Monday, April 20, 2009

VanHollen Issues "Open Carry" Memo!

Interesting--I just had a discussion about this prior to the TEA Party with a couple of gents from Milwaukee.

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

Personally, I didn't think that VanHollen was under any obligation to issue this; each D.A. has their own take on the situation and, after all, they have to stand for election. On the other hand, this also gives them a "pass" if they choose not to charge following an arrest for open carry/D.C.

And sure enough:

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

Some considerations:

...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

...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

The critical judgment is here:

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.

Conduct AND circumstances.

HT: Badger Blog Alliance

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