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Madison alder declares constitutional freedoms to be ‘childish’

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The ‘Madison 5’ incident continues to spread ripples across Wisconsin as the city and the police department struggle to defend their actions.

Background

Last Wednesday I wrote about the fact that the Wisconsin courts have not only held that a person may not be charged with obstruction for refusing to identify themselves but that "no reasonable person could believe that the obstruction statute includes within its terms persons who fail to identify themselves. Nor could a reasonable person determine that any other statute authorizes the arrest of persons for refusing to state their names. ... Hence, the deputies in this case are not entitled to qualified immunity." Henes v. Morrissey, 533 N.W.2d 802 (1995).

I also wrote about the fact that, facing suits against both the city and the individual officers under 42 U.S.C. § 1983 (deprivation of rights under color of law), the obstruction charges were quickly dropped. However, in a publicly released memo which appears clearly designed to have a chilling effect on the free exercise of rights in Madison, police chief Wray announced that all five law-abiding citizens who were open carrying that night would be charged with disorderly conduct.

According to the memo, these charges are based solely upon the proposition that the citizen who called police was ‘disturbed’ by seeing the men exercising their rights. Mike Stollenwerk, DC Gun Rights Examiner, immediately demonstrated the falsity of this argument in his Friday article in which he included the 911 call from the supposedly ‘disturbed’ citizen wherein she stated that “there’s no problem and it’s no emergency . . .I feel bad then, if they’re not doing anything wrong then it’s my mistake.”

The legal analysis

Ultimately, when the dust settles from these five cases, Madison will have lost badly … and so will the taxpayers of the city. Even a first year law student will tell you that one cannot be charged with a crime for the peaceful exercise of a constitutional right even if a citizen is unreasonably fearful of such an exercise (which was not the case here). And in the case of Wisconsin, the right to bear arms is a state constitutional right backed up by the Second Amendment to the US Constitution which was held to be incorporated against the states via the Due Process Clause of the 14th Amendment in the recently decided case of McDonald v. Chicago.

Amazingly, in his memo, Chief Wray states that “the city’s disorderly conduct statute does not require an actual disturbance to take place, only that the conduct in question is of a type that tends to cause or provoke a disturbance.” And while that may be true of the statute, local statutes do not operate in a vacuum, nor do they have the power to abrogate constitutional rights. In fact, the Supreme Court has specifically noted that ‘constitutional rights may not be denied simply because of hostility to their assertion or exercise.Bachellar v. Maryland 1969 WL 120235. And as a general constitutional principle, such a statute would be held to be unconstitutionally void-for-vagueness in any case, both lacking an intent requirement and failing to give adequate notice of what conduct is thus prohibited.

Going forward

A number of Wisconsin citizens have apparently attempted to start a dialog with the Madison City Council in an effort to achieve a legislative solution to the threats by Chief Wray to arrest all open carriers for disorderly conduct. And while such an effort is one which I normally recommend, it seems as if the City Council is just as hostile to civil rights as the police department but with considerably less professionalism.

In one example, a Wisconsin citizen named Brent Hancock emailed his concerns about the recently released memo to the Madison alders indicating that he would no longer shop in Madison until the issue was addressed. Madison alder Lauren Cnare (District 3) responded with the following:

Have a good time staying at home. While legal, it's inappropriate and aggressive to pack your little pistols in public places. We won't miss you or the childish displays of constitutional freedoms.

Lauren Cnare - District 3 Alder

Amazingly enough, the writer of this childish taunt is a public relations and communications professional in her day job.

I must ask … Is this the kind of person the citizens of Madison want representing them? After all, anyone who would speak of constitutional freedoms with such vitriol and bigotry is clearly unworthy of public office.

Comments

  • Anonymous 3 years ago

    Well, that pretty much says it all, doesn't it?

  • d.w.hudson 3 years ago

    It appears that Chief Wray is more interested in enforcing his personal agenda than obeying his oath and enforcing the law. The citizens of Wisconsin, and in particular the citizens of Madison, are being placed in financial and legal jeopardy due to violations of the law by those charged with enforcing it.

  • Anonymous 3 years ago

    "childish displays of Constitutional freedoms"? Did this "alder" live in Communist Russia all of her life and only recently defect to the USA-or does she believe that she is living in Communist Russia now? Maybe she would be happier if they renamed her state the United Socialist State of Wisconsin-the USSW? She could even fly the old Communist Russian flag just for good measure and to show her solidarity for it...

  • Anonymous 3 years ago

    Everyone who owns a handgun in Wisconsin should strap on their guns, and march on Madison, go to the idiot "Alder's" office, then march to the Cheif's office, in protest of their actions, to the memo, and to her stupid response to that email. Show them just how peaceful it can be and not a disturbance. See if they want to charge EVERYONE there with disorderly conduct. Then you would have them for disturbing the right to peacfully protest too.

  • mark edward marchiafava 3 years ago

    But, but, but JOHN, the POleece can do anything they want !
    Aren't we to bow and scrape at their very presence?

  • Anonymous 3 years ago

    What she needs is a good spanking! Such immature petulance can only be effectively remediated by stern, well-applied discipline!

  • Anonymous 3 years ago

    What she needs is for the people in her district to get off their lazy butts and never re-elect her again. I won't hold my breath though.

  • justbite_me 3 years ago

    It's amazing how a person when given a little authority and an office title can be so dumb and make such outlandish statements. It's amazing how a supposedly "Communications Expert" can speak @#$%# and get a way with it, and I don't care if she is in Office. The Constitution hives her the right to speak the way she does as it gives the right to openly carry a firearm. If the Aldewoman doesn't like our Constitutional Freedoms, then she is free to move to another less free country. If you move Alderwoman Cnare, take Police Chief Wray and the Milwakee Police Dept. with you, they'll not be missed. Milwakee's crime rate might just go down. If Consitutional Rights are CHILDISH, then YOU Alderwoman Cnare are in the wrong country.

  • Sled dog 3 years ago

    What the heck are they putting in the Madison water supply? Have they built an Iron Curtain in their spare time? Couldn't they at least start trashing the Amendments in numerical order? Berkley of the North, indeed.

  • Anonymous 3 years ago

    History over the past 80 + years shows that Lauren Cnare is exactly the type of person that people in Madison and across the country want representing them. If this wasn't the case we wouldn't be in this situation where are rights are infringed at will and places like New Jersey wouldn't feel like they can charge $500 to exercise a Constitutional right. While it is true that our representatives have become Tyrants and are part of the problem, we keep electing them over and over again.

  • Wendy Weinbaum 3 years ago

    As a Jewess in the US, I can only say that jerks like this "police" chief are another reason why all REAL Americans must put our 2nd Amendment FIRST!!

  • TheRandyGuy 3 years ago

    Individuals like this one would support an Amendment to the Constitution guaranteeing the right not to be offended. There is growing disrespect for "law enforcement"all around the country. This is a good example of why that is so.

  • joe sixpack 3 years ago

    "childish displays of Constitutional freedoms"

    perhaps we should move to limit her 1A rights?
    i believe her attitude & expression is childish, GAG HER!

    hope the wisconsin 5 sue'em for everything they're worth.
    ultimately it will be the tax payers that pay but i think it's necessary in this case.

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