Kyle Rittenhouse: Wisconsin Weapons Statutes, and the Definition of Dangerous Weapons

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In the Kyle Rittenhouse self defense case in Kenosha, Wisconsin, much has been written about prosecutors choosing to charge Kyle with "Possession of a dangerous weapon by a person under 18." and the exemptions to the law which apply to Kyle.

The legislative history in Wisconsin and of the particular law, 948.60 are at the crux of the matter.  Ordinary rifles and shotguns, which are not considered "concealable" in Wisconsin or federal law, have never been defined as "dangerous weapons" under Wisconsin law.  The definition of "dangerous weapons" is very limited.

It is reasonable that rifles and shotguns were excluded from the list of "dangerous weapons", because they are not "concealable" under the law.  Wisconsin has a long history of differentiating between rifles and shotguns and concealable firearms. Rifles and shotguns are used in crime a tiny fraction of the amount concealable weapons are. Traditionally firearms which cannot easily be concealed are considered less dangerous because other people can see them and avoid confrontations with the armed person.  DA Binger makes that case, talking about  Kyle carrying a rifle in a previous hearing:

..it is designed to deter people. It is designed to threaten others; to let them know, don’t mess with me, look what I’ve got.

There have been  age restrictions on the access to particular weapons in Wisconsin law for decades. The precursor to statute 948.60, Statute 941.22  prohibited the possession of a pistol by a person under the age of 18 in Wisconsin, in 1955. It includes an exception for a pistol given by a parent for supervised target shooting. 

In 1955, the age of majority was 21. The law was an age restriction, not a restriction of all minors. "Pistol" was defined as any firearm having a barrel less than 12 inches.

 (4) In this section "pistol" means any firearm having a barrel less than 12 inches long.

Wisconsin already had restrictions on the carry of concealed weapons; this law banned the possession of concealable firearms by children under the age of 18. It allowed the possession of pistols for target shooting and while target shooting under the supervision of an adult. The law required law enforcement officers to confiscate pistols found in the possession of children under the age of 18.

In 1984, the legislature restricted hunting and the possession of all firearms by age gradations from under 12 years, 12-14 years,14-16 years, 16 - 18 years in statute 29.226 (hunting) and 29.227 (possession and control), (1983 Wisconsin Act 420  Restrictions on hunting and use of firearms by persons under 16 years of age.) and the previously mentioned 941.22. The effective date of the act is January 1, 1985.

In 1987, the legislature creates 948.60, as part of the 1987 Wisconsin Act 332, transferring and expanding the prohibitions on the possession of concealable firearms, (with a barrel length less than 12 inches) to include other specific weapons defined as "dangerous weapons".  Act 332 is an enormous bill, creating chapter 948 as an entire new chapter in Wisconsin law. There are massive changes in Wisconsin law. 

The "dangerous weapons" statute appears to be part of the trendy weapons laws passed in the period, in response to "kung fu" movies.

The list of dangerous weapons is very specific. All of them are concealable.

(1) In this section, "dangerous weapon" means any firearm having a barrel less than 12 inches long; any electric weapon, as defined in s. 941.295 (4); metallic knuckles or knuckles of any substance which could be put to the same use with the same or similar effect as metallic knuckles; a nunchaku or any similar weapon consisting of 2 sticks of wood, plastic or metal connected at one end by a length of rope, chain, wire or leather; a cestus or similar material weighted with metal or other substance and worn on the hand; a shuriken or any similar pointed star-like object intended to injure a person when thrown; or a manrikigusari or similar length of chain having weighted ends.

The new law deleted the part of the previous law which required law enforcement officers to seize pistols possessed by people under the age of 18. This allowed more discretion on the part of officers, and was likely required as due process of law.

In 1991, the law is re-written to move "having a barrel length of less than 12 inches long" from section 1 to section 3(C), 

948.60 (3) (c) This section does not apply to a child who possesses or is armed with a firearm having a barrel 12 inches in length or longer and who is in compliance with ss. 29.226 and 29.227. This section does not apply to an adult who transfers a firearm having a barrel 12 inches in length or longer to a child who is in compliance with ss. 29.226 and 29.227.

This creates an exception in the definition of what is a dangerous weapon for children "who possess or is armed" and who are in compliance with ss 29.226 (possessing a hunting certificate while hunting for anyone born after January 1, 1973) and ss 29.227, which restricts the possession of firearms, by age, for people under the age of 16.

Months later in 1992, (1 April) Act 139 is passed. It includes Section  948.55  (Leaving or storing a loaded firearm within the reach or easy access of a child.)  This part of the law applies to children under 14 years of age. The crime here applies to a loaded firearm, not a dangerous weapon.

Act 139 includes sections 2 (a), (b) and (c) to be inserted into 948.60.

Section 2 (a) defines the crime of a going armed with a dangerous weapon while under the age of 18 as a class A misdemeanor;

Section 2 (b) create a crime for someone who intentionally sells, loans or gives a dangerous weapon to a person under the age of 18, and defines the crime as a Class A misdemeanor; except in the case of Section 2 (c), where the crime becomes a felony.

Section 2 (c) Changes the crime to a felony if a person violates 2 (b) and the child who is in possession of the firearm discharges it and someone dies because of it.

Analysis:

The 1991 changes created some minor ambiguity in the law. Ordinarily, "in compliance with" for a hunting statute would be satisfied if someone is not hunting.  If a child is not hunting, and is in possession of a firearm with a barrel longer than 12 inches, but meets the age requirements in 29.227, they would be in compliance with both 29.226 and 29.227.  If they meet these requirements, the firearm is not considered a "dangerous weapon" under  948.60.

Federal law and state law restrict the possession of short barreled rifles and shotguns. Section 948.60 creates an exception in the definition of what are dangerous weapons, for children, if the firearms have a barrel length of more than 12 inches. The federal and state laws on the restrictions for short barreled rifles and shotguns restrict barrel lengths to more than 16 inches for rifles, 18 inches for shotguns, and an overall length of more than 26 inches.

There is a lot of overlap in the 1991 version of 948.60 definition and the federal and state laws on short barreled rifles and shotguns, but it is not completely the same. When the definitions do not match, 948.60 appears to create an exception to the state law for children to possess what adults may not possess without a federal tax stamp. An example would be a short barreled shotgun with a barrel length of 12+ inches whose overall length is less than 26 inches. 

2 (c) changes the wording from dangerous weapon in (b) to firearm in (c). Firearms are the only dangerous weapons listed which can be "discharged".

Some dangerous weapons are firearms, but not all firearms are dangerous weapons, because of the exceptions in 3(c). Firearms with barrels longer than 12 inches are not dangerous weapons if the children who are possessing or armed with them are "in compliance" with 29.226 and 29.227.

Section 948.60 2(c) becomes important for Dominic Black, Kyle Rittenhouse's friend, who supplied the rifle to him, because he can be charged with a felony if Kyle Rittenhouse is convicted of possession of a dangerous weapon by a person under the age of 18. This charge can be used as leverage on Dominic Black, perhaps to coerce cooperation with the prosecution.

In 1995,in Act 27, the legislature changes the wording in 948.60 from "child" to "person", and repeals 948.60 2(d) in Act 77.

In 1995, Wisconsin passes a strict firearms preemption law, limiting almost all firearms legal authority to the state legislature.

In 1998 in Act 248, the legislature re-numbers statutes 29.226 to 29.593 and 29.227 to 29.304

In 1998, Wisconsin passes an amendment to the state constitution protecting the right to keep and bear arms. No age restrictions are mentioned. It seems to apply to the Rittenhouse case:

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

In 2001, in Act 109 , the Legislature changes the felony in 948.60 2(c) to a class G from a class D. 

In 2005, in Act 163, the Legislature Amends 948.60 3(c). The change clarifies the ambiguity in the 1991 law. Instead of saying the law does not apply to a person under 18 who possesses or is armed with a firearm having a barrel 12 inches or longer, the prohibition which has been in effect since 1955, the law brings the Wisconsin statute in to harmony with the Wisconsin and federal law on short barreled rifles and shotguns.

At present, 948.60(c) says it applies only to persons under the age of 18 if they are armed with rifles and shotguns that are short barreled rifles or shotguns. This is in accordance with existing state and federal restrictions on short barreled rifles and shotguns. It removes the exception in the law for some short barreled rifles or shotguns for persons under the age of 18. The section of the law dealing with short barreled rifles and shotguns is Wisconsin Section 941.28. The change is consistent with the long established precedent that the definition of "dangerous weapons" in 948.60 is for concealable weapons.

Instead of saying a person under the age of 18 has to be "in compliance" with the hunting and possession statutes in what is now 29.304 and 29.253, the law is changed to say the law applies only if they are not in compliance. It is difficult to violate a hunting law if you are not hunting.

The law makes very limited changes, simply clarifying what already exists in the law.  From the Act: 

(c) This section applies only to a person under 18 years of age who possesses or is armed with a rifle or a shotgun if the person is in violation of s. 941.28 or is not in compliance with ss. 29.304 and 29.593. This section applies only to an adult who transfers a firearm to a person under 18 years of age if the person under 18 years of age is not in compliance with ss. 29.304 and 29.593 or to an adult who is in violation of s. 941.28.

In 2011, Wisconsin passes their "shall issue" concealed carry permit statute. It creates another age limit in the law, dealing with concealed weapons. To obtain a concealed carry permit, the person must be 21 years old or older. Wisconsin now has several different age limitations on the possessing weapons or being armed. They are: under 12, from 12 to 14, 14 to 16, 16 to 18, 18 to 21, and 21 and above.

To sum up, the age restrictions in Wisconsin statutes on possession and control of firearms outside of family land, require the accompaniment of a person 18 or more, until the person is 16. 

From 16 to 18 rifles and shotguns may be carried openly without the presence of an adult, but not dangerous weapons as defined by law. From 18 to 21  legal weapons may be carried openly, the list of dangerous weapons in 948.60 no longer applies, but concealed carry is still prohibited. Age 21 or over, a concealed carry permit shall be issued if applied for. Most adults are eligible.

These complicated restrictions have been arrived at through a long series of laws. A general prohibition on the open carry of rifles and shotguns has never been part of Wisconsin law for persons aged 16 to 18.

The author is not a lawyer, but has read and studied a great deal of firearms law in numerous states. It does not appear 648.60 2(a) is "swallowed up" by 3(c). 2(a) only applies to dangerous weapons as defined in the law. 3(c) removes rifles and shotguns which are not short barreled rifles and shotguns from the law. Short barreled rifles and shotguns, all pistols, and all the listed "dangerous weapons" are still included in the law.

 

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