|§ 941.23, CCW – As-Applied Constitutionality, in Light of Wis. Const. Art. I, § 25 – Tavern Owner, Gun in Car Console|
|State v. Scott K. Fisher, 2006 WI 44, on certification|
|For Fisher: Paul B. Millis|
|Issue: Whether the right to bear arms provision of Wis. Const. Art. I, § 25 countenances prosecution for carrying a concealed weapon in a car’s console by a tavern owner who asserted its necessity for security purposes in that he routinely transported large amounts of cash.|
¶5 … (W)e conclude that § 941.23 is constitutional as applied to Fisher because his interest in exercising his right to keep and bear arms for purposes of security by carrying a concealed weapon in his vehicle does not substantially outweigh the state's interest in enforcing § 941.23.The court goes on to reject Fisher’s more “categorical” arguments—recent (unsuccessful) legislative action to create a licensing system for carrying weapons suggests legislative doubt about constitutionality of the CCW statute, ¶¶50-53; and, a car should be seen as an extension of the owner’s business, ¶¶54-56. These are, in effect, broad attacks on § 941.23 and the court is having none of it, ¶¶58-62. The court, it is clear, has no sympathy for the transport of guns in cars (unless unloaded and encased, see § 167.31(2)(b)):
¶64 Both the legislature and this court have spoken: carrying a concealed and dangerous weapon in a vehicle will generally be contrary to the state's interest in protecting the health, safety, and welfare of Wisconsin citizens, and § 941.23 will not present a constitutional issue under Article I, Section 25 except in extraordinary circumstances.Any wiggle-room? The court might like to impose an absolute ban, but apparently doesn’t think it can: hence the qualifier “generally” whose insertion may have been grudging but can’t be overlooked. Nor are Fisher’s particular facts terribly compelling (assuming you accept the Hamdan-Cole analytical framework), ¶¶34-47. In theory anyway, with different facts you can argue for a different outcome. But the meta-message is certainly that if the gun is in a car you’ve got your work cut out for you.
Other thoughts: Fisher testified that he knew of other businesses in the area that had been robbed, but “(t)he State has countered [on appeal? at the trial level? – the court doesn’t say] this evidence with publicly-available FBI crime statistics showing that crime rates in Black River Falls (population 6,225, according to the FBI statistics) do not differ significantly from rates in other areas of similar populations.  We are not persuaded that Fisher can reasonably characterize Black River Falls at the time of his arrest as a high-crime area. Such a characterization would erase any meaningful distinction between a truly high-crime area and any other area,” ¶41. There are no known reported Wisconsin decisions on how to establish some area as “high crime,” only opinions which unblinkingly accept a cops’ say-so, most baldly in State v. Michael T. Morgan, 197 Wis. 2d 200, 539 N.W.2d 887 (1995) (“Like the court of appeals, we find that an officer's perception of an area as "high-crime" can be a factor justifying a search. Professor LaFave notes that "the area in which the suspect is found is itself a highly relevant consideration" in justifying a search, and that the cases "most frequently stress that the observed circumstances occurred in a high-crime area." 3 Wayne R. LaFave, Search and Seizure § 9.3(c), at 456 (2d ed. 1987).”). Interesting, then, that the first time the court ventures into independent review of the matter it finds the area not high-crime. One wonders, too, at the sweeping way in which the court simply labels the entire city of Black River Falls as not being “a high-crime area.” Black River Falls is a relatively small municipality, and more refinement ought to be necessary with respect to more urbanized areas. In any event, whether you’re striving to show that some area is or is not “high-crime,” some thought must be put into establishing a factual record. In the nature of things, this problem is most likely to arise in the search and seizure context, and you’re going to be trying to show that area was not high-crime; perhaps Fisher can be of some benefit but regardless, the following caution is worth keeping mind: “The citing of an area as "high-crime" requires careful examination by the court, because such a description, unless properly limited and factually based, can easily serve as a proxy for race or ethnicity. District courts must carefully examine the testimony of police officers in cases such as this, and make a fair and forthright evaluation of the evidence they offer, regardless of the consequences,” United States v. Montero-Camargo, 208 F.3d 1122, 1138 (9th Cir. 2000) (en banc).
|§ 941.23, CCW – As-Applied Constitutionality, in Light of Wis. Const. Art. I, § 25|
State v. Munir A. Hamdan,
2003 WI 113, on bypass
For Hamdan: Chris J. Trebatoski
¶46. Under its broad police power, Wisconsin may regulate firearms. It may regulate the time, place, and manner in which firearms are possessed and used. The concealed weapons statute is a restriction on the manner in which firearms are possessed and used. See State v. Perez, 2001 WI 79, 244 Wis. 2d 582, 628 N.W.2d 820. It is constitutional. We hold that only if the public benefit in this exercise of the police power is substantially outweighed by an individual's need to conceal a weapon in the exercise of the right to bear arms will an otherwise valid restriction on that right be unconstitutional as applied….It seems clear that the court means to limit application of the right to instances of carrying on private property. And even then, the public interest must be “substantially outweighed” by the defendant’s interest [“security” in this particular instance, but in theory, “defense” or “other lawful purpose”]. Whether being on your own property is enough, in and of itself, is open to question. Hamdan meets the test, because his store was in a high crime area, and had itself been the site of past violence. The police knew as much when they paid a surprise visit at closing time. And, Hamdan concealed the gun in an area accessible only to him, not the public. ¶¶82-83. As the court suggests, ¶52, the constitutional provision causes a conflict because these facts comprise “the outer reaches of the CCW statute.” The facts, then, have to be pretty extreme before prosecution becomes constitutionally impaired.
UPDATE: A somewhat rosier view is taken by one of foremost commentators on the second amendment and state constitutonal right to bear arms, David B. Kopel, "The Licensing of Concealed Handguns," Albany Law Rev:
The constitutional right to carry firearms is not as well-protected in Wisconsin as it is in most other states. But the right does exist, and judicial enforcement of that right has removed a very large number of people from the ambit of Wisconsin’s law against concealed handguns.
|§ 941.23, Carrying concealed weapon – Facial Constitutionality, in Light of Wis. Const. Art. I, § 25|
|State v. Phillip Cole, 2003 WI 112, on certification|
|For Cole: Michael Gould, SPD, Milwaukee Appellate|
|On-line Brief: http://www.wisspd.org/html/appellate/briefbank/briefs/010350.pdf|
§ 941.23 is facially unconstitutional as impermissibly infringing on the
right to bear arms.
Holding: The constitutional right of an individual to bear arms, Wis. Const. Art. I, § 25, being “fundamental” in nature, ¶20, the question is whether § 941.23 “reasonably” restricts that right, which in turn requires balancing the interests involved. ¶34.
¶43. This court has not been forced to look far to find support for its conclusion that Wis. Stat. § 941.23 is facially valid. As our foregoing discussion makes clear, other states have shown a great willingness to uphold "reasonable" restrictions upon the constitutional right to bear arms. We believe the reason is the compelling state interest in protecting the public from the hazards involved with certain types of weapons, such as guns. … (T)here is a balance of interests that must be done, and in this situation, the public safety interests win out. …Public safety is put at risk, the court says, because of the danger an angered person would likely use a gun “which in their sober moments they would not have done, and which could not have been done had the weapon been upon their person.” ¶43, quoting a 1953 Kentucky case. Another policy reason suggested by the court is that concealing the weapon means the public has no notice that it should avoid someone capable of deadly harm, ¶43.
A bit of
vote-counting; three separate concurrences embody 4 votes. But there is
nonetheless majority support for both the fundamental nature of the right to
bear arms and that the right is outweighed both in the abstract and as
applied to the facts of the case. Justice Crooks would settle the issue by
applying a waiver bar, but he nonetheless asserts that the CCW statute is
indeed unconstitutional, ¶¶55-59; there’s your fourth vote right there, for
the fundamental nature of the right. Justice Prosser’s concurrence is joined
entirely by Justice Bradley and in large part by Chief Justice Abrahamson;
he believes the right not only is something less than fundamental but is
collective rather than individual. However, these three votes represent the
minority view on that particular issue.)
|§ 941.23, Carrying concealed weapon – As-AppliedConstitutionality, in Light of Wis. Const. Art. I, § 25|
For Cole: Michael Gould, SPD, Milwaukee Appellate
§ 941.23 is unconstitutional as applied to Cole.
¶48. Cole claims that he was carrying the weapons because he had been "the victim of a brutal beating when he was younger and he did not feel safe in the neighborhood." (Pet'r Br. at 3.) He did not assert that he had the weapons in the car in response to any specific or imminent threat. We do not dispute the legitimacy of Cole's reason for carrying the weapon. However interesting the debate about the right to self-defense by possession of a weapon in a vehicle may be, such concerns are not implicated by the facts of this case. In State v. Nollie, 2002 WI 4, 249 Wis. 2d 538, 638 N.W.2d 280, a case arising after the passage of the right to bear arms amendment, this court confirmed that a person may claim self-defense when charged under the CCW statute. Id., ¶¶18-19, 24, 26. However, in that case, we found that the unsubstantiated threat of four young men nearby, being loud and profane in a "high crime" area, was not "imminent and specific enough" for the defendant to invoke self-defense. Id., ¶¶23-25. The same problem arises in this case. Cole has presented no evidence of any threat at or near the time he was arrested.
¶49. In the case at hand, police seized two loaded weapons from the interior of a vehicle, one inside the glove compartment and the other stashed under the front seat of the vehicle. Both clearly were, by any definition, concealed. In Dundon, 226 Wis. 2d at 662, this court defined "concealed" as "hidden from ordinary observation," and noted that a weapon need not be completely hidden from view to be considered concealed. Whatever the outer reaches of application of the CCW statute might be in light of the new constitutional amendment, this fact scenario does not fall within them. The right to bear arms is clearly not rendered illusory by prohibiting an individual from keeping a loaded weapon hidden either in the glove compartment or under the front seat in a vehicle. The reasons supporting "facial" validity of the statute apply with equal force to the specific facts of this case. Public safety concerns support reasonable restrictions. In West Virginia Division of Natural Resources v. Cline, 488 S.E.2d 376, 382-83 (W. Va. 1997), the Supreme Court of Appeals of West Virginia upheld a restriction on the transport of loaded weapons as a reasonable regulation of the manner in which weapons could be transported. There the court noted particularly the possibility of accidents. Id. Such dangers certainly support restrictions on loaded weapons. Cole had two loaded weapons within reach and completely hidden from the view of others. Under these specific circumstances, the CCW statute may be enforced without impeding the constitutional right to bear arms.
|Carrying Concealed Weapon -- Constitutionality|
State v. Adam S. Gonzales, 2002 WI 59, on certification
For Gonzales: Suzanne L. Hagopian, SPD, Madison Appellate
|Issue: Whether the crime of
carrying a concealed weapon, § 941.23, is constitutional in light of
Article I, Section 25 of the Wisconsin Constitution, which creates a right to
keep and bear arms.|
Holding: Because the crime was committed before the effective date of Article I, Section 25 (November 30, 1998), the defendant can't avail himself of this provision.
Go to (COA) Brief
Note: The underlying issue -- constitutionality of CCW -- was decided in State v. Phillip Cole, 2003 WI 112; and State v. Munir A. Hamdan, 2003 WI 113.
§ 941.23, CCW – Elements – “Go Armed”
State v. Munir A. Hamdan,
2003 WI 113, on bypass
¶20. To convict a person of carrying a concealed weapon in violation of Wis. Stat. § 941.23, the State must prove three elements. First, the State must show that a person who is not a peace officer went armed with a dangerous weapon. State v. Dundon, 226 Wis. 2d 654, 661, 594 N.W.2d 780 (1999) (citing State v. Asfoor, 75 Wis. 2d 411, 433-34, 249 N.W.2d 529 (1977)). Second, the State must show that the defendant was aware of the presence of the weapon. Id. (citing Asfoor, 75 Wis. 2d at 433). Third, the State must show that the weapon was concealed. Id. (citing Mularkey v. State, 201 Wis. 429, 432, 230 N.W. 76 (1930)). Over the years, every element of the statute has been vigorously litigated.
|Carrying concealed weapon - defense of privilege.|
|State v. John V. Dundon, 226 Wis.2d 654, 594 N.W.2d 780 (1999), on certification.|
|For Dundon: William S. Coleman, SPD, Milwaukee Appellate.|
|Holding: Because "(t)he crime of carrying a concealed weapon has many of the earmarks of a strict liability offense," privilege defenses "must be applied restrictively." The court concludes, after relatively lengthy analysis, that Dundon can't avail himself of any privilege defense. The statutory defenses, § 939.45, don't apply for fact-specific reasons. (This doesn't mean that a CCW defendant can never take advantage of these defenses, only that the court "find[s] no possible basis for their application to the facts in this case.") Nor, as a matter of law, is Dundon entitled to the common-law privilege recognized in State v. Coleman, 206 Wis. 2d 199, 556 N.W.2d 701 (1996) for felon in possession of firearm. ("We decline to extend the privilege recognized in Coleman to the unrelated crime of carrying a concealed weapon.") The court also stresses legislative history, noting that the privilege sought by Dundon (reasonable fear of assault, etc.) was enacted as part of the original CCW statute and then eliminated.|
|Felon in Possession of Firearm -- Constitutionality|
|State v. Louis D. Thomas, 2004 WI App 115, PFR filed 6/17/04|
|For Thomas: Joseph L. Sommers|
|Issue/Holding: Wis. Const. art. I, § 25 (“right to keep and bear arms”) did not effectively repeal § 941.29 (felon in possession). ¶¶7-12.|
|Issue/Holding: § 941.29 is neither vague, ¶¶14-18, nor overbroad, ¶¶19-23.|
|Issue/Holding: § 941.29 doesn’t violate equal protection, ¶¶24-29. (Comparative classes: felons / misdemeanants; violent / non-violent felons; correctional officers convicted of felonies before statute’s effective date but grandfathered in, § 941.29(6).)|
|What about the impact of Wis. Const. Art. I, § 25 (state right to bear arms), or the 2nd amendment? Not much, in all likelihood; see, e.g., State v. Hirsch, Or SCt No. S49370, 6/23/05 ("Article I, section 27, does not deprive the legislature of the authority (1) to designate certain groups of persons as posing identifiable threats to the safety of the community by virtue of earlier commission of serious criminal conduct and, in accordance with such a designation, (2) to restrict the exercise of the constitutional guarantee by members of those groups").|
|Felon in Possession of Firearm -- Foreign Conviction as Felony|
|State v. Alan C. Campbell, 2002 WI App 20, PFR filed 1/16/02|
|For Campbell: Alexander D. Cossi|
|Issue: Whether Campbell's conviction for forgery in another state is regarded as a felony for purposes of felon in possession, § 941.29.|
¶6. We agree with Campbell that the Ohio forgery statute is broader than Wisconsin's, and that looking solely at the language of the Ohio statute would be insufficient to prove that Campbell was guilty of possessing a firearm as a felon. However, we are not limited to considering the language of the statute.And, the facts as set forth in the Ohio charge showed that the conduct would have been a felony if committed in Wisconsin, ¶¶8-9. (Taylor v. United States, 495 U.S. 575 (1990), distinguished, ¶¶10-11.)
Though tangential to the summarized point, the formulation of a defense to felon-in-possession ought to take into account proof of identity, especially where the conviction is foreign; on this matter, see U.S. v. Allen, 7th Cir. No. 04-1199, 9/9/04:
The Second Circuit noted that “[t]he majority of courts to consider the question have agreed . . . that a conviction certificate in the same name as the defendant’s is insufficient to prove that the defendant had a prior conviction as an essential element of the crime charged.” Id. at 71-72, citing Weiler, 385 F.2d at 66; Gravatt, 260 F.2d at 498-99; Commonwealth v. Koney, 657 N.E.2d 210, 214-15 (Mass. 1995); Miller v. State, 573 So. 2d 405, 406 (Fla. Dist. Ct. App. 1991); State v. Garrett, 574 P.2d 639, 640 (Or. 1978). We believe that the majority view is sound. Identity of name alone does not prove the identity of a person beyond a reasonable doubt. A conviction record bearing the defendant’s name but no other identifying information is insufficient to identify the conviction as the defendant’s for purposes of proving felon status.
|Felon in Possession of Firearm -- "Handling" = Element of "Possesses"|
|State v. Tyren E. Black, 2001 WI 31, 242 Wis. 2d 126, 624 N.W.2d 363|
|For Black: Michael S. Holzman|
|Issue: Whether the defendant's admission of "handling" a gun established the element of "possesses" a firearm under § 941.29(2), for purposes of establishing a guilty plea factual basis.|
¶19 At the outset, we note the absence of any mens rea5 requirement in this statute. That is, the statute makes no reference to intent and therefore creates a strict liability offense. State v. Dundon, 226 Wis. 2d 654, 664, 594 N.W.2d 780 (1999); State v. Coleman, 206 Wis. 2d 199, 207, 556 N.W.2d 701 (1996). As a result, the State is only required to show that the felon "possessed" the firearm with knowledge that it is a firearm. In this context, "possess," according to the legal definition, simply "means that the defendant knowingly had actual physical control of a firearm." Wis JI——Criminal 1343 (1997); see State v. Loukota, 180 Wis. 2d 191, 201, 508 N.W.2d 896, (Ct. App. 1993) (determining that this definition of possession was appropriately given and that Wis. Stat. § 941.29(2) does not require ownership, just mere possession). Furthermore, there are no temporal limitations in this statute. It does not specify what length of time a felon must possess the firearm in order to violate the statute. While to some it may seem unduly harsh that a felon who handles a firearm for a brief period violates this statute, such a result comports with the theory of strict liability. . . . [T]he legislature struck a balance between the possibility of a harsh result to an individual felon and the greater good of protecting the public from felons with firearms. We decline to upset this balance by rewriting the statute with an intent requirement. In the present case, the complaint stated that Black "handled the pistol," which is sufficient to show possession because such an action amounts to exercising actual physical control over the firearm, even though it may have been only for a brief period of time.Analysis: This conviction was based on a guilty plea, and factual basis for a plea need not be established to the same degree of certainty as at a trial. Edwards v. State, 51 Wis.2d 231, 236, 186 N.W.2d 193 (1971) ("The standard does not require the evidence in the form submitted at the hearing be admissible at trial or that it be sufficient to convict beyond a reasonable doubt."). Even less "proof" is needed when there's a plea bargain, as in this case. Broadie v. State, 68 Wis.2d 420, 423-424, 228 N.W.2d 687 (1975). ("Where[,] as here, the guilty plea is pursuant to a plea bargain, the court need not go to the same length to determine whether the facts would sustain the charge as it would where there is no negotiated plea.") It might be argued that the decision is based on this essentially procedural principle. Still, the court doesn't rely on this principle (in fact, doesn't even mention it). Instead, the court seems to take a very broad view of "possesses" under § 941.29.
UPDATE: A subsequent 7th Circuit case, throwing out a federal conviction for felon in possession, comes at the problem of possession from a different angle -- where the felon particpates in criminal activity with others who wield guns but doesn't himself "handle" one, U.S. v. Rawlings, 02-4177 (7th Cir. 9/3/03): "his relation to the guns does not satisfy the test for constructive possession, which requires power to control." You can probably reconcile that result with Black, in that Black's "handling" of the gun suggested sufficient control, especially given the reduced proof attending a guilty plea. Nonetheless, Rawlings very strogly supports a critical limitation -- not barred by Black -- on the reach of § 941.29. And for discussion on "transitory possession" (which is to say, mere handling) in relation to dominion and control, see U.S. v. Teemer, 394 F.3d 59 (1st Cir 2005) (rejecting such defense); U.S. v. Johnson, 9th Cir No. 05-10708, 8/29/06 (same); but see, U.S. v. Mason, 233 F.3d 619 (D.C. Cir 2001) (recognizing defense). Authority for idea that mere presence of gun not enough to establish possession: U.S. v. Ruiz, 9th Cir No. 04-10308, 8/30/06. Compare, U.S. v. Nevils, 9th Cir No. 06-50485, 11/20/08 ("proximity" to waepon goes only to accessibility, not dominion and control; insufficient evidence, though weapons found on Nevils, given that he was then either asleep or passed out); U.S. v. Cunningham, 3rd Cir No. 06-3899, 2/21/08 (insufficient evidence of knowledge of gun's presence to support constructive possession).
|First-degree Reckless Endangering Safety, § 941.30(1) -- Not Lesser Included Offense of Aggravated Battery, § 940.19(5)|
State v. Russell L. Dibble, 2002 WI App 219, PFR filed 8/14/02
For Dibble: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: First-degree recklessly endangering safety, § 941.30(1), is not a lesser included offense of aggravated battery, § 940.19(5), under the "elements-only" test. Aggravated battery requires intent (to cause great bodily harm); endangering safety requires recklessness (while showing utter disregard for human life). It is this last -- utter disregard -- that distinguishes the two crimes. You can commit aggravated battery without having utter disregard for human life, and therefore reckless endangering is not a lesser offense of aggravated battery.
(Note: The court essentially assumes that "utter disregard" is wholly distinct from intent to cause great bodily harm. But how can someone intentionally inflict great bodily harm without being indifferent to that person's life? "Utter disregard" is not a specific-intent element; it refers to general intent to do harm, and is shorthand for conduct that evinces indifference to life. Balistreri v. State, 83 Wis. 2d 440, 448, 265 N.W.2d 440 (1978). It seems perfectly clear that whenever you intentionally cause great bodily harm to someone you're engaging in conduct that evinces total indifference to that person's life. Put it a slightly different way: "great bodily harm" necessarily runs "a substantial risk of death" or something close, sec. 939.22(14); is it possible to intentionally inflict that level of harm without evincing utter disregard for life? Notably, the court didn't suggest a single hypothetical example showing how an actor could commit aggravated battery without also committing reckless endangering.)