Madison police dispatcher misled 911 caller on open carry

September 13, 7:28 PMDC Gun Rights ExaminerMike Stollenwerk

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(courtesy of Oleg Volk)

On August 8, 2009 a person named Ryan working at "Fromaginations on the Square" called the Madison police to ask if there was a "law in the state of Wisconsin that allows you to carry a gun," reporting that "a gentleman walked past me with a rather large rather large gun attached to his hip . . . he was walking north toward State Street."  Replied the police dispatcher, "[n]o there is not . . . let me get someone to check that area to see if we can find 'em because there is no such law here." 

Listen to the full audio file here.

Shortly thereafter Travis Yates was detained and cited for "disorderly conduct"  for mere open carry of a holstered handgun.  Mr. Yates has vowed to "fight his ticket." 

A reasonable person listening to the dispatcher might have concluded that open carry of handguns was illegal in Madison.  In fact that's what Ryan thought, and he told the Examiner.com that he believed that "open carry is disorderly conduct in Madison." 

However when Ryan learned that six days after Mr. Yates was cited for disorderly conduct, Madison police officials issued an email to patrol officers stating that "officers cannot simply write a DC ticket based solely on the open carry . . . unless additional articulable facts exist to substantiate Disorderly Conduct," Ryan paused and then responded with a question:  "Then what basis is there to stop" someone openly carrying a gun?

According to the US Supreme Court in Florida v. J.L. (2000) (detaining man on mere report that he has a gun violates the Fourth Amendment), Ryan's question is exactly the correct line of inquiry because there is no "firearms exception" to the Fourth Amendment.  Other high courts of our country agree, like the Washington Appeals Court in State v. Casad (2004) (detaining man observed by police openly carrying rifles on a public street violates the Fourth Amendment) and the federal district court in New Mexico which just past week entered summary judgment against Alamogordo police officers for detaining a man for merely open carrying a holstered handgun at a movie theater. 

But there is more to the story - Ryan's report to the police was made via the non-emergency line in the form of an inquiry - not a report of any disturbance or crisis.  He just basically asked if open carry was legal. 

Based upon this report of orderly lawful conduct to the police, it's not clear why a police unit was dispatched in the first place, let alone why Mr. Yates would be detained, ticketed, and forced to return his gun to his home.  But the Madison Police Department appears to be on a very slow learning curve on this open carry thing. 

It may take a while, and a few lawsuits, but eventually, Madison Police dispatchers will respond like their counterparts no do in other states and dryly reply to 911 callers reporting sighting of an open carrier something like:  "Sir, it's not illegal to carry a gun in Wisconsin.  Is the individual doing anything that is suspicious?"