Month: October 2010

Uncategorized

Open Carry Lawsuit in Wisconsin

October 5, 2010 by

On Saturday, September 18th, five members of Wisconsin Carry met and ate at a Culver’s (mid-west burger chain) in Madison, Wisconsin. According to the story in the Wisconsin State Journal:

Eight officers came to the restaurant and demanded identification from the five men, Gold said, adding that when two of them refused, they were handcuffed, disarmed and searched for identification, then given municipal citations for obstruction and released. Wisconsin Carry won a $10,000 settlement for a Racine man in a similar situation.

Two days later, the charges for obstruction were dropped against the two members who refused to provide identification. The Madison Police Department then filed disorderly conduct charges against all five of the Wisconsin Carry members. According to the press release from the MPD:

The complainant’s statement clearly reveals that she recognized the potential for violence from these armed men, and it was this fear that motivated her call to police. On the basis of this fact, the MPD will be rescinding the 2 obstructing citations. They were issued in error. Instead, citations for City Ordinance DC will be given to those who engaged in the behavior that led to the need for police to be called.

The DC statute does not require an actual disturbance take place, only that conduct in question is of a type that tends to cause or provoke a disturbance.

 However, there is some dispute as to whether the “complainant” felt threatened or in fear. Wisconsin Carry summarizes the 9-1-1 call as follows:

At or about the time that the WCI members finished their meal and left the restaurant, a woman in her car observed them openly carrying handguns and called 911 to report it to the City of Madison Police Department. The 911 caller informed the dispatcher that she didn’t know if it was an emergency, the men were doing nothing wrong and appeared totally relaxed, weren’t threatening anyone and the restaurant was full of people but they each had sidearms and she didn’t know if that was legal.

Upon being informed by the 911 dispatcher that open-carry is legal the woman stated “then there is no problem and its not an emergency”. The dispatcher then suggests that if the woman is concerned or disturbed then it becomes a problem and the woman says “no they weren’t threatening anybody or acting threatening”. When the dispatcher informs the caller they are sending officers she says “well I feel bad then because they weren’t doing anything wrong”.

 The full 9-1-1 call can be heard here.

It is important to note that while Wisconsin is one of the two states that still doesn’t allow concealed carry, open carry is legal. In April 2009, Wisconsin Attorney General J. B. Van Hollen issued an advisory memorandum regarding open carry. The memo’s summary states:

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.

If the behavior reported in the 9-1-1 call is accurate, then it appears that the actions of the Madison Police Department go beyond what the Attorney General’s advice suggests. The memo specifically states that under a Terry or investigative stop, while officers can ask questions, the person is under no obligation to answer them or to be compelled to identify him or herself.

In response to these charges of disorderly conduct and the subsequent policy proclamations in the City’s press release, Wisconsin Carry and four of the individuals involved filed a lawsuit against the City of Madison and Madison Police Chief Noble Wray in U.S. District Court for the Western District of Wisconsin on this past Wednesday (Sept. 29th). They are represented by the Troupis Law Firm of Middleton, WI and John Monroe of Roswell, GA. Monroe is the VP of GeorgiaCarry.Org and is currently handling a CalGuns Foundation sponsored case, Peterson v. LaCabe,  in Denver, Colorado.

The lawsuit, Wisconsin Carry, Inc. v. City of Madison et al,  alleges three causes of action in their request for a permanent injunction against Madison and Chief Wray. First, the suit alleges that the City of Madison and Chief Wray are violating the Second and Fourteenth Amendment rights of the plaintiffs by their demands for ID or face arrest solely because they were openly carrying a firearm. The suit goes on to say that the new policies announced by the Madison Police Department in their press release (see above link) are “designed and intended to chill and prevent WCI’s members free exercise of their Constitutional right to keep and bear arms.”

The second cause of action alleges that Madison and Chief Wray are subjecting “WCI members and other persons to invidious discrimination, and constitutes a violation of their right to Equal Protection secured by the Due Process Clause of the Fifth Amendment to the United States Constitution.” The plaintiffs allege the new policy and procedures outline on September 22nd in the press release constitute harrassment, establishes a policy of unreasonable search and seizures, and is hostile to the right to keep and bear arms.

The third and final cause of action states that by maintaining and enforcing the laws, policies, and procedures set forth in response to the open carry movement, Madison and Chief Wray are violating the Second and Fourteenth Amendment rights of Wisconsin Carry members and the other named plaintiffs. Wisconsin Carry and the other plaintiffs:

are deprived of equal protection by virtue of the fact that the Defendants are enforcing criminal laws against the Plaintiff’s members based solely on the exercise of their constitutional right to keep and bear arms, and specifically, on their choice to openly carry a firearm as allowed by law.

Specifically, the suit asks the court to provide a permanent injunction that mandates:

the City of Madison and its Police Department to rescind and retract the orders and recommendations contained in its press release issued on September 22, 2010, and requiring these Defendants to take immediate corrective action to instruct its police officers and the general public that these orders and recommendations violate the Constitutional rights of these Plaintiffs and others, and are therefore not to be followed.

 The suit also asks for attorney fees and costs as well as damages in an amount to be determined at trial.

The City of Racine, Wisconsin had a similar incident in 2009 and was sued by Wisconsin Carry in U. S. District Court for the Eastern District of Wisconsin. In March of this year, a judgment was entered in favor of Wisconsin Carry. The City of Racine and two of their officers had to pay $10,000 as a result. Given that, I wouldn’t be surprised to see a negotiated settlement in this case along with a recision of the new Madison PD policies and procedures.

Uncategorized

The Horror!

October 4, 2010 by 1 Comment

I’m stuck in a cafeteria where they have CNN’s Headline News blaring. For the last two hours, the news anchors have been “reporting” on the move in some states to allow firearms in bars and restaurants that serve alcohol. They are shocked (shocked!) that anyone would consider this. From their report, you are left thinking that liquored-up, testoterone laden guys will be shooting it out in bars like in the old Wild West movie.

Of course, most of the time they have failed to give the listeners the whole story. That is, while you may be allowed in the bar or restaurant with a handgun, you still are forbidden from drinking in most of these states.

They are asking for listeners to call in and give their thoughts on this. I wonder if any voice of reason can get past the call screener.

I presume that this story in the New York Times is what prompted HLN to go sensational with this.

Since I work during the day, I had forgotten what a vast wasteland daytime TV has become.

Uncategorized

Impact of Cost and Time on Number of CCW Permits

October 4, 2010 by 2 Comments

The Texas Tribune just published an article examining concealed carry permits rates in various Texas cities. The major finding was that people living in the wealthier neighborhoods were more likely to have a CCW permit than those living in poorer neighborhoods.

Jonathon Hartsfield and Adam Kelly live on opposite sides of San Antonio. They both own guns, they’ve never been in serious trouble with the law and they’d both like to have a concealed handgun license — just to be safe.

But like many of his neighbors on the city’s low-income South Side, Hartsfield hasn’t applied for a gun permit, which costs $140 for the license fee and roughly $100 or more for the 10-hour instruction class. “I’d like one,” says Hartsfield, 22, who works at a shooting range on Pleasanton Road called A Place to Shoot. “It’s the cost and time to get it.”

Kelly, 36, lives on the city’s North Side — one of the most popular areas for concealed handgun licenses. Two weeks ago, he attended the mandatory class to obtain his permit. “It’s the right thing to do if you’re going to have a gun,” Kelly says.

This correlates very strongly with the research of Professor John Lott. At the recent Gun Rights Policy Conference, Lott noted that there was a 40% difference in CCW permits between states that require 9 hours of training and those that require only 8 hours of training. A 9 hour requirement suggests that the class must be taken over two days instead of just one.

As the article notes, the state of Texas requires 10 hours of training and a $140 application fee. Costs for taking the class average around $100. That requirement was set in 1995 when the law was first passed.

Uncategorized

GRPC – Day 3

October 4, 2010 by

The third day of the Gun Rights Policy Conference was only a half day. Peggy Tartaro, editor of Women & Guns, served as the moderator for this day. The day began with a session on knife rights.

Doug Ritter – founder and chairman of KnifeRights.org – They have trademarked the slogan “Knife Rights – The Second Front in the Defense of the Second Amendment”. Doug noted that the challenges faced with regard to knife rights are that the same groups against gun right are against knife rights, the anti’s are looking at knives as an easy target, and finally, they see attacks on knives as a backdoor to more gun control. The biggest challenge right now is the declared war on pocket knives by NY DA Cyrus Vance, Jr. who is attempting to shake down retailers in the same way that Tony Soprano might. A lawsuit is being readied against New York on this. The legal team will include Alan Gura and NJ gun rights attorney Evan Nappen among others.

Les de Asis – found and president, Benchmade Knives – noted that the Federal Switchblade Act was enacted in 1958. At that time, knife makers were not united and rolled over in the face of opposition. The difference now is that knife makers are united. Many companies have donated over $30,000 each to finance the pending litigation in New York City.

Todd Rathner – NRA Director and director of legislative affairs for KnifeRights – Said that we need to build support for knife rights at the state and local level. Pointed to their success in Arizona and New Hampshire. Said we have to be pro-active. Remember that knives are everyday tools.

The next session was entitled “Countering the Establishment Media Bias”. The session was moderated by Tom Gresham of GunTalk Radio.

Tom Gresham – Said that there was and was not media bias. Part of it comes from ignorance. Noted they usually don’t know they are wrong and we must work to educate and correct them. Rather than getting in their face about it, be smart and give a reasoned argument. Remember ignorant is not the same as stupid and the media isn’t stupid.

Declan McCullagh – CBS News – There is media bias. Political editors tend to be left of center. Some try to compensate for this, some don’t. The biggest bias is invisible bias – the story that isn’t written.

Malia Zimmerman – editor of the Hawaii Reporter – Discussed how to reach out to the media. Make an expert list and give out to the media. When dealing with TV reporters, make sure to talk to the cameraman as they tend to be more conservative and often ex-military.

Don Irvine – president of Accuracy in Media – To combat media bias, we need to be experts in using social media such as Facebook and Twitter. It allows us to get our message out even if the media won’t do it.

The third session of the day featured a discussion on campus safety and the battle for concealed carry on campus.

David Burnett, president of Students for Concealed Carry on Campus – The Virginia Tech shootings were a mini-9/11 for colleges. Discussed the empty holster protests which are a token of being disarmed. It has now spread to 130 campuses and has gotten a lot of publicity. Noted that students are being taught that being disarmed will keep them safe.

Jim Manley – staff attorney for Mountain States Legal Foundation – Discussed their lawsuit against the University of Colorado. Under the Colorado Concealed Carry Act, universities are areas where concealed carry is permitted. Won their case in the Colorado Ct. of Appeals but the university appealed to the CO Supreme Court. The Ct. of Appeals rejected rational basis – a lesser standard – as the standard of review.

Rick Walker – Western Regional Director, SCCC – Noted the importance to get to students now as they are the next generation of leaders. Help students to get involved; teach them they have a role.

The Battle for Places to Shoot was the next session. The various challenges to gun ranges on both public and private land was discussed.

Dave Workman – senior editor for Gun Week – Discussed the threats to shooting and hunting on public lands especially US Forest Service land. USFS has, in some areas, tried to use a non-existent law/court ruling to shut down shooting areas. Noted that the introduction of wolves along with endangered species will be used as a means to impact shooting on public lands because the noise might “bother” them. Pointed out HR 5523 which would prohibit the closure of public shooting on public lands. Need to see if your Congressman is a sponsor.

Guy Smith – founder of GunFacts.info – Suggested we get involved with the local shooting ranges so that they will survive. Need to keep track of local government meeting agendas as they are where the threat will come from. Pre-emption laws are our number one tool to keep ranges open.

Jim Bass – president of the Sacramento Valley Shooting Center – Ranges can’t avoid being on the radar of anti-gun groups and politicians. Ranges must absolutely make sure that they are in compliance with all environmental and lead abatement laws. Should have lead reclamation policies in place along with safety equipment.

The final presentation session of the day was a discussion of the gun rights battles of the future and how to prepare for them.

Joe Waldron – legislative affairs director of CCRKBA – Since the budget has not been passed by Congress yet, the funding acts for department such as Justice and Homeland Security will be targets for add-ons for gun control. Logic and facts are needed to pass pro-gun bills; only emotion is needed to pass gun control laws. The lame duck session could be very dangerous for gun rights if the Democrats lose.

Sean McClanahan – president of the Iowa Firearms Coalition – Said we need to encircle or hem in the anti-gunners. In the pursuit of gun rights, we should ignore party politics for the most part. Noted that “shall issue” concealed carry passed in Iowa due to a Democrat.

Alan Gottlieb – Joined the last session towards the end. Said we can never give up because if we do, we lose. We need to keep the anti-gunners on the defensive. Their advantage is that they have a common target – guns. We must present a united front and not air our dirty laundry in public.

The conference ended with the report of the resolutions committee and closing remarks from Alan Gottlieb and Joe Tartaro.

Uncategorized

$500 Annual Fee for Concealed Carry?

October 3, 2010 by

NJ State Senator Jeff Van Drew (D-Cape May) has proposed a bill “to make it easier for New Jersey residents to carry handguns, and he thinks the state can make some money in the process.” Currently, you must show “justifiable need” to get a concealed carry permit in New Jersey.

According to the details of his bill, an applicant would have to pass a criminal background check including fingerprinting, take a NJ Police Training Commission approved course in the safe use, storage, and maintenance of a firearm, take a marksmanship qualification test, take another State Police Superintendent approved class on the lawful use of force and justifiable use of a firearm, and then pay an annual fee of $500 for the privilege of carrying concealed.

For this deviation from the party line, Van Drew has been accused by Bryan Miller, the Executive Director of NJ Ceasefire of  “kowtowing to the pro-gun forces of darkness who want to turn this country into an armed society”. I love that phrase – pro-gun forces of darkness. I can just see the T-shirts now.

According to the article at NJ.com, this bill has only a long-shot for passage.

I’m not sure what galls me more – the $500 annual fee so a bankrupt state can meet its pension obligations or that the proponent of a concealed carry bill with incredibly onerous requirements and fees can be thought to be “kowtowing to the pro-gun forces of darkness.”

A proper Kowtow

H/T Cemetary’s Gun Blob

Uncategorized

GRPC – Day 2 – Part 2

October 2, 2010 by 1 Comment

More from Day 2 of the Gun Rights Policy Conference.

Sheldon Clare – President of National Firearms Association (of Canada) – Discussed the close vote on removing long arms (shotguns and rifles) from the Canadian Gun Registry. Noted that if it had been a truly “free” vote, it would have passed instead of losing 153-151. Rarely do party members stray from the party line on votes in the Canadian Parliament or they know they will pay the consequences from their party leadership.

Bill McGrath – legal counsel, Safari Club International – He said the biggest issue for gun owners and hunters is unelected bodies making rules, laws, and regulations. McGrath pointed to the European Commission as a prime example of this. The bureaucrats in Brussels make many rules that will eventually effect us. For example, the EU recently passed a regulation banning ammo in checked baggage. Most European countries have been allowed to opt out. However, if this regulation is adopted by the International Air Transport Association, it could impact us in the US. He pointed out the current 5 kilo limit on ammo in checked baggage is a result of the IATA.

Bob Barr – former Congressman from Georgia – Barr was the lunch speaker and spoke about the role of the United Nations on gun control. He specifically talked about the Arms Trade Treaty which the Obama Administration backs.

Tom Gresham – host of GunTalk radio and a director of SAF – Started by apologizing for dissing Californians. He noted the role of CalGuns and CRPA in changing policy in California. Some actions are to gain time and distance. For example, the sunset provision of the so-called Assault Weapons Ban bought us time to change Congress. When the Democrats agreed to that provision in 1994, they never thought they’d be out of power in 2004.

Alan Gura – attorney in the Heller and McDonald cases – noted that the SCOTUS have used substantive due process as a way to make up for screwing up on the Privileges or Immunities Clause under the Slaughterhouse cases. Had always planned to argue both substantive due process and the P or I clause in the McDonald case. You could tell he was still perturbed with the role the NRA played in taking some of his oral time in that case.

Gura later discussed the Ezell case in Chicago which is challenging the Chicago ban on gun ranges. He said when they looked at the new Chicago Gun Law, they looked for three things: low hanging fruit, annoying, and unconstitutional. The gun range ban was all three.

Donald Kilmer – attorney for Nordyke in the Nordyke v. King – Kilmer is one of the leading California gun rights attorneys. He said originally that the Nordyke case was a Pyrrhic victory as it declared the Second Amendment applied to the states but it didn’t allow the Nordykes to put on their gun show in Alameda County. Now, since the case is being re-argued in the 9th Circuit, there is a chance to get the gun shows restored on the Alameda County Fairgrounds. However, it goes beyond that since many other California counties adopted Alameda County’s ordinance, they would be overturned if Nordyke wins.

Gene Hoffman – CalGuns Foundation – Californians lost their gun rights incrementally and will win them back incrementally. Echoing what Alan Gura has said in the past, it is essential to pick the right fight with the right plaintiff. Discussed Sykes v. McGinnis which is challenging discretion in CCW permit cases. Noted that not being banned from owning a firearm and wanting to have a means of self-defense should be reason enough to get a CCW permit.

Massad Ayoob – Noted that Florida became a shall issue state in 1987. He pointed out that a lot of the grass roots groups have grown up post 1960s and post CCW legislation.

Bill Caffrey – Handgun Club of America – “Even idiots have rights” – Speaking of the AZ constitutional carry noted that no fees, no training, and no licenses may mean we have accidents or damn fools with guns. We need to encourage legislators to make it easier and cheaper to get training. By this he meant more range availability.

Alan Korwin – publisher and owner of Bloomfield Press – Noted that we should not be pro-gun but pro-rights and pro-freedom. This makes the opposition anti-rights and anti-freedom.

Gary Marbut – Montana Shooting Sports Association – The Federal government has expanded the Commerce Clause from colonial times. Discussed their case backing the Montana Firearms Freedom Act.

Nick Dranias – Goldwater Institute – Said we should look at the First and Second Amendment the same. You don’t license printing presses so you should do the same with arms.

Michael Boldin – Tenth Amendment Center – Noted that if enough states tell the Feds to lump it, the Feds back off.

Paxton Quigley – author, Armed and Female – said she had been anti-gun earlier in life. Then a good friend was raped and Quigley realized that if she had been armed, she would have been able to protect herself. Noted that the number of women who are firearms owners is growing. She discussed being interviewed for a feature in Marie Claire magazine.

Nikki Stollard – Pink Pistols – She was unexpectedly absolutely hilarious. She noted that Deana Sykes, the lead plaintiff in Sykes v. McGinnis, is the Sacramento head of Pink Pistols. The one thing the California press would hate to be seen as is homophobic. So, if the press attacks Sykes, then it is homophobic.

Dr. Timothy Wheeler – Doctors for Responsible Gun Ownership – said the scientific endeavor against gun rights (such as using the CDC) was as bad as the prejudice against guns in academia.

David Theroux – President, The Independent Institute – discussed the problems that they had with the Stanford University Press in publishing Stephen Halbrook’s book, The Founder’s Second Amendment. Ended up publishing it themselves as Stanford put up all sorts of roadblocks to stop its publication.

Unfortunately, I missed the last session of the day as the time change caught up with me.

Uncategorized

Open Carry Win in California

October 2, 2010 by 4 Comments

UOC or unloaded open carry may seem like an alien concept to those of us who live outside of California. We understand concealed carry and we understand open carry. But unloaded open carry? However, in California, due to a quirk in the law, it is legal to carry an unloaded firearm openly and to have a loaded magazine or speed-loader elsewhere on your body.

To answer the question of why one would even bother all you have to do is look at the California Department of Justice concealed carry permit statistics. While in some of the more rural counties concealed carry permits are issued regularly, in the largest urban counties you can forget about it unless you are rich or famous or both. In San Diego County for the year 2007, there were only 1,479 permits issued out of a population of 2.8 million. That is about a .05% rate. Los Angeles County is even bigger in population (approximately 10.3 million) and even stingier with their permits (1,237). However, the dubious prize winner is San Francisco with just 6 permits issued in 2007.

To protest this disparity in granting concealed carry permits, there is a burgeoning Unloaded Open Carry movement in California. Activists will carry their firearms openly and unloaded in public. One such activist is Samuel Wolanyk of San Diego. In urban areas this can cause a bit of a stir. Here is how Gene Hoffman of the CalGuns Foundation describes Mr. Wolanyk’s encounter with police in San Diego:

Nearly two years ago, “open carry” activist Wolanyk wound up looking down the barrels of two police handguns when San Diego Police officers Jody Kinsley and Troy White responded to a call of a man wearing a kilt, with a holstered gun, in San Diego’s Mission Beach area. The officers immediately exited their vehicles on arrival at the location, drew their firearms, and ordered Mr. Wolanyk to the ground.

The officers quickly determined the firearm was unloaded, had no magazine in it, with no round in the chamber, and was thus in full compliance with California law. The firearm was unloaded even though Mr. Wolanyk did separately possess loaded magazines carried in an additional pouch attached to his belt (a completely lawful activity).

Until that day, these officers had never heard of the burgeoning Unloaded Open Carry movement, in which persons entitled to possess firearms exercise their right to lawfully carry unloaded, holstered handguns (though some onerous geographic limitations do apply). One other key legal restriction on open carry in California law also exists: people must give up their Fourth Amendment rights and submit to law enforcement examination of the firearm to determine if it’s loaded. In Wolanyk’s case, however, the officers weren’t performing a loaded firearm examination; in the officers’ minds, they were responding to a “man with a gun” call and acting accordingly.

After San Diego Police Sergeant David Kries arrived at the scene, Mr. Wolanyk had hoped the officers’ errors would be competently rectified and he would then be free to go. But Sgt. Kries showed he too didn’t understand California’s complex gun laws, and arrested Mr. Wolanyk for carrying a “loaded” firearm – in direct conflict with both prior case law (People v. Clark) and common sense, which requires ammunition to be in a position from which it can be fired in order for a firearm to be considered loaded. Mr. Wolanyk was taken to San Diego Police headquarters, where it was determined that he violated no law. Two hours later, Wolanyk was back at Mission Beach with Officer Kinsley handing him back his firearm and ammunition. Neither an apology nor an explanation of why the Department hadn’t properly trained their officers was provided.

This incident led to a CalGuns Foundation funded and supported lawsuit against the City of San Diego. One goal of Wolanyk v. San Diego was to ensure that the police officers of the San Diego Police Department were properly trained regarding UOC. The other, as one might well expect, was to clear Mr. Wolanyk’s name.

On Wednesday, September 29th, the City of San Diego settled the lawsuit rather than to go to trial with it. Mr. Wolanyk received $35,000 for his improper arrest and the SDPD granted his petition for a Finding of Factual Innocence which acknowledges that they had no reasonable cause for his arrest. Along with the settlement, the SDPD will enhance their training of their police officers to prevent such improper arrests in the future. This is definitely a win for civil and gun rights in California.

Now that the lawsuit has been settled, Mr. Wolanyk has posted the details of the incident on the CalGuns forum here. If the details are accurate, and I presume that they are, it is obvious that he knew the law on unloaded open carry more than the officers and police sergeant in question.

I am not an enthusiastic proponent of open carry as I think carrying concealed helps preserve your “gray man” status and preserves your element of surprise when dealing with the criminal element. That said, I do realize that open carry works to legitimize the carrying of firearms and desensitize the general public to the sight of a gun. As some have observed, it is akin to the gay rights movement in some of their protests. You may not always agree with them but you have to admit that they have been very effective in securing gay rights. In time, I hope the same will be said for the open carry activists.