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The tyranny of the bigoted comes to Madison Wisconsin

An unjust law is itself a species of violence. Arrest for its breach is more so.” - Mahatma Gandhi

A little over a year ago, I wrote about the disorderly conduct arrest of Harvard professor Henry Louis Gates Jr.  At the time, I noted that 'disorderly conduct', 'disturbing the peace' and other such catch-all offenses pose one of the greatest threats to the free exercise of civil rights in America.

With no clear definition of what constitutes behavior that is 'disturbing' or 'disorderly', many in law enforcement use such laws as a way to both control and punish citizens for otherwise legal and constitutionally protected behavior.

I had hoped at the time that the public attention directed toward the problem by the arrest of Professor Gates would have encouraged legislative reform or, at a minimum, better training of law enforcement.  Unfortunately, as is often the case where civil rights are concerned, the spotlight quickly dimmed and nothing has changed.

And thus the harassment suffered by five law-abiding members of Wisconsin Carry at a Culver's restaurant in Madison, Wisconsin last Saturday evening should come as little surprise.

Arriving at the restaurant, the five victims entered, ordered their food and sat down ... unaware that a 62 year old customer who had noticed the properly holstered handguns on their sides had called 911.  In the call, the 62 year old women reportedly told police that she "didn't know what the law was" and that she thought she "should at least call so the police can come and check it out" because she "didn't want to be that one person that saw guns and didn't call, and then have something terrible happen."

Police responded in force with eight officers approaching the table where the five men were eating dinner.  And I should note that up until this point, the encounter was completely within the bounds of propriety.  The police had received a call ... and in the interest of public safety, they had responded.  But here is where the officers departed from the law.  Instead of verifying that the men were nothing more than law-abiding citizens and leaving, officers escalated the situation by demanding ID.  

Now for those of you unfamiliar with the laws of Wisconsin, let me assure you that there is no requirement in Wisconsin law to carry your papers with you and produce them upon demand.  Officers may request ID.  However, they have no authority to demand it of citizens who are doing nothing more than exercising what is a constitutionally protected activity in Wisconsin.  But these officers were insistent, stating "Identify yourself or you will be arrested for obstruction."  

And the officers made good their threat.  When two of the men at the table, knowing that the officers lacked the authority to make such a demand, refused to provide ID, they were handcuffed, placed in a patrol car and despite stating emphatically that they did not consent to a search of their person, were physically restrained while their wallets were taken from them by force.  Upon using the seized IDs to verify that the men were not felons or otherwise disqualified from possessing firearms, they were released, had their firearms returned, and were given a ticket for obstruction.  The officers subsequently left the men at the restaurant and departed.

The charge of obstruction was made under the following statute:

5.06 ASSISTANCE IN MAKING ARREST - LIABILITY FOR RESISTING OR OBSTRUCTING AN OFFICER.

(1) Whoever, without reasonable excuse, refuses or fails upon command, to aid any person known to him to be a peace officer may be fined not more than one hundred dollars ($100). This section does not apply if under the circumstances the officer was not authorized to command such assistance.

(2) Whoever knowingly resists or obstructs an officer while such officer is doing any act in his official capacity and with lawful authority, may be fined not more than five hundred dollars ($500). In this section:

(a) “Officer” means a peace officer or other public officer or public employee having the authority by virtue of his office or employment to take another into custody.

(b) “Obstructs” includes without limitation knowingly giving false information to the officer or knowingly placing physical evidence with intent to mislead the officer in the performance of his or her duty including the service of any summons or civil process. (Am. by Ord. 9977, 3-14-90)

(3) Whoever hinders, delays or prevents an officer from properly serving or executing any summons or civil process, is civilly liable to the person injured for any actual loss caused thereby and to the officer or his superior for any damages adjudged against either of them by reason thereof.

In analyzing this statute, it immediately becomes clear that providing false information to an officer may constitute obstruction but silence is not addressed at all.  In fact, if we look to the Wisconsin courts, we find that this question is long settled law.  In a 1995 case addressing a similar case, the courts held that "Mere silence, standing alone, is insufficient to constitute obstruction ...Without more than mere silence, there is no obstruction." Henes v. Morrissey, 533 N.W.2d 802 (1995).  Even more interestingly, in the same case, the courts stripped the offending officers of qualified immunity, stating 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."

As discovered by the Vice President of Wisconsin Carry, Hubert Hoffman, this issue had also been specifically addressed in a City of Madison Police Department legal update.  Based upon this information, in my opinion it is clear that in this case, officers will not enjoy qualified immunity.  And it seems that someone must agree with me because suddenly today we find that the obstruction charges have been rescinded.  

However, in a move that can only be described as a combination of retaliation and intimidation, all five of the men have now been charged with disorderly conduct based upon the fact that the 62 year old woman who called police, in a subsequent interview, made the statement that she was "somewhat rattled" and "uneasy" when she saw the holstered handguns.

Let me get this straight ... The five men, two of whom police had returned firearms to, and who were so 'dangerous' that the officers on the scene left them fully armed amongst the other patrons of the restaurant and departed, are now seen to have been engaging in disorderly conduct.

In a stunning memo by the Madison Police Department released today, the Madison Police seem to be encouraging citizens to call 911 whenever they see citizens lawfully open carrying and imply that they will use the disorderly statute's vague requirements of "conduct of a kind likely to cause a disturbance" to arrest all such open carriers they encounter.

The memo went on to state that the basis for the charge was the 62 year old woman's recognition of the 'potential for violence' inherent in the handguns and her fear of that potential.  Given those marching orders, I suspect that it is only a matter of time before a bigoted patron of a restaurant, concerned over the rather tough looking biker couple dining at the next table, calls 911 and demands they be arrested for a disorderly conduct charge because he thinks them to have a 'potential for violence.'  And perhaps the police will comply.  After all, if the police have to respond, the memo seems to suggest, someone's getting arrested.

So where does this go from here?  Culver's has already spoken out, declining to institute a 'no firearms' policy in their restaurants and gun owners should reward them for it with their wallets.  May I suggest the ButterBurgers?

As for the five victims in this case, I suspect that I will be writing more about them in future columns as they decide upon an appropriate course of action.

Comments

  • JJ Swiontek 3 years ago

    I'm not one to use the phrase very often, however, I really hope all five sue.

  • Mike Ebel 3 years ago

    I guess the city must have a huge excess cash problem they are trying to fix by paying for this lawsuit.

  • Anonymous 3 years ago

    I always have to ask this question when I read something like this, how many CRIMINALS has that old bitty seen open carrying a gun? Criminals will not open carry, they can not afford to have the police question them. I wish the anti gun people would realize this.

  • Steve Williams 3 years ago

    Well, you take on the police department as a group and each individual officer for violation of your constitutional rights. Move directly to "Go" as this violation will not stand. And, while at it, sue this lady for hate speech.

  • MKEgal 3 years ago

    I've listened to the audio of her call, and it's clear that she wasn't upset or frightened during her initial call. Whatever police did to her later is another story. She clearly told the calltaker that the men weren't doing anything wrong, and there was no problem, and she didn't want police to come once she found out that OC is legal. Her husband is a life member of the NRA, so it's not that she's against guns, or scared of them, this is just another case of a citizen not knowing the law and (wrongly!) thinking that the police do. The woman did nothing wrong. The police did LOTS wrong. Lay off her, stomp on them.

  • Anonymous 3 years ago

    and what would happen if I called the police for " a person with a gun" and was "somewhat rattled" and "uneasy" when I saw the holstered handguns. AND the person was a police officer, would they charge the office with the same offense? NO, because he is an "ONLY ONE". double standard.

  • Profile picture of Robert Fowler
    Robert Fowler 3 years ago

    Go to the articles in the local news and read the comments. The way some of the people of Madison think is just amazing. Some even thought that all 5 should have been arrested and hauled off to jail for exercising their right. If I was to live in Wisconsin, it sure would be no where near this liberal cesspool.

  • Anonymous 3 years ago

    Case law in Wisconsin says you can not be arrested for obstruction for not showing your ID, unless you are operating a motor vehicle. The two men arrested for obstruction can now sue for false arrest and violations of their civil rights.

  • Anonymous 3 years ago

    I live in Wisconsin and the state AG sent a memo 1yr ago stating open carry is legal and you cannot arrest any open carry for D the P period. The cops messed this up from the start and my tax dollers will again be spent on a lawsuit the city will lose. In the last year the state has lost lawsuits for this same situation.As a matter of fact one of the guys charged in this case won a lawsuit last year and I will bet he is the one that recorded the event and refused to show his ID.Good for these guys for standing up for their rights, they are Heros to the 2AD and to our rights as FREE AMERICANS with the right to KEEP AND BEAR ARMS.

  • MKEgal 3 years ago

    "one of the guys charged in this case won a lawsuit last year and I will bet he is the one that recorded the event and refused to show his ID"
    No, he didn't record it... he was remaining silent & was put in handcuffs. Two other of the guys did make recordings, and it's easy to hear several of them telling officers over & over that what the officers were trying to do is illegal. They had lots of opportunities to stop their crimes.

  • Mike the Limey 3 years ago

    I'm surprised they weren't charged with "Being male in the presence of a female" as that is enough to "disturb" & "rattle" more than a few women I know.
    Keep fighting this crap, or else you WILL end up in the same situation as here in the UK.

  • Dan - La Crosse 3 years ago

    I hope the taxpayers aren't the ones who have to pay. It should be the individuals and those in charge.

  • Anonymous 3 years ago

    This is true. Wisconsin's AG has told all PD that you can not charge a person with a Disorderly Conduct for legal open carrying of a firearm. But of course the State of Madison's Police Chief still continues to push the issue. I wonder if he thinks, that even though he knows the disorderly ticket will be thrown out, he just cause the person to take time off from his work, drive to court(maybe pay for an attorney) and pleed their case, which means they lose he wins. In the chief's eyes

  • MKEgal 3 years ago

    It's actually worse than you make it out to be... The 5 had been at the restaurant for close to an hour before the 2 went outside to smoke. The woman (outside in her car!) saw those 2, called police to ask if it was legal, & told them the men weren't being threatening, that there was no emergency, no problem. If there were a problem, surely someone in the restaurant (she describes as crowded) would have called sooner. Instead, the patrons & staff think the police caused the problem. * * * * * And in your discussion of the Madison statute, you forgot to emphasize the part about "with lawful authority". Since the police were acting against the law, not only could they not demand ID, but they're individually liable for their actions. What bothers me is that there were 8 officers there, and NONE of them spoke up for the victims. None of them! That shows me that this is a widespread problem that needs to be addressed, starting with the removal of the Chief.

  • MKEgal 3 years ago

    By the way, when you listen to the call, you'll see quite clearly that it's NOT the woman's fault. Stop picking on her. The POLICE overreacted, broke several laws, and both they & the city will be paying for it.

  • Anonymous 3 years ago

    But wait there's MORE! First congrats on open carry in WI! Now my state (illinois) is the ONLY STATE IN THE UNION that violates the 2nd Amendment.(we can buy and keep them in the home but cannot carry)
    When I read this story I was completely angered. To the point that I called Lauren Cnare on her cell phone to have her define this event and statements. She told me that since I wasnt a constituent she had nothing to say. Well, not being one to take that for the "final answer" I wrote her. She replied much the same indignant way AND informed me that because I "swore" at her and made her "feel threatened"(basically didnt take her political side) she was "sharing" our conversation with her protective services. WOW. NOw I am hell bent on getting the word out to voters to GET HER OUT OF OFFICE. I applaud the "5" for their use of their rights. I want you guys to know I related this story to the Illinois Rifle Association and the NRA and both are VERY interested in this case. I have a video(very much less polite than this forum) stating my feelings about Lauren Cnare and the Chief of the Madison Police Department on you tube under "cortchubby". This event should be cause enough to depose an obviously socialist police chief and City Alder(man) from office. I do hope that the "5" sue the Chief personally, each officer personally,the city and Cnare for this violation of their civil rights. I would call the suit the price the liberals must pay for their anti gun positions.The caller......not an offender in my eyes. An older woman who did what she thought was the right thing. Not culpable in the matter.
    Now a favor. Can you please help us in Illinois get CCW passed here? Its bad here(chicago,rockford,East St Louis,Springfield ect)and we arent even allowed to protect ourselves.
    Congrats again on the passage of your carry law!
    ARMED IN CHICAGO

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