OC/CC in Wisconsin RIP

[pkbites]

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Monkeyleg wrote:

Mike, with all due respect to the cause you've been fighting for: fly into Milwaukee, strap a gun on your hip, and see how many yards---not miles, but yards--it takes before you're busted for disturbing the peace.

Not necessarily disorderly conduct, but certainly disturbing the peace.

.

While I'd love to see him put his money where his mouth is, I can't encourage Mike to do something that will get him arrested. So I'm advising that he doesn't do that.

Many of the local DTP ordinances are fashioned after the state DC statute. I have debated with other officers about the position of OC=DC. But EVERY-SINGLE-ONE-I-KNOW WILL charge DC or DTP for open carry.

 

[Mike]

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pkbites wrote:

Monkeyleg wrote:

Mike, with all due respect to the cause you've been fighting for: fly into Milwaukee, strap a gun on your hip, and see how many yards---not miles, but yards--it takes before you're busted for disturbing the peace.

Not necessarily disorderly conduct, but certainly disturbing the peace.

.

While I'd love to see him put his money where his mouth is, I can't encourage Mike to do something that will get him arrested. So I'm advising that he doesn't do that.

Many of the local DTP ordinances are fashioned after the state DC statute. I have debated with other officers about the position of OC=DC. But EVERY-SINGLE-ONE-I-KNOW WILL charge DC or DTP for open carry.

Since nobody can show me the money on this issue other than hearsay that LEOs will arrest on open carry, then I think the point is settled that a DC charge on mere OC in daily life would not stand especially given the dicta in your state Supreme Court decision(s) implying that the state may not outlaw all carry.

Come on guys - in every state, even VA, you will find LEOs who spout this nonesense about OC= DC. of course it is a risk that any LEO can arrest anybody for anything - that is why we have impartial magistrates and Defense attorneis and appeals courts.

Yes, if I lived in or could get to WI I would open carry on foot insome very innocuous situations and try to get the rpess to take notice to stimulate the reight to carry debate in WI.

But it would be best if you locals would start doing this - carpetbaggers OCing is not the right recipe.

 

[pkbites]

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Mike wrote:

Yes, if I lived in or could get to WI

If you lived in Wisconsin, especially in the Milwaukee area, you would actually have an idea of what would happen if you open carried. But seeing that you don't, all you can do is come on here and infer that those of us who do live here are full of sh*t on the situation here.

 

[reefteach]

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947.01 Disorderly conduct. 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.


Again, it just doesn't fit the behavior. OC is clearly not DP by definition. Why say it is? why cite somebody for something they are not engaging in? OC does not result in disturbances. Only by police.

 

[Mike]

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pkbites wrote:

If you lived in Wisconsin, especially in the Milwaukee area, you would actually have an idea of what would happen if you open carried. But seeing that you don't, all you can do is come on here and infer that those of us who do live here are full of sh*t on the situation here.

This line of reasoning has been posited in almost every state where OC os legal in the last few eyars. And in every case, OC has ultimately been proven to not be per se disorderly conduct.

I'm confident some WI gun owners will soon step up to the plate, maybe whenthe weather warns up next Spring, and start routinely and matter of factly OCing on foot in the most casual and non-confrontational of circumstances just fine, even in Milwaukee.

 

[Monkeyleg]

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Just for grins, check out Milwaukee municipal code, 105-34 http://cc.milwaukee.gov:81/isysnati...//199.196.84.35:81/isysquery/irl36b4/2/hilite

Since I can't find anything in state statutes relating to carrying firearms, I would think our pre-emption law would negate this. But it's still on the books.

 

[Mike]

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Well this is an ordiance that would have to be taken seriously - it specificially bans all gun carry with only several very narrow exceptions. Unlike the alleged offense of disorderly conduct, the langauge would clearly proscribe open carry.

Two arguments against the ordiances validity would be:

1. The ordiance is preempted and thus invalid.

2. The ordiance is unconstitutional under the state constitution.

It seem to me though that this ordinance provides great opportunity - why don't a few of you guys pool your money and hire an attorney to bring an action in state court to declare the ordinance invalid?

 

[pkbites]

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Mike wrote:

Well this is an ordiance that would have to be taken seriously - it specificially bans all gun carry with only several very narrow exceptions. Unlike the alleged offense of disorderly conduct, the langauge would clearly proscribe open carry.

Two arguments against the ordiances validity would be:

1. The ordiance is preempted and thus invalid.

2. The ordiance is unconstitutional under the state constitution.

It seem to me though that this ordinance provides great opportunity - why don't a few of you guys pool your money and hire an attorney to bring an action in state court to declare the ordinance invalid?

That section of that particular ordinance IS invalid because of Wisconsin Statute 66.0409
(the firearms preemption law). It is because of the preemption law that open carry is charged as DC or DTP and not under the local ordinace.
That part of the ordinace became invalid when the preemption law took effect. No legal action is needed.

 

[lockman]

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pkbites wrote:

That section of that particular ordinance IS invalid because of Wisconsin Statute 66.0409
(the firearms preemption law). It is because of the preemption law that open carry is charged as DC or DTP and not under the local ordinace.
That part of the ordinace became invalid when the preemption law took effect. No legal action is needed.

Ok, so I understand that The Milwaukee police will cite you on a bogus DC or DTP because their codified OC statute is in violation of state law. Since the state has spoken on the issue via preemption, that makes Milwaukee’s arrest policy for OC (if they actually do… case law please?) an unlawful act in itself.

Any police officer should question such orders or policy. At the very least an LEO should make sure such policy is in writing. At least with written policy there is a paper trail of responsibility for such defiance of state law. Pk, do you know if Milwaukee has written orders on this matter? That would be a good starting place to see where this DC mess began.

If WI had state preemption over the sale, purchase, possession and transportation of chewing gum, would Milwaukee have the right to arrest someone on a disorderly conduct charge for chewing gum in public? Bearing arms is protected under the state constitution and state preemption and should be accorded the same reverence given to race, creed, color and sexual orientation. Then again I do not know how Milwaukee handles those rights either.

I suggest another thread for info on local, county and state statutes and relevant legal opinions. In other words, just the facts. The hypothetical and “If’[/b]s” can remain here.

 

[Mike]

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pkbites wrote:

Mike wrote:

Well this is an ordiance that would have to be taken seriously - it specificially bans all gun carry with only several very narrow exceptions. Unlike the alleged offense of disorderly conduct, the langauge would clearly proscribe open carry.

Two arguments against the ordiances validity would be:

1. The ordiance is preempted and thus invalid.

2. The ordiance is unconstitutional under the state constitution.

It seem to me though that this ordinance provides great opportunity - why don't a few of you guys pool your money and hire an attorney to bring an action in state court to declare the ordinance invalid?

That section of that particular ordinance IS invalid because of Wisconsin Statute 66.0409
(the firearms preemption law). It is because of the preemption law that open carry is charged as DC or DTP and not under the local ordinace.
That part of the ordinace became invalid when the preemption law took effect. No legal action is needed.

You missed the point - the objective is to obtain a declaratory judgement against the Milwaukee ordinance - this would (presumably under your assessment of the strength of the state preemption statute) cause the court to hold that OC is lawful in Milwaukee.

If you had some evidence that Milwaukee's finest were conspiring to charge folks under this preempted ordiance, or derivatively thru these other ordiances, you could file your action under 42 USC 1983 and probably recoup your legal fees.

 

[minuteman]

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So in Milwaukee your trying to say American citizens dont have the right to keep and bear arms?
Is that official department policy??

pkbites you better stop before you find yourself in trouble, the scare tactics wont work.

I KNOW MY RIGHTS, if Milwaukee has an official policy infringing on our rights they will be sued in a heartbeat by anyone with half a brain.


You can think or say anything you want but if your speaking for your department you had better find out the official policy.

On what grounds or complaint would bearing arms be a disorderly conduct? Id like to hear about someone complaining that a right infringes upon them in any way, it doesnt fly in court. If they think guns or bearing arms is illegal its their own stupidity and doesnt effect my liberty. I would also love to hear how an officer as a complaintant could bring a case to trial. Id also love to hear Milwaukee's official policy about our right to keep and bear arms.

I know my local sherriff's policy and that its within their oath of office to uphold the constitution. This is what my sherriff said to me personally..... We fully support the right to keep and bear arms. It would be unlawful if infringing upon citizens rights, they can however cite you if someone complains about anything you do.

They can pass out tickets like water it doesnt make it right or even lawful in some cases if infringing upon rights. Its nothing more than a scare tactic just like some people try on here. DC will not stand up in court, if you have any intelligence you dont need a lawyer and can get these kinds of cases dismissed. Or the people can keep being ignorant and let the thugs get away with anything they want.

Im willing to carry in Milwaukee, I would be talking with the the police first so Im not shot for fun and if they would like to charge me with anything I would gladly accept that right then and there.

I certainly dont want to go there, most citizens are unarmed while the criminals and trigger happy swat teams are armed to the teeth its totally un-American. But if for some reason Im forced to go there ill be carrying like I always do.

 

[pkbites]

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minuteman wrote:

But if for some reason Im forced to go there ill be carrying like I always do.

Let me know how that works out for you.

 

[Shotgun]

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Over the past couple of years I've read the municipal ordinances ofa large number of cities, towns and villages in Wisconsin and I'd have to say that a MAJORITY of them still have provisions on the books that make possession of a firearm illegal unless it is unloaded and encased (some even require it to be broken down.) I know of at least one municipality (Alma)that passed such an ordinance AFTER the preemption statute took effect. These local ordinances don't mean squat. In Wisconsin local municipalities can only regulate the discharge of firearms within their jurisdiction, beyond that if their ordinance contains provisions that are stricter than state law, they are totally without legal effect.

Madison is just one of many municipalities still carrying these old codes on their books. Madison supposedly bans "short barreled" guns, "cop killer bullets" and on and on.... I suppose they have them on the books either in the hopes that the state preemption law will change and they'll have an effect again, or they're too lazy to rewrite their ordinances to comply with state law, OR, they're hoping to bluff people. I wouldn't worry about local firearm carryordinances one bit in Wisconsin, because they're so easily shown to be preempted by state law.

I do, however, take the time to challenge a few of them when the municipalities are going out of their way to try to still promulage illegal ordinances. For example a year ago or so, I wrote to Milwaukee and asked them why their city website still claimed that a person needed a city license to sell a firearm. After no response I contacted the Attorney General and said "Isn't it in the state's interest to see that local municipalities are not breaking the law?" Eventually I got a letter from the AG's office saying that the City of Milwaukee agrees it cannot enforce that particular provision of its code. And more recently, I noticed that the City of Madison has under its "conservation park rules" a provision that says firearms are not allowed in areas designated "conservation parks." I sent a letter to the Parks Director, with copies to the mayor, chief of police and city attorney, telling them to either explain the legal basis for such a rule or to withdraw it from their parks publications. So far I've only gotten a letter back from the Parks Director saying he's referred it to the city attorney for a response. I won't give them much more time before I also refer the matter to the AG. As far as I'm concerned their silence is only a statement of their inability to articulate a legal basis for this rule.

 

[pkbites]

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minuteman wrote:

You can think or say anything you want but if your speaking for your department you had better find out the official policy. .

I do not speak for mine nor any department. If you go back to my previous posts you will see I have only indicated what I have been told by other officers of various departments, and what I have observed.

 

[ilbob]

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pkbites wrote:

minuteman wrote:

You can think or say anything you want but if your speaking for your department you had better find out the official policy. .

I do not speak for mine nor any department. If you go back to my previous posts you will see I have only indicated what I have been told by other officers of various departments, and what I have observed.

Can we get away from 2nd/3rd hand info and hearsay for a minute?

1. How many open carriers have you encountered, other than LE, security, hunters, etc.?

2. How many of them have you arrested and charged with DC or DTP?

3. Are you aware of any written departmental guidance on this subject (any department)?

4. Was this handled at police school? If so, what was the instruction given on this subject?

I won't ask what you would do if you encountered an open carrier, since it seems unfair to ask for a pre-judgment based on a single fact (an exposed gun).

 

[Shotgun]

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pkbites, instead of debating with your fellow officers, why not ask your supervisor, or better yet, your chief. I'm sure she'll be happy to answer that question for you! :?

I think in Wisconsin it would be interesting to try to nail down the various local law enforcement agencies to make an official statement whether they have a policy to charge OC or not. If they say they don't, then fine. They better stick to it. If they do charge, then hell, as far as I'm concerned CC is legal in their jurisdiction since the WI Supreme Court already has stated there has to be a practical way to exercise the right to bear arms. If one is getting arrested for OC, then it isn't a practical way to exercise the right, leaving only CC as the remaining option. But if you're going to CC in WI you better be able to show you had no other option available to you. (or make damn sure you don't get caught!)

 

[pkbites]

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Shotgun wrote:

pkbites, instead of debating with your fellow officers, why not ask your supervisor, or better yet, your chief. I'm sure she'll be happy to answer that question for you! :?

I've done that, and was told we would charge disturbing. I am not going to debate with my superiors, however.

 

[pkbites]

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Shotgun wrote:

pkbites, instead of debating with your fellow officers, why not ask your supervisor, or better yet, your chief. I'm sure she'll be happy to answer that question for you! :?

Remember that many of the officers I talk about this with are on other departments. I am not going to talk to the supers on other departments about this.

 

[pkbites]

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ilbob wrote:

1. How many open carriers have you encountered, other than LE, security, hunters, etc.?

2. How many of them have you arrested and charged with DC or DTP?

3. Are you aware of any written departmental guidance on this subject (any department)?

4. Was this handled at police school? If so, what was the instruction given on this subject?

I won't ask what you would do if you encountered an open carrier, since it seems unfair to ask for a pre-judgment based on a single fact (an exposed gun).

1) about half a dozen in last 20 years. This includes being a back-up officer. It's a rare occurrance.

2). Personally? None. HOWEVER, I was a back up officer to someone who did. Also, prior to the preemption law I did charge ordinance violations for open carry.
Also, I charged a guy open carrying, but it was a government building and the charge was carrying in a public building, not DC or DTP

3). Nope. But there also is nothing mentioned about barking dogs either. Not every little issue is addressed.

4)Not that I remember. But it was well over 20 years ago. And keep in mind, at that time most munis had ordinances on it.

 

[Shotgun]

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pkbites wrote:

Shotgun wrote:

pkbites, instead of debating with your fellow officers, why not ask your supervisor, or better yet, your chief. I'm sure she'll be happy to answer that question for you! :?

I've done that, and was told we would charge disturbing. I am not going to debate with my superiors, however.

Ok, fair enough, you've asked. We have our answer. I wouldn't expect you to enter into a debate with your superiors over this. They should be the ones who are keeping current on the law and passing it down, not the other way around. There have been quite a few changes in the past 10 years, with the preemption statutue, RKBA amendment, and Hamdan court case. Thanks!