RSS
Home
Federal court decision on open carry
Print
Email
RSS
Subscribe
Recently, Travis Yates was stopped in Madison for merely carrying a firearm openly.
You should know Brad Krause’s experience with the West Allis police department.
I am aware of other police departments who continue to stop armed citizens and search them for no legal reason, despite guidance from attorney general Van Hollen last April.
The police are skating on very thin ice and are inviting a federal lawsuit. This is high stakes poker kids and we know who is holding all the aces.
There was a Federal court decision in New Mexico dated September 8, 2009 (Matthew A St. John v. David McColley and six unknown officers of the Alamogordo Department of Public Safety - Case Number 08-0994 BB/LAM) which addresses the legal risks police face when approaching someone doing nothing illegal, and detaining them. The attorney generals April 20th memo discusses what is a proper stop and search of an armed citizen in paragraph 8 and what is an illegal stop and search of an armed citizen in paragraph 9. Although this Federal court decision does not directly affect Wisconsin courts, it is clearly the handwriting on the wall for them to follow and it reiterates the attorney general’s warnings to law enforcers.
I thought this decision was interesting because this court goes even further to address the “community caretaker function” of the police and that it may be invoked as a defense only so long as the officer is entitled to make a forcible stop. Merely receiving a call from a hypersensitive person that someone is armed where it is lawful to be armed, is not reason enough to believe anyone’s safety is in danger in the absence of any suspicious or threatening behavior. This seems to me to be the big disconnect with law enforcement training. The 911 operators need to ask more questions of the caller to determine if there is any criminal activity before sending out one or more officers. In this case, Mr. St. John was in a theater watching a preview to a movie, a perfectly legal activity. The responding officers should have been trained to discern the difference between unlawful activity and a person quietly watching a movie.
The court also found that merely being armed does not automatically make a person armed and dangerous, which would be necessary to justify a limited protective search (Terry stop) that justify officers disarming an individual. This is another huge training challenge.
The police believe they have qualified immunity however that only shields them from civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” To determine if qualified immunity applies, a two step process is applied to the circumstances. First, there needs to be a determination if there was a violation of a federal constitutional or statutory right by the police. Then it needs to be determined if the right was clearly established. For a right to be clearly established, it must be sufficiently clear that a reasonable police officer would understand what he is doing violates that right. The April 20th memo from the attorney general which has received a great amount of attention across the state provides clarity to law enforcement officers when not to step on a citizens’ right against illegal search and seizure under the fourth amendment. When a cop deliberately breaks the law, they forfeit their qualified immunity protection and can be sued individually for damages.
If you are a law enforcement officer, you really need to decide if you are willing to follow your department’s policy when meeting a lawfully armed citizen, if it is contrary to this decision and the attorney generals advice, or follow the law.
Ignorance of the law is no excuse for me, so it is certainly no excuse for the police either.
If you are a citizen who openly carries a gun, educate yourself. Know the law and your rights first of all. It is up to you to preserve your rights so know an attorney who you would call if needed, before you need to make the call. Go back to my first series of articles and read through them to know the laws. Talk to an attorney if you are unclear about any law that limits your ability to carry. Stay away from state parks, bars, school zones, public buildings. Do not carry a loaded gun in a vehicle (that includes ATV or a motor boat under power).
Knowledge is power. Formal training for citizens who want to carry a gun in Wisconsin is available. I wouldn’t leave home with a gun, without it.
Related Articles:
Comments
Living life is making one decision after another. The average person probably makes nearly a thousand decisions every day. Some decisions are …
Open carry has always been the law of the land in Wisconsin, however some people are now having regrets they supported the Governors two veto’s …
