As conflicts over of the open carry of firearms mushroom in the state, Wisconsin attorney general J.B. Van Hollen is declining to issue a legal opinion about whether the practice is legal.
In a Nov. 6, 2008, letter to then state Rep. Terry Musser (R-Black River Falls), deputy attorney general Raymond Taffora acknowledged a number of requests for just such an opinion, as well as a growing number of arrests for carrying firearms in plain view, mostly on the charge of disorderly conduct.
On behalf of an unnamed constituent, Musser had specifically asked for an opinion about the open carrying of firearms for personal defense, but Taffora told him there were prudent legal reasons for the attorney general not to get involved.
For one thing, Taffora said, many requests for a formal opinion had been prompted by disorderly conduct charges brought by district attorneys. In general, he wrote to Musser, private citizens wanted an opinion to cite at trial or at the appellate level to defeat the charge.
There are procedural reasons not to give them those citations, Taffora wrote.
First, he noted, state statutes provide that the attorney general can only provide formal opinions to the governor, the Legislature, state officers and agencies, corporation counsels, and district attorneys. The attorney general cannot issue formal opinions to cities, towns, villages or other municipal attorneys or private citizens.
"We also discourage authorized requestors from acting as proxies for private citizens seeking a formal opinion," he wrote. Musser was in fact acting as such a proxy when he asked for the opinion.
"The reason they (the attorney general's office) blew Musser off, I think, is that if J.B. says open carry is in fact lawful and then West Allis appeals, the state will be representing the city and he's going to end up creating a problem for himself defending the city's actions when he has already said what Brad did was lawful. So he's not going to put himself in jeopardy and open his mouth, although he should."
Whatever his motivation, the attorney general certainly has a surfeit of case law and DOJ briefs to form an opinion, if he chose to do so.
As German alluded to and The Lakeland Times has reported, both Doyle, as attorney general, and the Supreme Court recognized open-carry rights in State of Wisconsin v Hamdan, in which the High Court carved out a concealed weapon exemption for small storeowners.
In a brief signed by Doyle, the Department of Justice argued against the exemption, citing the ability of citizens to already possess and carry an open weapon: "The State argues that even under the strictest enforcement of the [concealed carry] statute, a person lawfully in possession of a firearm will always retain the ability to keep the firearm in the open - holding the weapon in the open, keeping the weapon in a visible holster, displaying the weapon on the wall, or otherwise placing the weapon in plain view," the court stated in summing up the DOJ's brief.
In her dissent of the final decision, chief justice Shirley Abrahamson went even further.
"That is, [the law] does not prevent anyone from carrying a firearm for security, defense, hunting, recreation, or other lawful purposes," Abrahamson wrote. "Rather, it limits the manner of carrying weapons, by requiring that a weapon that is on a person or within a person's reach not be concealed. The gist of the offense is the concealment."
What's more, the state Supreme Court has already ruled on what can be and cannot be considered disorderly conduct, in the case, State v. Douglas D.
"To prosecute a defendant for a violation of this statute, the State has the burden to prove two elements," the court determined. "First, it must prove that the defendant engaged in violent, abusive, indecent, profane, boisterous, unreasonably loud or similar disorderly conduct. Second, it must prove that the defendant's conduct occurred under circumstances where such conduct tends to cause or provoke a disturbance. Under both elements, it is the combination of conduct and circumstances that is crucial in applying the statute to a particular situation."
How the very act of a carrying a visible legal firearm fits or does not fit that judicial criteria is a matter screaming for clarification.
With the attorney general on the sidelines, that will likely happen in court, probably the Supreme Court, and take months, if not years. In the meantime, more open carry arrests for disorderly conduct and more contested court cases can be expected.
Read the article here. If memory serves, like Wisconsin, the Ohio Supreme Court had held that the prohibition on concealed carry did not violate the Ohio state constitution due to the availability and legality of open carry. And as I recall, Ohio concealed carry advocates held a number of open carry marches during their successful fight to get a concealed carry law passed.
Perhaps it's time for Wisconsinites to organize a similar process, with sympathetic news organizations (and their video cameras) on hand to record any peaceful marchers getting arrested on these ridiculous disorderly conduct charges, and pro-gun rights attorneys on hand to any fight such unfounded charges, and (just as important) sue the offending LE agencies and municipalities for civil rights violations.