WCI v. Madison: was Police charge five "legal" open carry citizens in Wisconsin

[Conn. Trooper]

How does this play out for you and your agency in Connecticut, Sir? Under Connecticut law, nobody is allowed to carry a handgun without a permit, but with the permit any mode of carry is legal -- concealed or open. (Yes, you can verify that -- I'm told that some legal office within state government researched it thoroughly and has advised the State Police that open carry IS legal with a permit.)

So -- if open carry is legal, albeit unusual because for years police and citizens all over Connecticut have been told it is NOT legal, then how (and why) do you respond to a call about a man with a gun? If the man is simply wearing the gun in a holster on his belt, you have no probable cause or even reasonable suspicion that he is breaking the law -- certainly no more than seeing a person driving down the road and assuming they don't have a driver's license.

So ... what would you do? First, how would your 9-1-1 dispatchers handle the call? Next, assuming they'd fluff it and send a unit ... how would you approach the person? Would you even talk to him or her, or would you be satisfied to see that he/she is just drinking coffee and reading the newspaper, while wearing a handgun on his/her belt?

Many, many variables come into play in this situation. Is there a complainant? Do they wish to pursue a formal complaint? Is the person on private property and does the property owner want them there? Was it an accidental display of the firearm?

Best case scenario, speak to the party, advise them they are creating annoyance or alarm and ask them to conceal the firearm. Advise them that breach of the peace statutes cover creating annoyance or alarm.

Personally, I hope they make OC 100% legal or 100% illegal in no uncertain terms. Using breach to cover OC is not the way to go about it, IMO. I would rather see a specific statute cover OC, and that way make it less of a gray area for everyone involved. I would certainly like to be able to say
" Sir/Ma'am, carrying a weapon in public is legal per Connecticut General Statute 53a-Whatever" or "Illegal per CGS 53a-Whatever".

Simply ignoring calls from taxpayers and saying we will not respond because its not specifically illegal isn't going to happen. We respond to calls for service, it's what our citizens and taxpayers expect and pay for.

[Al Norris]

I'm going to slightly disagree here, Trooper.

The criminal statutes cover criminal activities. If an act is not within the statutes, the act is not criminal.

What we are being faced with is using the various Disturbing the Peace (DP, for short) statues to regulate otherwise lawful actions/activities that the general populace frown upon or are in some way, offended by.

I submit that DP laws were never meant to curtail actions or activities that are otherwise lawful.

Part of the problem lies within the framework of law enforcement itself. As an LE, it is reasonable to want things to be clear-cut, that is, black and white. That expectation engenders laws that state what is lawful and what is not.

Another part of the problem is that the populace wants law to define criminal action/activities, anything they find annoying or offensive.

This takes us to what we have today. A patchwork of laws being used to criminalize behavior that is actually not defined as criminal within the framework of criminal law.

[Conn. Trooper]

Granted, however there are now, and always have been "catch-all" statutes in the books. There is no specific statute for driving 90 in a school zone, thats reckless driving ie: driving to endanger. If you are causing "annoyance, panic, or alarm" thats breach of the peace. The law doesn't say how that has to happen, or what exactly can or can't be a breach of the peace. As it stands, superior courts will pursue breach arrests for OC. Does that mean I agree with it or believe that that is the best way to handle it? No. Does it levae LE and citizens often at odds and in a no wil situation? I think so.

[zukiphile]

Originally Posted by Al Norris

What we are being faced with is using the various Disturbing the Peace (DP, for short) statues to regulate otherwise lawful actions/activities that the general populace frown upon or are in some way, offended by.

I submit that DP laws were never meant to curtail actions or activities that are otherwise lawful.

I disagree. I think that is exactly what those laws are for, and that's the problem with them.

In Ohio, the infraction is called "disorderly conduct". It is a very close relative of "contempt of cop". What sort of conduct does a PO generally consider disorderly? Not doing what he wants you to do is too often all it takes.

IMO, this genre of code has real constitutional problems. A person can't really know by reading the code what will be considered disorderly before he is arrested for it.

That said, we all want some degree of public order, and your paraphrase of the ordinary sense of what is constitutional depending on what one likes is true in this situation. When people see something they don't like, they ask where the police are when we need them.

The problem is us.

[BGutzman]

The base problem is too many laws and too little freedom.

[therealdeal]

I agree, the police must investigate when receiving calls from the public. I also feel that ID's should have been provided upon request from law enforcement. That being said, 8 officers is a large police presence&there are other factors here. The two individuals who refused to show their ID's obviously feel that they for whatever reason were not going to adhere to the request. It is not illegal to have wires+recording devices in a public setting. They probably knew eventually it would come in handy. One of the individuals who refused to show his ID has already reached a settlement with the city w/regards to a similar, different situation. He is fighting for his rights and the 2nd Amendment while also making scarifices to help everyone else who doesn't have the where-with-all to deal with these 'fights'. Many lawyers are saying that within a year WI will be the 49th state to have CCW laws, but we will have to see(WI lawyers are saying this). With other important cases throughout America, you can't take away open-carry if there is no way to attain a permit to carry concealed(this was going on before this incident occured, but all parties will be waiting for the outcome of this). I do know that a lawsuit would arise if a police officer told certain individuals that open-carry is legal, but do me a favor and cover the weapon. First off, carrying concealed is illegal in WI. Second of all, said individual might have no problem adhering to this request to be flexible or make peace. He/She doesn't however have to abide by this request and can explain that his rights are being violated if he isn't allowed to OC. That is a lawsuit waiting to happen, and something that at least one of those 5 workhorses for a serious cause for human rights has some experience with.

[WeedWacker]

In context of the whole using DP as causation for infraction it seems like a realization of the expression "there ought to be a law" if an activity causes disruption in someones life. Someone stopped at a green light, someone having a BBQ pool party in the backyard with two extra families with a total of 8 kids. Someone walks into the 7-11 after a day of hunting with a S&W 29 on their hip.

[4thPointofContact]

The police can issue a citation for disturbing the peace, they can even cite you for 'eating a ham sandwich on Sunday to the detriment to the Public'. The Wisconsin Code regarding Identification reads:
968.24
968.24 Temporary questioning without arrest. After having identified himself or herself as a law enforcement officer, a law enforcement officer may stop a person in a public place for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime, and may demand the name and address of the person and an explanation of the person's conduct. Such detention and temporary questioning shall be conducted in the vicinity where the person was stopped.

The intelligent reader will note that 1) there must be a reasonable, articulable suspicion that of a crime and 2) that no identification need be produced. The Supreme Court in Hiibel v Nevda has ruled that stating one's true name is sufficient to satisfy the law.


The Wisconsin code for Disorderly Conduct
947.01
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.

The intelligent reader may well ask himself what part of enjoying an evening's repast with like company is disorderly?
The intelligent reader will note that there are specific instances listed that constitute disorderly and that the phrase 'or otherwise' is interpreted by the courts as meaning 'essentially similar to the preceding'.
When the dress code for a funeral is "black, dark blue, dark gray or otherwise somber colors", most people will not interpret bright neon green as "otherwise".


Further, the intelligent reader may well ask himself exactly what the Fourth Amendment is intended to protect against. It's not the fire department nor the local dog catcher nor the guys who pick up your recyclable trash that are asking for identification.

[therealdeal]

good point 4thcontact, a police officer has the right to give you a citation for driving one MPH over the speed limit also. Almost all will tell you that they willnot issue those tickets.

[4thPointofContact]

I think you mean 'authority' not 'right', but I understand your point.



This is going to come off as being rude, abrasive and just plain impolite, but it Needs to be said - - -

A few of you need to get your heads out of your collective fourth points of contact* and ask yourselves just what the history of the Fourth Amendment is and why there even is such a thing.

A long time ago, there were these scruffy mongrels that did things their legally constituted government didn't agree with. So they did some Very Bad Things. They killed agents of the lawfully constituted government, they humiliated and maimed tax collectors, they hung effigies of government officials, they were seditious and treasonous.
They held secret meetings, they published anti-government pamphlets openly calling for armed insurrection. They carried out espionage, sabotage and carried secret plans and propaganda on their persons. As might be expected, the lawfully constituted government wasn't thrilled and used it's police forces to quell the disturbances. At the time the idea of having full-time paid employees to perform this task wasn't really fully developed and the forces used were usually soldiers or mercenaries. In the language of the times they were the 'Red Coats' named for their distinctive uniforms.

At a later date when the traitorous citizenry had triumphed and established their own government, they wrote some rules to govern themselves by. One of those rules, an amendment to the original rules, was written to protect exactly the anti-government behavior that had caused so much trouble before.
Think about that for a moment, gentle reader. They wrote into the highest rule of their land that a person should be safe in his house, his possessions, and his person from government search or seizure without good cause.




* And you Wondered where that name came from, didn't you? Admit it. Go on, it's okay.

[rtpzwms]

Wow, disorderly conduct for standing around being calm and relaxed. When the 911 caller talks about them as calm and peaceful, then armed (pun intended) with the information that they are not breaking any laws says that in that case she "feels bad for calling" that to me sounded like a "call off the cops" message to the dispatcher.

I could see a disorderly conduct charge if they KNOWINGLY tried to get the 911 call. But having gone to the steps of the Capital (in the same town) and nothing happening I don't think that they knew it would happen. I do think that the knew it was a real possibility. There is the small difference for me at least.

I feel that the lady that called doing what she thought was right, but now most likely has the busiest phone/s in all of Madison WI. I feel for her as well, she seemed very reasonable to me, first calling in a concern and not calling it an emergency, then with new knowledge said OK then that she felt bad knowing that she would have created problems for the legal gun owners. I hope I'm wrong and people are not calling her because of her actions.

As far as abuse of power. The officer/s dropped the original charges. Now I question who made the decision to change it to charging all five suspects. That would be the person who abused the authority in my opinion. This will be a mess in courts, can the person who made the decision to charge the suspects be charged with frivolous use of the courts?


I think this is at best a win lose for Madison and Wisconsin. I think there will be a lawsuit to follow. The tax payers will lose money waisted on a legal activity. But they may be able to clarify the issue and win with the rights and reactions spelled out for the future. It could help restore or establish CCW statues. I think that would be the best we could hope for.


I would like to thank the 5 for standing up and taking one for all of us that own handguns. Without there behavior we could loose even more in our strive to establish a reasonable understanding of the 2A. For the most part I agree with what they did. I don't think I would have refused to give my id to the LEO's but that is a VERY small point. If they had given the id would none of the final steps have happened (the charging of all 5)? So they may have done the right thing by not producing id. I would love to know if they did record the conversations with the LEO's and what was really said.

[4thPointofContact]

diablo508

Red Devil, I'm distressed that you took the newspaper report of "wearing wires" at face value. What they did, and what many do when they suspect that a conflict may occur is to wear a personal recording device. In other words, a digital recorder. I've worn one myself, often when speaking to managers, customers, or subordinates when I want evidence to back-up my testimony about what transpired at a meeting.

As the "Madison 5" suspected their Constitutional rights were in danger of being trampled by the police, they took what I would consider to be the prudent step of recording events.



You cannot lure, entrap, nor bait an honest person to perform an illegal act.

[tyme]

So just so I have this straight, people here -- those who do not object to baseless ID requests from cops -- have no problem with a "Papiere, Bitte" legal atmosphere just as long as the government is not shipping people off to gas chambers?

The fact that a cop would even consider requesting ID from a citizen who is legally open carrying is clear evidence of discrimination and an attempt to suppress open carry. I believe that's conspiracy to violate civil liberties under color of law.

[DiscoRacing]

I believe that's conspiracy to violate civil liberties under color of law.

Well put!!.. I second that aspect.

[BlueTrain]

I think more people than not will put up with a very strict government if they think that's what it takes to have a civil and orderly society. Historically, they have. And as to those who would violently overthrow a democratically elected government, what sort of government do you imagine they would have then? Ah, the American Revolution! Some revolution! More like a colonial war, if you ask me. Just about the only real change was the exchange of royally appointed governors for locally elected governors. It took some time before it was realized that a little more was needed to actually run the whole country and more than one attempt at an organization.

[therealdeal]

I am definately on the side of the madison 5, but its common practice to ask for identification when responding to a call. Every call a LEO responds to is possibly a life threatening situation. Process of elimination occurs once the ID is checked: no, this man is not a fugitive from justice, no this man isn't a convicted, dangerous felon+therefore does have the right to OC, and so-on. It happens all the time when someone is pulled over as another example. No, not the person driving- the passenger(the passenger has done nothing wrong but is still asked for his ID oftentimes). It helps them with their safety to know this person isn't an escaped murderer, hiding anything of importance, etc. Treating every call w/caution is in the LEO's best interest. That being said, the 4th amendment is very important and needs to be respected when the law says it should. Those two are standing up for their rights. Its common knowledge that many LEOs commit unlawful searches&seizures.

[rtpzwms]

quoted from tyme in thread http://thefiringline.com/forums/show...=195096&page=3
One is that cops need to treat everyone as felons in case the next stopped driver is another Blackburn.

And now you ask

So just so I have this straight, people here -- those who do not object to baseless ID requests from cops -- have no problem with a "Papiere, Bitte" legal atmosphere just as long as the government is not shipping people off to gas chambers?

You can't have it both ways....If the cops NEED to treat everyone as felons then we HAVE to show id or get ready for a felony stop! Like I said I don't know that I would not have given up my id or not (double negative). And I don't know what they are investigating I hope that would come out in a friendly conversation with him/her. Most are just doing their job not trying to make things worse. I see no reason for me to make their job harder. But I've never worn any of the LEO jewelry.

I've been stopped once or twice because my car matched one they were looking for, but I've never been pulled or frisked for any stop. But I knew I wasn't doing anything wrong. And I've been let go a FEW times because I was smiling and not ****** off or giving them an attitude. Once by CHP which almost NEVER let you go once your stopped. And believe me, I was in the wrong, I was doing 90 in a 55 zone(damn that car liked high speed). He just told me to slow down and have a nice day. We even joked about the speed he clocked me at 88 but trust me it was higher than 90. And I have three witnesses.

[therealdeal]

And as to those who would violently overthrow a democratically elected government, what sort of government do you imagine they would have then?

Ah, the American Revolution! Some revolution! More like a colonial war, if you ask me. Just about the only real change was the exchange of royally appointed governors for locally elected governors. It took some time before it was realized that a little more was needed to actually run the whole country and more than one attempt at an organization

bluetrain, the American Revolution caused many, many changes and our forefathers kicked some serious butt, so I can only hope you aren't saying different above. I understand your point about the overthrowing the gov't thing here, but let's not forget what those proud individuals did for us and our freedoms.

[maestro pistolero]

As it stands, superior courts will pursue breach arrests for OC.

There is a serious problem when disturbing the peace can be used to criminalize constitutionally protected behavior. The 2A is now officially a fundamental, enumerated, and incorporated civil right that's entitled to the full protection of the law.

One could argue that holding a Nazi rally is far more disturbing to the peace than being lawfully, peacefully armed with a weapon secured in a holster.

But few would argue there is no constitutional right to hold the Nazi rally, offensive as it may be.

It's way past time for the Second Amendment to shed it's status as the red-headed step-child of civil rights. In one way, it is the MOST fundamental of rights, because self defense is the one right, without which, all other rights become moot. In other words, death nullifies all rights.

[therealdeal]

maestro, I agree 100%(referencing post just above mine). all 5 of these guys are going to get off scott free as they should

[Al Norris]

Disturbing the Peace or Breach of Peace (as it is called in common law) was an act or activity that was an offense to your liege.

There are three common law definitions. In the broadest terms, it is a crime and an indictable offense. In a more common sense, it is a minor crime that describes a disrupting effect upon the peace of the community. In it's most narrow sense, it is conduct that disturbs an individual.

It is this third meaning that has become controversial. Originally, such a disruption was not cause for arrest or other criminal sanctions. It was a petite civil offense by which the civil courts were the place for any remediation.

In early puritan America, breach of the peace was anything that was contrary to the public senses, which at that time were controlled by the majority religion. Right or wrong, that has never changed in the 13 colonies.

By the end of the 19th century, in most of the US, the various state and local governments crafted laws that made breach of the peace an infraction or misdemeanor against the public order. As a private affair, a police officer could not arrest anyone for breach of the peace unless the complainant signed a statement making a citizens arrest.

While most DP laws have remained as they were first crafted, the courts have given the offense new and broader definitions, such that they are now, as Trooper has remarked, "catch-all" laws (See General Article 134, UCMJ, for you military folks). No longer does a citizen have to sign a complaint. No longer does an police officer even have to have a viable complaint. Anything and everything can be a breach of the peace, and arrest is generally forthcoming. Let the Courts sort it out, is an applicable attitude.

There are still a few States that have statutes that the courts have not completely perverted. In CA, ID and WY, an individual must still sign a complaint (citizens arrest), else a police officer has no proper authority over the individual(s) creating the civil disturbance.

So what we can say is that originally, breach of peace laws were an offense to the Crown (or your local liege lord). Then they became an offense to the religious sensibilities of the colonists (Neither of which are applicable to Citizens of a Republic, I might add). Finally they have evolved into what they are today - When all else fails, charge them with DP.

In the instant case, we have an example of conflicting law. On the one hand, there is a lawful use of openly carrying a firearm (implicit), because concealed carry is a crime (explicit). And on the other hand is a disturbing the peace statute that allows for the persecution of an implicitly lawful act.

Trooper? In Connecticut, it is the same. Your statutes explicitly allows for open or concealed carry, via the carry permit. Yet your courts allow that statute to be voided by breach of peace law.

Seems to me that if an individual is offended, then that individual should seek redress via the civil courts. That is why they are there. Yet what we actually have are state actors who are offended that the plebes are armed and use the law to impose sanctions.

Expect that to all change in the near future.

[Aguila Blanca]

Originally Posted by therealdeal

I agree, the police must investigate when receiving calls from the public.

WHY?

See my post #16 in this thread. Why is the "investigation" not carried out by the dispatchers? As Al Norris pointed out to Conn. Trooper, that which is not illegal is ... legal. If a state wants to make open carry UNlawful, they pass a law saying that open carry is UNlawful. If they want to allow open carry, they don't pass a law saying open carry IS lawful, they just DON'T pass a law saying it isn't lawful.

So, if open carry is legal (which it is in your state, Conn. Trooper), then why must a police officer be sent to "investigate" a call of a many with a gun? If the caller cannot enunciate some activity that's at least possibly illegal, why are we wasting police resources "investigating" lawful activities? And, further to the point, if an officer (or two or three or ten) is/are dispatched, once they verify that there is no illegal activity ... why are they harassing the person?

Conn. Trooper (and everyone), here is Connecticut's statute on "Creating a Public Disturbance":

Sec. 53a-181a. Creating a public disturbance: Infraction. (a) A person is guilty of creating a public disturbance when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he (1) engages in fighting or in violent, tumultuous or threatening behavior; or (2) annoys or interferes with another person by offensive conduct; or (3) makes unreasonable noise.

How can exercising a lawful right by engaging in an action that is NOT unlawful fall under the purview of this statute? Note that before this statute can even come into play, the actor must have the intention of disturbing or offending the public. It might (or might not?) be a stretch to apply this law in the case of an event organized specifically as an open carry rally, where the intent would be to draw people's attention to ... open carry. Maybe it could be argued that this connotes an intention to upset people.

But ...one or two people sitting in a coffee shop, eating breakfast? Their intention is not to annoy or cause alarm, their intention is to exercise their Constitutional right to bear arms so they have a means of defense against assault.

Conn. Trooper, if THIS is the statute you guys are using against open carry, I hope your agency and any cities that follow your lead have deep pockets.

[tyme]

Originally Posted by rtpzwms

You can't have it both ways....

Wow... you googled for some keywords you thought would catch me in a contradiction? I said "there are two ways to look at [some situation]..." and the one you quoted was one way. I never said I agreed with that view.

[rtpzwms]

Tyme, no I googled your location and found it. I was just wondering about your location I still haven't figured it out. LOL Still friends?

But you did make a powerful point so I used it.

[BlueTrain]

Too many lawyers in this thread.