2/20/2009 9:07:00 AM
Judge finds Krause not guilty in open carry tangle
Constitution ‘trumps’ state law, municipal ordinances
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.
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."
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."