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4/24/2009 9:37:00 AM
Attorney general Van Hollen says open carry is legal
In abrupt turnaround, Van Hollen cites constitution

Richard Moore
Investigative Reporter

Attorney general J.B. Van Hollen surprisingly reversed course Monday on the issue of openly carrying firearms in the state of Wisconsin, issuing a memorandum that the practice is legal and should not be automatically construed by police as disorderly conduct.

Van Hollen laid out his opinion in an April 20 advisory memorandum to state district attorneys.

Just last November, the attorney general's office had rebuffed a state legislator who had asked for an opinion after more police departments began making disorderly conduct arrests for open carry without any other behavior associated with the charge.

At the time, Van Hollen's office cited procedural reasons - many requests for his opinion were coming from private citizens, not government officials - ongoing litigation that an opinion might affect, and the ability of the attorney general to direct a district attorney's exercise of charging discretion.

Van Hollen's decision not to get involved drew criticism from open-carry advocates and officials alike, including the judge who found West Allis resident Brad Krause not guilty on an open-carry disorderly conduct charge in February.

"The attorney general declined to weigh in, I read in the newspaper," Murphy said at Krause's trial. "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.

But this past week, Van Hollen struck an entirely different tone, issuing an authoritative, though informal, advisory opinion.

"It is not unlawful, barring other facts and circumstances, to openly carry a firearm in Wisconsin," Van Hollen said. "This is offered as guidance to Wisconsin's prosecutors when making charging decisions. It will also assist Wisconsin law enforcement in the exercise of their duty to keep the peace, protect rights and enforce the law."

Van Hollen's reasoning

The starting point for the attorney general was the state's constitution, which he said guaranteed citizens the right to openly carry firearms, subject to reasonable regulation.

"The Wisconsin Department of Justice believes that the mere open carrying of a firearm by a person, absent additional facts and circumstances, should not result in a disorderly conduct charge from a prosecutor," Van Hollen wrote.

The attorney general said the procedural reasons for his earlier decision not to issue an opinion had vanished as multiple prosecutors had appealed to him for clarity, while the opinion's informal nature did not carry the same legal significance as a formal one, in that it would not affect litigation or infringe upon the jurisdiction of various district attorneys.

"The Department offers this advisory memorandum for educational and informational purposes only," the attorney general wrote.

That said, Van Hollen articulated his reasoning, beginning with the Supreme Court's view of the state's disorderly conduct statutes, the contours of which emphasized the interrelatedness of conduct and circumstances, he wrote.

According to Van Hollen's interpretation of the High Court, what is disorderly conduct in one circumstance might not be in another.

" The decision to charge a defendant with disorderly conduct necessarily depends on the totality of the circumstances," Van Hollen stated. "Reasonableness, not bright-line rules, should guide your decision."

Practically speaking, he continued, even the exercise of a constitutionally protected right could prompt a disorderly conduct charge if it crossed a certain line - for example, certain categories of speech that would be"likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest."

" Applying these principles to open carry matters, we recognize that under certain circumstances, openly carrying a firearm may contribute to a disorderly conduct charge," Van Hollen stated. "But this determination must take into account the constitutional protection afforded by . . . the Wisconsin Constitution."

For example, Van Hollen stated, a hunter openly carrying a rifle or shotgun on his property during hunting season while quietly tracking game should not face a disorderly conduct charge.

"But if the same hunter carries the same rifle or shotgun through a crowded street while barking at a passerby, the conduct may lose its constitutional protection," he stated.

The same concepts should apply to handguns, Van Hollen asserted.

"The state constitutional right to bear arms extends to openly carrying a handgun for lawful purposes," he wrote. "As illustrated by a recent municipal court case in West Allis, a person openly carrying a holstered handgun on his own property while doing lawn work should not face a disorderly conduct charge. If, however, a person brandishes a handgun in public, the conduct may lose its constitutional protection."

Again, Van Hollen stated, it is the combination of conduct and circumstances that is crucial in applying the disorderly conduct statute to a particular situation.

Finally, the attorney general stated, several law enforcement agencies had asked whether they could stop a person openly carrying a firearm in public to investigate possible criminal activity, including disorderly conduct.

The answer to that, Van Hollen stated, is 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," the attorney general wrote. "The existence of reasonable suspicion depends on the totality of the circumstances, including the information known to the officer and any reasonable inferences to be drawn at the time of the stop."

Even though open carry enjoys constitutional protection, Van Hollen emphasized, it may still give rise to reasonable suspicion when considered in totality and is not a shield against police investigation or subsequent prosecution.

Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, [and] ask to examine the individual's identification, as long as the police do not convey a message that compliance is mandatory, Van Hollen observed.

"The Fourth Amendment does not prevent police from making voluntary or consensual contact with persons engaged in constitutionally protected conduct," he wrote. "Accordingly, a law enforcement officer does not violate the Fourth Amendment by approaching an individual in public and asking questions. An officer may approach and question someone as long as the questions, the circumstances and the officer's behavior do not convey to the subject that he must comply with the requests. The person approached need not answer any questions. As long as he or she remains free to walk away, there has been no intrusion on liberty requiring a particularized and objective Fourth Amendment justification."


Reaction to Van Hollen's opinion was immediate if varied. Open-carry advocates hailed his words.

"AG Van Hollen's opinion is spot on," OpenCarry.org co-founder Mike Stollenwerk said, "and is consistent with other state AG opinions."

But the group says two major problems still need to be resolved for open carriers in Wisconsin - the ban on carrying openly in vehicles and a 1,000-foot school zone gun carry ban.

Meanwhile, Gov. Jim Doyle said local communities should be able to adopt their own ordinances relating to guns, according to the Milwaukee Journal Sentinel, while WISN of Milwaukee reports that Milwaukee police chief Ed Flynn has told his officers to ignore the attorney general and if they see anybody carrying a gun to "put them on the ground, take the gun away and then decide if the person has a right to carry it."

Rep. Leon Young (D-Milwaukee), is reportedly drafting legislation to change or clarify state law to prevent people from openly carrying weapons.

Reader Comments

Posted: Monday, August 10, 2009
Article comment by: James Coston

Being a Texan, I have a carry permit, naturally !
We are coming to Wisconsin next month for a couple of weeks. I wrote to and recieved a reply from the AG's office which indicated that I should take the clip out and put the 9mm in a case (leave it close at hand) while I am traveling thru the State, which is what I will do to avoid running afoul of the Law.
The few seconds required to make it operationl is not that big of a deal. Appreciate the article, it is what caused me to write the letter, for my legal protection while in your State.
Respectfully, James Coston

Posted: Monday, April 27, 2009
Article comment by: Dan

Why on Earth do you need to carry a gun with you when out in the community. What have you done that could possibly warrent the need to carry a gun in public?

Posted: Friday, April 24, 2009
Article comment by: Van E Vergetis

The Open Carry problem and questions go back to the 50's.
The City-State governments did nothing to enact a Law against Open Carry or allow it.
The Disorderly Charge was-Tending to cause a commotion.
The one problem with the Van Hollen opinion was the one that say's that an individual can not be stopped due to Open Carry.
The reason that the Police can stop and question the person with the gun is as follows.
To determine if he or she is under Court or State Law which states that they cannot be in posession of a Weapon(gun).
My letter is only intended to offer reasons why a Police Officer can stop a person with a Gun.Not to take a position regarding Open Carry

Posted: Friday, April 24, 2009
Article comment by: Gene German

Wis. Stat. 941.23 is Wisconsin's 137 year old open carry law. The only difference in how a citizen could carry their gun from 1871 until 1873, was that in 1872 the legislature decided we can no longer carry guns concealed, leaving open carry as the only lawful manner to carry.

Since 1998,the states constitution clearly protects your right to (openly) carry.

This is a perfect harmony.

If Rep. Young believes his idea for an outright prohibition of your ability to exercise your newfound right is constitutional, I say, bring it on Leon. Chief Justice Shirley Abramson said in Hamdan that "Article I, Section 25 does not establish an unfettered right to bear arms. Clearly, the State retains the power to impose reasonable regulations on weapons, including a general prohibition on the carrying of concealed weapons. However, the State may not apply these regulations in situations that functionally disallow the exercise of the rights conferred under Article I, Section 25."

We'll see you in court.

Posted: Friday, April 24, 2009
Article comment by: Steve

"...Milwaukee police chief Ed Flynn has told his officers to ignore the attorney general and if they see anybody carrying a gun to "put them on the ground, take the gun away and then decide if the person has a right to carry it."

This sounds like an excellent way to get the department swamped with lawsuits.

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