Wednesday, August 30, 2017

Wisconsin Carry in Truck Case Dismissed by Prosecutor, Avoids Precedent

In June of 2016, a 53 year old truck driver, Guy A. Smith was arrested for having a loaded revolver in the cab of his truck. Smith did not have a Wisconsin concealed carry permit. He held that he did not need one. The Wisconsin Constitution is very clear. The arrest took place in Kenosha, Wisconsin.

In 1998, the people of Wisconsin voted for Constitutional Carry in a state referendum amending the state constitution. The amendment, which created Article I, Section 25, is very clear. It received 74% of the vote. From Article I Section 25:

 The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.
Smith and his attorney insisted on a Jury trial. Kudos to Wisconsin Carry for assisting with the case. The defense used a Constitutionality defense from the start, and showed that it is not illegal, under Wisconsin law, to carry a loaded handgun in a vehicle.  The statue on transport of weapons says:
" ... no person may place, possess, or transport a firearm, bow, or crossbow in or on a vehicle, unless one of the following applies: 1. The firearm is unloaded or is a handgun."
The prosecuting attorney,  Thomas Binger, stated that the law could not mean what it said, because it would invalidate the Wisconsin statute on concealed carry. The Judge corrected the attorney, noting that it would only invalidate the statute "in cars".  From
The defense position "would suggest anyone without a permit can drive around with a loaded weapon in the vehicle," Binger said. "I decline to read the statute so broadly." He said Wisconsin's concealed carry law, Act 35, would have no meaning.

"No meaning in cars," Circuit Judge Bruce Schroeder clarified.
The case was scheduled to go to trial, starting with jury selection on August 28, 2017.  On 28 August, 2017, before jury selection began, the State, in the person of attorney Thomas Binger, asked that the case be dismissed and the defendant acquitted. From
Kenosha County Case Number 2016CM000842 State of Wisconsin vs. Guy A Smith

All charges against Guy A Smith in this case have been dismissed. These charges were not proven and have no legal effect. Guy A Smith is presumed innocent.
This means that there will not be a legal precedent from the case. The Supreme Court will not have a chance to clarify that Article 1, Section 25 of the Wisconsin Constitution, ratified by 74% of the voters, actually means what it says.

But the case is known, and will have an effect. More people will exercise their Constitutional rights.  More cases will come before the courts.

It is clear the case against Mr. Smith should never have been brought. How many people have plea bargained a guilty verdict because they did not have the moral courage of Mr. Smith, or the intestinal fortitude to push the case to a jury trial?  How many took plea bargains because they expected the courts to ignore the State Constitution, the law, and simple justice?  How many took plea bargains because they did not have the means to fight the case competently?

The prosecutor should have known this was a lost case from the beginning. Perhaps they did. If they did not, they show a distinct lack of competence.

It appears the prosecution chose to exercise punishment by process. It cost considerable time and money for Mr. Smith to challenge the unjust prosecution. He took a considerable risk that ideologically driven judges would ignore the Constitution and the law. It has happened before.

Perhaps Mr. Smith can recoup some losses with a wrongful arrest lawsuit. Perhaps not. It has happened before in Wisconsin.

©2017 by Dean Weingarten: Permission to share is granted when this notice is included.
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ScienceABC123 said...

Thomas Binger is one of those people who say - "I don't care what the law says! The law means what I say it means!" Prosecutorial misconduct at the minimum.

ExpatNJ said...

Smith might be able to file a lawsuit for "wrongful arrest". But, a smart attorney would (also) sue for "malicious prosecution", as he was NOT found 'not guilty'.

Without further reading of Smith's ruling, it appears charges against Smith were "dismissed", but not "with prejudice". When a case is dismissed "with prejudice", it means that case can NEVER be brought again before the courts. This implies Smith can be re-arrested and prosecuted again on this matter in the future.

NOTE: This is not - nor is it intended to be - legal advice. I am NOT an "Attorney-At-Law", nor have I been admitted to The Bar in any jurisdiction. I AM, however, an "Attorney-In-Fact", based on my experience with, and understanding of, the laws, legal process, and criminal justice system.