Saturday, December 13, 2008

Gun Confiscation in Wisconsin

Only open carry is legal in Wisconsin. Concealed carry is illegal there. Open carry is a right of people in WI but the police there generally do not like it. There are many instances of the police illegally arresting people and confiscating their guns, who dare to open carry. Visit and go to their forums for many examples in the WI forum. Frequently they attempt to charge people who carry with "disorderly conduct" which does not apply to open carry (but it costs money to fight in court, obviously).

One man was recently open carrying on his own property in WI, planting trees. Wisely, he took the advice of other gun rights supporters and recorded what took place. He will be battling the bogus charges. Hopefully he will file suit under the Civil Rights Act of 1871 and make those thugs pay for their violations of his rights.

12th 2008Weapons Confiscation in Wisconsin
(copied from
received email
If someone disagreed with you about an article or
story you
published and then complained to the police who came into your
business and
arrested you for disorderly conduct, would that incident be
if the police arrested you for disorderly conduct while you were
any other constitutionally protected right because someone did not
want you
to exercise your right? Would you want to tell the people of Wisconsin
fragile it is to exercise their rights?Once arrested, do you think an
employer or all your friends and neighbors would understand or would some of
them want to maintain more distance with you? Unfortunately, being arrested
the same thing as being found guilty to many people in the court of
opinion. The police don’t arrest innocent people just for exercising
constitutionally protected right after all. That would be outrageous.Or do
they?Please come (or send a reporter) to the West Allis City Courthouse on
Tuesday December 16th at 8 am when this question will be answered in
August 22, Brad Krause was planting trees in his yard, at least
until police
stormed his residence and arrested him. It turns out they
received a call from a
man who said he didn't appreciate that Brad carried a
gun, and wanted something
done about it.The West Allis police department
sent two squads to investigate,
and found Brad in his yard, minding his own
business planting trees. From behind
him, police rushed him, yelling, "Don't
move!" while bearing down on him with
their weapons drawn. They shortly
discovered Brad had no criminal record and was
lawfully openly carrying on
his own property, but instead of releasing him and
returning his weapon,
they tried to figure out how to arrest him. A call to the
lieutenant provided the answer: claim his action of carrying a
weapon is
disorderly conduct, and haul him down to the station. His firearm was
away from him without a receipt, and it has not been returned. The police
have effectively banned his exercise of his right by disarming him.The fact
that Wis. Stat. § 941.23 does not ban or prohibit the lawful carrying of
firearms by citizens. By enacting the law, the legislature intended to force
citizens to openly carry their firearms while in public, which is what Mr.
Krause was lawfully doing (additionally, he was on his own property).Mr.
is self employed as a property manager and this action by the City of
West Allis
has cost him long term business relationships. The police had him
standing in
handcuffs on his own property for 45 minutes with squad cars
parked in front of
his residence while they tried to figure out a way to
arrest him. Fortunately,
Mr. Krause had taken a friends advice and he had a
voice recorder with him and
the entire incident was recorded and it has been
transcribed.Civil rights are
very important – all of them – which is why
they are protected from governmental
actions just like this. The media would
be all over this story if a voter had
been wrongly arrested while waiting in
line to vote, or a worshipper had been
arrested while attempting to enter
their place of worship, or a reporter was
arrested while writing an article.
The Wisconsin Supreme Court has said an
otherwise reasonable exercise of
police power cannot be invoked in a way that
"eviscerates," "destroys,"
"frustrates," or "nullifies" the constitutional right
to bear arms, yet that
is exactly what is being done by law enforcement
departments all over
Wisconsin today. In Wisconsin, constitutional rights do not
expand the
police power; they restrict the police power. See Buse v. Smith, 74
Wis. 2d
550, 564, 247 N.W.2d 141 (1976); see also Robert Dowlut & Janet A.
Knoop, State Constitutions and The Right to Keep and Bear Arms, 7 Okla. City
L. Rev 177, 185 (1982) (describing the general application of this
principle).That is why this is such an important matter and I am asking for
to publically expose this unlawful use of police
++++++++++++++++++++++++++++++ Below is important background information:1)
There is no state statute prohibiting an openly carried firearm in
Wisconsin. To
the contrary, Wis. Stat. § 941.23 was enacted by the
legislature to force the
open carry of firearms.2) Excerpts from State of
Wisconsin v. Munir A. Hamdan -
(emphasis added - footnotes can be found on
the link below): ) -
or download the PDF file here on JPFO.¶41 Article I, Section 25 does not
establish an unfettered right to bear arms. Clearly, the State retains the
to impose reasonable regulations on weapons, including a general
prohibition on
the carrying of concealed weapons. However, the State may not
apply these
regulations in situations that functionally disallow the
exercise of the rights
conferred under Article I, Section 25.The State must
be especially vigilant in
circumstances where a person's need to exercise
the right is the most
pronounced. If the State applies reasonable laws in
circumstances that
unreasonably impair the right to keep and bear arms, the
State's police power
must yield in those circumstances to the exercise of
the right. The prohibition
of conduct that is indispensable to the right to
keep (possess) or bear (carry)
arms for lawful purposes will not be
sustained.¶68 If the constitutional right
to keep and bear arms for security
is to mean anything, it must, as a general
matter, permit a person to
possess, carry, and sometimes conceal arms to
maintain the security of his
private residence or privately operated business,
and to safely move and
store weapons within these premises.¶71 In circumstances
where the State's
interest in restricting the right to keep and bear arms is
minimal and the
private interest in exercising the right is substantial, an
individual needs
a way to exercise the right without violating the law. We hold,
in these
circumstances, that regulations limiting a constitutional right to keep
bear arms must leave some realistic alternative means to exercise the
right.¶72 For instance, in order to keep and bear arms for the purpose of
securing one's own property, a weapon must be kept somewhere and may need to
handled or moved, all within the weapon owner's property. During these
the firearm will be either visible or concealed. The State ** argues
that even
under the strictest enforcement of the CCW statute, a person
lawfully in
possession of a firearm will always retain the ability to keep
the firearm in
the open——holding the weapon in the open, keeping the weapon
in a visible
holster, displaying the weapon on the wall,32 or otherwise
placing the weapon in
plain view.** Jim Doyle was the Attorney General whose
office argued that open
carry was lawful.¶119 To determine whether Wis.
Stat. § 941.23 is constitutional
on the facts of this case we must ask two
questions. The first question is
whether the regulation on concealed weapons
is a reasonable exercise of the
police power, namely, does the statute
promote public safety, health, or welfare
and bear a reasonable relation to
accomplishing those purposes.56 The second
question iswhether the reasonable
exercise of the state's police power
eviscerates the constitutional right to
bear arms.¶120 No one disputes that the
prohibition on carrying a concealed
weapon is a reasonable exercise of the
State's police power.57Wisconsin
Stat. § 941.23 promotes public safety. The
primary justification for the
prohibition on carrying concealed weapons is that
it protects the public by
preventing an individual from having a deadly weapon
on hand of which the
public (including a law enforcement officer) is unaware,
which may be used
in the sudden heat of passion.58 The public is safer, the
argument goes, if
it is able to take notice of those people who are carrying
weapons and
proceed accordingly. Indeed, in a case similar to the present case,
State v.
Mata, 199 Wis. 2d 315, 321, 544 N.W.2d 578 (Ct. App. 1996), the court
appeals concluded that a persuasive argument can be made that "a tavern
owner's display of a handgun may deter crime while concealment of the gun
probably would not."59¶121 Moreover, by making it a misdemeanor to carry a
concealed weapon, Wis. Stat. § 941.23 bears a reasonable and substantial
relationship to the end of promoting public safety. Criminalizing conduct
stigmatizes conduct and deters people from doing it, a conclusion the
opinion agrees with as well.60 (However, the practice of
criminalizing lawful
conduct effectively creates an unlawful ban)¶122 The
second question in the
present case is whether the reasonable exercise of
the State's police power
eviscerates the constitutional right to bear
arms.61 As the majority opinion
explains, an otherwise reasonable exercise
of police power cannot be invoked in
a way that "eviscerates," "destroys,"
"frustrates," or "nullifies" the
constitutional right to bear arms.62 Short
of that, however, as the majority
opinion further explains, the right to
bear arms is not absolute and is subject
to reasonable regulation.63¶123 In
order to determine whether a statute
eviscerates a constitutional right or
merely reasonably regulates a
constitutional right we must examine the
"degree" to which the regulation
frustrates the purpose of the
constitutional right .64 For example, in City of
Seattle v. Montana, 919
P.2d 1218 (Wash.1996), the Washington Supreme Court
upheld a city ordinance
regulating the carrying and possession of "dangerous
knives" in the face of
a constitutional amendment granting the right to bear
arms. The court
reasoned that the police power was reasonably exercised to
"promote public
safety and good order," and that the city did not enact a
prohibition on possession and carrying knives" but merely "regulated
carrying, transport, and use of knives."65 Therefore, the statute was
constitutional.66¶124 Wisconsin Stat. § 941.23 is similarly constitutional
applied to the defendant because it does not eliminate the right of an
owner of
a privately operated business to bear arms for security or defense
but simply
limits the manner in which he or she may exercise the right to
bear arms. That
is, § 941.23 does not prevent anyone from carrying a firearm
for security,
defense, hunting, recreation, or other lawful purposes.
Rather, it limits the
manner of carrying weapons, by requiring that a weapon
that is on a person or
within a person's reach not be concealed.67 The gist
of the offense is the
concealment. Thus, nothing about Wis. Stat. § 941.23
comes close to
eviscerating, destroying, frustrating, or nullifying the
right to bear arms in
Wisconsin for the defendant here or any other person.
The right to bear arms "is
not impaired by requiring individuals to carry
weapons openly."68¶129 Second,
and more importantly, the majority's dubious
conclusions are irrelevant. The
statute is presumed constitutional and the
burden on the challenger is heavy. By
enacting the statute the legislature
has determined that public safety is
advanced when owners of privately
operated businesses, like all other
individuals, are required to carry their
guns openly. Although the majority
opinion has set forth counterarguments to
the legislature's determination that
concealed weapons are hazardous to
public safety, neither the majority opinion
nor the challenger has carried
the heavy burden of demonstrating that the
legislative determination is
unconstitutional because the degree to which it
restricts the right to bear
arms for owners of privately operated businesses
eviscerates the
constitutional right.3) State Statute (66.092) 1995 Wisconsin
Act 75,
section 2: says;…no political subdivision may enact an ordinance or
adopt a
resolution that regulates the sale, purchase, purchase delay, transfer,
ownership, use, keeping, possession, bearing, transportation, licensing,
permitting, registration or taxation of any firearm or part of a firearm,
including ammunition and reloader components, unless the ordinance or
is the same as or similar to, and no more stringent than, a state
This is Wisconsin case law defining what behavioral elements
Disorderly Conduct (no mention of a firearm):State v Douglas D
2001 WI 47, para
15.243 WIS 2d, 204,626N.W, 2d 725. Para. 15"The State must
prove two elements to
convict a defendant under this statute (947.01)"
First, it must prove that the
defendant engaged in violent, abusive,
indecent, profane, boisterous,
unnecessarily loud, or similar disorderly
conduct. Second, it must prove that
the defendant's conduct occurred under
circumstances where such conduct tends to
cause or provoke a disturbance".
Emphasis addedI hope to see you on the 16th in
West Allis. If the date
should be moved for any reason, I will let you
know.Thank you.Gene
GermanMinnesota DPS Certified Firearms InstructorUtah BCI
Certified Firearms
InstructorAACFI Wisconsin State Director

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