Open Carry Lawsuit in Wisconsin

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.

Open Carry Win in California

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.

Robbed while Open Carrying?

Man Legally Carrying Gun Robbed at Gunpoint

In Milwaukee, Wisconsin, a man was robbed at gunpoint while legally open carrying. Since Wisconsin is one of only two states without any sort of concealed carry law, open carry was his only option. The reporter of this story wants to make it seem like he was targeted since he was open carrying which I think is doubtful

It is a shame this article didn’t go into the specifics of just how he was held up. I will go out on a limb and say this incident points out the need to for two things – situational awareness and more training.

Hat tip to Say Uncle.