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.