Skip to comments.Brad Krause West Allis Wisconsin Open Carry Case - Feb 17 Hearing Results
Posted on 02/17/2009 10:10:18 AM PST by Secret Agent Man
Was in the courtroom today to hear the ruling from municipal judge Paul Murphy regarding Brad's case.
For a quick rundown, WI is an open carry state. Brad was on his property planting a tree, and was wearing a holstered firearm in plain sight. A neighbor calle West Allis police asking about the legality of open carry. The result was two squads being dispatched and BRad being drawn on by two officers, handcuffed for 45 minutes whiel the police tried to figure out what to charge him with (as open carry is the only legal way to carry in WI). They charged him with disorderly conduct and confiscated his weapon and holster.
The result today was the judge had a couple months in between the first date to today to read over briefs filed by both Brad Krause and his attorney Steve Kane, and the city attorney's office, to which he'd be issuing a ruling on whether BRad was guilty or not guilty of 'disorderly conduct while armed'. (I would point out the whole reason the police charged Brad with 'disordery' conduct was the mere fact he was armed. So in reality the charge against Brad was more accurately, 'being armed while armed.')
The courtroom apparently was pretty packed for a West Allis Tuesday morning. I would estimate a good 50-ish people were there for this one case.
Basically the judge seemed to go back and forth while issuing his reasoning before the verdict. First citing the idea that city governments can't pre-empt state constitutional rights was one avenue of thought. Then being upset that the legislature and our Attorney General (who ducked this issue) could clear all of this up by either issuing a ruling (AG) or clearing up the laws pertaining to carrying them in WI. Then discussing how e felt bad for the police because they don't really know what to do about this. Then steering back into the fact that people being offended doesn't trump constitutional rights. Making a statement to the effect that it is not lawful to use ordinances and statutes to deprive someone of their constitutional rights. Finally discussing whether Brad, simply by carrying was being disorderly or not. It looked like at some times it would go the city's way, and some times it appeared he would rule in Brad's favor.
The end result was that Brad was found not guilty of 'disorderly conduct while armed'. The judge made it clear that this is most likely not the end of this case because he believed whatever side 'lost' would probably appeal to a higher court. Certainly if Brad lost an appeal would be in the works. It is unclear at this early point if the city of West Allis will appeal or not. If I were to bet on it, IMPO, they will.
The issue of returning his weapon and holster are a separate issue per the judge, and it will be up to Brad to get his property back from the police department. There is a chance that he will have to go to court to get a court order, if they do not return it to him after he again submits a request to them to have it returned to them.
The ironic thing is that his weapon is the same weapon the West Allis police use, and his ammo was the same that they use. The only difference is that he has a superior holster than they do (positive retention) that makes it almost impossible for someone other than Brad to remove the gun.
So the end result to day is that there is a win for Brad. It probably is not over, he still needs to get his property back, and deal with the legal bills. But it's definitely a good day in Wisconsin, for every gun owner out there. Because the issue is not just about guns. It is a larger issue about rights, constitutionally guaranteed rights, that can't be taken away by local government just because they say they can (pre-emption). It is about not being able to have your rights taken away because someone else is offended or uncomfortable about you simply exercising your rights. It is a much bigger issue than just guns.
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no permits needed.
Echoing Secret’s comments. A municipal judge is a political animal and all but the most secure will carefully weigh political as well as judicial factors. I’m not familiar with that locale in specific so I can’t judge (npi) how courageous a stand this might be, but I suspect he stuck his neck out a bit.
And I will clarify that the judge made pretty clear that the whole ‘disorderly’ charge stemmed from the fact police arrested him under disorderly conduct BECAUSE he was armed. Being armed WAS the disorderly conduct. So they were saying he was guilty of disorderly conduct (i.e. being armed), while armed. The fact he was armed was the basis for the disorderly conduct charge, according to the arresting officers.
Which is why is was right for the judge to say not guilty, otherwise EVERYONE who open carries is automatically guilty of disorderly conduct because they are armed.
Well, he knows people were watching the case. He did research the laws on the books, and addressed the constutional issues. rarely do these kinds of cases happen in municipal courts, and since he knows it will probably continue past his court, he wants to do the best job he can and give good reasoning for it because higher courts are going to be looking at his reasoning and verdict. If you’re a lower court judge and expect the case to be appealed, you don’t want to have the higher courts saying ‘you were wrong’ and overturning your verdict because you didn’t do your job, making you look incompetent.
“Which is why is was right for the judge to say not guilty, otherwise EVERYONE who open carries is automatically guilty of disorderly conduct because they are armed.”
Which to me makes it an open and shut case. That would seem to make all the mental gymnastics to avoid being overturned unnecessary. But WTH do I know about being a judge.
How is this for a legal strategy? Citizen #1 is peaceably and legally wearing a gun in public. Citizen #2 call cops to report Cit #1. On the basis of the complaint, cops arrest Cit #1 for disorderly conduct while armed. Cit #1 then sues Cit #2 for harrassment since Cit #2 had no legal basis for his complaint.
First citizen #1 needs to get the disorderly conduct charge thrown out. Doing the next step is separate from that.
Here in the Palmetto state open carry on your own property is legal as it can be.. was standing in my yard(armed s&w .40) talking to a deputy about this caes the other day..We both said we were sure glad we lived here where a man can do whatever he wants on his own property and no one can do anything to stop him
"Making a statement to the effect that it is not lawful to use ordinances and statutes to deprive someone of their constitutional rights."
Now that judge, he's just a brilliant legal mind, isn't he?
The article last night reported that he and the neighbor were on friends and on good terms. The neighbor was quoted as saying he did not make the call to cause trouble or get Krause arrested and regretted all the results. The neighbor and Krause continue to be friends according to the article.
You are right that it is an open and shut case. If the open carrying of a firearm inherently was disorderly conduct, then the law enforcement officers would themselves be guilty of the offense, and so would every hunter. Of course anyone would see that to be an irrational result, so mere open carry of a firearm can't possibly be disorderly conduct.
If the neighbor wasn't alarmed by the man's having a weapon on his hip, it seems that any breach of the peace was caused entirely by the police themselves. Perhaps some of them need to be prosecuted for disorderly conduct (in addition to assault, etc.)
First, the judge made it clear up front that he would not rule on any constitutional issues. He flatly refused to connect the dots that a state statute (DC) was being wrongfully applied to deny a citizen his protected right to go armed.
What you may not know, is the strategy shift made in the last brief Brads attorney submitted to the court by making Wis stat 941.23 the open carry state statute. We figured that although the judge may overlook the obvious constitutional issues, we were not giving him a pass on ignoring a 137 year old state statute which only prohibited concealed carry, while allowing open carry.
The judge acknowledged this as a fact as soon as he offered his own solution to the legislature - to just add “or unconcealed” to the law. By doing so, he admitted Brads argument that 941.23 did grant in fact a statutory authority to citizens to open carry dangerous weapons such as guns (anywhere - with certain exceptions).
So, what we now know (after 137 years of being on the books) is 1) there is a state law that grants citizens the authority to carry weapons and it specifically operates the manner of carry in Wisconsin and 2) that the law and the authority the law grants is protected by the state constitution as a citizens right. This is not an absolute right and this law does restrict concealed carry. The law does not intend to restrict open carry.
The state now has a brand new 137 year old open carry law. The two places where the judge totally blew it was his misunderstanding of the states preemption law when he suggested West Allis Common Council could pass a ban on open carry and his total ignorance that the legislature did pass not one, but two carry bills which Jim Doyle made sure would not become law. His poking his judicial finger at the legislature was wrong. They did try to fix this.
This is a process and we are not yet finished.