Wisconsin Open-Carrier found Not Guilty!

[Gary L. Griffiths]

From today's Milwaukee Journal Sentinel

Brad Krause, who was arrested for "Disorderly Conduct" by police while planting a tree in his own back yard while wearing a holstered handgun was acquitted yesterday in one of the first open-carry gun cases heard in a Wisconsin Court.

Municipal Judge Paul Murphy said he had reviewed several state statutes and court cases related to the right to keep and bear arms. "There being no law whatsoever dealing with the issue of an unconcealed weapon or the so-called open carry is why we're here today," Murphy said.

Meanwhile, the West Allis Deputy Police Chief said Tuesdays verdict will not change the way his officers respond to similar calls, noting they must assess all calls on a case-by-case basis, particularly when a gun is involved. (:barf::barf::barf:)

"Really the larger issue is not even a gun rights issue," said (Virginia-based OpenCarry.org's) co-founder, John Pierce. "It's the issue of having a disorderly conduct statute that is a catch-all statute for otherwise legal behavior."

[chemgirlie]

Link to JS: http://www.jsonline.com/news/crime/39722082.html

Thanks goodness that came out like it did. I was worried about that (I'm in WI). The guy was on his own property. It just bothers me that it ever became an issue.
However, I guess you could say that it is a good thing that it did. Had it not become an issue, and had this guy not stood up for himself, a lot of other people who weren't going to go through all of the trouble of going through the courts might have gotten pushed around. Good for him.

[maestro pistolero]

Meanwhile, the West Allis Deputy Police Chief said Tuesdays verdict will not change the way his officers respond to similar calls, noting they must assess all calls on a case-by-case basis, particularly when a gun is involved.

Sounds like an open-carry movement may needed to re-educate and rehabilitate the West Ellis PD on what it actually means to uphold and defend the constitution.

This sort of arrogant, recalcitrant, thick-headed attitude has no place, IMO, among honorable LE departments across this country.

[Double Naught Spy]

So you just want the 911 operator to make the determination as to which calls the police respond to or not?

[JWT]

To me police greatly overstepped their bounds. He was on his own property, he was not disturbing anyone, and the police came charging in with guns drawn, arrested him, and consfiscated his gun.

Hurray for the judge in throwing the case out and to Krause for fighting the charges like he did. A very big boo and hiss to the nosey neighbor who called the police in the first place.

[maestro pistolero]

So you just want the 911 operator to make the determination as to which calls the police respond to or not?

No one is saying that, although that, in fact is their job. So let's say a call comes in from a neighbor of Joe Open Carry:

Caller: I'm calling to report a man with a gun

911: Have there been any shots fired? Are you ok, do you need an ambulance?

Caller: No, but he's got a real gun on his belt, in one of those holster thingys.

911: Is he threatening anyone?

Caller: No, but . . .

911: Do you know this man?

Caller: Yes, he's my neighbor

911: Without placing yourself in any danger, can you see him? Can you see what is he doing right now?

Caller: Yes

911: What is he doing right now?

Caller: He's digging a hole

911: Do you know why he might be digging a hole?

Caller: It looks like he's planting a tree.

Etc., Etc.

Now the operator has a sense of the situation that's a lot more informative than a basic 'man with a gun' call. And the responding officers can approach the situation with an appropriate caution and officer safety protocol without over-reacting and violating the man's civil rights.

This officer lacked knowledge of the law, and/or common sense and/or sufficient training to repspond appropriately to what was obviously (to the Judge) NOT a violation of any existing law. There was most likely a lack of clear department policy on dealing with a situation such as this.

In some departments, cases such as these have resulted in agency memos clarifying department policy, sometimes due to incidents and cases vis-a-vi open carry movement organizations.

[LouPran]

I also live in WI ... IMO, they didn't do anything wrong in going out to check out a call. To do otherwise would be wrong. Protect and Serve. Someone calls the police ... they should check it out. Otherwise, there would be crying the other way if something happened and they did not check it out.

BUT, they over step their bounds the minute they ignore the law which has now been firmly established. It is not against the law, nor is it disorderly conduct, to open carry a firearm in WI.

Assess the call by all means. And then make the right judgment based on the law and case history. If they arrest this guy again for simply having a gun open carried on his own property ... I'd say he has grounds for a suit.

[winken]

LouPran...I think Krause does have a law suit, he was cuffed and stuffed, gun confiscated and still not returned....without breaking any laws:barf:

[44capnball]

So you just want the 911 operator to make the determination as to which calls the police respond to or not?

Hey, I heard there was a domestic disturbance at your residence....

[shortwave]

IMO LE should respond to call but in this case LE was wrong for arrest if OC is legal in Wisconsin. If I were arrested in this case I could excuse the mistake an officer made but when released if gun was kept then lawsuit would follow. Also being somewhat hardheaded I would be planting another tree in my yard attired the same way the very next day. If arrested again then lawsuit for arrest would follow.

[ggig]

Can his arrest record come back to haunt him in any way? gg

[Kreyzhorse]

The guy was on his own property. It just bothers me that it ever became an issue.

I could understand this if he was walking down the street, but being in his own yard baffles me. He wasn't brandishing this gun, it was in his holster and he was in his yard. Unreal.

[goodspeed(TPF)]

Also being somewhat hardheaded I would be planting another tree in my yard attired the same way the very next day.

I second that. I would "garden" every day I could. And make certain that my strong side faced my busybody neighbor.

[maestro pistolero]

Also being somewhat hardheaded I would be planting another tree in my yard attired the same way the very next day. If arrested again then lawsuit for arrest would follow.

That is so . . me. Except NOW it would be something really ridiculous on my hip, like a desert eagle 50 or something.

[chris in va]

It seems to me officers in non-carry states get tunnel vision and are institutionalized to think their laws are right and just.

IMO they need to take a 'junket' to other open carry states such as AZ, AK or KY for a little 're-education' and broaden their horizons.

I got that nonsense from a NJ police captain when trying to get info about transferring an old j-frame to VA. He basically said, "citizens have NO need for handguns and they'll just hurt themselves or someone else".

[ssilicon]

I could understand this if he was walking down the street, but being in his own yard baffles me. He wasn't brandishing this gun, it was in his holster and he was in his yard. Unreal.


I am not a lawyer, but I did stay a a Holiday Inn Express last night.... actually I can read plain English and read the statutes. Anyway, with that caveat out of the way...

It is completely lawful to walk down the street that way also, just as in your own yard. Wisconsin has a preemtion clause which states that lower order governments cannot restrict firearms in a way that is more restrictive than state law. According to the LAW in WI, about the only thing lower order govenrment units can do is ban "discharging" a firearm within city limts etc. State law only prohibits CONCEALED carry of weapons (including knives with blades over 3 inches etc.). The WI constitution is somewhat modeled after the USC and has a keep and bear arms clause. Since conceled bearing of arms is outlawed, then OPEN carry of arms MUST be allowed or else the state consitution is being violated.

[ssilicon]

Another point...

When the police are called, if a CRIME isn't being reported then there is no need to dispatch officers. People are so nervous and afraid of guns that we are to the point of calling the police even when not a single law is violated. Worse, the police themselves are not apparently educated enough (or have enough integrity) to understand the laws they are saying they are enforcing.

You are not comitting disorderly conduct just because the police want you to stop doing something they have no legal right to make you stop doing; and are frustrated that you are unwilling to forfit your rights and comply.

On the other hand, even in a situation like this one, if the police show up and ask that the man set the gun aside or hand it to them while interviewing him, if he refuses even minimal temporary cooperation with the police then there MIGHT be room for a disorderly conduct or even worse. Not saying the man in this case was like that. I'm just saying.

What you should do, is respectfully remind the office that you are unaware of any law you may be in violation of and then cooperate to at least a certain degree. You can fight it out at city hall in a civilized way, rather than get into a confrontation with a LEO that could escalate in an unfortunate way.

[deanf]

So you just want the 911 operator to make the determination as to which calls the police respond to or not?

Why not? I did for 13 years.

[rsgraebert]

It angries up my blood to see the judge make this statement:

"There being no law whatsoever dealing with the issue of an unconcealed weapon or the so-called open carry is why we're here today," Murphy said.


SINCE BLOODY WHEN does there have to be laws to LET us do things? Forgive me, I always had the impression that we had to break an existing law in order to be pulled in front of a judge and threatened with incarceration. I had always considered the police to be law enforcers, not moral arbitors with a duty to come up with laws that could possibly exist and therefore may have been preemptively violated.

[Semi-jacketed]

I hope he goes after them for the officer's committing crimes against him-- state and federal. If more people did that fewer of these incidents would occur. Let's say none unless they witnessed a crime or an affidavit was sworn to that effect. You know, as written in the law.

Just because someone calls something in doesn't mean a crime has occurred. It means a citizen is concerned about something. That is all.

[shortwave]

Diss- orderly conduct and inducing panic are both state laws(charges) which are generally used in open carry cases. Inducing panic foremost and it can vary from state to state

[maestro pistolero]

It's a BS, catch all charge that can be used when there is no law broken. Like vagrancy, or loitering.

[shortwave]

EXACTLY!:barf:

[chemgirlie]

I'm in WI and within driving distance of where this happened. This particular case got me pretty ticked at my state. I wouldn't half mind getting arrested for "disorderly conduct" for openly carrying (which is supposedly legal in this state) if I could raise a huge fuss about it afterwards and perhaps draw a bit of attention to the inability of my state officials to enforce laws and not arrest those who haven't done anything wrong.
Of course it would be really nice if a bunch of us got together and simply "normalized" carrying openly and made seeing a gun on somebody's hip no big deal.

[BillCA]

According to one resource, Wisconsin's Disorderly Conduct Law (non-domestic) is very vague and very broad, giving the police authority to arrest people in both public and private places (including their homes) for any conduct that may (in the police officer's opinion) be either provoking or causing a disturbance currently, or that has the potential to provoke or cause a disturbance after police leave the scene.

WI Statute 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.
(emphasis added)

In the instant case, one would have a hard time claiming that the mere wearing of a handgun would fall into "conduct tends to cause or provoke a disturbance", given that the primary descriptions include actions likely to be noisy or cause people to take extra-special notice of the individual (i.e. indecent activities).

If digging a hole to plant a tree in one's own back yard whilst openly wearing a gun is "disorderly", then so too would it be disorderly for a woman to do so if wearing a small bikini top or a man wearing a speedo swimsuit (for women onlookers).

If the theory is that an otherwise normal activity changes to "disorderly" by the mere wearing of a gun, lacking any behavior or actions related to using the gun or threatening to use it, then so too must might we classify other normal actions as "disorderly" in the presence of unusual objects - such as a person walking down the sidewalk pushing a lawn-mower or a man at the beach with an anvil.

[BillCA]

Chemgirlie,

It would seem to me that one might thwart the charge if wearing a sixgun while dressed in cowboy(girl) regalia, such as one might do to promote a coming rodeo. One could claim that if police are exempt from D.O. charges (due to the presence of a gun) due to their special clothing (unform) then one might also expect a firearm to be carried on someone dressed as a cowboy.

But given the vagueness of the statute, simply riding a horse down any street might violate the law by creating a "disturbance".

[chemgirlie]

D.O. is a rather vague catch all. In my hometown (still in WI, but a lot further north). I've see it used, but never personally seen it abused (it was used on the town drunk a few times). But, in that situation, everybody involved knew what caused the D.O. arrest and pretty much agreed on its implementation, even if they weren't too happy about it.

I do like the cowboy dress thing. I would actually have to go out and get a hat.

[winken]

http://www.lakelandtimes.com/main.asp?SectionID=9&SubSectionID=9&ArticleID=9125


2/20/2009 9:07:00 AM


Judge finds Krause not guilty in open carry tangle
Constitution ‘trumps’ state law, municipal ordinances





Richard Moore
Investigative Reporter

A municipal judge has found West Allis resident Brad Krause not guilty of disorderly conduct for openly carring a holstered firearm while planting trees in his yard, saying state law does not prohibit open carry and that state and local ordinances cannot trump the U.S. Constitution.

Judge Paul Murphy also used his oral decision to chastise the state Legislature for not clarifying the legality of open carry - the carrying of legal firearms in plain public view - and he chided the state's attorney general for refusing to take a stand.

West Allis police stormed Krause's property with their weapons drawn last August after a neighbor had called police and inquired about the legality of Krause's visible firearm. Officers subsequently charged him with disorderly conduct and confiscated the pistol.

Police have still not returned the firearm.

Speaking to reporters on the courthouse steps after the verdict, Krause said he was simply exercising his constitutional rights - an exercise he did not need to justify.

"The state constitution applies border to border, so whether I'm in my yard or walking down the street, as long as it's not a place where it is prohibited by law to possess a weapon and I'm not a felon who is not allowed to possess a weapon, this is an infringement on human rights," Krause said. "The freedom of rights is one of the things that sets America apart from other countries and that is something we hold very dear to us."

The issue isn't solely an open-carry dispute, Krause said.

"The reason people are upset is because this is not just about guns, but about civil liberties," he said, acknowledging the almost 50 people who appeared at the courthouse to support him. "The police had no permission to enter my property. There were no exigent circumstances. But they entered my property and put my life at risk. My wife was worried she was going to be a widow because I was planting a tree."

Gun rights advocates hailed the verdict but said the question of open carry was far from settled.

"I actually hope the city will appeal because we need clarity on the issue," said Gene German, a founder of Wisconsin Patriots, a grassroots organization that promotes individual rights. "The question is, if Brad straps a gun on his hip tomorrow, what will the police do? Will we be here all over again?"

There was no immediate word whether the city of West Allis planned an appeal.



Tipping point

Echoing German, Murphy underscored the limited reach of his decision - on that day in August, he concluded, Krause's conduct was not disorderly - but he nonetheless recognized the constitutional underpinnings of the case, and engaged in a broad discussion of their inherent complexities.

"The constitution is an important matter in this case," Murphy said at the outset, citing the Second Amendment and the U.S. Supreme Court's decision last year upholding an individual's right to keep and bear arms.

The gist of the case, he said, revolved around that latter right, and he quickly tipped his hand about the direction in which he was heading.

"The Bill of Rights exists to protect people from government, and does not exist to sanction government to do certain things to people," he said.

Within that constitutional framework, the judge began to dissect whether Krause's conduct was disorderly.

In so doing, he observed that the neighbor had called to inquire about the legality of Krause's gun-carrying and that the police had responded to an incident involving a "proverbial man with a gun."

"The neighbor testified (at an earlier hearing) that he was concerned about the gun going off," Murphy recounted. "But [the neighbor] said [Krause] was not causing a disturbance. [The neighbor] was concerned about the defendant's safety and about the legality. There were no children present. The court concluded that the neighbor wanted the police department to have a talk with the defendant and didn't think he would be arrested."

Murphy also cited police testimony from the earlier hearing, in which officers conceded that Krause was not agitated.

"Again, he was not doing anything but gardening on his property," the judge said. "He was a planting a tree, as I recall."

The judge referred implicitly to the statutory and case-law standards for proving disorderly conduct. That conduct is defined as behavior that is violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly, and the state must prove that the defendant's conduct occurred under circumstances where such conduct tends to cause or provoke a disturbance.

Clearly, Murphy said, Krause was not violent, abusive, indecent, profane, boisterous, or unreasonably loud.

"So the issue is, was he 'otherwise disorderly,' under circumstances that would tend to cause a disruption?" Murphy said.



Gun laws inadequate?

To answer the question, the judge focused on the state's gun laws, noting there is no open-carry statute, only a prohibition on concealed carry. The state also has created specific exceptions to carrying firearms, such as in public buildings, he said.

Interestingly, he observed, the statutes also prohibit the carrying of a handgun where alcoholic beverages may be sold or consumed.

"It doesn't say anything about concealed or unconcealed, and other guns are apparently permitted," Murphy said. "It says 'handguns.' Presumably you could carry a shotgun or a rifle."

Murphy characterized some restrictions as 'preposterous,' such as requiring licensed private security guards or private detectives to openly carry firearms in a state such as Wisconsin, where, he said, "people wear coats and jackets."

Beyond statutory restrictions, Murphy pointed to various occasions on which people carry firearms openly and are not arrested or hampered by police.

"Open carry is allowed in many places," he said. "In West Allis, for years, there was a parade (where people carried openly), and I don't recall anyone being arrested. On Memorial Day and Veterans Day, there are gun salutes fired by proud veterans who served us honorably. They have open weapons on public land. That's allowed and it should be."

In addition, Murphy pointed to Civil War re-enactments by the West Allis Historical Society, events during which guns are carried and discharged.

Murphy then cited state of Wisconsin v. Hamdan, in which the state Supreme Court carved out an exception allowing private employers to carry concealed weapons.

Given actual practices and the lack of statutory clarity, Murphy suggested it might be time for the Legislature to act, and he cited the Hamdan decision, in which justice David Prosser encouraged the Legislature to do just that.

"The approval of a state constitutional right to keep and bear arms for security, defense, hunting, recreation, and any other lawful purpose will present a continuing dilemma for law enforcement until the legislature acts to clarify the law," Prosser wrote for the majority. "We urge the legislature to thoughtfully examine [the concealed carry statute] in the wake of the amendment and to consider the possibility of a licensing or permit system for persons who have a good reason to carry a concealed weapon. We happily concede that the legislature is better able than this court to determine public policy on firearms and other weapons."

That decision was filed July 15, 2003, Murphy pointed out, and he said the Legislature had ignored the admonition.

"From 2003 until now, to this court's knowledge, the Legislature has done nothing," the judge said. (In fact, the state Legislature has twice passed concealed carry legislation since 2003; Gov. Jim Doyle vetoed both versions).

One easy solution, Murphy said, would be for the Legislature to simply add "unconcealed carry" to the concealed carry prohibition, and let the courts deal with its constitutionality.

The judge also took a swipe at attorney general J.B. Van Hollen for not offering his own opinion on the legality of open carry.

"The attorney general declined to weigh in, I read in the newspaper," Murphy said. "The attorney general could have taken a great step to clarify the issue, but, for reasons known only to him, he did not."

The judge said the refusal of political officials to tackle the matter had put police departments in jeopardy.

"The troubling aspect of this is, what impact does all this have on the police department and what are they supposed to do?" Murphy stated. "I don't know. The inaction of the Legislature has put the police department at risk no matter what they do because the Legislature has refused to clarify [this issue] despite the strident warning of justice Prosser."

And so, the judge said, with no law dealing with open carry, or legal clarity on the question, "that is why we are here today."



Comfort levels

The lack of a statutory prohibition on open carry and existing open carry practices notwithstanding, the judge did consider one other way Krause might have been disorderly: Did his conduct rise to such an offensive level that it would likely lead to a disturbance?

"In his testimony, [the neighbor] testified that he was concerned and disturbed," Murphy said. "He didn't like the idea of a gun in a holster across the street."

Murphy said his court had held lengthy discussions before about offensive behavior, including the display of a Nazi flag.

"To me that is one of the most abhorrent symbols of all, but in and of itself it is constitutionally protected," he said

Murphy cited the U.S. Supreme Court's famous decision allowing a uniformed Nazi march in Skokie, Ill.

"The march never did take place, but the Supreme Court allowed it, even though they found it was likely to provoke a disturbance," the judge said. "The conclusion is, the constitution has to trump over state law. You cannot restrict a constitutional right by virtue of an ordinance."

Given the clear and direct facts of the case, Murphy concluded, the court "finds that the defendant's conduct was not 'otherwise disorderly' and finds the defendant not guilty."

Despite the outcome, things are a long way from over.

For one thing, Krause has filed a notice of claim against the city of West Allis, a necessary precursor to a potential civil suit. For another, the city itself might appeal.

Even if they don't, the police still have Krause's gun, and Krause said after the verdict he thought they planned on keeping it for some time.

"My understanding is, they will not be returning my gun," he said. "My only option is a civil suit, to sue them to get my property back."

Indeed, Murphy said his court lacked the jurisdiction to order the gun's return, no matter the verdict. If the police don't voluntarily return the firearm, Krause must seek relief in circuit court.

In other remarks, Krause said he had hoped things would never reach the point they did.

"I had hoped that we could come to some agreement before we got to this stage," he said. "But that was not the city's position. They were going to take it as far as they could."

He also echoed the judge's comments about Van Hollen.

"This is a prime opportunity for the attorney general to clarify the issue, whether open carry is legal or it isn't, so other people are not put in the same position I was put in," he said.

German said the case had focused attention on police competence.

"This is first and foremost a training issue," he said. "The Department of Justice has guidelines on the use of lethal force and the police should follow them. We give these guys badges and stars and guns, but there's no adequate training."

[BillCA]

First, kudos to Judge Murphy for upholding constitutional law.

"The Bill of Rights exists to protect people from government, and does not exist to sanction government to do certain things to people."

Absolutely spot-on and something too many judges ignore.

This is quite a good analysis by a municipal court judge. If the city appeals, which I doubt they will, I think they'll be shot out of the saddle.

[shortwave]

Agree, Thank You Judge Murphy for standing up for our 2nd Amend. Ummmm wonder where the representitive from the ACLU was:confused:? Don`t they normally jump on the civil rights issue`s:rolleyes:.

[USASA]

Hmmm. Interesting. I've sat in my backyard, which has no fences, and cleaned my rifles and handguns.

Guess I should be thankful I don't have "perfect circle" neighbors. :rolleyes: