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.
Thanks for the report.
He needs to sue the city for everything.
This is simply not acceptable.
How’s Brad getting along with that neighbor these days?
GREAT REPORT, Man! I hope Brad follows that Georgia US District Court ruling that such a seizure was a Fourth Amendment violation but that is a different Circus and would not be binding on WI. I’d love to see Brad follow several avenues here and ratchet this all up to SCOTUS (quick before the balance changes!). I almost hope the town appeals so a precedent is set when he wins all the way up the chain.
Is the name of the complaining citizen (future candidate for subject) known?
In IL the law specifically states that one can be armed while on ones own property. I carry a copy of the Statute with me.
I hope he can sue the crap outta the city.
West Allis used to be a nice place! I bought my first two pedal steels from West Allis Music.
Great report! Thanks. It will be interesting to see how the corrupt MSM will end up spewing this. Any bets on how the Milwaukee Journal-Sentinel will try to swing opinion? (Here’s a clue: They hate guns with a white-hot passion.)
The guy was rightly found not guilty, with what possible reason do they presume to retain a private citizen’s confiscated property?
Thanks for the report. I was intending to do the same thing a few years back. I went to talk to our local sheriff and realized I wouldn’t be picked up... he was completely on my (our)side. Juneau County Wisconsin at the time.
How does a prosecutor appeal a "not guilty" verdict? I trust that there is no double jeopardy in Wisconsin.
At least the judge could read the Constitution, which is more than we can say for a majority of the USSC in the Kilo case.
Great report. Good outcome.
Brad MUST sue for
1. his legal bills
2.being deprived of the use of his property without cause
4. whatever punitive amount he and his attorney decides is appropriate
5. to force the law drones to take classes so this doesn’t happen again.
6. for civil rights violations where applicable.
“Thanks for the update, sounds like an intelligent judge.”
I must disagree. The decision shouldn’t have taken 5 minutes. The man is on his own property minding his business and not bothering anyone. Even IF he wasnt on his own property it is an open carry state. How can peaceably carrying a holstered gun on your own property be creating a disturbance. THE JUDGE IS A COMPLETE MORON. It is troubling that this OBVIOUSLY open and shut case should be so hard to decide.
Thank you for the after action report. A tentative “win” for the good guys.
Nice report. As a fellow Wisconsinite, I am closely following this case.
I wonder if theyd have still arrested him if it was a toy gun.
That sounds about right.
I just wasn’t sure of the code.
If it were me I’d be asking him to pay my legal bills as if not for his False police report I’d not be having these legal problems.
yes this would not lead to good relations but neither dose being arrested because of a irrational fear at the mere sight of a gun.
The judge was not great, and he wasn’t bad. He is a municipal level judge, he did do his homework, he wanted to take time to spell out his reasoning because he was delivering an oral verdict rather than a more detailed, written, annotated verdict. The reason is that he knows this case is almost 100% guaranteed not to end with him. He just wanted to do enough due diligence and citing of case laws to show he has given the issue thought, and be able to give sufficient justification for his verdict. But he knew this was not going to be the final stop for this issue. He wants to make sure nobody can later come back and point to a poorly reasoned verdict by him and overturn him, and for that, I don’t blame him. He did his homework and he came to what most of us believe is the only correct decision he could have, given current Wisconsin law.
And it took more than five minutes. It was about 20-25 minutes worth of reasoning and the verdict.
It would be a stretch to prove conspiracy. Misapplication of a law is not automatically ‘conspiracy’. The only way you could prove conspiracy is with hard evidence.
Insufficiently used provision in the USC if you ask me... We could clear out 3/4 of Congress and most of the FBI/IRS/FCC/FDA/FAA if it were.
He needs to sue the city for everything.
This is simply not acceptable.
False arrest and false imprisonment for two. A good attorney should be able to come up with a dozen charges against the city, the arresting officer/s, and his superior/s, as well as the mayor of the city, and city council.
Thanks for the report SAM.
I’m new to WI and was curious about the laws here regarding carrying. I understand that there is no concealed carry permitted, but I didn’t know about open carry. Is a permit required? There is no registration requirement as far as I could tell.
"Private property? Open carry? Oh... sorry. Can we give you a lift back to your place?"
Should have been case closed.
Especially if they turn out to be the Chief of Police or the City Attorney.
Was the judges decision based at all on the fact that he was on his own property, or could this be interprited as being applicable anywhere.
Because they can ...
3/4 ths? You’re an optimist.
There might be a couple who could go around and turn out the lights, but it would take them a several days with all the empty offices.
I agree on the alphabet soup agencies.
Well this is the reason why this case is important.
The WI Constitution says the only legal way to carry a firearm is out in the open. There is no concealed carry. Concealed carry has been rejected because of teh fact we have open carry, and therefore there is no need to carry concealed.
The problem is that the state Constitution says if you carry, you must do so in the open. However depending on your city or area’s law officers, they may be fine with it, or they may not and arrest you on disorderly conduct or disturbing the peace. They cannot arrest you for for carrying a firearm openly, because that would be unconstitutional, but they technically get you on an ordinance violation, but the end result of this is a de facto arrest for carrying a gun, because it’s carrying the gun that makes you disorderly.
So in certain areas of WI a local ordinance or law can allow police (if they are afraind of citizens using their 2A rights) to take away that 2A right if someone complains or if they see you and they themselves consider you dangerous or disorderly because you are wearing a firearm. It ends up giving you no legal way to carry a gun (you can’t carry concealed, and if you carry open you’re arrested) and that violates the WI constitution.
I’m not too sure that this case isn’t designed to go to the state supreme court. Krause sounds like the perfect test case. Law abiding, carrying on his own property while working peacefully and the neighbor called to inquire about the law, not to report his fear of the gun.
Carry cases in Wisconsin have generally been found in favor of the law abiding armed citizen.
The Hamdan case threw out Wisconsin’s prohibition on CCW in your own home. It would be nice to have a court rule in favor of open carry on your own property.
Open carry is legal in WI, but be prepared to be arrested for disturbing the peace, as in this case. Particularly in urban areas.
Are you still an optimist if your are positive things are going to get worse before they get better? ;-)
But yeah, I was assuming some of our GOPper's would be redeemable. And yeah, some of the FedGov's job positions are actually required by the Constitution. Can't get rid of them all, even if we wanted to.
Unless, you want to go back and revise the Articles of Confederation with our Bill of Rights grafted on to it... I'd be ok with that.
On his property was not really the issue being decided. What the judge had to decide was if Brad was rightly arrested for ‘disorderly conduct while armed.’ And the facts of the case show Brad was not disorderly. Testimony by the officers affirmed it. The judge’s ruling basically negated the concept that a citizen that is openly carrying a gun legally, that act in an of itself, is not disorderly conduct.
Yes, you are correct. Whether or not you would get arrested for disorderly conduct currently depends on the law enforcement people where you live. That is why it would be nice for the WI AG to issue a directive on this case. He declined to. It keeps things complicated.
I probably would wait to open carry out in public (other than your own property) until this case gets resolved at the WI SC level. You can already carry concealed on your own property (Hamden) so you can do that and nobody would ever freak out about it because they wouldn’t know you were doing it.
Good. As I noted in post 38, the Supreme Court ruling implied the right, though concealed, on your property. I don't plan on being test case #2, but the clear implication should this hold up on appeal is that open carry is, in fact, legal in WI.
If you’d like to be on or off this Upper Midwest/outdoors/rural list please FR mail me. And ping me is you see articles of interest.
see this aricle too, please ping it!
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.