Friday, January 14, 2011

Wisconsin cops cough up bucks for illegal arrests

Citizens' group fighting back against agencies that don't follow state constitution

A state constitutional provision in Wisconsin that allows citizens to carry a handgun openly - except for specific locations like in government buildings and in school zones - is costing police departments big bucks over their officers' insistence on arresting people anyway.

Already, one city has had to pay $10,000 in a settlement over an improper arrest of someone carrying a gun, and a second municipality has been ordered to pay $7,500, and several more challenges to police actions already are in the court system.

The issue stems from a state constitutional amendment from more than a decade ago that provides that residents "have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."

For years, some police officers simply charged anyone carrying a weapon openly with "disorderly conduct" rather than contest the constitutional provision, according to Nik Clark, of an organization called Wisconsin Carry, which launched just a year ago and already has "thousands" of members because of its fight over gun rights.

Then came an opinion from state Attorney General J.B. Van Hollen that those "disorderly conduct" charges were outrageous. His advisory memorandum said: "A Wisconsin citizen has a constitutionally protected right to openly carry a firearm for any of the enumerated purposes, absent the application of a reasonable regulation properly imposed as an exercise of police power."

That doesn't fall under the state's "disorderly conduct" ban, which states, "Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor," he concluded. "The department believes that mere open carry of a firearm, absent additional facts and circumstances, should not result in a disorderly conduct charge," the attorney general ruled.

Clark told WND that left those select police departments where officers did want to restrict citizens' access to weapons hunting for something else to use as a charge, and as a result, several court cases have developed. "We've done open records [actions]," Clark said. "There was a pretty vast conspiracy to find something to bust people on. [There were] memos that went back and forth, asking 'What can we nail these people for?'"

One case brought by Wisconsin Carry recently was settled for a payment of $7,500. Krysta Sutterfield had sued Brookfield after officers arrested her as she was leaving a service at a church while wearing her holstered handgun. Brad Schimel, Waukesha County's prosecuting attorney, decided not to file charges, and Sutterfield and Wisconsin Carry sued.

Clark confirmed his organization "will continue to use legal resource to deter unlawful treatment of law-abiding Wisconsin residents who currently exercise their right to open carry."

Clark told WND an earlier case was settled for $10,000. That involved the city of Racine and an arrest there. Further, Clark said, at least two other cases already are pending, including one over the "Madison Five," who were carrying while they were enjoying a dinner out one evening. A woman called police, and after she was told it was a legal activity in the state, declined to pursue it. Police came anyway and gave the five citations.

The organization also is challenging the state's ban on open carry of weapons within 1,000 feet of a school, because that distance includes group members' private residences, and easily could trap someone who is carrying legally but doesn't know a school is in the adjacent block.

Clark told WND one dispute arose when a man was carrying and was 984 feet from a school. He was arrested and while charges later were dropped he did spend 17 days in jail awaiting a hearing before a judge.

The conflicts arise because of the state constitution's provision for carrying gun for "any" lawful purpose and some police departments to take a dim view of citizens with weapons, he said.

The arrest of the woman leaving church is an example of some attitudes, he said.

"As open-carry is perfectly legal in Wisconsin and the officers were aware she (a Wisconsin Carry member) had threatened no one and caused no disturbance, the officers had no reasonable articulable suspicion (RAS) which the law requires, to stop and detain our member against her will. In addition, by drawing their guns on a law-abiding citizen who had done nothing wrong, the officers used an unlawful threat of deadly force during their detainment of our member. The police proceeded to, without reasonable suspicion or probable cause that any crime had occurred, conduct an illegal and unconstitutional search of our member's person and car. Our member was then unlawfully arrested and taken to the Brookfield Police Department for processing," he explained.

WND has reported on the tidal wave of changes across the United States following two decisions by the U.S. Supreme Court regarding guns.

The Heller case, from Washington, D.C., in 2008, forbade blanket gun bans, and the 2010 McDonald case from Chicago determined that the 2nd Amendment right to bear arms applies to individuals, not just National Guard units and the like.

Since then, the Second Amendment Foundation, has brought a long list of court cases challenging local and state gun regulations as being in violation of the Constitution.

Among the cases it has launched:
One complaint was filed against state officials and several judges in New Jersey over procedures that allowed them to refuse firearms permits for a kidnap victim, a man who carries large amounts of cash for his business and a civilian FBI employee who fears attacks from radical Islamists. It was brought in U.S. District Court for the District of New Jersey against Superior Court judges Philip M. Maenza of Morris County, Rudolph A. Filko of Passaic County and Edward A. Jerejian of Bergen County in addition to Rick Fuentes of the state police, Hammonton police chief Frank Ingemi and New Jersey Attorney General Paula Dow.

The SAF filed a case on behalf of an honorably discharged veteran from the Vietnam War and names as defendants Attorney General Eric Holder and the Federal Bureau of Investigation. The case was filed in U.S. District Court for the District of Columbia on behalf of Jefferson Wayne Schrader. The question is whether the state of Maryland can deprive an individual of the right to possess a weapon over a misdemeanor. Schrader had been convicted of misdemeanor assault relating to a fight involving a man who previously had assaulted him in Annapolis. But he was denied the opportunity to receive a shotgun as a gift, or to purchase a handgun for personal protection.

The organization sued the city of Chicago again, this time because it adopted a requirement that gun owners spend time at shooting ranges, then banned shooting ranges. Gottlieb said, "They have crafted this new ordinance to make it virtually impossible for prospective gun owners to meet all legal requirements unless they travel outside the city for mandatory training. The new ordinance prohibits public gun ranges inside the city yet the city demands that handgun owners get at least one hour of range training time." The Second Amendment Foundation said the city's regulations are depriving citizens of their rights.

It filed a claim against Maryland for a man who alleges the state is violating the Second Amendment by refusing to renew his handgun permit. Raymond Woollard originally was issued a carry permit after a man broke into his home during a family event in 2002. Woollard's permit was renewed in 2005 after the defendant in the case was released from prison. But state officials now have refused to renew the permit, even though the intruder now lives some three miles from Woollard.

It sued Westchester County, N.Y., because officials there were requiring residents to have a "good cause" to ask for a handgun permit. The federal lawsuit alleges the requirement conflicts with the U.S. Supreme Court ruling that the Second Amendment establishes a personal right to "keep and bear arms." Individual plaintiffs in the case are Alan Kachalsky and Christina Nikolov, both Westchester County residents whose permit applications were denied.

The earliest case to result from the McDonald decision challenged a practice in North Carolina of banning guns during "emergencies." The case claimed state statutes forbidding the carrying of firearms or ammunition when officials declare "states of emergency" are unconstitutional. Further, the plaintiffs said a state law allowing the government to prohibit the sale, purchase and possession of firearms and ammunition is unconstitutional. WND reported earlier this year when residents of King, N.C., were startled by the banishment of firearms during a "declared snow emergency."

The high court's 5-4 ruling in the first Chicago case was forecast to bring on such challenges.

It flipped "the burden onto the government and legislatures to show why they need to restrict what the court has already said is an individual right," John Velleco, director of federal affairs for Gun Owners of America, told WND after the decision.

There is other action on the state level regarding gun rights. Already, eight states have adopted laws that exempt guns made, sold and kept inside the states from any federal gun regulations.

A court case already is being heard over the effort in Montana - the first state to take the step of ordering federal regulators to stay out of the state's business of regulating its citizenry's weapons.

In Wyoming, lawmakers even adopted a $2,000 penalty for federal agents trying to enforce federal regulations against an exempted weapon.


Poll: Most say stricter gun laws would not help prevent shootings: "Most Americans say stronger gun control laws are not the answer to the shootings last weekend of a U.S. congresswoman and the killing of six others. A new Rasmussen Reports national telephone survey, taken Monday and Tuesday nights, finds that only 29% of Adults think stricter gun control laws would help prevent shootings like the one in Arizona last Saturday. Sixty-two percent (62%) disagree and say stronger gun control would not make a difference."

NV: Bar employee shoots robbery suspect: "Authorities say a suspect entered The Lodge at Fort Apache sometime before 6 a.m. He held up the bar and exited with cash, according to Metro Police. An employee armed with a weapon went outside to get a good look at the suspect's vehicle when the suspect fired at the employee, Metro Police said. Gunfire was then exchanged and the suspect was hit in the chest."

In Tucson, guns have a broad constituency: "Most people at the ranges said that, if anything, the shooting would cause more people to carry guns as a means of self-defense, rather than cause a retrenchment in the form of stricter laws. 'The criminals are going to have guns, so why should we as law-abiding citizens be punished for what a criminal does?' said Ms. O'Connell. Ms. O'Connell lamented the death of Judge Roll, who was well known at the range: 'He knew how to shoot, but he'd just been to church, and he probably didn't have his gun.'"

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