Open Carry in Wisconsin? Think Again

[Lichter]

This summer I had the opportunity to intern in one of the DA offices in a rural southern Wisconsin county. The DA was pro-gun and offered to take me and the other intern out to the local conservation club range where he was a member. While there I asked the DA about CCW and whether he would use his prosecutorial discretion to charge a person with disorderly conduct if they were openly carrying a firearm. He said that he would and thought he would be able to get a conviction at trial for disorderly conduct. He also noted that the statute did not require a disturbance, just that the conduct was such that it tends to cause or provoke a disturbance. He said someone concerned enough to call the police on someone open carrying would probably be enough. He also talked about being 1000ft from a school and how hard that would be. Ultimately, he said he could see a case going either way depending on the factual situation.

Just from my observations, I wouldn’t trust a jury in my county. For some reason the jury members around here are always college age kids or middle aged ladies. The DA said if someone had the money and time and where willing to face a misdemeanor they could probably fight it. He said charge them out initially and see what position the court would take. I for one do not have the fortitude to try it myself after talking to him. Maybe in several years when I have some experience as attorney, I’ll open carry. At least I can CCW in Virginia where I go to school.

Below is a copy of the Wisconsin Jury instructions for Disorderly Conduct. These are what a jury would be given at the close of trial. They do a good job explaining what disorderly conduct is. In my opinion, Disorderly Conduct is pretty much the catch all for all conduct that is inappropriate but doesn’t neatly fall into any other offense. A lot of times it’s charged in domestic situations where battery doesn’t occur but there’s plenty of drunken, disorderly conduct.

Please share you thoughts and experiences about open carry in Wisconsin.

Statutory Definition of the Crime

Disorderly conduct, as defined in § 947.01 of the Criminal Code of Wisconsin, is committed by a person who, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct under circumstances in which such conduct tends to cause or provoke a disturbance.

Elements of the Crime That the State Must Prove

1. The defendant engaged in (violent) (abusive) (indecent) (profane) (boisterous) (unreasonably loud) (or otherwise disorderly) conduct.

2. The conduct of the defendant, under the circumstances as they then existed, tended to cause or provoke a disturbance.

Meaning of "Disorderly Conduct"

"Disorderly conduct" may include physical acts or language or both.
[The general phrase "otherwise disorderly conduct" means conduct having a tendency to disrupt good order and provoke a disturbance. It includes all acts and conduct as are of a nature to corrupt the public morals or to outrage the sense of public decency, whether committed by words or acts. Conduct is disorderly although it may not be violent, abusive, indecent, profane, boisterous, or unreasonably loud if it is of a type which tends to disrupt good order and provoke a disturbance.]

The principle upon which this offense is based is that in an organized society a person should not unreasonably offend others in the community. This does not mean that all conduct that tends to disturb another is disorderly conduct. Only conduct that unreasonably offends the sense of decency or propriety of the community is included. It does not include conduct that is generally tolerated by the community at large but that might disturb an oversensitive person.

Meaning of "Tend to Cause or Provoke a Disturbance"

It is not necessary that an actual disturbance must have resulted from the defendant's conduct. The law requires only that the conduct be of a type that tends to cause or provoke a disturbance, under the circumstances as they then existed. You must consider not only the nature of the conduct but also the circumstances surrounding that conduct. What is proper under one set of circumstances may be improper under other circumstances. This element requires that the conduct of the defendant, under the circumstances as they then existed, tended to cause or provoke a disturbance.

 

[jimbeam]

state vs. Douglas D 2001 WI 47, para 15.243 WIS 2d, 204,626N, W, 2d 725. Para. 15
"The State must prove two elements to convict a defendent under this statute (947.01) First, it must prove that the defendent engaged in violent, abusive, indecent, profane, boisterous,unnessarily 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."

 

[TallPine]

The DA was pro-gun

I don't theenk that means what you theenk it means ...

 

[Vader]

Ma tha thu ag iarraidh claidheamh agam a ghabhail,
Cha bhi thu ga faighinn gun strìth!
Is the above parragraph gaelic?

 

[Aguila Blanca]

This summer I had the opportunity to intern in one of the DA offices in a rural southern Wisconsin county. The DA was pro-gun and offered to take me and the other intern out to the local conservation club range where he was a member. While there I asked the DA about CCW and whether he would use his prosecutorial discretion to charge a person with disorderly conduct if they were openly carrying a firearm. He said that he would and thought he would be able to get a conviction at trial for disorderly conduct.

Man, if that's the attitude of a pro-gun DA, I'd hate to be facing an anti-gun DA.

 

[DKSuddeth]

juries will often times ignore the actual wording of the law and convict on things the way they see it to be. If your county residents are mostly of an anti variety and you feel that a fair trial is impossible to get, request a bench trial. If that local judge deems you guilty, your appeal will certainly overturn the verdict based on a couple of recent state supreme court cases, thereby slapping said judge and DA in the face.

 

[TallPine]

Is the above parragraph gaelic?

Tha e Gàidhlig (Scots Gaelic)

 

[AntiqueCollector]

No a disorderly conduct charge won't stick in WI for open carrying. There are previous court cases affirming this fact. They'll try it, and there's a lot of cases of police causing lots of problems for people doing it though...

The state has a gun free school zone law though that would make it difficult in a lot of places.

 

[langenc]

Regarding post #1

The first element (#1)--OC is none of the things mentioned.

#2-OC //may give the impression of 'causing a disturbance' but that is only in the mind of sheeple-your DA friend included. As noted--'if he is pro-gun' the what the xxxx is an anti-gun DA?? look and sound like.

Does WI(or MN) have a self defense clause in its' Constitution?? Dont all DAs(and LEOs) in that state swear to uphold it??

 

[Monkeyleg]

Yes, Wisconsin has an RKBA amendment that says "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."

If the state statute cited above gives such broad leeway, could someone wearing, say, a KKK t-shirt be arrested because another person thought it was disturbing?

 

[Orange_Magnum]

I'm tired of the Democrats. I don't understand their motives. What do they think will be the outcome of a people stripped of their rights? Didn't America prosper to become nr. 1 because of the respect shown by the government for individual's rights ? The machinegun ban ticks me off. Why is it that Americans are allowed to carry anemic snub nose revolvers in public in "respect" of the second amendment, when there is no need for snub nose revolvers in a militia setting? Shouldn't machineguns and anti-tank launchers be what the American people, if anything, should be allowed to carry in public if "respect" was shown towards the second amendment? This country is turning to the left faster than a old car with shot steering. I see only disaster and agony for the American people in the future as our politicians continue to strip and strip us of our rights. Why are 50% of the Americans so thrilled about this oncoming disaster, voting leftwing and saying how proud they are to be a Democrat? It sickens me. And no, I'm not moving to Wisconsin: Their brains up there are SO shot. All in all, the brains of the people in this country are SO shot all together. I'm voluntering to move to Mars. Take me onboard!

 

[sctman800]

I will be traveling through Wisconsin soon on the way from Illinois to Minnesota. Illinois where we have nothing, no CCW and no open. Minnesota is cool because I have a Utah permit and can carry there. I will just be stopping in Wisconsin at rest areas and if needed gas stations. What is the probability of having a problem with open carry at these places. I would carry a S&W "J" frame in a belt holster so even being carried open it still wouldn't be real noticeable. Jim.

 

[Monkeyleg]

"What is the probability of having a problem with open carry at these places."

Oh, I'd say somewhere in the range of 99%, unless nobody sees the gun.

 

[cyclist]

If the state statute cited above gives such broad leeway, could someone wearing, say, a KKK t-shirt be arrested because another person thought it was disturbing?

A month or so ago I was driving through Grafton and saw someone up ahead on the sidewalk carrying a sign and wearing what looked like a KKK robe and hood. When I got closer I saw it was someone wearing an ice cream cone costume and the sign was advertising McDonald's ice cream cones. I wish I would have taken a picture of them.

 

[lance22]

comments removed.

 

[jdm]

regarding post #5.

 

[jdm]

sorry. my neighbor is a lawyer who has tons of guns... he's still an anti.

 

[fear-mn]

If you dig deap enough, you will find case law showing such cases being thrown out. If you do get charged, and have a lawyer worth his salt, it'll be tossed out in a hurry.

On a side note. DNR laws in WI make it a crime to open carry while driving a motor vehicle. You MUST unload and properly store your firearm while driving.

I open carry in WI often, but I keep copies of relevant laws and case law handy just in case. If you are able to educate a peace officer and prevent a charge in the first place you are better off. In the three dozen times I've open carried, I've been confronted by only one peace officer, from the St. Croix county sheriff's office. He was polite, unalarmed, and generally very easy to deal with. He wasn't even aware open carry was legal. We had a 20 minute chat about WI laws and since I had lots of reference material handy I pointed out a few at his request. He commented that I've clearly done my research, but still "advised" against open carrying if only to avoid LE calls. He thanked me for being so willing to discuss it with him, and not becoming aggitated that I was hassled, and I thanked him for not turning it into something more than it was.

Most of the time I find folks generally just assume you are plain clothed LE or similar. Dress neatly, wear a holster with retention, and carry yourself well.

Good luck all. Feel free to PM me if you need something you can print and carry with you.

Duane

 

[Mr. James]

At least I can CCW in Virginia where I go to school.

Lichter, as you probably know, you can also open carry most places in Virginia, although your campus is in all likelihood not one of them.

And I have to agree, your DA friend does not sound very friendly to gun rights or gun owners. Sounds more like the elite should be free to own and enjoy guns, but certainly not the unwashed masses.

God bless.

Bob James

 

[cyclist]

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