, unreasonably loud, or similar disorderly conduct.
See State v. Zwicker, 41 Wis. 2d 497, 514, 164 N.W.2d 512 (1969). Second, it must prove that the defendant's conduct occurred under circumstances where such conduct tends to cause or provoke a disturbance. Id. Under both elements,"t 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, 180 N.W.2d 707 (1970).

The category of "otherwise disorderly" conduct is frighteningly broad but has survived challenge. The State will be arguing that because someone called it in and because people are afraid of guns, open carry tends to provoke a disturbance. Like you, I have serious doubts that a rational finder of fact could find for the State on either prong (how can exercising a constitutional right be deemed disorderly, e.g. peaceful political protests; just because someone may complain or be offended does not mean that conduct tends to provoke a disturbance, e.g. "**** the draft" shirt or, say, a black person in a predominately white neighborhood). However, as Maker notes, it is a "combination of conduct and circumstances" that results in successful application of the statute. In other words, application is dependent on the specific facts of each case. Therefore, the State has a colorable argument that the statute's application to the specific facts of each open carry case is unsettled because there is no case law dealing with those specific facts.

 

[Nutczak]

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Wouldn't the WI State constitution have some bearing on this case?

Article I, Section 25:

"The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."

How can exercising a protected right be seen as disorderly?

 

[Doug Huffman]

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Because all laws exist within a context and you can't just read one as though it is hanging in mid-air unsupported. Even the Wisconsin Constitution includes annotations that can't be ignored.

Right to keep and bear arms. SECTION 25. [As created
Nov. 1998] The people have the right to keep and bear arms for
security, defense, hunting, recreation or any other lawful purpose.
[1995 J.R. 27, 1997 J.R. 21, vote November 1998]
The state constitutional right to bear arms is fundamental, but it is not absolute.
This section does not affect the reasonable regulation of guns. The standard of
review for challenges to statutes allegedly in violation of this section is whether the
statute is a reasonable exercise of police power. State v. Cole, 2003 WI 112, 264
Wis. 2d 520, 665 N.W.2d 328, 01−0350.
The concealed weapons statute is a restriction on the manner in which firearms
are possessed and used. It is constitutional under Art. I, s. 25. Only if the public
benefit in the exercise of the police power is substantially outweighed by an individual’s
need to conceal a weapon in the exercise of the right to bear arms will an
otherwise valid restriction on that right be unconstitutional. The right to keep and
bear arms for security, as a general matter, must permit a person to possess, carry,
and sometimes conceal arms to maintain the security of a private residence or privately
operated business, and to safely move and store weapons within those premises.
State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785, 01−0056.
A challenge on constitutional grounds of a prosecution for carrying a concealed
weapon requires affirmative answers to the following before the defendant may
raise the constitutional defense: 1) under the circumstances, did the defendant’s
interest in concealing the weapon to facilitate exercise of his or her right to keep
and bear arms substantially outweigh the state’s interest in enforcing the concealed
weapons statute? and 2) did the defendant conceal his or her weapon because concealment
was the only reasonable means under the circumstances to exercise his
or her right to bear arms? State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665
N.W.2d 785, 01−0056.
Under both Hamdan and Cole there are 2 places in which a citizen’s desire to
exercise the right to keep and bear arms for purposes of security is at its apex: in
the citizen’s home or in his or her privately−owned business. It logically and necessarily
follows that the individual’s interest in the right to bear arms for purposes of
security will not, as a general matter, be particularly strong outside those two locations.
An individual generally has no heightened interest in his or her right to bear
arms for security while in a vehicle. State v. Fisher, 2006 WI 44, 290 Wis. 2d 121,
714 N.W.2d 495, 04−2989.

 

[Nutczak]

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Doug Huffman wrote:

Because all laws exist within a context and you can't just read one as though it is hanging in mid-air unsupported. Even the Wisconsin Constitution includes annotations that can't be ignored.

Right to keep and bear arms. SECTION 25. [As created
Nov. 1998] The people have the right to keep and bear arms for
security, defense, hunting, recreation or any other lawful purpose.
[1995 J.R. 27, 1997 J.R. 21, vote November 1998]
The state constitutional right to bear arms is fundamental, but it is not absolute.
This section does not affect the reasonable regulation of guns. The standard of
review for challenges to statutes allegedly in violation of this section is whether the
statute is a reasonable exercise of police power. State v. Cole, 2003 WI 112, 264
Wis. 2d 520, 665 N.W.2d 328, 01−0350.
The concealed weapons statute is a restriction on the manner in which firearms
are possessed and used. It is constitutional under Art. I, s. 25. Only if the public
benefit in the exercise of the police power is substantially outweighed by an individual’s
need to conceal a weapon in the exercise of the right to bear arms will an
otherwise valid restriction on that right be unconstitutional. The right to keep and
bear arms for security, as a general matter, must permit a person to possess, carry,
and sometimes conceal arms to maintain the security of a private residence or privately
operated business, and to safely move and store weapons within those premises.
State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785, 01−0056.
A challenge on constitutional grounds of a prosecution for carrying a concealed
weapon requires affirmative answers to the following before the defendant may
raise the constitutional defense: 1) under the circumstances, did the defendant’s
interest in concealing the weapon to facilitate exercise of his or her right to keep
and bear arms substantially outweigh the state’s interest in enforcing the concealed
weapons statute? and 2) did the defendant conceal his or her weapon because concealment
was the only reasonable means under the circumstances to exercise his
or her right to bear arms? State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665
N.W.2d 785, 01−0056.
Under both Hamdan and Cole there are 2 places in which a citizen’s desire to
exercise the right to keep and bear arms for purposes of security is at its apex: in
the citizen’s home or in his or her privately−owned business. It logically and necessarily
follows that the individual’s interest in the right to bear arms for purposes of
security will not, as a general matter, be particularly strong outside those two locations.
An individual generally has no heightened interest in his or her right to bear
arms for security while in a vehicle. State v. Fisher, 2006 WI 44, 290 Wis. 2d 121,
714 N.W.2d 495, 04−2989.

great, but the bulk af the annotations are referring to carrying concealed, Mr. Yates was not concealing his firearm. Concealed carry is generally prohibited in WI,which forces usto open-carry only. the courts alsostated the banningof any carryprovisions would be unconstitutional. So that only leaves one option, and I ask that you please refer to my previous post for clarification

 

[GlockMeisterG21]

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Doug Huffman wrote:

I disagree with "Lessons are not learned unless purchased."

That is a corruption, that is taught by the likes of the NRA, of 'lessons are worth their cost' and a corollary of 'free advice is worth its cost' . Cost goes beyond money purchase.

First of all I have never heard those to phrases so it would be rather hard to intentionally "corrupt" something I've never heard.

Second, when I said "Lessons are not learned unless purchased" I was not speaking only of money. I cannot find my post at this time but I remember posting a longer version of that same statement. I believe it went something like this...

Lessons are not learned unless purchased with blood, sweat, money, or pain.

What I meant by this comment was that most hard lessons and not truly learned unless it costs something of the learner. It doesn't matter too much what to cost is as long as it is in some way valuable to the owner. When I say "cost" and "purchase" in this context I don't mean only money.

 

[Doug Huffman]

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We agree, good.

But I was taught exactly that lesson by my NRA instructor training counselor, that money cost is an essential aspect of NRA pedagogy and that there is an association between this cost and retention. A $500 lesson is stronger than a $100 lesson.

 

[bigus]

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Nutczak wrote:

great, but the bulk af the annotations are referring to carrying concealed, Mr. Yates was not concealing his firearm. Concealed carry is generally prohibited in WI,which forces usto open-carry only. the courts alsostated the banningof any carryprovisions would be unconstitutional. So that only leaves one option, and I ask that you please refer to my previous post for clarification

The point is that despite the constitutional right, the State has the ability to place restrictions on use. We are statutorily restricted to open carry; we can't carry concealed. Even carrying openly, we can't carry near schools, in government buildings, in places that serve alcohol. Similarly, we can not carry in a manner that violates the Disorderly Conduct statute. So far, the only case that I'm aware of essentially establishes that we can openly carry on our own property. Mr. Yate's case will hopefully help establish that we can peacefully carry a gun, even in Madison, even on/near State Street, the busiest pedestrian area (and by extension anywhere not prohibited by the owner or otherwise prohibited by statute). Somewhere beyond this there's a line; in my own head I think carrying violates the DC statute if it's accompanied by threatening words or gestures, or if the gun is brandished without cause, etc. Until some parameters are established, the State will continue to argue that the law is unsettled. If they were to win cases like Mr. Yates' (God forbid), then they would argue that open carry would be legal under less disruptive circumstances; perhaps in lower traffic areas, and thus that the open carry option remains viable. Weak, I know, but I think legally permissible until a higher court says otherwise. The State's intent thus far has been to limit the right to open carry to as few situations as possible without violating the State and Federal Constitutions.

 

[Doug Huffman]

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I nominate bigus for OCDO's Wisconsin 'State Researcher'.

 

[AaronS]

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bigus wrote:

Nutczak wrote:

great, but the bulk af the annotations are referring to carrying concealed, Mr. Yates was not concealing his firearm. Concealed carry is generally prohibited in WI,which forces usto open-carry only. the courts alsostated the banningof any carryprovisions would be unconstitutional. So that only leaves one option, and I ask that you please refer to my previous post for clarification

The point is that despite the constitutional right, the State has the ability to place restrictions on use. We are statutorily restricted to open carry; we can't carry concealed. Even carrying openly, we can't carry near schools, in government buildings, in places that serve alcohol. Similarly, we can not carry in a manner that violates the Disorderly Conduct statute. So far, the only case that I'm aware of essentially establishes that we can openly carry on our own property. Mr. Yate's case will hopefully help establish that we can peacefully carry a gun, even in Madison, even on/near State Street, the busiest pedestrian area (and by extension anywhere not prohibited by the owner or otherwise prohibited by statute). Somewhere beyond this there's a line; in my own head I think carrying violates the DC statute if it's accompanied by threatening words or gestures, or if the gun is brandished without cause, etc. Until some parameters are established, the State will continue to argue that the law is unsettled. If they were to win cases like Mr. Yates' (God forbid), then they would argue that open carry would be legal under less disruptive circumstances; perhaps in lower traffic areas, and thus that the open carry option remains viable. Weak, I know, but I think legally permissible until a higher court says otherwise. The State's intent thus far has been to limit the right to open carry to as few situations as possible without violating the State and Federal Constitutions.

Nice post, welcome.

I agree that the Yates case will be a big one for the state, and not just Madison. I am very sure (IMO), that he will win with out a problem. I also agree that local cops will still be testing out what can be done to us, until better laws about OC are written. This part also puts fear into me. Any time laws are changed, we need to work twice as hard, to make sure we don't end up screwed. That fight is not going to be fun at all, but it will need to be done. The radio add are helping bring our user # up in Wisconsin, and each onehas an e-mail, letter, phone call, and vote. The nice thought is that as it stands, with 66.0409, what ever law changes happen will be state wide. No real room for a local change (sounds like what Madison would be asking for)... Better news is that this will be when we can push hard for the "school zone" rule to be removed, and the car ban.