Tuesday, April 21, 2009

Van Hollen: Open carry yes, just don't bark or brandish

There has long been debate in the state of Wisconsin over the legality of openly carrying a firearm. Our Supreme Court has already ruled on the matter of concealed carry, and determined that the current ban does not violate the state constitution. But in cases wherein a person who was openly carrying a legally registered gun was arrested and charged with disorderly conduct, things have been a little murky.

So it was perhaps understandable that Attorney General J.B. Van Hollen would issue a memorandum addressing this very issue, in the hopes of clearing up some of that legal gray area.

Only, I can't quite tell if he actually managed to do that. You can read the memo here (.pdf). The gist of the note is that Van Hollen asserts the legality of open carry in the state--which we already knew. In trying to decide whether the act of open carry constitutes "disorderly conduct" or not, however, he wanders around a bit before essentially deciding that "it depends."

Which is, y'know, fair enough and all, but wasn't the point of the memo supposed to be to lay out some more solid guidelines?

The illustrious Illusory Tenant lays it out nicely for us:
Van Hollen continues:
The same concepts should apply to handguns. The state constitutional right to bear arms extends to openly carrying a handgun for lawful purposes. . . . If, however, a person brandishes a handgun in public, the conduct may lose its constitutional protection.
Now I'm lost. Perhaps the concept has remained the same, but the facts are altered dramatically for more easily portable weaponry.

"Brandish" means "wave or flourish as a threat or in display," the least disorderly of which would be "flourishing in display."

To flourish is to make an ostentatious gesture, the determination of which ostentation, I suspect, could be wildly subjective...

So a Wisconsinite may, with impunity, stiff-arm a cocked and loaded (but non-ostentatious) handgun up and down Water St. of a Friday evening so long as she doesn't "bark" at the other pedestrians?

Somehow I doubt it.
If anything, Van Hollen's memo succeeded only in maintaining the status quo. We already knew that open carry was legal in Wisconsin, and the only big problem is that many law enforcement officials slap disorderly conduct charges on people for the mere act of doing just that.

Personally, I'm not entirely comfortable with people being allowed to just march around on public property with a handgun strapped to their side (I have far less of a problem with hunting rifles), and suspect the whole issue could be cleared up by disallowing that entirely--but I'm also realistic enough to understand that that's not likely to happen any time soon.

So in the meantime, it would be wise to decide what does and does not actually constitute disorderly conduct. Mowing the lawn with your legally registered firearm holstered to your person? Being that you're on your own property, I would definitely agree that that's hardly disorderly. But when someone takes a piece out into the public sphere? Kind of ridiculous and, I would agree, worthy of some attention by police.

Gun rights advocates, like John Pierce, a founder of OpenCarry.org, often argue that the act of open carry is a political one, done to make a point: "People who open carry do not do so to get attention. They do so to make a political point, in many cases, just like a same sex couple going out of their way to hold hands in public."

First of all, you have to go way more out of your way to carry a gun than to hold someones hand, and same-sex PDA on its own cannot be used as a weapon in an argument or lead to someone getting accidentally shot. So I'm not entirely sure the two are exactly analogous.

Secondly, if "people who open carry do not do so to get attention," then they're naive. Lugging around a weapon will always draw attention to yourself, whether it's a handgun, a rifle, or a sword. To think otherwise is just silly. But I believe him when he says that it's also done to make a political point, and in Wisconsin, they have that right.

Just as our police have the right to ask them a few questions about what they're doing packing while shopping at Menards.

It seems like what this comes down to is the need for more discretion--by both sides--and far clearer language in the law. Not just a memo.

(photo by barjack on Flickr)


Cam said...

"So a Wisconsinite may, with impunity, stiff-arm a cocked and loaded (but non-ostentatious) handgun up and down Water St. of a Friday evening so long as she doesn't "bark" at the other pedestrians?"

I would argue that a cocked gun would constitute brandishing. So while one would be allowed to carry a loaded firearm the act of cocking the gun, in the case of a gun with an exposed hammer would not be wise.

Emily said...

I would argue right alongside you. And that's my point: If Van Hollen was setting out to clear up what does and does not constitute disorderly conduct with an openly carried firearm, he did a piss poor job of it.

Mike Stollenwerk said...

Everybody needs to read the AG memo closely - police are not authorized to conduct 'stops" of people just because they are open carrying a gun, no more than if they are open carrying a cell phone. It's called the Fourth Amendment.

Wisconsin is like most states - open carry allowed without any permit at age 18.

Emily said...

But Mike, that's not what the memo says. It rather explicitly states that a person openly carrying a gun, even if legally registered, can be subject to police stops and questioning.

"...several law enforcement agencies have asked whether, in light of Article I, § 25, they may stop a person openly carrying a firearm in public to investigate possible criminal activity, including disorderly conduct. We say yes. An officer may stop and briefly detain a person for investigative purposes (known as an investigative or Terry stop) if he has “reasonable suspicion,” based on articulable facts, of criminal activity."

That "reasonable suspicion" is based on the "totality of the circumstances" so often mentioned in the memo, referring to whether or not the person is, say, on public or private lands and whether there are other people around, etc.

IsmaelTapiaII said...

The problem isn't with the Constitution or with the memo but with s. 947.01. The Disorderly Conduct statute is absolutely ridiculous in its breadth and ambiguity. Setting aside for a moment the issue of whether openly carrying a gun constitutes DC, think about all the possible conduct that violates that statute. A client of mine was charged with DC after she and her mother got in an argument inside their home and she threw a plate into the sink. The DC statute lends itself to overbroad misinterpretations.

Adding guns back into the mix makes things murkier, and it makes it that much harder to come up with the bright-line rule you seem to want. It seems clear now that mowing your lawn while carrying a holstered gun is legal. I would argue--and the memo seems to agree--that walking down a public sidwalk with a holstered weapon is also legal under the DC statute. But what if you're running down the sidewalk? What if you're running down the sidwalk and someone else is running in the same direction and slightly ahead of you? What if you're in your yard cleaning your gun?

Given the DC statute and the infinite number of possible scenarios, it doesn't seem that anyone can give a more specific answer than "it depends." The Illusory Tenant is overthinking it. The DC statute cannot be analyzed in the way he seems to believe that it can be. You can't look at some conduct and decide whether it's DC without also looking at when and where the conduct happened.

Further, the memo's conclusion that openly carrying a gun might, sometimes, maybe constitute DC but not when there isn't something in addition to the carrying going on is obviously not a foregone conclusion. Just ask that guy in West Allis.

illusory tenant said...

"The DC statute cannot be analyzed in the way he seems to believe that it can be."

Huh? I was using Van Hollen's own hypotheticals. My point was that they were inartfully constructed, and sent a confused and confusing message precisely opposite to their intended purpose.

Check out the almost uniformly negative reaction this morning, particularly from law enforcement. It was to be expected.

John Foust said...

It's just a memo. It's not a full-blown "OAG" opinion of the Attorney General, which would carry more weight. VH waffled to reporters on this point when he released it. He knows this. Maybe he used a memo as opposed to a full OAG because he's not confident, but he wanted to appease a certain constituency. Or maybe he'd like a few more test cases. Read the memo's footnote:

"This informal Advisory Memorandum does not constitute a formal opinion of the Wisconsin Attorney General or the Wisconsin Department of Justice under Wis. Stat. § 165.015(1). The Department offers this Advisory Memorandum for educational and informational purposes only. It does not prevent the Attorney General, the Wisconsin Department of Justice, or any Wisconsin district attorney, special prosecutor or municipal prosecutor from bringing any particular charge or making any particular argument in the course of litigation. It does not create any rights beyond those established under the constitutions, statutes, regulations and administrative rules of the United States of America and the State of Wisconsin."

Or to steal an explanation from another VH press release:

"Opinions of the Attorney General provide guidance about the meaning and application of Wisconsin law, and are often requested where Wisconsin appellate courts have not definitively answered a question or to address legal questions that are unlikely to be resolved in the course of judicial proceedings. Though Wisconsin courts do not have any obligation to follow an interpretation provided by a formal opinion of the Attorney General, they often will. As the Wisconsin Court of Appeals has written, “Well-reasoned attorney general’s opinions have persuasive value when a court later addresses the meaning of the same statute.”"

gollbladder13 said...

Cam -

Look all you want. There is no WI law, ordinance, annotation, etc. that addresses the topic of brandishing. It is because of the unclear and un-thought-out laws here in WI that I always keep my firearm holstered unless absolutely necessary. A "cocked" (loaded - some guns don't have hammers) gun is NOT brandishing if it is in a holster.

Like John said, it's just a memo. It's not the law. I don't mind of somebody questions me about my carrying as long as it does not violate my rights.

To stop somebody and arrest them for legally carrying is ridiculous. Could you imagine the outcry if a same-sex couple were arrested for holding hands in public?

The Lost Albatross