WCI v. Madison: was Police charge five "legal" open carry citizens in Wisconsin

[therealdeal]

I am definately on the side of the madison 5, but its common practice to ask for identification when responding to a call. Every call a LEO responds to is possibly a life threatening situation. Process of elimination occurs once the ID is checked: no, this man is not a fugitive from justice, no this man isn't a convicted, dangerous felon+therefore does have the right to OC, and so-on. It happens all the time when someone is pulled over as another example. No, not the person driving- the passenger(the passenger has done nothing wrong but is still asked for his ID oftentimes). It helps them with their safety to know this person isn't an escaped murderer, hiding anything of importance, etc. Treating every call w/caution is in the LEO's best interest. That being said, the 4th amendment is very important and needs to be respected when the law says it should. Those two are standing up for their rights. Its common knowledge that many LEOs commit unlawful searches&seizures.

 

[rtpzwms]

quoted from tyme in thread http://thefiringline.com/forums/showthread.php?t=195096&page=3
One is that cops need to treat everyone as felons in case the next stopped driver is another Blackburn.

And now you ask

So just so I have this straight, people here -- those who do not object to baseless ID requests from cops -- have no problem with a "Papiere, Bitte" legal atmosphere just as long as the government is not shipping people off to gas chambers?

You can't have it both ways....If the cops NEED to treat everyone as felons then we HAVE to show id or get ready for a felony stop! Like I said I don't know that I would not have given up my id or not (double negative). And I don't know what they are investigating I hope that would come out in a friendly conversation with him/her. Most are just doing their job not trying to make things worse. I see no reason for me to make their job harder. But I've never worn any of the LEO jewelry.

I've been stopped once or twice because my car matched one they were looking for, but I've never been pulled or frisked for any stop. But I knew I wasn't doing anything wrong. And I've been let go a FEW times because I was smiling and not ****** off or giving them an attitude. Once by CHP which almost NEVER let you go once your stopped. And believe me, I was in the wrong, I was doing 90 in a 55 zone(damn that car liked high speed). He just told me to slow down and have a nice day. We even joked about the speed he clocked me at 88 but trust me it was higher than 90. And I have three witnesses.

 

[therealdeal]

And as to those who would violently overthrow a democratically elected government, what sort of government do you imagine they would have then?

Ah, the American Revolution! Some revolution! More like a colonial war, if you ask me. Just about the only real change was the exchange of royally appointed governors for locally elected governors. It took some time before it was realized that a little more was needed to actually run the whole country and more than one attempt at an organization

bluetrain, the American Revolution caused many, many changes and our forefathers kicked some serious butt, so I can only hope you aren't saying different above. I understand your point about the overthrowing the gov't thing here, but let's not forget what those proud individuals did for us and our freedoms.

 

[maestro pistolero]

As it stands, superior courts will pursue breach arrests for OC.

There is a serious problem when disturbing the peace can be used to criminalize constitutionally protected behavior. The 2A is now officially a fundamental, enumerated, and incorporated civil right that's entitled to the full protection of the law.

One could argue that holding a Nazi rally is far more disturbing to the peace than being lawfully, peacefully armed with a weapon secured in a holster.

But few would argue there is no constitutional right to hold the Nazi rally, offensive as it may be.

It's way past time for the Second Amendment to shed it's status as the red-headed step-child of civil rights. In one way, it is the MOST fundamental of rights, because self defense is the one right, without which, all other rights become moot. In other words, death nullifies all rights.

 

[therealdeal]

maestro, I agree 100%(referencing post just above mine). all 5 of these guys are going to get off scott free as they should

 

[Al Norris]

Disturbing the Peace or Breach of Peace (as it is called in common law) was an act or activity that was an offense to your liege.

There are three common law definitions. In the broadest terms, it is a crime and an indictable offense. In a more common sense, it is a minor crime that describes a disrupting effect upon the peace of the community. In it's most narrow sense, it is conduct that disturbs an individual.

It is this third meaning that has become controversial. Originally, such a disruption was not cause for arrest or other criminal sanctions. It was a petite civil offense by which the civil courts were the place for any remediation.

In early puritan America, breach of the peace was anything that was contrary to the public senses, which at that time were controlled by the majority religion. Right or wrong, that has never changed in the 13 colonies.

By the end of the 19th century, in most of the US, the various state and local governments crafted laws that made breach of the peace an infraction or misdemeanor against the public order. As a private affair, a police officer could not arrest anyone for breach of the peace unless the complainant signed a statement making a citizens arrest.

While most DP laws have remained as they were first crafted, the courts have given the offense new and broader definitions, such that they are now, as Trooper has remarked, "catch-all" laws (See General Article 134, UCMJ, for you military folks). No longer does a citizen have to sign a complaint. No longer does an police officer even have to have a viable complaint. Anything and everything can be a breach of the peace, and arrest is generally forthcoming. Let the Courts sort it out, is an applicable attitude.

There are still a few States that have statutes that the courts have not completely perverted. In CA, ID and WY, an individual must still sign a complaint (citizens arrest), else a police officer has no proper authority over the individual(s) creating the civil disturbance.

So what we can say is that originally, breach of peace laws were an offense to the Crown (or your local liege lord). Then they became an offense to the religious sensibilities of the colonists (Neither of which are applicable to Citizens of a Republic, I might add). Finally they have evolved into what they are today - When all else fails, charge them with DP.

In the instant case, we have an example of conflicting law. On the one hand, there is a lawful use of openly carrying a firearm (implicit), because concealed carry is a crime (explicit). And on the other hand is a disturbing the peace statute that allows for the persecution of an implicitly lawful act.

Trooper? In Connecticut, it is the same. Your statutes explicitly allows for open or concealed carry, via the carry permit. Yet your courts allow that statute to be voided by breach of peace law.

Seems to me that if an individual is offended, then that individual should seek redress via the civil courts. That is why they are there. Yet what we actually have are state actors who are offended that the plebes are armed and use the law to impose sanctions.

Expect that to all change in the near future.

 

[Aguila Blanca]

I agree, the police must investigate when receiving calls from the public.

WHY?

See my post #16 in this thread. Why is the "investigation" not carried out by the dispatchers? As Al Norris pointed out to Conn. Trooper, that which is not illegal is ... legal. If a state wants to make open carry UNlawful, they pass a law saying that open carry is UNlawful. If they want to allow open carry, they don't pass a law saying open carry IS lawful, they just DON'T pass a law saying it isn't lawful.

So, if open carry is legal (which it is in your state, Conn. Trooper), then why must a police officer be sent to "investigate" a call of a many with a gun? If the caller cannot enunciate some activity that's at least possibly illegal, why are we wasting police resources "investigating" lawful activities? And, further to the point, if an officer (or two or three or ten) is/are dispatched, once they verify that there is no illegal activity ... why are they harassing the person?

Conn. Trooper (and everyone), here is Connecticut's statute on "Creating a Public Disturbance":

Sec. 53a-181a. Creating a public disturbance: Infraction. (a) A person is guilty of creating a public disturbance when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he (1) engages in fighting or in violent, tumultuous or threatening behavior; or (2) annoys or interferes with another person by offensive conduct; or (3) makes unreasonable noise.

How can exercising a lawful right by engaging in an action that is NOT unlawful fall under the purview of this statute? Note that before this statute can even come into play, the actor must have the intention of disturbing or offending the public. It might (or might not?) be a stretch to apply this law in the case of an event organized specifically as an open carry rally, where the intent would be to draw people's attention to ... open carry. Maybe it could be argued that this connotes an intention to upset people.

But ...one or two people sitting in a coffee shop, eating breakfast? Their intention is not to annoy or cause alarm, their intention is to exercise their Constitutional right to bear arms so they have a means of defense against assault.

Conn. Trooper, if THIS is the statute you guys are using against open carry, I hope your agency and any cities that follow your lead have deep pockets.

 

[tyme]

You can't have it both ways....

Wow... you googled for some keywords you thought would catch me in a contradiction? I said "there are two ways to look at [some situation]..." and the one you quoted was one way. I never said I agreed with that view.

 

[rtpzwms]

Tyme, no I googled your location and found it. I was just wondering about your location I still haven't figured it out. LOL Still friends?

But you did make a powerful point so I used it.

 

[BlueTrain]

Too many lawyers in this thread.

 

[Aguila Blanca]

I am definately on the side of the madison 5, but its common practice to ask for identification when responding to a call.

So you're saying that in Wisconsin it is standard police practice to violate the 4th Amendment of the U.S. Constitution.

A few posts up reference was made to Hiibel. That was decided by the U.S. Supreme Court. It goes hand-in-hand with Terry. It is VERY clear: unless there is a reasonable suspicion based on clearly articulable facts that a crime is being committed, has been committed, or is about to be committed, what a police officer can do is very limited. They can ask who you are, but they canNOT demand a document to prove it.

 

[therealdeal]

THIS ALL CAPS PORTION ADDED TO ELIMINATE CONFUSION-THIS POST RESPONDS TO POST#47

Aguila, I saw post 16 earlier when you were speaking to and from conntrooper. to answer your question, WHY?:

its their job, thats why. until a police officer emerges on a scene to determine if something is lawful or not, he doesn't know that its legal. now depending on the circumstances if someone calls the police about why someone is OC'ing its not unheard of for the authorities to say, "Nothing illegal is occuring, so we can't do anything." I can't decide what or why every seperate agency/dept is going to do on any given occaison. the bottom line is that they were sent to investigate the situation. WI is a more unfriendly state w/regards to firearms. The caller of the 911 call said she felt uncomfortable with the situation and all the guns. Also, I should note that almost every 911 call is responded to in some form or another. It is different if you call the direct police station line. The 911's are all usually responded to, and the dispatcher contacted the authorities and they were sent. Thats all they knew at the time on the way: what the dispatcher was able to relay.

 

[DiscoRacing]

I can handle the fact that the police were called..and did respond..but..that should have been all that happened then..nothing more. Asking for ID shouldnt have been a factor... Im in Wisc. open carrying a gun,,which I can legally do... they should have been satisfied on that alone.

 

[therealdeal]

Ohio Precedent?

Aguilar, I noticed you never responded to all the evidence agnst you on the above THREAD, but I will respond to you briefly again:

I already explained why I think its common practice for police to ID people on calls to duty during their shift.

 

[BlueTrain]

My experience with police has been limited but I did call them once to report an abandoned motor scooter in the woods next to the house. A motor scooter (moped, more correctly I think) not requiring a license is therefore merely property as opposed to a motor vehicle, by the way. But at any rate, the responding officer requested my identification, which is something I do not carry with me unless I'm actually driving. After all, it is a driver's license but also a generally acceptable form of identification. So I had to go get it. That was not a problem for me since I'm not sure that I can be all that anonomous standing in front of my own house.

It makes me wonder, though, when all this business of licensces, documentation, permits and so on started to become common?

 

[Al Norris]

It makes me wonder, though, when all this business of licensces, documentation, permits and so on started to become common?

While a timetable would show some variance, this started when legislatures began to notice that it brought in revenue. Most all the public safety regulations generally happened after the licensing was in place, usually as an excuse to raise the fees.

Remember, licensing and permits are nothing more than another form of taxation. “A license is a mere permit to do something that without it would be unlawful.” (Littleton v Burgess, 82 P 864, 866, 14 Wyo 173) “A license is a right granted by some competent authority to do an act which, without such license,would be illegal.” (Beard v City of Atlanta 86 SE 2nd 672, 676; 91 Ga. App. 584) “The power to tax the exercise of a privilege is the power to control or suppress its enjoyment..." (Murdock v. Pennsylvania (1943) 319 U.S. 262).

 

[BlueTrain]

You are probably right as far as governments go (it is probably wrong to say "The government," there being so many) but it happens non-governmentally as well, after a fashion. In fact, that goes back a long ways.

Oddly enough, it happens in the firearms training field, the same way it seems to in many fields where training is involved. In the beginning, someone does something. Then others get involved. Pretty soon it is a popular thing to do. But it is a slightly dangerous thing, like hang gliding, for instance, or shooting a firearm. So someone, usually the first ones that came around, become the elect and take it upon themselves to properly educate the unwashed. They furthermore take it upon themselves to identify themselves as certificated and are thusly annointed as the chosen few. Woe be unto any who stray from the straight and narrow path laid down by the few and the mighty, who shall also spread the gospel by lengthy and wandering epistles published at the ends of the magazines devoted to the one true sport.

No money is necessarily involved unless the true believer chooses to make a pilgrimage to the shrine of the one worthy of worship.

Wait now, I'm about to go off the deep end here. But you get my drift.

 

[maestro pistolero]

One huge problem is that DP is a law that depends entirely on the state of mind of another in order to run afoul of it. What's disturbing to one person may be pleasant or just neutral to another. It it entirely subjective. I would even say inherently arbitrary and capricious.

There is another reason why this case is so egregious. Apparently, the 911 call was essentially an inquiry as to the legality of open carry, much more than report of a disturbance.

The caller repeatedly insisted they subjects were not causing any disturbance or threatening anyone. So here we don't even have a subjective disturbance of the peace in the mind of the reporting party.

It was only the police who insisted there was a disturbance. Perhaps the charge should have been disturbing the police.

 

[DiscoRacing]

disturbing the police

Thats a good one!!

... Well put.
... I like it

 

[tyme]

There is another reason why this case is so egregious. Apparently, the 911 call was essentially an inquiry as to the legality of open carry, much more than report of a disturbance.

Isn't calling 911 for non-emergency reasons technically a crime? If the caller didn't know whether open carry was a crime, the proper course of action would have been to use google or call the non-emergency police number.

I consider that serious. We have someone who doesn't know the law, can't use google, and is wasting taxpayer dollars by calling 911 to inquire about legality, and THEN the police waste further taxpayer dollars and commit civil liberties infringements as a result.

What do people like the 911 caller think the interweb is for, if not this? "Oh, search engines are fine for getting a recipe for Duck Confit, but if I need a legal primer on firearms laws it's time to call 911!"