Attorney general won't say whether open carry is legal


Staff member
As conflicts over of the open carry of firearms mushroom in the state, Wisconsin attorney general J.B. Van Hollen is declining to issue a legal opinion about whether the practice is legal.

In a Nov. 6, 2008, letter to then state Rep. Terry Musser (R-Black River Falls), deputy attorney general Raymond Taffora acknowledged a number of requests for just such an opinion, as well as a growing number of arrests for carrying firearms in plain view, mostly on the charge of disorderly conduct.

On behalf of an unnamed constituent, Musser had specifically asked for an opinion about the open carrying of firearms for personal defense, but Taffora told him there were prudent legal reasons for the attorney general not to get involved.

For one thing, Taffora said, many requests for a formal opinion had been prompted by disorderly conduct charges brought by district attorneys. In general, he wrote to Musser, private citizens wanted an opinion to cite at trial or at the appellate level to defeat the charge.

There are procedural reasons not to give them those citations, Taffora wrote.

First, he noted, state statutes provide that the attorney general can only provide formal opinions to the governor, the Legislature, state officers and agencies, corporation counsels, and district attorneys. The attorney general cannot issue formal opinions to cities, towns, villages or other municipal attorneys or private citizens.

"We also discourage authorized requestors from acting as proxies for private citizens seeking a formal opinion," he wrote. Musser was in fact acting as such a proxy when he asked for the opinion.

Moreover, Taffora went on, an opinion should not be requested on an issue that is the subject of current or reasonably imminent litigation, since an opinion of the attorney general might affect the case.

"That limitation protects the right of Wisconsin litigants to obtain a definitive ruling on their matter of controversy," Taffora stated. "A formal opinion of the Wisconsin attorney general is not a judicial ruling. While formal opinions may be considered persuasive authority, they are not precedent for any court."

Indeed, Taffora said, the attorney general's office is aware of "various court actions" in which the defendants may challenge the factual basis for a disorderly conduct citation, or raise constitutional challenges to the charge. Given that, he stated, the attorney general should not issue an opinion.

DA discretion

Finally, Taffora said, the attorney general is cautious about offering opinions on the propriety of bringing or not bringing charges in a particular class of cases because the Wisconsin Supreme Court has concluded that state officers cannot direct a district attorney's exercise of charging discretion, whether it is to bring a charge or decline to bring a charge.

Taffora cites a case, Kurkierewicz v Cannon, in which the court determines that district attorneys are constitutional officers and are endowed with a discretion that approaches the quasi-judicial. Therefore, the Kurkierewicz ruling states, district attorneys do not have to prosecute all complaints filed with them or all apparent violations of the law, and they are answerable to no authority other than the people in elections.

"We believe Kurkierewicz stands for the proposition that state officials - including the Wisconsin attorney general - cannot compel a district attorney to charge or decline to charge a class of cases in a particular manner," Taffora wrote. "Even if the procedural bars described above were not in place, Kurkierewicz would strongly counsel against our attempting to influence criminal charging in the manner sought by [your constituent]."

That does not leave citizens without judicial recourse, Taffora concluded.

"If a district attorney lacks a proper or sufficient factual basis to bring a particular criminal charge, then the defendant may challenge the charge in both the trial and appellate courts," he wrote. "And if the county's citizens disagree with a district attorney's exercise of charging discretion over the run of cases, Kurkierewicz is a reminder that a district attorney must ultimately respond to the citizens concerns in the electoral process."

Sleeping with one eye open

Some open-carry advocates, among them Gene German, see the attorney general's refusal to get involved as so much political jockeying.

In particular, German said, Van Hollen could be eyeing the West Allis case of Brad Krause, which could end up in state court. Krause was arrested for disorderly conduct for wearing a holstered firearm on his own property.

"Jim Doyle (when he was attorney general) has done more for us than Van Hollen will do," says German, who is the state director of the American Association of Certified Firearms Instructors and one of the founders of Wisconsin Patriots, a grassroots organization whose declared mission is to "encourage our fellow citizens to restore, exercise and preserve their individual rights, including the right to be safe."

"The reason they (the attorney general's office) blew Musser off, I think, is that if J.B. says open carry is in fact lawful and then West Allis appeals, the state will be representing the city and he's going to end up creating a problem for himself defending the city's actions when he has already said what Brad did was lawful. So he's not going to put himself in jeopardy and open his mouth, although he should."

Whatever his motivation, the attorney general certainly has a surfeit of case law and DOJ briefs to form an opinion, if he chose to do so.

As German alluded to and The Lakeland Times has reported, both Doyle, as attorney general, and the Supreme Court recognized open-carry rights in State of Wisconsin v Hamdan, in which the High Court carved out a concealed weapon exemption for small storeowners.

In a brief signed by Doyle, the Department of Justice argued against the exemption, citing the ability of citizens to already possess and carry an open weapon: "The State argues that even under the strictest enforcement of the [concealed carry] statute, a person lawfully in possession of a firearm will always retain the ability to keep the firearm in the open - holding the weapon in the open, keeping the weapon in a visible holster, displaying the weapon on the wall, or otherwise placing the weapon in plain view," the court stated in summing up the DOJ's brief.

In her dissent of the final decision, chief justice Shirley Abrahamson went even further.

"That is, [the law] does not prevent anyone from carrying a firearm for security, defense, hunting, recreation, or other lawful purposes," Abrahamson wrote. "Rather, it limits the manner of carrying weapons, by requiring that a weapon that is on a person or within a person's reach not be concealed. The gist of the offense is the concealment."

What's more, the state Supreme Court has already ruled on what can be and cannot be considered disorderly conduct, in the case, State v. Douglas D.

"To prosecute a defendant for a violation of this statute, the State has the burden to prove two elements," the court determined. "First, it must prove that the defendant engaged in violent, abusive, indecent, profane, boisterous, unreasonably loud or similar disorderly conduct. Second, it must prove that the defendant's conduct occurred under circumstances where such conduct tends to cause or provoke a disturbance. Under both elements, it is the combination of conduct and circumstances that is crucial in applying the statute to a particular situation."

How the very act of a carrying a visible legal firearm fits or does not fit that judicial criteria is a matter screaming for clarification.

With the attorney general on the sidelines, that will likely happen in court, probably the Supreme Court, and take months, if not years. In the meantime, more open carry arrests for disorderly conduct and more contested court cases can be expected.

Source: Lakeland Times

Open carrying of firearms legal, Van Hollen says


Madison - State Attorney General J.B. Van Hollen said openly carrying firearms is legal in a memo he sent to district attorneys Monday afternoon.

"The Department (of Justice) believes that mere open carry of a firearm, absent additional facts and circumstances, should not result in a disorderly conduct charge," the Republican attorney general wrote in the memo.
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