Milwaukee police chief Ed Flynn borrows a page from Bull Connors' playbook

On Bull Connors orders, police "take down" citizens without legal justification in Birmingham, AL, in 1963 

Earlier this week  WISN.com TV News caught on video a consensual encounter between West Allis police officers and Brad Krause who happened to be open carrying a holstered handgun in public.  Like the old Roman saying, the police officers' action can be described simply as:  they came, they saw, they left. 

In states where open carry has become popular the police often don't even come anymore unless they see or are told of actual unlawful conduct.

But while Wisconsin gun owners like Mr. Krause prepare to play ball with consensual police inquiries into their orderly open carrying of holstered handguns, Milwaukee police chief Ed Flynn appears to be borrowing a page from Bull Connors' playbook. As the Birmingham, AL Public Safety Commissioner in the 1960s, Bull Connors became a symbol of bigotry by using fire hoses and police attack dogs against protest marchers.   

Now comes Milwaukee police chief Ed Flynn - hailing recently from Massachusetts but acting like he's from the old South - telling his officers to "take down anyone with a firearm despite Attorney General J.B. Van Hollen's finding that people can carry guns openly if they do it peacefully."  Chortled Flynn, "My message to my troops is if you see anybody carrying a gun on the streets of Milwaukee, we'll put them on the ground, take the gun away and then decide whether you have a right to carry it."   

With good reason, Reason Magazine notes "You know you have a problem when the chief refers to peace officers as 'troops.'" 

But Flynn's not done - he also announced that "If you're carrying a gun in Milwaukee, you're going to comply with our lawful orders. Unless, you're going to have your permit tattooed to your head, I don't know how you're going to get around that." 

Lawful order to whom Chief Flynn?  The mother open carrying in a park while her kids feed the ducks? 

And what permit?  Like most states, no permit is needed to open carry in Wisconsin.

Absent reasonable articulable suspicion of criminal activity, the police have no more lawful power to "take down" a person openly carrying a handgun than they have to "take down" folks open carrying cell phones.  And in the face of unlawful police conduct, citizens have no duty to obey unlawful police orders, answer questions, or relinquish their firearms. 

And if the police then use force or threats of force to compel citizen compliance, this Fourth Amendment violation leads to both (1) suppression of evidence of any wrongdoing (i.e., bad guys get off the hook) and (2) suits against the city and the officers in their personal capacity (i.e., taxpayers pay good guys).  Is that what the City Council of Milwaukee wants to happen?

Let's review the relevant paragraphs from Wisconsin Attorney General J.B. Van Hollen's Memorandum on Open Carry:

8. Finally, several law enforcement agencies have asked whether, in light of Article I, § 25, they may stop a person openly carrying a firearm in public to investigate possible criminal activity, including disorderly conduct. We say yes. An officer may stop and briefly detain a person for investigative purposes (known as an investigative or Terry stop) if he has "reasonable suspicion," based on articulable facts, of criminal activity. Illinois v. Wardlow, 528 U.S. 119, 123 (2000); United States v. Sokolow, 490 U.S. 1, 7 (1989); Terry v. Ohio, 392 U.S. 1, 30 (1968). The existence of reasonable suspicion depends on the totality of the circumstances, including the information known to the officer and any reasonable inferences to be drawn at the time of the stop. United States v. Arvizu, 544 U.S. 266 (2002) (reaffirming "totality of the circumstances" test). Even though open carry enjoys constitutional protection, it may still give rise to reasonable suspicion when considered in totality. It is not a shield against police investigation or subsequent prosecution. See State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763 (1990) (police officers not required to first eliminate the possibility of innocent behavior before making investigatory stop).

9. And "even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, [and] ask to examine the individual's identification," as long as the police do not convey a message that compliance is mandatory. Florida v. Bostick, 501 U.S. 429, 434-35 (1991). The Fourth Amendment does not prevent police from making voluntary or consensual contact with persons engaged in constitutionally protected conduct. See United States v. Mendenhall, 446 U.S. 544, 553-54 (1980). Accordingly, a law enforcement officer does not violate the Fourth Amendment by approaching an individual in public and asking questions. Florida v. Royer, 460 U.S. 491, 497 (1983). An officer may approach and question someone as long as the questions, the circumstances and the officer's behavior do not convey to the subject that he must comply with the requests. Bostick, 501 U.S. at 435-36. The person approached need not answer any questions. As long as he or she remains free to walk away, there has been no intrusion on liberty requiring a particularized and objective Fourth Amendment justification. See Mendenhall, 446 U.S. at 554.

Chief Flynn's unprofessional, emotional, and lawless reaction to the Attorney General's frankly legally unremarkable memo makes him appear to be a danger to himself and others, and the Constitutions of Wisconsin and the United States.  If the ACLU and police union leadership of Milwaukee are not very concerned right now, they ought to be.