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Old February 18, 2009, 09:54 PM   #1
Gary L. Griffiths
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Wisconsin Open-Carrier found Not Guilty!

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."
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Old February 19, 2009, 07:52 AM   #2
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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.
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Old February 19, 2009, 12:27 PM   #3
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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.
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Old February 19, 2009, 03:06 PM   #4
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So you just want the 911 operator to make the determination as to which calls the police respond to or not?
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Old February 19, 2009, 03:14 PM   #5
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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.
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Old February 19, 2009, 03:59 PM   #6
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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.

Last edited by maestro pistolero; February 19, 2009 at 04:16 PM.
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Old February 19, 2009, 05:25 PM   #7
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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.
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Old February 19, 2009, 06:26 PM   #8
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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:
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Old February 20, 2009, 03:14 PM   #9
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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....
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Old February 20, 2009, 04:00 PM   #10
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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.

Last edited by shortwave; February 20, 2009 at 06:12 PM.
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Old February 24, 2009, 10:38 AM   #11
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Can his arrest record come back to haunt him in any way? gg
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Old February 24, 2009, 10:42 AM   #12
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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.
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Old February 24, 2009, 10:47 AM   #13
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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.
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Old February 24, 2009, 11:25 AM   #14
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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.
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Old February 24, 2009, 08:45 PM   #15
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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".
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Old February 25, 2009, 03:03 PM   #16
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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.
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Old February 25, 2009, 03:15 PM   #17
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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.
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Old February 26, 2009, 01:11 AM   #18
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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.
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Old February 27, 2009, 11:12 AM   #19
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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.
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Old February 27, 2009, 04:27 PM   #20
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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.
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Old February 27, 2009, 07:45 PM   #21
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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
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Old February 27, 2009, 08:28 PM   #22
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It's a BS, catch all charge that can be used when there is no law broken. Like vagrancy, or loitering.
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Old February 27, 2009, 08:31 PM   #23
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EXACTLY!:barf:
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Old February 27, 2009, 08:36 PM   #24
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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.
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Old February 28, 2009, 04:24 AM   #25
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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.

Quote:
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.
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