Sunday, September 8, 2013


An opinion

The open carry movement in Wisconsin began with the participation of an unknown, but undoubtedly small, number of participants.  Using the vague language of “disorderly conduct” ordinances over the course of a year a handful of open carriers were arrested.  These charges were dropped in every instance but one, and in the one case that went to court the open carrier was acquitted by the municipal judge. 

In  April 2009 Wisconsin Attorney General, J. B. Van Hollen, issued an informal advisory memorandum Attorney General Says Open Carry Is Legal      regarding open carry in response to a growing number of incidents and inquiries from legislators and law enforcement officials and the public.  That Attorney General advised that barring other factors occurring, the mere open carrying of a firearm ought not to result in disorderly conduct charges.  Emboldened by the Attorney General memo, the open carry movement gained considerable momentum across Wisconsin as a number of large “open carry picnics” were organized and attended by hundreds of participants later in 2009.  The picnics not only attracted the participants-- most of whom arrived wearing sidearms-- but the attention of the press around the state, country, and beyond.  

Not everyone in Wisconsin’s law enforcement “got the memo.”  Or, to put it more accurately, their interpretation of the memorandum differed.  I suspect, in reality, some law enforcement agencies simply adopted a “not in my town” attitude to the Attorney General memorandum.  The most noteworthy instance occurred in September 2010 when five open carriers in Madison were harassed by police and given disorderly conduct citations for wearing sidearms while dining at a local fast food restaurant.  Like most open carry disorderly conduct cases, the charges were ultimately dropped and the charged individuals received monetary settlements from the City of Madison.

In every instance of a disorderly conduct citation being issued to an open carrier, the police arrived at the scene in response to an inquiry from a member of the public.  In no instance did the callers express alarm at the sight of a fellow armed citizen, they simply did not know if open carry was legal and called the police.  Following the open carry picnics and widely publicized incidents, particularly the Madison restaurant incident, anyone paying attention to the news in Wisconsin was, or should have been, aware of the legality of open carry.

Less than a year later, 2011 Wisconsin Act 35 was passed, once again legalizing concealed carry in Wisconsin for the first time in over 130 years.  Now people had a choice of carrying a handgun in public openly or with a license, concealed.  Act 35 not only re-established legal concealed carry, but it modified the state disorderly conduct citation by incorporating the gist of the Attorney General’s memorandum by adding:

“Unless other facts and circumstances that indicate a criminal or malicious intent on the part of the person apply, a person is not in violation of, and may not be charged with a violation of, this section for loading, carrying, or going armed with a firearm, without regard to whether the firearm is loaded or is concealed or openly carried.” Chapter 947.01(2)

End of story?  No!

Over the course of the past 4 -5 weeks there have been at least three incidents involving open carriers and local Wisconsin police departments.  In Somerset, Wisconsin an individual was detained and cited for disorderly conduct for open carrying a long gun.  Just yesterday, two individuals open carrying long guns were stopped at gunpoint by Appleton, Wisconsin police.  An audio recording made by one of the open carriers was made public last night:

A series of detentions against a Madison resident for open carry of a handgun is also currently under investigation.  However I will not make further comments about that case until more information has been obtained.  

Two of the three recent cases do involve the open carry of long guns-- a practice that is regarded as controversial among many gun rights proponents.  Some believe that carrying a long gun in public is pushing the envelope too far,  and is counterproductive to the gun rights movement.  It should be noted that similar statement were made, and continue to be made by some, regarding open carry of handguns.  

But even those who have reservations about open carry of long guns almost universally acknowledge the legality of it.  The notable exceptions are the police officers involved in these incidents.  

Police are empowered to enforce the laws, not their opinion.  When listening to the statements made by police during the course of these incidents, it is astounding to hear them confidently proclaim and expound non-existent laws and legal basis in justification of the illegal detentions, searches and seizures.  

History has shown that there are two ways for the police in Wisconsin to learn the law and the limits of their authority:  the easy way and the hard way.  The easy way is for the department to obtain good legal guidance and to disseminate it their officers as part of a training program.  The hard way is to continue put uninformed and undisciplined officers on the streets who continue to make mistakes. Ultimately they will learn from these mistakes at the cost of lawsuits and the slings and arrows of public opinion.  Let us hope it will not also be at the price of officers losing their jobs, or worse, someone losing his or her life.

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