School zone arguments

[protias]

Ronald Reagan

Wine

That's all I got.

Reagan was born in IL.

http://en.wikipedia.org/wiki/Ronald_Reagan

 

[civilwarguy]

Reagan was born in IL.

http://en.wikipedia.org/wiki/Ronald_Reagan

Dixion if i am not mistaken.... if not they claim it big sign as you come into town.

 

[phred]

Instead of looking for statutes that claim carrying an unloaded and encased firearm is a crime, try finding a statute that makes an exception to 941.23 if the weapon is unloaded and encased.

According to you, any properly unloaded and encased gun is considered concealed, even in a safe at home. A court would consider this ludicrous, would they not?

I believe that we have used this argument before:

"If there is not a law against it, then it must not be illegal."

Have not the cases post Art 1 sec 25 treated 941.23 differently than pre-Art 1, Sec 25?

 

[Max]

According to you, any properly unloaded and encased gun is considered concealed, even in a safe at home. A court would consider this ludicrous, would they not?

I believe that we have used this argument before:

"If there is not a law against it, then it must not be illegal."

Have not the cases post Art 1 sec 25 treated 941.23 differently than pre-Art 1, Sec 25?

Not according to me, according to the AG's office and according to state statute. I believe a court/jury would indeed find the charge ludicrous but until the statutes are amended, we have what we have. It still may be viewed as a crime and you still may be charged for it. Conviction, not likely.

It is just an open door for LEO harassment. And our legislature needs to fix all of it to align with Art. 1 Sec 25.

 

[phred]

Not according to me, according to the AG's office and according to state statute. I believe a court/jury would indeed find the charge ludicrous but until the statutes are amended, we have what we have. It still may be viewed as a crime and you still may be charged for it. Conviction, not likely.

It is just an open door for LEO harassment. And our legislature needs to fix all of it to align with Art. 1 Sec 25.

I should have said "According to how you interpret the ..."

In the cases mentioned, the defendants were in violation of having a loaded firearm, concealed on or about their person and not in accordance with the "unloaded and encased" methods we are describing here for legal transportation of a firearm. This was discussed before in other thread, http://forum.opencarry.org/forums/showthread.php?84989-few-questions-about-transportation

Ms. Keith was standing on her porch with a loaded gun in her purse. Mr. Fisher had a loaded firearm in his car. Mr. Hamden had a loaded firearm on his person.
These people and the others, Walls, Cole etc, did not have an unloaded and encased firearm within their reach. They all had concealed and loaded firearms within their reach. We need to compare apples to apples, not apples to oranges.

I agree that the laws are not clear, but I also think that having an unloaded and properly encased firearm on the seat next to you is not going be illegal. Enclosing the firearm properly (unloaded) is not concealing it. I repeat Concealing the gun and encasing an unloaded gun are mutually exclusive.

 

[Captain Nemo]

phred:

The only case you will find that addresses your questions is the District III Court of Appeals opinion for State v Alloy. It is an unpublished opinion therefore it has no judicial precedence and can be cited only to express an opinion.
--------------------------------------------------------------------------------------------
¶1 PER CURIAM. Nick Alloy appeals a judgment convicting him of
carrying a concealed weapon, a handgun contained in a zipper case inside a metal box between the bucket seats of his Jeep Wagoneer.

He argues that the trial court
erred and denied him his constitutional right to testify in his own defense when it
disallowed questions designed to show that the handgun was encased because
WIS. STAT. § 167.31(2) (1997-98)2 requires that a firearm be encased when it is
transported in a vehicle. Because complying with § 167.31 does not provide a
defense to a charge of carrying a concealed weapon, the trial court properly
disallowed this irrelevant testimony.

¶3 Much of Alloy’s argument is based on the false assertion that he was
trapped by a conflict between WIS. STAT. § 167.31 and WIS. STAT. § 941.23. A
person transporting a firearm is governed by both statutes. To comply with
§ 167.31, the person must encase the weapon. To comply with § 941.23, he or she
must place the enclosed weapon out of reach. See State v. Asfoor, 75 Wis. 2d 411,
433-34, 249 N.W.2d 529 (1977). A person complying with § 167.31 is not
required to violate § 941.23. The encased weapon can be lawfully transported out
of reach.

By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.


3 While complying with WIS. STAT. § 167.31 might provide a defense to a person who
possessed a concealed weapon immediately after it was encased for purposes of transporting it,
those facts are not present here. We do not address hypothetical arguments.
------------------------------------------------------------------------------------------------------

I hate to even reopen this pandora's box. We can all be thankful that the opinion is unpublished and not precedential. It does serve the purpose of illustrating the anti-gun mentality of the Wisconsin court system. You asked for a court case that addressed whether or not a properly cased and unloaded weapon is considered a concealed weapon and you asked for a case where the court ruled that a cased firearm must be carried out of reach. Also note that Alloy had the firearm encased in an approved encasement. He did this by his admission to comply with 167.31. The properly encased weapon was then placed between the seats of his vehicle. The court still ruled it was concealed.

And so goes the days of our lives.

 

[1245A Defender]

well,,,

IF,,,,
a contraption was built into your car trunk,,

a door with a slot the size of your gun case, spring loaded, so that turning the lock,
instantly opens the door, and instantly slides out your special gun case on a tray,
and the gun case instantly opens as it slides out.

the gun is only concealed in the box when it is locked inside the trunk.

reverse to transport, unload the gun, place it and ammo in the open special gun case,
as it is outside the car, on the tray,
turn the lock, and the tray is instantly drawn into the trunk, the gun case closes, the door locks.

this could be made, kind of rube goldberg, but....
does this satisfy the conflicts in your 2 laws?

to the best of my understanding, the conflict only lasts for the few seconds,
that it takes to close the case and lock it in the trunk, and of coarse the reverse.

 

[phred]

I hate to even reopen this pandora's box. We can all be thankful that the opinion is unpublished and not precedential. It does serve the purpose of illustrating the anti-gun mentality of the Wisconsin court system. You asked for a court case that addressed whether or not a properly cased and unloaded weapon is considered a concealed weapon and you asked for a case where the court ruled that a cased firearm must be carried out of reach. Also note that Alloy had the firearm encased in an approved encasement. He did this by his admission to comply with 167.31. The properly encased weapon was then placed between the seats of his vehicle. The court still ruled it was concealed.

And so goes the days of our lives.

I am going to refer to the past thread again:
http://forum.opencarry.org/forums/showthread.php?84989-few-questions-about-transportation/page2

....
The only case in Wisconsin I'm aware of that involved having a unloaded and encased gun in a vehicle being considered "a concealed weapon" is Alloy. And the Alloy case absolutely did not create new law. A prosecutor
cannot even mention that case in a courtroom without risking a mistrial.

An encased gun is "not within reach" because it is not immediately accessible. Those who interpret the term "within reach" to mean literally "at a distance within arm's length" are not basing the meaning on how the courts seems to use the term. The courts talk about being immediately accessible. A gun unloaded and in a case is at least two steps away from immediately accessible: 1) must first be uncased, 2) secondly it must be loaded. Then and only then is it immediately accessible.

I was aware of the Alloy case, but since it couldn't be used as precedent I was thinking it could not "define" legal behavior.

There were other things going on with Alloy (footnote to No. 99-2258-CR)

1 The jury acquitted Alloy on charges of attempted first-degree intentional homicide and first-degree reckless endangerment, but convicted him of false imprisonment, misdemeanor battery and two counts of carrying a concealed weapon. This appeal only challenges the conviction for carrying the concealed handgun.

Also, no mention of Art 1 Sec 25 was made. Did the violation occur prior to1998?

And there was recently a court case in Milwaukee where a judge threw out the concealed weapons charge for a unload properly encased gun under the front seat of a car.

http://www.wisconsinappeals.net/wp-content/uploads/2011/03/pinnow.pdf
Pages 6-9 are a good read.


http://www.wisconsinappeals.net/?p=4195

State v. Jeremy D. Pinnow, Milwaukee Co. Circ. Ct. No. 2010CM1978, 2/11/11
by admin on March 2, 2011
CCW, § 941.23 – Unconstitutional as Applied

Carrying concealed weapon charge dismissed, under as-applied (state) constitutional challenge, Art. I § 25. Pinnow had a cased, unloaded gun underneath the seat of his car, had himself been the recent victim of an armed robbery, believed with reason he was transporting the gun in a lawful manner, and wasn’t carrying the gun for an unlawful purpose. The court applies the multi-factor test of State v. Fisher, 2006 WI 44 and State v. Cole, 2003 WI 112 and concludes that Pinnow’s constitutional right to bear arms in the manner he did outweighed any state interest in prosecuting him.

From the court record:

Section 167.31(2) (b) of the Wisconsin Statutes sets forth the legal way to transport a firearm in Wisconsin. Pinnow was properly exercising his constitutional rights and transporting his handgun legally.

There were no practical alternatives for Pinnow to exercise his right to bear arms and to be able to defend himself against the threat (requiring that the handgun is within his reach) \. If carried openly in a holster on his hip in a vehicle, it would still be considered concealed and a violation of the CCW statute. Of carried in front of him while driving, it would be very dangerous driving, would terrify and confound others and would likely constitute disorderly conduct.

Requiring Pinnow to put the encased and unloaded firearm out of reach would effectively deny him his right to bear arms guaranteed by Article 1, sec 25.

The court finds that Pinnow’s compliance with Section 167.31(2)(b) of the Wisconsin Statues was the most reasonable way to exercise his right to bear arms and that other alternatives were impractical.

Finally, while the District Attorney may go forward with Pinnow’s prosecution if he asserts and shows probable cause to believe that the defendant carried the handgun for an unlawful purpose, there appears no such evidence in this record. Without this offer defendant’s motion to dismiss is granted as Section 941.23 of the Wisconsin Statutes is unconstitutional as applied to defendant Pinnow.

 

[Jason in WI]

IF,,,,
a contraption was built into your car trunk,,

a door with a slot the size of your gun case, spring loaded, so that turning the lock,
instantly opens the door, and instantly slides out your special gun case on a tray,
and the gun case instantly opens as it slides out.

the gun is only concealed in the box when it is locked inside the trunk.

reverse to transport, unload the gun, place it and ammo in the open special gun case,
as it is outside the car, on the tray,
turn the lock, and the tray is instantly drawn into the trunk, the gun case closes, the door locks.

this could be made, kind of rube goldberg, but....
does this satisfy the conflicts in your 2 laws?

to the best of my understanding, the conflict only lasts for the few seconds,
that it takes to close the case and lock it in the trunk, and of coarse the reverse.

Don't forget we can't place a firearm on a vehicle either, so it would also have to instantly tossed the gun out of the case as it was opening too :uhoh: .

 

[Captain Nemo]

The Alloy decision was made April 4, 2000.

 

[Captain Nemo]

The circumstances of state v Cole and State v Pinnow are interesting. The WSC opinion in the Cole case was published July 2003. The Pinnow opinion filed March 2011. Both decisions post Art I sec 25. The Cole decision ruled that cole was guilty of carrying a concealed weapon because he had a .45 semi-auto under the drivers seat. The WSC also ruled that Art I Sect 25 did not affect the validity of 941.23 (concealed weapon prohibition) statute. On the other hand the Milwaukee County circuit court ruled that to arrest Pinnow for carrying a concealed firearm under the front seat of his car was unconstitutional. Sure would be intersting how the WSC would respond to that if the case had been appealed.

Technically the requirement that a firearm be unloaded and encased only apply if within the 1000 foot GFSZ and if transporting a firearm in or on a vehicle. Out side those venues the three conditions that define concealment apply unconditionally. Whether a LE agency would charge a person walking down the street with carrying a concealed weapon, because the person was carrying an unloaded firearm in a carrying case, depends on the motives of the LE.

 

[Max]

There are but two exemptions from the ban on concealed carry. The first is if you are a peace officer. The second is if there are extraordinary facts, as there were in the Hamdan and Pinnow cases, that prove the individual's interest in carrying concealed outweighs the state's interest in forbidding it.

If you do not qualify for either of the two, you can be charged, as Pinnow was, and you may be convicted lacking the extraordinary facts found in Hamdan and Pinnow.

The judge in the Pinnow case simply followed the judicial path laid out by the Wisconsin Supreme Court in Hamdan. Neither Hamdan nor Pinnow won their cases based upon any so called conflict between one statute requiring encasement and one banning concealment because the "out or reach" citation rectifies any conflict, nor did they win because the conceal carry ban is unconstitutional, which it is not per the WSC. If an unloaded and encased firearm is within reach in your vehicle and you cannot prove extraordinary factors that prove your interests outweigh the state's, you have violated the conceal carry ban. You can be charged and I believe now, you can be convicted.

 

[Max]

Reagan was born in IL.

http://en.wikipedia.org/wiki/Ronald_Reagan

Indeed he was, but he still came out of California. Funny you should mention Illinois, "Land of Lincoln" when Lincoln was born in Kentucky. I guess when someone lives somewhere long enough, you can claim him and the place of his birth becomes irrelevant.

 

[springfield 1911]

LR Yote 312
Originally Posted by phred
Can anyone cite a statute or a court decision that requires an unloaded and encased firearm to be out of reach?

Can anyone cite a a statute or court decision that says a properly encased and unloaded firearm is a concealed weapon?
Thank God Doug is no longer with us....He would argue those points for 6 pages.

LR Yote



I'mmmmmm Baaaaaaack





Doug if you still read here let me say hello and take care.

 

[Max]

LR Yote 312
Originally Posted by phred
Can anyone cite a statute or a court decision that requires an unloaded and encased firearm to be out of reach?

Can anyone cite a a statute or court decision that says a properly encased and unloaded firearm is a concealed weapon?
Thank God Doug is no longer with us....He would argue those points for 6 pages.

LR Yote



I'mmmmmm Baaaaaaack



View attachment 5608

Doug if you still read here let me say hello and take care.

From the Pinnow decision,
"There were no practical alternatives for Pinnow to exercise his right to bear arms and to be able to defend himself from the threat (requiring that the handgun be within reach) and to otherwise to comply with CCW statute (violated if the handgun is within his reach)."

 

[phred]

From the Pinnow decision,
"There were no practical alternatives for Pinnow to exercise his right to bear arms and to be able to defend himself from the threat (requiring that the handgun be within reach) and to otherwise to comply with CCW statute (violated if the handgun is within his reach)."

Are you interpreting or paraphrasing?

The full quote from the Pinnow decision

There were no practical alternatives for Pinnow to exercise his right to bear arms and to be able to defend himself against the threat (requiring that the handgun is within his reach). If carried openly in a holster on his hip in a vehicle, it would still be considered concealed and a violation of the CCW statute. If carried in front of him while driving, it would be very dangerous driving, would terrify and confound others and would likely constitute disorderly conduct.

 

[Max]

Are you interpreting or paraphrasing?

The full quote from the Pinnow decision

It is an actual quote from the middle of page 9 of the decision. The link is http://www.wisconsinappeals.net/wp-content/uploads/2011/03/pinnow.pdf

 

[phred]

It is an actual quote from the middle of page 9 of the decision. The link is http://www.wisconsinappeals.net/wp-content/uploads/2011/03/pinnow.pdf

Got it- my mistake.
It's in the link I posted earlier (which is also your link) but missed it on retyping the tilted print.

 

[Nutczak]

If an unloaded properly cased firearm is considered an illegally concealed weapon, would you please explain to me the exceptions in the GFSZ where it states a person can cross school property with an unloaded cased weapon.

Max, you are reading too far into these laws, you are jumping to wrong conclusions.

 

[Max]

If an unloaded properly cased firearm is considered an illegally concealed weapon, would you please explain to me the exceptions in the GFSZ where it states a person can cross school property with an unloaded cased weapon.

That's the problem, there are no exceptions for the GFSZ. Obeying one statute forces you to violate another. I do not see how anyone could be charged or convicted for violating the CCW ban because the obeyed the GFSZ. Not so with vehicle carry as the "out of reach" is possible in a vehicle, not so when walking in a school zone. Our legislature needs to shi* can all three of these statutes.