Federal Court rules open carry is "Disorderly" (Wisconsin case)

[shadowrider]

GCO member Jesus Gonzalez’ federal lawsuit in Wisconsin was dismissed after the judge granted the defendants’ motion for summary judgment. In his lawsuit, Gonzalez challenged his arrest in two separate incidents for disorderly conduct when openly carrying in retail stores. The court found no specific disorderly conduct on Gonzalez’ part, but went on to observe:

“No reasonable person would dispute that walking into a retail store openly carrying a firearm is highly disruptive conduct which is virtually certain to create a disturbance. This is so because when employees and shoppers in retail stores see a person carrying a lethal weapon, they are likely to be frightened and possibly even panicky. many employees and shoppers are likely to think that the person with the gun is either deranged or about to commit a felony or both. Further, it is almost certain that someone will call the police. And when police respond to a “man with a gun” call, they have no idea what the armed individual’s intentions are. The volatility in such a situation could easily lead to someone being seriously injured or killed.”

A copy of all pertinent legal documents regarding this case can be found at http://www.georgiacarry.com/gonzalez_westmin/

A copy of the decision is here: http://www.georgiacarry.com/gonzalez_westmin/Doc%2047%20Order%20on%20MSJs.pdf

http://georgiacarry.org/

[shadowrider]

1. But if you're part of the government it's ok

“No reasonable person would dispute that walking into a retail store openly carrying a firearm is highly disruptive conduct which is virtually certain to create a disturbance."

I wonder if this applies to police who open carry. We all know they're pillars of stability (for the most part).

[geckosfeet]

2. I am afraid that I agree with the judges ruling. If you are going to walk into

Target or Best Buy with gun, at least be civil and polite enough to conceal it properly.

Gun advocates could at least pretend to understand that when a woman and her three children who are out shopping see someone in the next aisle walking around with a gun the danger radar goes off scale.

[shadowrider]

3. It wasn't against the law, regardless the "feelings" of others

Had it been illegal, throw the book at him, but it wasn't and isn't. This decision is all about "feelings".

Your opinion may differ, no harm, no foul.

[geckosfeet]

5. And that was the judges ruling.

"Officers Donovan & Young had probable cause to arrest plaintiff for disorderly
conduct. Both officers had reason to believe that plaintiff had or was engaged in disruptive
conduct under circumstances in which such conduct tended to provoke a disturbance. No
reasonable person would dispute that walking into a retail store openly carrying a firearm
is highly disruptive conduct which is virtually certain to create a disturbance."

[PavePusher]

52. No, they had no P.C.

In Wisconson, there is no legal Concealed Carry, and the WS Supreme Court has ruled that Open Carry is legal and not cause for alarm without additional actions (brandishing, threats, etc.). I don't remember the court case, can probably be found via opencarry.org, or possibly handgunlaw.us.

Peacefully xercising a Civil Right within the constraints of the law, without threat or harm to others, is never probable cause for arrest, and anyone who thinks so does not understand Civil Rights. I am quite sure this will get overturned in a higher court, but the plaintiff will still be out legal costs and a lot of time and hassle.

[geckosfeet]

62. Officers had PC. But no crime was committed.That was the judges ruling.

I agree with him.

Open carry in department stores, or almost any public venue, is almost guaranteed to create a disturbance.

Common sense.

[PavePusher]

64. Except that in many places... it doesn't.

If there was no crime committed, I am unsure how they saw P.C. in a legal, Constitutionally protected exercise of a Civil Right. More proof of the retardedness of the legal system. Who pays this guy back for his time and expenses?

Common sense, right?

[geckosfeet]

67. Read the report and the judges comments.

"Officers Donovan & Young had probable cause to arrest plaintiff for disorderly
conduct. Both officers had reason to believe that plaintiff had or was engaged in disruptive
conduct under circumstances in which such conduct tended to provoke a disturbance. No
reasonable person would dispute that walking into a retail store openly carrying a firearm
is highly disruptive conduct which is virtually certain to create a disturbance."

[PavePusher]

68. Hmmm. So, judges are never wrong?

Might need to check with the judges that have proclaimed the opposite, that the legal bearing of arms is not, in and of itself, justification for alarm.

[geckosfeet]

70. Let's just say I trust the judge more than I trust you. The judge did not call the

police. The store manager called the police because people were voiced their alarm that an armed man was walking around the store. The judge and the police were acting to protect the concerns of their community.

So you tell me who exercised poor judgment. The person who thought it would be a fun idea to open carry in a family department store, or the police and judge who dealt with him.

The police and the judge knew they had to respect open carry rights, but they also had a responsibility to respect the concerns of the community.

If you are going to carry in public, have the decency to conceal.

[PavePusher]

71. Please cite the rule/law/Ms. Manners quote...

that "concealment"="decency".

Some of us believe that Civil Rights in public is actually a good thing.

No-one deserves arrest and massive legal fees just because you don't approve of what they are doing. Silly me, I thought that's what "Rights" was about...

[geckosfeet]

73. Yes. It's all about rights. People and communities have rights too.

The legal case was not around rights. It was around creating a disturbance.

Get over it.

[safeinOhio]

74. "actually a good thing"

That means you'd think wearing a white sheet and hood in public is "actually a good thing". How would that be so?

[shadowrider]

75. Sheesh. He never said, or insinuated, anything of the sort

And by the way, the Klan DOES have a right to wear sheets and hoods in public. You don't like it, I don't like it, it isn't in good taste and is not a good thing etc. etc. That said, it doesn't do away with their right to do so.

[PavePusher]

78. Comparing the intent of Open Carry...

with espousing racism is stooping pretty low. You are usually much more high road and on-point than that.

I assure you I offer no support to any brand of racism. I do, however, aknowledge their right to do so, and will even protect that right at some cost to myself, if neccesary. That is the moral dillema of a free society.

In the meantime, open carry is not racist, it is not rude, it is not "creating a disturbance" except in the view of small-minded, mean-hearted people, and it is perfectly legal in much of the country. The Second Amendment is out of the closet. Relax.

[nebenaube]

11. When did they change wisconsin law?

As I understand it, the firearm must be unloaded, in a case and the ammunition cannot be in the same case. Even if it's a just a Bow.

[PavePusher]

53. No, Wisconsin is an open carry state...

as stated by their Supreme Court, since concealed carry is banned.

[Glassunion]

7. There is a problem with that.

If he had " properly concealed" it he would have broken the law. That state does not allow for concealed carry at all. He was abiding the law.

[Coco2]

10. to conceal it would be against the law in most places...

That is the conundrum with 'Open carry' states. It is perfectly legal to carry a weapon in the open, but it a requirement that if it is concealed you must have a permit. A non-permit concealed weapon will usually get you jail time if caught. As I said it is a conundrum, and needs to be addressed in federal court.

[one-eyed fat man]

54. Wisconsin was a little different.

I was stationed there in the 80's and then, as now, concealed carry was prohibited. The only way around it was to donate sufficiently to the sheriff's campaign fund that he would 'deputize' you. Open carry wasn't a question as Wisconsin did not have any constitutional language recognizing a right to arms prior to 1998. In fact, Wisconsin didn't even permit handguns for hunting deer until 1984 or so.

Here in Kentucky, open carry is long settled law as the court of appeals settled the question in clear and unambiguous language. (Holland v. Commonwealth, 1956)

"In our state the legislature is empowered only to deny to citizens the right to carry concealed weapons. The constitutional provision is an affirmation of the faith that all men have the inherent right to arm themselves for the defense of themselves and of the state. The only limitation concerns the mode of carrying such instruments. We observe, via obiter dicta, that although a person is granted the right to carry a weapon openly, a severe penalty is imposed for carrying it concealed. If the gun is worn outside the jacket or shirt in full view, no one may question the wearer’s right so to do; but if it is carried under the jacket or shirt, the violator is subject to imprisonment for not less than two nor more than five years. The heavy emphasis, we suppose, is upon the undue advantage given to a person who is able suddenly to expose and use a weapon, although the gun itself is the vicious instrument………."

Seeing someone wearing a gun in a holster openly does not particularly draw attention. On the other hand, if someone is constantly fiddling with the thing for no good reason, I would look askance. I will not abide people handling firearms in an unsafe or careless manner. (There are people I will not ride with after seeing them drive either.)

A person may ask them to leave private property and he can have them charged with trespass if they fail to comply. But generally, absent some other behavior, merely passively carrying a handgun openly in a holster is neither disorderly nor threatening.

You do have to wonder how much of the reaction and over reaction was due to a large Hispanic male with a gun in a holster telling the store manager he didn't need a badge?

[Abq_Sarah]

72. Because many have taken the position

That guns are "scary" and only "criminals" would carry one, law abiding citizens have been discriminated against out of ignorance.

If I see a man or woman walking into a retail store with a properly holstered firearm, I'm not going to give them a second glance. If, however, I see someone walking around with a pistol jammed down the front of their waistband, I am going to stay a safe distance away and observe their actions.

In the first instance, the person is unlikely to be a danger to me. In the second, the person doesn't know enough, or doesn't care enough to handle their firearm in a safe manner and they could conceivably be a threat to myself and others.

[Glassunion]

4. Does the same opinion apply if...

It is a white guy?

Or is it only a disturbance if it is a Hispanic guy with a gun?

I think it has a lot to do with the officer. I have been pulled over twice while carrying. In both cases I handed over my permit with my license to the officer. The first time, there was no issue. The officer reviewed the permit and had no issue that I was armed. The second time was another story. I feel the same mechanisms are at work here. Also Mr Gonzalez may have had an attitude with the officers which led to the charges. When dealing with the police, especially as a minority one should not use that as a forum push an issue. But without knowing the details it is all speculation.

[geckosfeet]

6. The decision document in the OP provides the details.

[Name removed]

8. Deleted message

Message removed by moderator. Click here to review the message board rules.

[shadowrider]

9. Including police? n/t

[jpak]

12. no - that's just plain stupid

yup!

[shadowrider]

13. You said all open carry should go to jail

What you actually mean is citizens must be unable to open carry and should go to jail, but government forces (police, etc.) are ok, right? One question. Why is it ok for them, but not the rest?

[Name removed]

14. Deleted message

Message removed by moderator. Click here to review the message board rules.

[shadowrider]

17. You didn't answer the question. Why is it ok for police (on or off duty) to open carry

and the rest of us can't?

[jpak]

18. Because they are there to protect me from open carry teabagging assholes

Because this is a civilized country where we should be free from right-wing brownshirt gun toting nut jobs

yup!

[shadowrider]

19. The police are under no obligation to protect you.

They ARE required to outline your dead body with chalk and attempt to find out who dunnit.

[jpak]

22. I guarantee if I called 911 to get a gun toting asshole off my property they would

yup!

[shadowrider]

23. You're funny

IF IF IF IF you survive the minutes it takes for the police to get there to "protect" you, you're right.

Chances are, you're dead and they're gone. Chalk, outline, investigate, etc.

When seconds count, the police are minutes away.

[Name removed]

24. Deleted message

Message removed by moderator. Click here to review the message board rules.

[shadowrider]

25. Your choice

Me? Some bad guy shows up at my house with a gun I'll call 911 IF IF I have time. If not, he/she gets 11 165 grain, .40 caliber hollowpoints to discourage them, THEN I'll call the police.

[jpak]

26. and in most states you will go to jail for it

yup!

[shadowrider]

27. Self-defense, dude

The man shows up with a gun, I'm entitled to defend myself and my family with deadly force.

[jpak]

28. so if an "law abiding" open carry asshole shows up you can shoot him?

nope

this is the stupidity of the open carry teabagging assholes.

if someone is carrying a gun, and you feel intimidated by him, you can shoot him?

nope

nutbags all

yup!

[shadowrider]

29. I didn't say that, please don't put words in my mouth

if a BAD GUY with a gun shows up displaying intent (to clarify since you want to twist words).

[jpak]

31. If someone is openly carrying a gun - how can you tell he's a bad guy or not?

let me guess

[shadowrider]

32. ok, guess

And my usual way of discerning whether or not they're a bad guy has to do with breaking glass, a door being smashed in or someone approaching me and demanding I give them my money.

Good guys don't do that whether or not they're armed.

[jpak]

34. So if a young black man playing baseball breaks your window and comes to apologize

then what?

[shadowrider]

35. If he doesn't approach me in a threatening manner while holding a gun, no problem

[jpak]

36. what if he was carrying the bat he was playing ball with

then what

[shadowrider]

38. THREATENING MANNER while holding a weapon, do you not understand?

[jpak]

40. What if he was openly strapped and carrying a baseball bat? Would that be threatening?

?

[jpak]

37. So what if a law abiding open carry homeless panhandler asks you for money?

what then?

[shadowrider]

39. If they approach in a threatening manner and have a weapon, yes, I'm concerned to say the least

[jpak]

41. So anyone openly carrying a gun is a "concern" - if they don't look "right"

and a candidate for "self-defense"

is that what you are saying?

[shadowrider]

42. No, that's not what I'm saying

I go shooting with friends who are concealed, one who carries openly and your "scenarios" are ridiculous.

Situational awareness. It's like riding a motorcycle. If I have to explain it, you wouldn't understand.

[jpak]

43. so you arbitrarily assign a threat to anyone you don't like and you have a right to self defend

against them?

[shadowrider]

46. Twisting again, huh. NOT what I said

Re-read earlier posts. THREATENING MANNER, in possession of a weapon, situational awareness etc.

[jpak]

47. What is a "threatening manner"? - it's arbitrary. This is why we have law enforcement not anarchy

and this is what the open carry nuts want

anarchy

[shadowrider]

48. Vermont is a shining example of anarchy due to open carry, isn't it

[jpak]

49. When the open carry extremists abuse their privileges - that will change

yup!

[friendly_iconoclast]

56. Here's some more "extremists" arrested while doing nothing illegal

Because they had the wrong political opinions. Do you approve of this, as well?


http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x8318697#8321320

Amy Goodman and Democracy Now Producers File Lawsuit Over RNC Arrests

[shadowrider]

50. Let me explain. I'll use small words and short sentences

Threatening manner - Someone breaks into my house at night
Threatening manner - Someone comes at me with a weapon (knife, gun) and demands money
Threatening manner - Someone attempting to carjack me
Threatening manner - Someone attempting to rob me at an ATM

NON-Threatening manner (But prepared nonetheless) - Bum on the street asks for a quarter or cigarette
NON-Threatening manner (But prepared nonetheless) - Someone accidentally kicking a ball my way and requesting I return it

Capiche?

[jpak]

51. "But prepared nonetheless" - yup, because they are ALL threats

and arbitrary

cuz they don't "look right"

and no one have no right to intimidate homeless people or kids with their stupid guns.

nope!

[gorfle]

57. Like it or not, jpak

Like it or not, jpak, the fact of the matter is in many states, probably most of them, citizens have the right to defend themselves, their loved ones, and often, their property, using deadly force.

When there is a shooting in these cases there is always a complete investigation to determine if the action was justified or not. Even if you are on the right side of the law, you are probably looking at some serious legal expenses.

[jpak]

60. Is a dog urinating on your lawn a "threat" - it was to this asshole

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x8320352

[gorfle]

66. Of course not, jpak.

Is a dog urinating on your lawn a "threat" - it was to this asshole

jpak, you are attempting to make the argument that because some people exercise poor judgment in determining when something is a threat to life or limb that no one should be able to make that determination.

The law profoundly disagrees with you, as do most people.

In most places in the US, people who perceive a threat to life or limb, or that of a loved one, is justified in using deadly force to counter that threat. Of course, there is always an investigation afterward to determine if the perception was reasonable.

[AtheistCrusader]

55. Only arbitrary in your mind.

There are laws that define these 'threatening manners'. A black kid with a baseball bat that accidentally sent a baseball through your window, inquiring about the damage would not be an 'intent to intimidate another'.




RCW 9.41.270 (1)

It shall be unlawful for any person to carry, exhibit, display, or draw any firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or any other weapon apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons.

[Euromutt]

65. Evidently, what constitutes "disorderly conduct" is what's arbitrary

The fact that what constitutes a "threatening manner" has so many possible variables that it's impossible to formulate an exhaustive definition (i.e. one that covers every contingency) does not mean it's simply arbitrary. As a rule of thumb, the person's words or actions should provide you with a reasonably perceived belief that he intends to cause you permanent injury or death. Of course, what constitutes a "reasonably perceived belief" is subjective but it does require that other people can see it your way.

Now, the way the judge in this case defines "otherwise disorderly conduct" (nicely specific wording there) as including behavior that prompts someone else to actually create the disturbance in question. The judge's assertion that "no reasonable person would dispute that walking into a retail store openly carrying a firearm is highly disruptive conduct which is virtually certain to create a disturbance" is incorrect, unless he wants to discount the judiciaries of several states--including my own of Washington--which have ruled that the mere sight of a holstered handgun does not warrant reasonable cause for alarm.

[Taitertots]

77. Actually, it is quite clearly legally defined

It is why we have law enforcement and courts. So people don't get hassled by ideologues for doing nothing but follow the clearly defined statutes.

[GreenStormCloud]

59. Now that's funny.

open carry homeless panhandler I want to see one of those. They don't exist. The homeless dude will have long since sold his gun, or have it stolen from him while he sleeps. Please try to be real with your scenarios.

[inkool]

20. What if the person open carrying was a Democrat...

or a liberal. Would that be ok?

[jpak]

21. no - it would not

yup!

[inkool]

30. Ok, so you are against open carry in general?

I asked because in your previous posts you referenced a particular demographic (teabagger, right-wing, etc).

Why do you feel that open carry, in general, should be illegal?

[jpak]

33. if you are not hunting or on the range - no, I'm against open carry

these assholes want to intimidate people - period - and they should not be allowed to do that

the end

[inkool]

45. So you belive that the only reason people open carry is...

to intimidate?

What if their reason for open carry was other then intimidation, would that be ok?

[Glassunion]

58. No! Not OK!

They are all slack-jawed teabaggers! Make um go away! Guns are bad! Really, really bad. Guns = teabaggers! If you have one you are one!!!!

Seething with :sarcasm:

[inkool]

63. Thanks,

That was exactly the answer I was expecting. Just without the sarcasm tag :)

edit for spelling.

[oneshooter]

61. If you are so set against open carry

Then you must prefer concealed carry. Nothing showing, nothing to fear.

Oneshooter
Armed and Livin in Texas

[Taitertots]

76. Statistically speaking, you have more to fear from the police

You are more likely to be the victim of crime committed by the police than by a non-LEO legally carrying a gun.

The police have no legal duty to protect you at all. It is clearly legally defined.

[Callisto32]

15. AHHH, disorderly conduct, or as it has come to be known by libertarians, "contempt of cop."

The purpose of disorderly conduct charges seems to be to allow the police to decide that something is de facto illegal, even though we live in a common law society where all things are presumed lawful unless specifically regulated.

Then, of course, once a police officer has decided that something is "disorderly," the thin blue line closes in and the other police on the scene back the decision. Then it goes to court where the judge doesn't want to "undermine" the police, so they uphold it because, after all, the police are out there keeping society safe from such horrible criminals as non-violent marijuana dealers and people exercising their rights to freedom of speech, carry arms, et cetera.

Meanwhile, as these folks fill both our prisons and the public coffers with extorted funds, rapists, murderers, and thieves go uncaught and prosecuted because keeping certain items "off the streets" is more important to public safety than actually discouraging criminal behavior by having an obvious, helpful presence at the neighborhood level.

[Callisto32]

16. The case was not dismissed, either.

Summary judgment does not mean the case was dismissed, it means one side won without having to take it to trial.

To grant summary judgment, the movant has to show that there is no genuine issue of material fact, and that the movant would be entitled to judgment as a matter of law. To have no genuine issue of material fact, no reasonable juror, upon inspection of the law, pleadings and evidence could find for any but the movant.

[mvccd1000]

44. Couldn't happen in Arizona, where OC is common...

... and accepted. I did not start open carrying until I had seen others doing so in my eye doctor's office, my bank, my grocery store, the junkyard, and on motorcycles on the street.

It's too bad some states are still ruled by hysteria.



Off topic: I wonder if OC will become less common in AZ now that concealed carry is legal without a permit?

[aikoaiko]

69. That's effed-up.

Carrying a gun in holster and not making any verbal threats or otherwise acting "suspiciously" is not disruptive behavior.