Tuesday, September 10, 2013

WI:Appleton Officers Violate Rights of Two Open Carriers on Tape

Charles and Ross had AR-15 type rifles like this one slung over their shoulders

Last Saturday, the seventh of September, Charles and Ross were exercising their constitutional rights to bear arms under both the U.S. Constitution and the Wisconsin state Constitution.  Neither had been involved in this sort of activism before, but from reading open carry forums had decided that carrying a video camera as well as their firearms, would be a prudent precaution.

They did not expect trouble.  Open carry has been well established in Wisconsin.  Open carry has always been legal, and in 1998, after a long and difficult amendment process, Wisconsin citizens cemented this long standing right into the State Constitution with 74 percent of the votes cast in the referendum.

The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose

Over the last 5 years, open carry has been tested in the courts.  Several lawsuits have ended in settlements to open carriers including cases in Wisconsin.   The State Attorney General issued an opinion that open carry did not constitute disorderly conduct, because police were abusing the disorderly conduct law in order to arrest open carriers.

Considerable numbers of newspaper, broadcast, and Internet articles were devoted to the issue, which became one of statewide interest in the 2010 elections.  After the elections, in 2011, the Wisconsin government clarified the law to insure that the Constitutional rights would be protected.

Included in the reforms was a section that specifically excluded open carry as disorderly conduct, and provided for a $500 fine and or a month in jail for officials that used excessive force based solely on the persons status as a concealed weapon licensee. 

In spite of the statewide debate, several court settlements, the AG opinion, and the shall issue law with special provisions protecting open carry, the most charitable thing that can be said of some officers in Appleton, is that they were not paying attention.

As Charles and Ross were walking down the street with slung rifles and holstered pistols, some of Appleton's finest approached them, pointed at least one loaded rifle at them, and demanded that they move up against a wall.  Ironically, it is likely that the rifle pointed at them was an AR-15 clone.  (about :35 seconds into the video)

Note that at this point there is no reasonable suspicion of any law being broken.  There is no probable cause.  No gun (other than the officers) has been pointed at anyone.  The audio and video recorder is running.  Open carry has been specifically defined by law in Wisconsin as not being disorderly conduct.

Charles and Ross cooperate with the police, though they have little choice with loaded guns pointed at them.  They answer questions.  They have, but do not require concealed carry permits, because they are not concealing any weapons.

The officers handcuff them and place them in the back seat of one of the squad cars.  One of the officers takes the video camera and turns off the video while allegedly attempting to erase the recording.  This in itself is a violation of the open carriers First Amendment rights.  The Seventh Circuit has ruled that you have a First Amendment Right to record police in the performance of their public duties.

While the officer turned off the video recording, he did not find the right sequence to turn off the audio recording.  The camera was then taken to another police car where the police discussed possible charges against the open carriers.

It is clear that they do not like the idea of people carrying rifles openly, though why is not so clear.   At about 6:52, one officer mentions that they have Charles and Ross' wallets and CCW permits, removing any doubt that they realize that Charles and Ross are not breaking any laws.

It appears that there are at least four officers involved.  At 12:28, one officer, who appears to be the one who impounded the camera, says, "This ain't going on on YouTube"  making clear the intent to violate the First Amendment.

At about 14:05 on the recording, the officers mention the Madison case, showing that they know about the settlement favorable to open carry reached in that case, which occurred even before the protections of open carry in act 35 went into effect.

The officers consider checking the serial numbers on the firearms.  They have no  probable cause to do so, but one of them says its "Worth a try" (20:10).

At 21:10, one officer mentions "Those are Sig Sauers"   "Those are good firearms."

At 34:30,  an officer decides to run the CCW permits again, to see if they are still valid.  Note that this is over half an hour after Charles and Ross were handcuffed without any reasonable suspicion or probable cause.  It is clear that the officers are fishing for something to arrest them on, but they cannot find anything.    There is no reason to run the permits, because Charles and Ross were not concealing any weapons.

At about 41:00, the permits come back valid.

At about 42:40, one of the officers says that they are all right to go.

There are some apologies, and Charles and Ross are released after 45 minutes in detention, most of the time in handcuffs.

How many of the Bill of Rights were violated in this incident?

First Amendment: already covered, the police had no right to stop the video or impound the video camera.    The intent to prevent publishing of the recording was itself recorded.

Second Amendment:  They had guns pointed at them, were handcuffed and held, and their other rights violated because they were exercising their Second Amendment rights.    A clear desire to chill the exercise of those rights was expressed by the officers and recorded.

Fourth Amendment:  They were detained without reasonable suspicion of a crime, there was no probable cause to hold them, the serial numbers of their guns were entered into national databases without any probable cause to do so.

Other cases where people had police point loaded guns at them without cause have resulted in settlements of $15,000 or more. 

Perhaps the Appleton P.D. will learn from others mistakes, settle quickly, and offer  much needed remedial training for its officers as part of the settlement.

Link to YouTube video, about 5 minutes

Link to full audio recording, 46 minutes

 ©2013 by Dean Weingarten: Permission to share is granted when this notice is included.

Update: I have been informed that the tape is ambiguous about whether the handguns were concealed or not.  It is possible that they were legally concealed.   I am investigating.

10 comments:

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Wireless.Phil said...

Newtown Unanimously Adopts New Firearms Ordinance


NEWTOWN, Conn. September 10, 2013 (AP)

http://www.newstimes.com/local/article/Firearms-ordinance-finally-approved-4799933.php

Jamie Nelson said...

I’m no lawyer, but listening to the audio, I heard violations of these amendments to the Constitution.
1st turned off video recorder
2nd seized firearms
4th searched person and property without cause
5th Held for a nonexistent crime
6th Denied a lawyer
Possibly the 8th for aiming rifles at you in a threatening manner
9th Because you are exercising your rights, does not mean you give up other rights.

Anonymous said...

Doh ! Appleton's PD sure 'elevated' themselves to a new low with this one. Many people outside WI have a (undeservedly) dim wiew of Wisconsinites as being a bunch of beer-swilling, cheese-chomping dolts. Appleton PD didn't do anything to help improve this perception.

jake said...

I'm progun...but carrying around 2 ar's and two pistols walking around is stupid. for protection in APPLETON Wisconsin!!! Protection from what? Indians? The police saw something, investigated it throughly, followed the law and released them. Lots of people carry around ar's and video cameras( google Osama bin laden or columbine) When I go out to eat downtown Appleton I don't wanna see some yahoo carrying around guns "protecting everything". The cop didn't want to be on YouTube...who does? If your that worried about your protection and your 45 minutes of time, you should probably stay home. Your rights are there for you to use, not flaunt. If you have a cp use it your actually safer.

Anonymous said...

What is even worse is that on the Appleton P.D. site they post some info on CCW and in it they mention that open carry and CCW are not disorderly conduct unless there is malicious or criminal intent.

http://www.appleton.org/i/d/police/ccw_frequently_asked_questions_7-1-13.pdf

Anonymous said...

^^^^ that spammer was published

Ms. said...

Some more points:

At about 1:00 the officer who says "I'll cover them both" is holding a rifle pointed at the 2 victims.

1:45 victim 1 tells an officer he has a "permit".

2:50 "put 'em in handcuffs, guys!"
This despite having no indication of illegal activity.

5:18 (over the radio) "no wants, valid ccp"
At this point, they knew that the 2 victims have valid concealed carry licenses.
So the next 40 minutes or so were all opinion enforcement.

7:33 "it's takin' the Second Amendment a little bit far
8:29 "you have a right to carry but I said however I said you cross the line to disorderly conduct when you're walking toward a busy farmer's market"
8:38 "there's a fine line … between Second Amendment rights and disorderly conduct"
8:42 "crossed the line"

8:48 "who wants to interview my burglary suspect?"
[So they have actual crime to deal with, & by now they know the victims have valid cc licenses.]

16:20 "Wisconsin concealed carry law... little paper all highlighted [laughs]"
[Why is a citizen trying to be informed something to laugh at?]

17:52 tries to influence someone from the farmer's market into banning these guys
FYI, it's open-air on public streets, no buildings, no barriers, no admission fee, so there is no legal support for this opinion of his that anyone at the event can ban these citizens

19:57 "this'll be a lawsuit"

apx. 21:40 they indicate they will find where one victim's car is parked and ticket him. They also tried to convince Walgreen's to say they ban LACs, and the manager wouldn't. He was all in support of the 2 victims.

23:26 "they weren't bein' mouthy were they?"
[And this would matter why? "Being mouthy" is not a crime.]

23:38 "should know better, he's 26"
[So none of the officers are older than 26, because they don't know any better than to try to deprive a couple citizens of their rights?]

24:16 & 24:48 they comment on the victims having contact info for a lawyer

26:40 another admission that they realize there will be a civil rights lawsuit & the city will lose

28:24 & 31:29 orders the un-handcuffing of the 2 victims

32:17 - 32:35 officers talk about going to Milwaukee (a major city about 90min away) and handcuffing people

33:55 officers run the cc licenses again
Why? Did they really think something would change in the last 28:27 while the victims were cuffed & stuffed?

36:34 why does the officer need the victims to tell him the make & caliber of firearms, the brand of camera?

38:38 "you guys both from Wisconsin?" [they already know that, as of apx. 10:00!]

"What was with the Utah ID?" [he means the UT permit, and what does it matter?]

40:09 & 40:20 pressing for a reason

41:25 once again, it is confirmed that both carry licenses are valid

41:46 asks if the victims were fingerprinted

44:43 "I just think we wanted to see if they were stolen"
[in answer to why the serial numbers were run; he goes on to claim it's "just another perspective" and gives the impression that it's standard procedure]
Unless they have RAS that the firearms are stolen, they're not allowed to do that search.

*****

Why is the one officer so curious about if the guns are loaded or not?
What difference does it make?
And they are obviously not aware of the DC statute, nor the trespassing statute.

I'm looking forward to seeing how big of a check the city has to cut to the victims.

Wireless.Phil said...

I see a problem here.

How did this go from "open carry" to "concealed weapon licensee".

As stated in this paragraph from the article.

Included in the reforms was a section that specifically excluded open carry as disorderly conduct, and provided for a $500 fine and or a month in jail for officials that used excessive force based solely on the persons status as a [concealed weapon licensee].""

Dean Weingarten said...

I see your point. The police found out very early that they were CCW holders.

Later on, they continued to hold them while they checked and rechecked the CCW licenses.

Maybe the civil rights activists in Wisconsin will be able to add "or legally carrying weapons" to the statute.