Saturday, January 10, 2009

DNR vs. Your Gun?

We pass on ANOTHER story found by Berry in the most excellent Lakeland-Times for your consideration.

The Wisconsin Department of Natural Resources has a simple, blunt message for hunters in Wisconsin: When a DNR warden asks you to give up your legal firearm, do so, plain and simple, no matter what.

What's more, that goes for all citizens, the agency has asserted. Citizens with firearms, the DNR argues, should always do exactly what law enforcement officers tell them to do, regardless of the circumstances of the situation.

Interesting, no? There is some dissent from this. former hunter education instructor for the department has an equally simple and blunt response: The agency's directive is unconstitutional, plain and simple, and citizens don't have to hand over their firearms without any probable cause

Not hard to figure out why the adjective is "former."

Simply asked, can law enforcement take a person's legally carried firearm without any probable cause that a crime is being committed? Must a hunter in the field surrender his firearm just because a conservation warden tells him to?

A very good question, indeed, especially for Fourth Amendment geeks.

Apparently, the DNR didn't like the former instructor's legal analysis.

The problem is that Wisconsin is an "open carry" State--that is, there is no prohibition of carrying weapons openly. There IS a prohibition of concealed carry, )which is questionable under the Wisconsin Constitution's 25th Amendment.)

To Lawhern, [a DNR official] then, the mere presence of a firearm was reason enough for the police to give commands that must be obeyed, in addition to launching preliminary use-of-deadly force tactics such as drawing weapons. opinion from a senior staff attorney for the Wisconsin Legislative Council [...] was vague, at best. Still, the attorney, Mark Patronsky, could find no blanket authority, except that arising from certain specifically defined statutory reasons."Within the scope of the constitutional prohibition of unreasonable searches and seizures, the courts have carved out authorization for law enforcement officers (such as conservation wardens) to take control of a firearm to protect the safety of the law enforcement officer," Patronsky wrote. "The officer, after further investigation and determination of a probable cause, may proceed to arrest the individual and seize the firearm."

Palan (presumably) agrees that officer safety is a reasonable basis for complying with a 'surrender the weapon' request.

The bottom line was, though, police needed some reason for the seizure.

"The statutes and administrative rules described in this memorandum, as well as a variety of other statutes and rules, do allow a warden to take a person's firearm for various reasons," he wrote.

Palan says that means a warden simply can't take a firearm without some probable cause.

"Nowhere in the hunters' education manual, nowhere in the instructors manual, nowhere in any state statutes that I can find, does it say you must hand over your firearm," he said. "Nowhere."

Lawhern, the DNR official, is apparently in a minority of LEO opinion on the matter (at least Up Nort').

...the heads of multiple Wisconsin law enforcement agencies told The Lakeland Times their officers would not act in the manner Lawhern described upon merely seeing someone with a gun. They acknowledged the legality of open carry.

In addition, the Use of Deadly Force policy of the Oneida County Sheriff's Department would seem to prohibit such conduct, without some other probable cause or suspicion.

"In any use of force decision, the officer must be certain that he or she has the right to make contact," the policy states. "The intervention must have legal beginning based upon articulable facts or circumstances. Officer presence can be based upon invitation, reasonable suspicion, community caretaker function, probable cause, exigent circumstances or other 'legal beginnings.'"

Not just for walking around in a field with a rifle or shotgun, one notes...

This is one of the 'unintended consequences' of Wisconsin's schizoprenic carry laws.

FWIW, I'm not inclined to obtain a CCW permit (should they ever become legal in Wisconsin) because I don't hang around places where armed self-defense is statistically required.

On the other hand, I will defend the right to keep and bear arms, for the people who DO have that need.

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