Monday, December 16, 2013

WI:Update on Arrest for Open Carry on "Disorderly Conduct" and "Obstructing"





On 23 July, 2013, Mark J. Hoffman of Somerset, Wisconsin, was arrested for legally openly carrying firearms. The charges were disorderly conduct (DC) and obstructing. Here is the original Gun Watch article. Now it is reported that the charges were dropped by the DA. A blogger was able to get an interview with the police chief. Here is the report:
On July 24th, 2013, a Somerset Wisconsin man narrowly avoided becoming case law after being stopped by police while openly carrying an AR-15 slung over his shoulder and a handgun in a hip holster. I spoke to Chief Doug Briggs, of the Somerset Police Department who declined to identify the subject, later identified as Mark J. Hoffman, stated that he [Mr. Hoffman] was very respectful to officers, invoked his fifth amendment rights and refused to answer any questions, only telling the responding officers only that he was "within his rights." Chief Briggs also identified Mr. Hoffman as a graduate of Somerset High School. Because the officers could not verify that he was permitted under law to possess weapons within the 1000' radius, he was subsequently arrested for obstruction and disorderly conduct. His case was then deferred to the St. Croix County District Attorney's office, which declined to press charges, citing Mr. Hoffman's right against self-incrimination. No word yet on the outcome of the obstruction charge or whether Mr. Hoffman's weapons were confiscated.

My own thoughts on this? That irony of that shirt cracks me up! But if one is knowingly, as Mr. Hoffman must have been, within a school zone, the police have probable cause to demand ID and inquire about a CCL, and that Mr. Hoffman is very fortunate to have an ethical prosecutor review his case.
My thoughts about this case are a little different. If the charges were dropped by the DA, then they were dropped. No obstruction charge exists. It appears to me that the police had no probable cause, not even a reasonably articulable suspicion that a crime was being committed. It is far from clear that Mark Hoffman "knowingly" was within 1,000 feet of a school, and Wisconsin law does not require Concealed Carry Weapons (CCW) permit holders to show ID (or the permit to police if they are not carrying a concealed weapon). To violate the 1,000 foot school zone, it must be done "knowingly". In any case, the firearms were being carried openly, not concealed.
A licensee or out-of-state licensee who is carrying a concealed weapon must display the license and photo identification to a law enforcement officer upon the request of the law enforcement officer while the law enforcement officer is acting in an official capacity and with lawful authority.  Wis. Stat. § 175.60(2g)(c).  
Failure to display the license to a law enforcement officer is a $25 forfeiture.  Wis. Stat.  § 175.60(17)(a).
Wisconsin law specifically states that openly carrying firearms is not disorderly conduct. The law was changed because of numerous instances of law enforcement agencies harassing people openly carrying firearms, charging them with disorderly conduct.

At best, they saw someone doing an activity that required a license. A CCW permit is an exception to the law that makes it illegal to knowingly carry firearms within 1,000 feet of a school. The police are not allowed to assume that someone does not have a license, unless that is part of the law in question. There is no such assumption in Wisconsin CCW law. Just because you are driving, which requires a license, the police do not have cause to stop you and see if you have a license.

If the police refuse to return the firearms, a lawsuit may be required. Police should never be allowed to get away with legalized theft in these cases.

I will continue to work at finding out more about this case and the outcome. If there is litigation involved, it could take quite a while.

People such as Mark Hoffman should be applauded for taking the risks that others are not willing to take, in order to uphold our constitutional rights. If we are afraid of exercising our rights for fear of arrest, we have already lost those rights. Others have done as Mark has, and Police have been required to retrain and to pay out settlements. For a hundred years, the public has been propagandized into believing that it is not socially acceptable to exercise your second amendment rights. It will take some years of education to remove that conditioning.

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




6 comments:

Nathan Pieters said...

Unfortunately, Federal law states that it is a felony to carry any gun inside a school zone. I would love to see every state have a preemption and the repeal of the GFSZ laws. If only serves to disarm the 95% of people who are good and give criminals free reign. As the events in Colorado proved last week, a confrontation with armed an good guy will usually result in suicide by the shooter.

Nathan Pieters said...

I would be afraid of the DA filing federal charges against me if I were in his shoes. He may have felt the charges unprovable and the laws unconstitutional but he is human and may be made angry if Mr. Hoffman fights the charges.

Anonymous said...

If the Weapons are NOT returned, this Fellow should file a Theft Report with the local ATF Office, ASAP, and Name the Officer, Personally, as well as the Department, and the Chief, Personally. As an FFL, It is a Federal Felony to remove a Weapon from my Bound Book Inventory, without Me making an appropriate Notation/Update in that Bound Book. There is NO Exception for local, State of Federal LEOs, except a US Marshal, or an BATFE Agent, with a Signed Warrant. Theft is Theft, even if done under the Color of LAW, when in violation of a Federal Statute.

Dean Weingarten said...

The federal gun free school zone act has an exemption for those with state concealed carry permits.

I believe that Mark Hoffman has a valid Wisconsin permit.

Mark Hoffman said...

UPDATE
The St. Croix County DA did not file charges. Almost 3 weeks later I was issued 2 municipal citations via mail from the Somerset Police Dept. One was for Obstruction and the other for Loitering. They are holding my firearms as "Evindice". Trial date for the citations is April 2.

In regards to the stop. I have a Wisconsin Concealed Carry License. I am not required to voluntarily show it to anyone, including police officers. The Officers DID NOT request to see my CCL. Knowledge of my proximity to school grounds was not established until the days after my arrest. Cheif Doug Briggs is trying to make the arrest all about the school when the arrest was really about me upsetting Chief Briggs by asserting my rights and not "Cooperating". He kept repeating that if I simply gave them a little information they would let me on my way. I refused to give up my 4th amendment rights because I was being threatened with arrest. I recorded the the encounter with an audio recorder. If you want to listen to the audio and make your own conclusions let me know.

Anonymous said...

FYI: The United States Constitution does NOT give the federal government the authority to create or enforce firearms laws. Like all federal firearms laws, the 1,000' school zone law is unconstitutional, void and unenforceable. See Amendment X.

I'm proud of you Mark for taking a stand against the tyrannical Somerset Police who were very unprofessional, disrespectful and lawless. In this country a person is innocent until proven guilty.....unless you go for a walk in Somerset, WI.