Wisconsin: Chief to officers: Ignore gun memo

[47of74]

Source: Associated Press

MADISON, Wis. -- Milwaukee's police chief said Tuesday he'll go on telling his officers to take down anyone with a firearm despite Attorney General J.B. Van Hollen's finding that people can carry guns openly if they do it peacefully.

Milwaukee Police Chief Ed Flynn said he'll continue to tell officers they can't assume people are carrying guns legally in a city that has seen nearly 200 homicides in the past two years.

"My message to my troops is if you see anybody carrying a gun on the streets of Milwaukee, we'll put them on the ground, take the gun away and then decide whether you have a right to carry it," Flynn said. "Maybe I'll end up with a protest of cowboys. In the meantime, I've got serious offenders with access to handguns. It's irresponsible to send a message to them that if they just carry it openly no one can bother them."

Read more: http://www.thonline.com/article.cfm?id=240787

---

I wonder how long it'll be until the right wing starts complaining about that?

[WriteDown]

1. Someone is going to win the lawsuit lottery...

because of this asinine statement.

[havocmom]

3. Wonder if there will be an increase of people carrying openly,

just itching for some cop to give them the reason to go to court.

Asinine statement indeed. Gonna bring a peck of trouble to his force and his city.

[damntexdem]

63. I'm ashamed that such opinions are held by anyone who posts on DU.

Those who would act on such 'just itching' might find that they die in the confrontation they incited with the police -- and they would deserve to do so.

[superconnected]

87. I agree. Showing a handgun in public can easily be interpreted as a threat

I guess these people deserve to be take out via the Darwin awards.

What good is a lawsuit against the police when you're dead.

[havocmom]

94. and just what is wrong with making a comment on possible behavior

after years or observing people? Am old enough to have seen, many times, people who will set about inviting trouble, especially when silly policies are involved. This one is ripe for conflict.

Geeze, are there now DU observation police?

[inwiththenew]

57. Really

I hope the city has deep pockets because they someone is going to go out with the intention of being harassed and bring a huge lawsuit against the city.

[X_Digger]

58. Yup, see links..

http://hamptonroads.com/2008/12/norfolk-pay-15000-harborfest-gun-arrest-case

http://www.thetimes-tribune.com/articles/2008/06/13/top_local_stories/19770867.txt

http://www.metrospirit.com/index.php?cat=11011612083586983&ShowArticle_ID=11011712084357501

Lots more available via google.

[depakid]

102. Cowardly gun nuts aren't going to win any money from a Milwaulkie jury

over openly showing off their gun in the city.

Props to the police chief for doing the right thing- though it might be wise to refer any such matter to local mental health authroities.

[X_Digger]

104. No?

See links in post above yours..

eg, http://www.metrospirit.com/index.php?cat=11011612083586983&ShowArticle_ID=11011712084357501

[depakid]

105. Not in Milwaulkie

where people are saner than that.

Indeed- it wouldn't surprise me if in such an incident, something would happen that went the other way.

And it would be well deserved for any cowardly fool endangers folks by carrying a gun around. That's just asking for trouble- and it's probably a sign of mental illness.

[X_Digger]

106. PA, GA, VA, West Allis, WI..

http://www.jsonline.com/news/crime/39722082.html

There's actually a case pending re a West Milwaukee resident..

http://www.jsonline.com/news/wisconsin/43074132.html

[saigon68]

110. The Chief has more important fish to fry

Like "Whitening up the City"

[damntexdem]

62. Better to lose money than lives -- I salute that intelligent statement.

The NRA is what's asinine -- and it is an enemy of civilization.

[joeybee12]

2. How stupid is this Attorney general? Carrying guns around town, but doing

so peacefully? Guns are not used for peaceful purposes to begin with...Jesus H Cristoff.

[MineralMan]

4. The law in Wisconsin allows open carry.

This chief is a fool. If open carry isn't wanted, legislative action is needed, not frelancing by local cop chiefs.

As for peaceful uses of openly-carried firearms, why do you suppose the police have one strapped on their waists? Keeping the peace is their job, and the firearm aids in that job.

You don't like firearms? Don't own them.

[LeftHander]

11. Do you live in Milwaukee?

If not than STFU...

Flynn is making our city safe again. And he knows that guns hanging on hips in the city core means more gun violence.

"A gun in first act goes off in the third."

[RantinRavin]

14. And just how would you feel about this statement

"My message to my troops is if you see anybody talking on the streets of Milwaukee, we'll put them on the ground, take their voice away and then decide whether you have a right to say it," Flynn said.

[LeftHander]

20. Well he didn't say that did he...we are talking about GUNS...

I live in Milwaukee...and would call the cops if I saw someone walking around with a weapon.

If thugs and the public are allowed to carry weapons openly and not be stopped by police there will be lots of dead people in the streets this summer.

[RantinRavin]

24. But apparently it has been legal

it's just that very few choose to do so.

[LeftHander]

29. legal yes...extremely stupid yes. Maybe for rural small town....

It would be romantic and nostalgic and handy if you are hunting game with a handgun.

I open carried a handgun when I lived in South Dakota alot. So did other people. But it would be personal folly to do so here. Even if Jesus appeared on City Hall steps with Glocks in each had and gave his blessing.

[WriteDown]

42. Kind of like how stupid it is for women to open carry

pepper spray on their keychains in case they get mugged or worse. Hope those women are put on the ground and roughed up.

[JayMusgrove]

46. What kind of analogy are you trying to draw? It's not working because

I don't know of anyone anywhere in the world that died when pepper sprayed.

Pepper spray and guns, different, not the same. You knew that.

[WriteDown]

48. They are carrying deadly weapons...

Hard to defend that

http://www.sfgate.com/cgi-bin/examiner/article.cgi?year=1996&month=04&day=08&article=NEWS7595.dtl

http://www.nytimes.com/1993/10/27/nyregion/use-of-pepper-spray-ruled-a-factor-in-man-s-death.html

[havocmom]

95. Lots of years in Tucson (a fair sized city) saw a few people who did open carry

Did not see any gun fights between them and the police. Lots of concealed carry criminals about though. Police might be wise to be more concerned with them.

Tell me, are you FOR police violating civil rights of other eccentric people?

[damntexdem]

65. My feeling: HURRAH!

It's about time we got serious about gun violence in this nation.

[JonLP24]

21. Let me start off by saying I know little about Milwaukee

I'm guessing many of the homicides are related to the drug trade? If so many of them have prior convictions and own guns illegally and probaly would not openly carry them out of fear of a gun charge. They are smart enough to know not to buy one at a pawn shop and use it 2 weeks later or so. I'm afraid the majority of the disarmings and putting people to the ground would be of responsible gun owners with permits.

[LeftHander]

26. Responsible people do not open carry in Milwaukee's core.

We call the cops when we see people with guns.

Find me a responsible gun owner willing to open carry in the Streets of Milwaukee and I would bet they are a off duty cop in uniform doing a parttime security gig.

[JonLP24]

30. I seriously doubt that someone who isn't supposed to own a gun and uses that

gun in the commission of crimes will openly carry that weapon in public no matter what the law says.

[MineralMan]

28. Ah, I see. So only people in Milwaukee may comment...

Hmm...I didn't see that restriction, so you'll pardon me if I ignore your order to STFU.

I'll comment if I wish, thanks.

[LeftHander]

32. Go ahead. Comment all you like. - sorry for the STFU

I will keep discouraging people from making pat gun right statements about a city they know nothing about.

I was reading other posts that got me upset....but I have seen and heard too much violence in my city.

We all are tired of people dying from bullets wounds and using guns to resolve conflict.

Allowing open carry in Milwaukee would be a public safety disaster.

[MineralMan]

50. And I will continue to discourage people from condoning

police action in defiance of state law, wherever that is. Carrying a firearm openly in Wisconsin is perfectly legal. The police may not stop and force anyone to the ground except under probable cause to believe that a crime is being or has been committed.

That's a guarantee we have, you see.

The chief of police in Milwaukee has no standing to prohibit open carry. In fact, heshe has no standing to create new laws, either. The chief of police has just one function...enforcing existing laws.

Until open carry of a firearm is illegal, such behavior is not a police matter, unless that firearm is being used in a crime.

We are a nation of laws, not of police whims.

[Iowa]

55. Thank you! You said it well.

:thumbsup:

Actually, I think we have as much to fear from the police as we do from criminals. Hardly as day goes by that I don't read news reports about police brutality and outright criminal behavior. I know a psychologist who evaluates cops for fitness for duty... he doesn't make the call - he just does the testing. He says that most cops have a psychological profile that matches criminals pretty closely. He doesn't trust them either. So when I see some turd proclaim that his "troops" (notice the military term) are going to accost law-abiding citizens, that sounds off alarm bells. A police state poses a bigger threat to my way-of-life than criminals.

[MineralMan]

59. Thanks to you.

I'm not an anti-cop person. I'm just anti whatever cops think that they needn't follow the law. I don't think that applies to most of them.

This chief of police will get a wake-up call shortly.

[JonLP24]

53. You're not the only one that lives in a city plagued by violence

We have plenty here in Phoenix, Mesa, Apache Junction. Recently we had a shooting of a speed camera installer as well 2 simultanous serial killers the so called "Serial shooter" that lived in Mesa and the "Baseline killer". Not to mention Apache Junction is a robbery hotspot and the majority of the crimes in AJ are committed by middle aged white men believe it or not. I've seen it personally, luckily I didn't see anyone personally killed but have seen people shot at and had a gun pointed at me twice. One was during a robbery, the other was by someone under the influence of Meth with a crazy conspiracy theory. So for anyone else to comment about this subject doesn't mean we aren't qualified because we don't live in Milwuakee. My issue however is with the unreasonable search and seizure this chief of police is advocating.

FWIW, of those incidents I mentioned the gun was concealed before I saw it and we have an open carry law.

[PNutt]

36. And....Adolf Hitler.Was Just............

Making Germany safe from the Jews. Don't get me wrong, I'm about two degrees to the left of any liberal person that you have ever known, but I do believe in the second amendment, and recognize the rights of individuals to bear arms.....without restriction....just as the United States Constitution provides.

[WriteDown]

43. Alcohol is also a prime cause or violence of death...

I think he should close the bars and put any drinkers on the ground and rough them up a bit. Legal alcohol is a stupid law anyway.

[havocmom]

96. BRAVO!

After closing down the bars, perhaps the chief could shut down all the roads. They are REALLY dangerous!
If his cops see someone with car keys, they should 'take them down' pronto! ;)

[amandabeech]

131. Do you have any idea how many little bars there are in Milwaukee?

There must be one liquor license for every 10 people.

It would take the city government years to shut them all down.

[HopeHoops]

17. Same in PA

Well, other than in Philli.

[Butch350]

138. Cough..BS!

[elocs]

5. The primary and end purpose of a gun in to destroy a target, animal, or human.

They can be used to intimidate such as "don't mess with me, I have a gun" or "give me your money, I have a gun". I do not understand how anyone openly carrying a gun could be assumed to be doing it peacefully, particularly in Milwaukee.

[friendly_iconoclast]

6. Like it or not, open carry is legal in WI

And this police chief is a fool. He is opening up the city to massive lawsuits.

Somebody should explain the meaning of 'counterproductive' to him...

[MineralMan]

7. Look, I don't carry a firearm, openly or concealed.

I have a permit to carry concealed, but don't. Yes, firearms are lethal weapons. No question about that. The issue is that the law in Wisconsin allows open carry. That is the law there. Few people do so.

Individual police chiefs may not ignore the law. That is the issue, not the firearms themselves. If the law forbade open carry, and the police chief said he wouldn't enforce that law, it would amount to the same thing.

I have no objection to prohibitions on open carry, but that is not the situation in Winconsin, a state I do visit occasionally. Until that law is changed, the police chief is in violation.

How difficult is that to understand? Whether or not open carry should be an option is a different discussion.

[Winterblues]

8. He has not said he will ignore the law

He has said he will put a person on the ground and rough them up a bit until it is proved they are allowed the right to carry their gun around. It is simply a matter of self defense for the officers. If the gun nuts don't like it then don't pack a gun around..People are not being denied the right to carry their gun. They are being "detained" until that right is determined.

[Egnever]

22. And thats ok?

guilty until proven inocent. You are advocating for the poplice to be alowed to "rough up" anyone they think might be doing something wrong. Thats just horse shit.

[mbperrin]

56. Actually, there is no roughing up mentioned anywhere in the article.

"My message to my troops is if you see anybody carrying a gun on the streets of Milwaukee, we'll put them on the ground, take the gun away and then decide whether you have a right to carry it," Flynn said.

Similar to a traffic stop in California, where you get out of the car and lie face down until the officer is satisfied.

[Egnever]

60. The poster I was responding to said that

and maybe Cali has changed since I lived there but never once did I have to get out of my car and lie on the ground for a traffic violation, and I got plenty of them.

[amandabeech]

132. The city will be sued for this. There will be many suits, and the suits will go on forever.

The whole business will be extremely expensive, and Milwaukee will end up with a black eye from half the U.S. population no matter how this ends up.

The smartest thing for the city to do is to start agitating for a new state statute that will survive court scrutiny that will at least grant localities the right to set their own open carry laws.

[JonLP24]

12. Maybe apples to oranges

But that sounds very familiar to Sheriff Joe detaining Mexicans first and then determine whether they are US citizens second.

on edit: Meant as a reply to WinterBlues

[LeftHander]

13. WRONG...carrying a gun openly on the streets - PROBABLE CAUSE.

A cop seeing a gun on a person in Milwaukee is enough probable cause for officers to disarm them.

People don't hunt in the streets of Milwaukee.
They don't shoot clay pigeons in the parks.
They don't plink cans with the kids in the back yard.

If a person is carrying a weapon in Milwaukee the police look at that as a THREAT TO PUBLIC SAFETY....

WHICH IT IS!

I live in Milwaukee. People are getting shot and killed every few days.

For the cops to ignore people carrying weapons in the streets of Milwaukee is plain STUPID!!

Shit even Wyatt Erp knew guns in town created violence with a deadly end.

[remedy1]

18. It most certainly is NOT probable cause to "disarm" them.

They are not breaking any law, and there is no legal PC. Nor is there a "threat to public safety" as long as it is legal.

I carry a concealed weapon, and in my stste if stopped by a police officer, I am under no legal obligation to inform them that I am armed. As a courtesy, I may do so. I was recently stopped for speeding, and as a courtesy I informed the officer prior to opening by glovebox that I had a weapon in there. He merely shrugged, and after running my license, let me go with a warning and a thanks for not surprising him.

[LeftHander]

23. Walk the streets in Milwaukee's core with a weapon in the open

and tell me how long before you get surrounded by cops. Or shot by a thug.

[remedy1]

25. That is not the point.

Open carry is legal. Until such time as it is not th Chief of Police needs to obey the law that he is sworn to uphold.

Personally, I am not a big fan of open carry, but that's just me.

Do you support the police "taking down" a person walking down the sidewalk just because they happen to be African American?

BTW...most bad guys don't carry their guns out in the open.

[LeftHander]

37. Anyone carrying a weapon in the open in MKE

Is crazy and a danger to public safety.

[remedy1]

44. You have a right to your opinion.

Perhaps the fact that you live in the inner city area which is a high crime area, means that you are crazy, too.

Perhaps the fact that one is carrying a gun in plain sight would deter anyone from messing with them, too.


The fact is that open carry is legal, and the police have no legal justification to "rough up" anyone who is complying with the law.

[Paladin]

99. Do You Openly Carry?

If so, give us a detailed explanation as to why you feel you have to carry firearms out in the open, rather than concealed. Lotsa luck. As far as I'm concerned, anybody who opts for open carry has moved beyond any notion of personal self-defense and is dealing in nothing more than public intimidation and an obvious desire for trouble. And blubbering that it's legal isn't very persuasive......

[Psephos]

126. "blubbering that it's legal isn't very persuasive"

Translation: laws are fine if I approve of them, but can and should be disregarded if I don't.

Police officers should likewise feel free to pick and choose among the laws they are sworn to uphold, and ignore those which they dislike.

Sounds pretty much like Somalia to me.

[Paladin]

135. How About Addressing My Main Point?

That point being: those open carry laws you're so fond of validate the very type of mindset that ought to disqualify a person from even possessing a sidearm: a thirst for public intimidation, an overwhelming hope for gunplay in the streets, and a belief that the Wild West was the best era this country ever passed through. I have yet to hear a convincing argument to the contrary---all you guys can come up with is "It's legal, so I'm gonna do it."

And yeah, if I had the power, those open carry laws would be gone by the end of the day. I'm not impressed with laws created and shoved through by a bunch of officials blowjobbing the gun militancy movement......

[Psephos]

141. Actually, I did

Your point is that open carry is an act of intimidation.

Although I'm not "fond" of the law, as you aver, I also don't think open carry is de facto intimidation. Quite the opposite. It is a defensive signal, and one that should prove quite effective in tough hoods like the murder-prone areas of Milwaukee. It says "pick on someone else unless you want trouble." It's contextual, not universal, and the law assumes some judgment on the part of the weapon holder as to where it is appropriate or not. A reasonable person can and should make judgments about propriety in this and many other aspects of public comport.

It's worse than futile to microregulate behavior with 100-page laws - worse than futile because no legislator can foresee all the permutations and circumstances of real life and codify them, and the very people such laws target are the most unlikely to pay attention to those laws. So the laws end up harming the people they're supposed to help, and helping the people they're supposed to reign in. An unintended consequence of the authoritarian approach is that people stop developing judgment skills and replace those skills with a "what can I get away with against The Man" mentality. They lose respect for the law, and understanding of why the rule of law is the cornerstone of an orderly and free society. The evidence of how this fetalization of judgment and responsibility has corroded our culture is all around us.

If it were up to me, I'd rework the open carry law to concealed carry. I personally do not carry a firearm, and never have. But I understand the idea that firearms used by responsible people are rights protectors, and create a perception among criminals that they should rethink how much grief may come from attacking someone.

I'm sorry, I can't support your opinion that the rule of law, although imperfect, should be jettisoned on whim in favor of anarchy, or even worse, selective enforcement by people with guns and badges who swore they would protect it. Power corrupts. IMO any true liberal wants power in all its forms attenuated to prevent abuse of those with less power. If the law sucks, then it can and should be fixed. As I said before, this isn't Somalia.

Best regards...

[Paladin]

142. Not A Bad Effort, Actually.

Just don't accuse me of favoring anarchy over the rule of law, OK? Does every federal, state and local law meet with your approval? I didn't think so. Do you consider yourself an anarchist because of such discernment? I didn't think so. I don't think either of us is bound for Somalia any time soon.

My viewpoint on open carry remains the same. As far as I'm concerned, any non-law enforcement individual who wanders into the "tough hoods like the murder-prone areas of Milwaukee" openly carrying a pistol is just begging for trouble, looking for a deadly altercation to take place. It is "fetalization of judgment" to an alarming degree, and about as far away from what a reasonable person would do as is imaginable.

Best regards back at you. Nice to have a civilized discussion on this; God knows it doesn't happen very often.....

[Demit]

45. So legal guns don't shoot the same as illegal guns? Legal guns are therefore totally harmless?

All guns are a threat to safety. That's kind of the point of them, isn't it?

[remedy1]

51. No, not at all.

Guns are no more a threat to safety than an automobile. You misread my post, or perhaps it was worded improperly. There is no "public safety" threat by a person abiding the law. Is that better?

[Demit]

70. Automobiles aren't designed for the purpose of killing things. Guns are.

Actually I did understand your point—that guns aren't necessarily, or automatically, a safety threat if the person carrying one is a responsible person. But I wanted to make a further point: there is *always* an implied threat posed by a gun, whether the person carrying is a nice guy or not. That is why people want to carry a gun in the first place—to bodily threaten anyone who bodily threatens them.

If guns were only used judiciously and wisely and all that good stuff, that would be one thing. But you can't depend on that, and there are umpteen terrible tragedies every year to illustrate.

[remedy1]

78. Gross generalization.

Some guns are collectibles. Some are for the sole purpose of competition.

Automobiles aren't necessarily, or automatically, a safety threat if the person driving one is a responsible person. There is *always* an implied threat posed by an automobile, whether the person driving is a nice guy or not.

If automobiles were only driven judiciously and wisely and all that good stuff, that would be one thing. But you can't depend on that, and there are umpteen terrible tragedies every year to illustrate.

[Demit]

107. People don't apply for concealed carry permits for collectible guns.

That is a very silly argument.

[amandabeech]

133. Your argument is one supporting a change in the law.

It would not be a good defense to a charge that an officer knocked down someone who was walking down the street in Wisconsin carrying a gun with no evidence that the gun carrier had done anything illegal with the gun or was about to do anything illegal with the gun.

Your argument would make sense to a legislator contemplating voting for a change in the law, but would not make a lot of sense to a judge conducting a civil or criminal trial of the police officer for knocking over the gun carrier.

[patriotvoice]

35. Probable cause is a significantly stronger position than reasonable suspicion.

Probable cause is "information sufficient to warrant a prudent person's belief that the wanted individual had committed a crime (for an arrest warrant) or that evidence of a crime or contraband would be found in a search (for a search warrant)" (Oxford Companion to American Law). Carrying a gun is no more indicative of committing a crime than carrying a knife or, for that matter, a spoon.

If you're not interested in getting shot and killed while you walk around, I suggest you open carry. Lions don't go after the strong gazelles. The better plan would be handing out weapons and training to at least one person on every block and allowing them to carry openly.

On edit:
I suggest consulting Terry v. Ohio (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=392&invol=1) for more definition of when an officer may "Terry stop" an individual.

[JonLP24]

40. I totaly forgot about that

I knew the poster's case for probable cause was over the top.

[WriteDown]

38. What's next?

Being Black as a probable cause. Statistically, they commit more crimes so I guess the police can "rough them" to protect the streets.

[MineralMan]

49. Probable cause of what?

In order for the police to force a person to the ground, there must be probable cause of a crime. You seem to have a limited understanding of legal issues. In the United States of America, we are all presumed to be innocent, and some reason must exist before the police can stop us or do any such thing as force us to lie upon the ground.

In Wisconsin, carrying a firearm openly is NOT against the law, so no crime has been committed by a person doing so. What part of that is unclear to you?

[LeftHander]

9. YES...Flynn has done a good job decreasing crime in MKE.

JB VanHollen is crazy, I heard that on the radio the other day and almost shit my pants.

I live in the core of Milwaukee. I have heard my share of gunshots in the summer nights, sirens and screams.

One time a Hollywood style thug car chase with guns blazing down Capitol Drive...followed by a pack of cop cars.

Handguns in Milwaukee, hot weather and no jobs is a explosive mix we may be looking at this summer. The last thing we need to JB VanJackass to let crazy wingers carry weapons in a already volatile environment. The crazies will start shooting and ask questions later.

In the inner city people carrying guns are DANGEROUS and create a UNSTABLE ENVIRONMENT rife for violence.

[twitomy]

54. So a law abiding citizen in the inner city who is legally

carrying a weapon for protection against the violent thugs is now a criminal? Bullshit. If the police cant get the criminals off the street, I cant blame a person for carrying a weapon, open or otherwise, for their own protection. Aferall, it is perfectly LEGAL...

[Dr Fate]

67. How do we get more criminals off the streets? I know- we spend BILLIONS building more prisons!

And the same tea-baggers who make up the majority of the NRA will scream bloody freaking murder about being "over taxed" for that too.

Anything else that might eliminate the economic & social conditions that cause crime is generally opposed by the NRA tea-baggers as well.

Oh well- back to square one- lotsa guns, lotsa crime, no solutions, more guns, more deaths.

I'm for private gun ownership, but it's frustrating that as to guns, all we get from tea-baggers, NRA types and their allies are problems, never any viable solutions.

I can't blame a person for wanting to carry a gun either- the NRA, gun industry and the Republicans who make up their membership leave them little choice.

[Dinger]

10. vanhollen Is A Pig

and an asshole.

[midnight]

68. It is odd that the attorney general is all for upholding this

right to open carry guns, but then burden Wisconsin voters at the polls with using a mistake ridden data base that would of prevented Vanhollen from voting if he got his way last Fall.

[Dinger]

75. he Thinks he Can Bypass Our State Legislature, Governor, & People

he's fucking delusional. And he tried to pull tons of shit in the 2008 election. Don't get me started on that asshole. Shit, he gives assholes a bad name.

[patrick t. cakes]

15. strange that he calls his officers his troops.

no matter what he meant by it
i find that a curious statement.

i thought the police were OUR officers.

[SomeGuyInEagan]

34. Yeah, that jumped at me as well. I like "our *peace* officers" myself.

[elocs]

41. Not necessarily unusual. Here in WI we call our state police "troopers".

I bet police in Milwaukee sometimes feel like they are in a war zone. Now they just need to figure out the peacefully gun carrying citizens from the ones with unpeaceful attitudes before they get shot.

[X_Digger]

16. Guilty until proven innocent.

And here we thought * was bad at ripping up the constitution.

The 4th amendment was incorporated against the states in 1949 by Wolf v Colorado. Have fun with the lawsuits.

[Egnever]

19. She needs to be fired

Her job is to enforce the law not make up her own.

It may be a stupid law but thats not for her to decide.

[jody]

27. I'm sure supporters of Police Chief Ed Flynn also approve of Sheriff Joe Arpaio in AZ. n/t

[SkyDaddy7]

31. Milwaukee Police Chief Ed Flynn

Should be thrown on the ground, if he resist then TAZED, handcuffed, gun and badge taken, and then fired!

[slackmaster]

72. I like your answer better than mine

:hi:

[Renew Deal]

33. Your signature is interesting.

lol

[lutefisk]

39. The NRA Political Victory Fund spent $39,681 getting that asshole elected- it's payback time

He doesn't give a shit about police officers or the citizens of Wisconsin, but he does pay back his debt to those that got him elected.

http://www.wisdc.org/ind06pacs.php#i500704

[patriotvoice]

47. FBI Ghettos.

Special agents often live in the same community when they relocate to new field offices: these are affectionally called "ghettos." The crime rate in those ghettos is nearly zero, nationwide. That's either an extremely unlikely coincidence, or has something to do with the perception of resistance from those home owners.

I think this shows clearly one plain truth: violence is avoided so long as the community is equally, or better, armed than those who wish violence upon that community.

[Dr Fate]

52. Whatever the reason may be, we dont see that pattern in the actual ghettos.

Lotsa people armed there too-most of the people who own guns in the inner city would surely keep them in their house or apartment.

My guess is that much of the gun violence in actual ghettos takes place on the streets.

Maybe there are more guns in an "FBI ghetto" than in inner-city ghettos- but surely education & economics would be a factor as well.

I'm not trying to take away from you point, but I'm adding the fact that community violence in the inner city is not just about break-ins and resistance from break-ins- much of it occurs on the streets.

[damntexdem]

61. It's a return to traditional values -- the RW should be happy.

Remember the "wild west"? Many "wild west" towns had ordinances requiring that all guns be turned in while one was in town.

The idiocy of the gunnuts kills, and this police chief knows that.

[jody]

64. Why didn't Flynn's troops protect the victims of 200 homicides in the past two years? How much did

Milwaukee pay to the estates of those victims for failing to protect those 200 victims?

Answer is Flynn's troops are not obligated to protect any person unless she/he is in custody and Milwaukee doesn't have to pay a cent if Flynn's troops fail to prevent a homicide.

Open carry is a red-herring, the basic issue is whether law-aiding citizens can exercise their natural, inherent, inalienable/unalienable right to keep and bear arms for self-defense.

Flynn would have a sound position if he opposed open-carry but advocated every citizen carrying a concealed firearm for self-defense.

ON EDIT ADD:
"Wisconsin is one of 29 states that allow people to openly carry a firearm without a permit. It's one of two states that ban concealed weapons."

[Dr Fate]

66. Negligent law enforcement should reimburse the estate? What about other negligent parties?

We agree that law enforcement in this country is over-worked and often ineffective, but it would be an interesting position to indicate that restitiution and blame falls soley on law enforcement.

If Milwaukee has to compensate the estates based on negligence in law enforcement, then should we look to other allegedly negligent parties as well-or should we just blame cops?

How about the gun industry or even the gun lobby- do you think a jury might find them just as negligent or liable as they might find the cops?

[jody]

69. The issue of government obligation was answered by SCOTUS in two cases, DeShaney and Gonzales. In

both cases SCOTUS said local police are not liable for failing to protect a victim.

Self-defense is a personal responsibility and it's up to each person to decide how she/he will fulfill that duty.

[Dr Fate]

73. You are the one who suggested that the county should reimburse the victims, not me.

I see you avoided the issue of negligent distributors and manufacturers.

SCOTUS has a thing or two to say about that as well.

[jody]

74. I did not suggest "the county should reimburse the victims", I posed a rhetorical question and

then answered it.

Nice try though.

As you know, it is government that claims the authority to allow or deny a citizen the right to keep and bear arms for self-defense.

In Flynn's case, he abuses his authority by preventing citizens from openly bearing arms for self-defense and the state prevents citizens from carrying concealed arms for self-defense.

That's clearly unconstitutional as SCOTUS said in D.C. v. Heller, i.e. government cannot deny a citizen the right to keep and bear arms for self-defense.

[Dr Fate]

77. Sure- I also proposed a rhetorical question.

Mine just never got answered.

If we are willing to bring compensation and reimbursement into the argument as to goverment liability, then liability as to the gun industry is on topic as well.

I thought you were indicating that it would be more fair if the county was obligated to compenstate victims of gun violence- so I was wondering, rhetorically of course, who else might have such obligations.

Sorry for the confusion!!!

[jody]

81. I pointed out a paradox that gun-grabbers conveniently ignore, they want government to ban firearms

for citizens but don't want government to accept the responsibility to protect citizens.

Since criminals aren't bothered by laws the effect of anti-RKBA actions are to disarm victims and pro-RKBA actions to disarm criminals since the latter group vigorously supports enforcement of existing laws.

[Dr Fate]

82. Cool! I pointed out a paradox that got conveniently ignored too.

The Republican gun industry and their allies want more guns to be available, but they don't want to accept responsibility as to their negligence.

In fact, they dont even want there to be a hearing on it all- they think these manufacturers and distributors should be immune from law suits.

I was not aware that "gun grabbers" generally agreed with the SCOTUS decision you site- or that they opposed government & law enforcement efforts to protect citizens.

Which gun grabbers oppose government & law enforcement efforts to protect citizens? I thought it was the pro-NRA DUers who were disagreeing with the cops on this one.

[jody]

84. Please explain the paradox of holding a manufacturer liable for a customer's misuse of its product,

a government enforced policy that must be applied equally to all products if it is to be effective and legal as you imply.

[Dr Fate]

91. Don't change the wording of my statement. Here is what I am saying:

I'm saying that the gun industry wants to profit by distributing more guns, but they want to be immune from responsibility for their possible negligence in doing so.

I never adressed any paradox as to a customer's misuse of a product. Even still, I'm sure you are aware that "forseeable misuse" by a consumer is no defense in a strict product liability action. I was not even going there-you brought up consumer misuse, not me.

Besides, in any othe case, "misuse" or some other affirmitive defense would be weighed by the trier of fact after hearing the facts. Liability is not for you or the Gun Industry to decide before there is even a hearing- unless you happen to have immunity from law suits, that is.

Strict liability as to manufacturers, distributors, etc IS generally applied equally to most products except for guns- so I'm not sure what you want me to explain.

Also- you failed to clarify which "gun grabbers" support the SCOTUS ruling you cite, or which gun grabbers "don't want government to accept the responsibility to protect citizens."

Before I answer any more new questions you might throw out there, please retract or clarify which gun grabbers you are talking about.

[jody]

92. You say "the gun industry wants to profit by distributing more guns, but they want to be immune from

responsibility for their possible negligence in doing so."

Please explain precisely what the "possible negligence" of a gun manufacturer might be in commission of a crime since crime is the topic I'm discussing.

[Dr Fate]

93. I politely requested that you to clarify your statement b/f I answer any of your new questions.

Again, I asked you which gun grabbers support the SCOTUS ruling you site, as well as what gun grabbers "don't want government to accept the responsibility to protect citizens."

If you can't tell me, then the whole premise of your "paradox" may not even be there.

I'd like to resolve the previous issue you presented before we continue to your new questions- which I will be glad to answer when it is my turn.

[jody]

97. Please quote the specific statement I made that interests you and I'll explain it to you. That

excludes any quotation I made from other sources since they speak for themselves.

[Dr Fate]

100. Thanks-I'll present it to you for a 3rd time- it was in post #81.

You said:

"...gun-grabbers…want government to ban firearms for citizens but don't want government to accept the responsibility to protect citizens."

This statement was made in connection to your siting SCOTUS's ruling on police liability, so it seems like you were also suggesting that gun grabbers are in a paradox for agreeing with that ruling as well.

Thus, the "paradox" as you explained it.

So which parodoxal "gun grabbers" are not for holding cops liable, and against government responsibility to protect citizens?

I'm sure we could find paradoxes on both sides of the issue, but I just thought I would let you clear that up before we move on.

[jody]

101. No problem, gun-ban groups including the Brady Campaign to Prevent Gun Violence, Violence

Policy Center, and others at http://www.dmoz.org/Society/Issues/Gun_Control/Anti-Gun_Rights/

ACLU argued that government should be liable in TOWN OF CASTLE ROCK, COLORADO, Petitioner, v. JESSICA GONZALES et al, see DU thread SCOTUS says government is not responsible for protecting individuals and ACLU knows that.

The gun-grabber groups Brady and VPC had ample opportunity to support Gonzales so their failure on a case before SCOTUS means they didn't support Gonzales, an instance of the behavior in question.

[Dr Fate]

111. Problem: Your links are not informative at all. I think your "paradox" is a stretch.

Your first link is just a long list of other links. I see nothing there at all showing that "gun grabbers" support the SCOTUS ruling denying police responsibility, or that they oppose efforts by the government to protect citizens.

Which link am I supposed to click on- and could you provide a relevant quote from that link?

Your second link is a link to your own thread and describes how the ACLU argued IN FAVOR OF, not against police liability.

You indicate that "gun grabbers" must oppose government efforts to protect citizens b/c Brady and VPC had ample opportunity to support Gonzales.

Are we saying that b/c Brady etc did not file a friend of the court brief, that they must support the ruling?

Well, the Gun industry lobby had ample opportunity to to support Gonzales too. Did they file a brief?

If not, then according to your logic, the Gun Industry's failure on this case before SCOTUS means they "didn't support Gonzales, an instance of the behavior in question."

According to your logic game, we would have to assume the NRA agreed with the ruling as well.

Thanks for attempting to answer the question, but your answer is pretty weak.

Considering that you can't back it up, it seems like your "paradox" argument fails.

[jody]

112. I answered your question, please answer mine in #92. n/t

[Dr Fate]

113. No- you did not. You provided a weak logic exercise. Please clarify.

Please clarify- as to your first link, which information am I supposed to focus on? Posting a list of links is not an answer to a question. Show me which quotes I should focus on or something.

As to your 2nd link to your own DU post- please clarify- am I supposed to assume that Brady, etc must have supported the Gonzales ruling since they did not file a friend of the court brief? You were very vague about that, so I had to assume that is what you meant.

If that was your logic, then the Republican Gun Industry is guilty of the same "paradox." This means that gun absolutists were guilty of the same inaction as the gun grabbers, according to your logic.

Back to the question you have yet to be clear on- In what way did Brady, Gun Grabbers, etc. support this Gonzales ruling? In what way has Brady, etc opposed efforts by the govt. to protect citizens?

[jody]

114. I don't care whether you like my answer or not. Please answer my #92 or admit you can't. n/t

[Dr Fate]

115. Liking an answer or disliking an answer isn't the issue- you have yet to even provide an answer..

All I got was a list of links and your unsupported charge that Brady somehow supports the ruling in Gonzales.

A list of links and a vague logic game does not clarifiy your paradox or answer my question.

I'll be glad to take my turn in answering questions as soon as you either clarify the concerns I pointed out in your non-answer, or admit that your paradox fails.

Sorry, but the advocates of the NRA and the Republican Gun Industry don't get to ask all the questions or control the debate here.

Clarify my concern about your 1st link, then clarify my concerns about your second link-or admit that you have no answer- then it will be my turn to answer questions.


AGAIN:

What link in your first link should I click on, that would show gun grabbers supporting the Gonzales ruling?

In what way does Brady, ect support the Gonzales ruling?

I'm not the one who is leaving questions unanswered in this deabte- I'm paitiently waiting my turn. My turn comes after you concede or provde clarification.

[jody]

116. Have a good day and go play in the sand box. Good bye. n/t

[Dr Fate]

117. I accept your concession- you have a good day as well.

Since you can't back up what you are charging in post #81 and subsequent posts (that gun grabbers somehow supported the Gonzales ruling), I'll accept the fact that you must have mis-spoke.

Cheers!

[slackmaster]

71. What an asshole. He deserved to be summarily fired.

It's not up to him to overturn the state AG's interpretation of the law.

(We have legal open carry here in California too BTW.)

[badgervan]

76. Ah, Mr. Van Hollen....

... a hardcore rightwing whacko with the IQ of a qumquat. How this fool got elected in my home state is beyond me. The guy has massive ambition and no brains. In other words, your typical repuke pol.

[slackmaster]

79. Do you think police should be allowed to shake down people who are not breaking any laws?

I'm interested to see your reasoning.

[Dr Fate]

80. Police are allowed to stop & frisk where there is an "articulable reasonable suspicion"

Unless that has been overturned- I'm not sure.

If I remember correctly, a cop could stop and question people if they were hanging out on a corner that was known as a drug stop, or if they note that the suspect sees the cop, then turns to walk in the other direction-ie evasive action.

I'm not saying it is right or that I disagree with you- I'm just noting that carrying guns around may open the door for arbitrary use of this exception to warratnless searches.

Does a cop have reasonable suspicion that criminal activity is afoot when he sees an armed man black man wearing Hip-Hop clothes in a high drug traffic neighborhood? Is he carrying the gun for defense against the real gangsters, or is he about to commit a crime?

What if the gun holder is a white guy wearing a cowboy hat who happens to be in a bad neighborhood- is he carrying the gun for defense, or did he bring it to protect himself in case his drug deal goes wrong? Maybe he is there to dare people to start trouble.

I don't know what the answer is- but it sounds like a big bag of trouble to me.

[slackmaster]

109. There is a big difference between stopping and frisking someone, and putting them on the ground

And summarily seizing lawfully owned property without a warrant, which is what the chief said he's ordered his officers to do. It is not necessary to put a person on the ground in order to conduct a frisking.

What if the gun holder is a white guy wearing a cowboy hat who happens to be in a bad neighborhood- is he carrying the gun for defense, or did he bring it to protect himself in case his drug deal goes wrong?

Or is he just an actor on his lunch break? That kind of thing happens in Hollywood all the time. ;-)

[RamboLiberal]

83. If the Chief has a problem with open carry which is legal in WI

Then he needs to lobby to have law changed. Wouldn't surprise me that you're going to see group open-carry in Milwaukee as a challenge to the chief by some gun owners in WI.

I know that type of thing happens in PA.

There are some gun owners out there who are itching to take this kind of thing to court and will contribute to a defense fund to any of their members arrested or who's carry license is pulled because of this type of incident.

IMHO the chief is violating citizen's rights in this case.

[jody]

85. "contribute to a defense fund", give me a credible address and the checks in the mail tomorrow. n/t

[RamboLiberal]

88. That type of thing happens on gun owners forums

In my state I've seen PA Gun Owners Forum raise funds for members arrested or had CCW pulled for open carry. And they have also met as a group and gone to court hearing for support.

[jody]

89. Understand, but it would be a new twist for pro-RKBA Activists on DU to make a difference. n/t

[RamboLiberal]

90. I'd have no problem donating and posting the info down in the

guns forum if I saw a worthy case.

[depakid]

103. "There are some gun owners out there who are itching to take this kind of thing to court"

No dount- that's the nature of obsession.

[RamboLiberal]

86. I just got this email

CCRKBA CALLS MILWAUKEE WI POLICE CHIEF’S REMARKS ‘OUTRAGEOUS’

BELLEVUE, WA – The Citizens Committee for the Right to Keep and Bear Arms today criticized Milwaukee, WI Police Chief Ed Flynn for his open defiance of the State Attorney General’s office in a controversy over open carry of firearms.

Attorney General J.B. Van Hollen has stated that it is legal in Wisconsin for citizens to carry guns openly in a peaceful manner. However, Chief Flynn is ordering his officers to “take down” citizens, “put them on the ground” and disarm them, and “then decide whether you have a right to carry it.”

The situation should alarm all Wisconsin citizens, whether they own guns or not, said CCRKBA Legislative Director Joe Waldron, because it places police officers and private citizens in a deliberately confrontational position. Also, he added, Flynn’s approach raises serious constitutional questions because of the state’s clearly defined “right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose” under Article I, Section 25 of the state constitution.

“Because Wisconsin does not allow concealed carry,” Waldron said, “the only way for citizens to exercise their constitutional right to keep and bear arms is to carry handguns openly. Chief Flynn should not assume he or his officers have the authority to decide who can and cannot exercise that right. His attitude is outrageous.

“Attorney General Van Hollen was correct in his statements about the legality of open carry,” Waldron continued, “and what does it say about a police chief when he publicly announces that he’ll do things his way and to hell with what the attorney general says?”

Waldron also said a plan, announced by State Rep. Leon Young, a Milwaukee Democrat, to draft legislation that bans open carry, “is inviting court challenge.”

“If you cannot carry openly, and you cannot carry concealed,” Waldron wondered, “how can law-abiding Wisconsin citizens exercise their state constitutional right to keep and bear arms? We encourage Rep. Young to address that issue to the state Supreme Court before he pushes ahead with that scheme.”

[jody]

98. “If you cannot carry openly, and you cannot carry concealed,” Waldron wondered, as do I. n/t

[Old Hob]

108. Crime is going up, the number of cops on the street is going down. Carrying a gun seems reasonable

in light of this unfortunate reality.

[happyslug]

118. Here is the Actual Memo, an ADVISORY memo, does NOT have the affect of Law

Some comments BEFORE reading the Memo, Wisconsin seems to follow the rule in most states, that the Attorney General Opinions are THE LAW unless overturned by a Subsequent Court Action. The problem with this memo is that it is NOT a "Formal Opinion" of the Attorney General under Wisconsin law and this does NOT carry with it the effect of being the law (See Footnote one of the Memo which clearly points this out). Thus the memo is NOT the law, but just the Attorney General's opinion of what the law is. In most cases this is a minor technical difference, but it is important when it came to the action of the Police Chief. As an "Informal Opinion" this memo is NOT the law until such time a Court says it is. The courts do NOT have to defer to it as the law until the Courts determine it is not. All this informal Opinion does is give people something to go with unless their get an opinion contrary to it. In a Formal Opinion, the Formal Opinion MUST be given the same weight as a Court Finding of what the law is, with an Informal Opinion no such weight is expected nor given to the opinion.

Sorry about the condition of my cut and paste, I cut a PDF file into this formal and made modification to make it readable, the actual Memo is at the Wisconsin's Attorney Generals Web Site.


From the Wisconsin Attorney's General Web Site: http://www.doj.state.wi.us/

ADVISORY MEMORANDUM WISCONSIN DEPARTMENT OF JUSTICE
Date: April 20, 2009

To: Wisconsin District Attorneys, Deputy District Attorneys and Assistant District Attorneys

From: J.B. Van Hollen Attorney General

Subject: The Interplay Between Article I, § 25 Of The Wisconsin Constitution, The Open Carry Of Firearms And Wisconsin’s Disorderly Conduct Statute, Wis. Stat. § 947.01 Summary

¶1. Under Article I, § 25 of the Wisconsin Constitution, a person has the right to openly carry a firearm for any of the purposes enumerated in that Section, subject to reasonable regulation as discussed herein. The Wisconsin Department of Justice (the Department) believes that the mere open carrying of a firearm by a person, absent additional facts and circumstances, should not result in a disorderly conduct charge from a prosecutor.

Discussion

¶2. The Department has a duty under Wis. Stat. § 165.25(3) to “onsult and advise with the district attorneys when requested by them in all matters pertaining to the duties of their office.” We have received multiple inquiries from state prosecutors on the interplay between Article I, § 25, the open carry of firearms and Wisconsin’s disorderly conduct statute, Wis Stat. § 947.01. (Footnote 1) In response, we offer this informal Advisory Memorandum (Footnote 2) for your consideration. Please feel free to use it for law enforcement training within your jurisdictions.

Footnote 1 The Department has also received requests from individuals and legislators for a formal Opinion of the Attorney General on the legality of openly carrying firearms in Wisconsin. We declined these requests, principally because (a) the individual requestors were not entitled to a formal opinion under Wis. Stat. §§ 59.42(1)(c), 165.015(1), or 165.25(3), and (b) the circumstances involved “an issue that the subject of current or reasonably imminent litigation, since an opinion of the attorney general might affect such litigation.” 77 Op. Att’y Gen. Preface (1988), at 3.D. While we acknowledge the recent filing of a federal civil lawsuit pertaining to open carry in the Eastern District of Wisconsin—Gonzalez v. Village of West Milwaukee, et al., No. 09-CV-384-LA—we note that the State of Wisconsin is not a party to this federal action. We further note that, as explained below, this informal Advisory Memorandum does not carry the same legal significance as a formal Opinion of the Attorney General on a matter of state law.

Footnote 2 This informal Advisory Memorandum does not constitute a formal opinion of the Wisconsin Attorney General or the Wisconsin Department of Justice under Wis. Stat. § 165.015(1). The Department offers this Advisory Memorandum for educational and informational purposes only. It does not prevent the Attorney General, the Wisconsin Department of Justice, or any Wisconsin district attorney, special prosecutor or municipal prosecutor from bringing any particular charge or making any particular argument in the course of litigation. It does not create any rights beyond those established under the constitutions, statutes, regulations and administrative rules of the United States of America and the State of Wisconsin.

Wisconsin District Attorneys, Deputy District Attorneys and Assistant District Attorneys
April 20, 2009
Page 2

¶3. As amended in 1998, the Wisconsin Constitution provides that “he people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.” Wis. Const. art. I, § 25. A Wisconsin citizen has a constitutionally protected right to openly carry a firearm for any of the enumerated purposes, absent the application of a reasonable regulation properly imposed as an exercise of police power. See, e.g., Wis. Stat. § 941.29 (preventing certain classes of persons from possessing firearms); State v. Thomas, 2004 WI App 115, ¶ 16, 274 Wis. 2d 513, 683 N.W.2d 497 (“he right to bear arms is a qualified right, subject to reasonable restrictions under the state’s police power”). (Footnote 3)

¶4. In State v. Schwebke, 2002 WI 55, ¶ 24, 253 Wis. 2d 1, 644 N.W.2d 666 (footnote omitted), the Wisconsin Supreme Court established the contours of Wisconsin’s disorderly conduct statute:

Wisconsin Stat. § 947.01 . . . states as follows: “Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor.” The State must prove two elements to convict a defendant under this statute. State v. Douglas D., 2001 WI 47, ¶ 15, 243 Wis. 2d 204, 626 N.W.2d 725. “First, it must prove that the defendant engaged in violent, abusive, indecent, profane, boisterous, unreasonably loud, or similar disorderly conduct.” Id. “Second, it must prove that the defendant's conduct occurred under circumstances where such conduct tends to cause or provoke a disturbance.” Id. An objective analysis of the conduct and circumstances of each particular case must be undertaken because what may constitute disorderly conduct under some circumstances may not under others. See State v. A.S., 2001 WI 48, ¶ 33, 243 Wis. 2d 173, 626 N.W.2d 712.



Footnote 3 Prosecutors and law enforcement officers should bear in mind that, in addition to the felon-in-possession statute, other statutory limitations on possession of firearms remain in full force and effect. They apply to certain situations involving both open and concealed carry. See, e.g., Wis. Stat. §§ 167.31 (specifying manner in which persons may lawfully use and transport firearms); 941.20 (endangering safety by use of dangerous weapon, various circumstances); 941.235 (carrying firearm in public building); 941.237 (carrying handgun where alcohol may be sold and consumed); 948.60 (possession of firearm by juveniles, with sporting exceptions); 948.605 (possession and use of firearms in school zones).

Wisconsin District Attorneys, Deputy District Attorneys and Assistant District Attorneys
April 20, 2009
Page 3

See also State v. Maker, 48 Wis. 2d 612, 616, 180 N.W.2d 707 (1970) (footnote omitted): This court's emphasis upon the relatedness of conduct and circumstances in the statute is no more than a recognition of the fact that what would constitute disorderly conduct in one set of circumstances, might not under some other. When a famed jurist observed, ‘The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic,’ the comment related to the crowdedness of the theater as well as to the loudness of the shout. It is the combination of conduct and circumstances that is crucial in applying the statute to a particular situation.

¶5. The decision to charge a defendant with disorderly conduct necessarily depends on the totality of the circumstances. Reasonableness, not bright-line rules, should guide your decision. See, e.g., State v. Werstein, 60 Wis. 2d 668, 671-72, 211 N.W.2d 437 (1973) (“Wisconsin’s disorderly conduct statute proscribes conduct in terms of results which can reasonably be expected therefrom, rather than attempting to enumerate the limitless number of anti-social acts which a person could engage in that would menace, disrupt or destroy public order”) (footnote omitted). Even when an act facially resembles the exercise of a protected right, the facts and circumstances of a case may give rise to a disorderly conduct charge. For example, the First Amendment of the United States Constitution and Article I, § 3 of the Wisconsin Constitution both protect the right to freedom of speech. Yet it has long been recognized that speech-only activity can cross the line between protected expression and disorderly conduct. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942) (“t is well understood that the right of free speech is not absolute at all times and under all circumstances”); accord State v. Zwicker, 41 Wis. 2d 497, 510, 164 N.W.2d 512 (1969). See also Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949) (noting that some categories of speech are “likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest”).

¶6. Applying these principles to open carry matters, we recognize that under certain circumstances, openly carrying a firearm may contribute to a disorderly conduct charge. But this determination must take into account the constitutional protection afforded by Article I, § 25 of the Wisconsin Constitution. The Department believes that mere open carry of a firearm, absent additional facts and circumstances, should not result in a disorderly conduct charge. For example, a hunter openly carrying a rifle or shotgun on his property during hunting season while quietly tracking game should not face a disorderly conduct charge. But if the same hunter carries the same rifle or shotgun through a crowded street while barking at a passerby, the conduct may lose its constitutional protection. See Werstein, 60 Wis. 2d at 672-73 (collecting cases illustrating disorderly conduct) (“In each of these cases, convictions for being ‘otherwise disorderly’ resulted from the inappropriateness of specific conduct because of the circumstances involved”) (emphasis added).4 4 While Werstein preceded the adoption of Article I, § 25, we believe the emphasized principle still applies.

Wisconsin District Attorneys, Deputy District Attorneys and Assistant District Attorneys
April 20, 2009
Page 4

¶7. The same concepts should apply to handguns. The state constitutional right to bear arms extends to openly carrying a handgun for lawful purposes. As illustrated by a recent municipal court case in West Allis, a person openly carrying a holstered handgun on his own property while doing lawn work should not face a disorderly conduct charge.(Footnote 5) If, however, a person brandishes a handgun in public, the conduct may lose its constitutional protection. Again, “t is the combination of conduct and circumstances that is crucial in applying the statute to a particular situation.” Maker, 48 Wis. 2d at 616.

¶8. Finally, several law enforcement agencies have asked whether, in light of Article I, § 25, they may stop a person openly carrying a firearm in public to investigate possible criminal activity, including disorderly conduct. We say yes. An officer may stop and briefly detain a person for investigative purposes (known as an investigative or Terry stop) if he has “reasonable suspicion,” based on articulable facts, of criminal activity. Illinois v. Wardlow, 528 U.S. 119, 123 (2000); United States v. Sokolow, 490 U.S. 1, 7 (1989); Terry v. Ohio, 392 U.S. 1, 30 (1968). The existence of reasonable suspicion depends on the totality of the circumstances, including the information known to the officer and any reasonable inferences to be drawn at the time of the stop. United States v. Arvizu, 544 U.S. 266 (2002) (reaffirming “totality of the circumstances” test). Even though open carry enjoys constitutional protection, it may still give rise to reasonable suspicion when considered in totality. It is not a shield against police investigation or subsequent prosecution. See State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763 (1990) (police officers not required to first eliminate the possibility of innocent behavior before making investigatory stop).

¶9. And “even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individual's identification,” as long as the police do not convey a message that compliance is mandatory. Florida v. Bostick, 501 U.S. 429, 434-35 (1991). The Fourth Amendment does not prevent police from making voluntary or consensual contact with persons engaged in constitutionally protected conduct. See United States v. Mendenhall, 446 U.S. 544, 553-54 (1980). Accordingly, a law enforcement officer does not violate the Fourth Amendment by approaching an individual in public and asking questions. Florida v. Royer, 460 U.S. 491, 497 (1983). An officer may approach and question someone as long as the questions, the circumstances and the officer's behavior do not convey to the subject that he must comply with the requests. Bostick, 501 U.S. at 435-36. The person approached need not answer any questions. As long as he or she remains free to walk away, there has been no intrusion on liberty requiring a particularized and objective Fourth Amendment justification. See Mendenhall, 446 U.S. at 554.

Footnote 5 See Linda Spice, “West Allis Man Not Guilty In Open Carry Gun Case,” Milwaukee Journal-Sentinel, Feb. 17, 2009, online at < http://www.jsonline.com/news/crime/39722082.html> (last visited March 26, 2009).

Wisconsin District Attorneys, Deputy District Attorneys and Assistant District Attorneys
April 20, 2009
Page 5

¶10. For further information on this subject, please feel free to contact Assistant Attorneys General Greg Weber at 608.266.3935, or Roy Korte at 608.267.1339. JBV:RPT:KMS:GMW:cma

[happyslug]

119. Here is the Actual Memo, an ADVISORY memo, does NOT have the affect of Law

Some comments BEFORE reading the Memo, Wisconsin seems to follow the rule in most states, that the Attorney General Opinions are THE LAW unless overturned by a Subsequent Court Action. The problem with this memo is that it is NOT a "Formal Opinion" of the Attorney General under Wisconsin law and this does NOT carry with it the effect of being the law (See Footnote one of the Memo which clearly points this out). Thus the memo is NOT the law, but just the Attorney General's opinion of what the law is. In most cases this is a minor technical difference, but it is important when it came to the action of the Police Chief. As an "Informal Opinion" this memo is NOT the law until such time a Court says it is. The courts do NOT have to defer to it as the law until the Courts determine it is not. All this informal Opinion does is give people something to go with unless their get an opinion contrary to it. In a Formal Opinion, the Formal Opinion MUST be given the same weight as a Court Finding of what the law is, with an Informal Opinion no such weight is expected nor given to the opinion.

Sorry about the condition of my cut and paste, I cut a PDF file into this formal and made modification to make it readable, the actual Memo is at the Wisconsin's Attorney Generals Web Site.


From the Wisconsin Attorney's General Web Site: http://www.doj.state.wi.us/

ADVISORY MEMORANDUM WISCONSIN DEPARTMENT OF JUSTICE
Date: April 20, 2009

To: Wisconsin District Attorneys, Deputy District Attorneys and Assistant District Attorneys

From: J.B. Van Hollen Attorney General

Subject: The Interplay Between Article I, § 25 Of The Wisconsin Constitution, The Open Carry Of Firearms And Wisconsin’s Disorderly Conduct Statute, Wis. Stat. § 947.01 Summary

¶1. Under Article I, § 25 of the Wisconsin Constitution, a person has the right to openly carry a firearm for any of the purposes enumerated in that Section, subject to reasonable regulation as discussed herein. The Wisconsin Department of Justice (the Department) believes that the mere open carrying of a firearm by a person, absent additional facts and circumstances, should not result in a disorderly conduct charge from a prosecutor.

Discussion

¶2. The Department has a duty under Wis. Stat. § 165.25(3) to “onsult and advise with the district attorneys when requested by them in all matters pertaining to the duties of their office.” We have received multiple inquiries from state prosecutors on the interplay between Article I, § 25, the open carry of firearms and Wisconsin’s disorderly conduct statute, Wis Stat. § 947.01. (Footnote 1) In response, we offer this informal Advisory Memorandum (Footnote 2) for your consideration. Please feel free to use it for law enforcement training within your jurisdictions.

Footnote 1 The Department has also received requests from individuals and legislators for a formal Opinion of the Attorney General on the legality of openly carrying firearms in Wisconsin. We declined these requests, principally because (a) the individual requestors were not entitled to a formal opinion under Wis. Stat. §§ 59.42(1)(c), 165.015(1), or 165.25(3), and (b) the circumstances involved “an issue that the subject of current or reasonably imminent litigation, since an opinion of the attorney general might affect such litigation.” 77 Op. Att’y Gen. Preface (1988), at 3.D. While we acknowledge the recent filing of a federal civil lawsuit pertaining to open carry in the Eastern District of Wisconsin—Gonzalez v. Village of West Milwaukee, et al., No. 09-CV-384-LA—we note that the State of Wisconsin is not a party to this federal action. We further note that, as explained below, this informal Advisory Memorandum does not carry the same legal significance as a formal Opinion of the Attorney General on a matter of state law.

Footnote 2 This informal Advisory Memorandum does not constitute a formal opinion of the Wisconsin Attorney General or the Wisconsin Department of Justice under Wis. Stat. § 165.015(1). The Department offers this Advisory Memorandum for educational and informational purposes only. It does not prevent the Attorney General, the Wisconsin Department of Justice, or any Wisconsin district attorney, special prosecutor or municipal prosecutor from bringing any particular charge or making any particular argument in the course of litigation. It does not create any rights beyond those established under the constitutions, statutes, regulations and administrative rules of the United States of America and the State of Wisconsin.

Wisconsin District Attorneys, Deputy District Attorneys and Assistant District Attorneys
April 20, 2009
Page 2

¶3. As amended in 1998, the Wisconsin Constitution provides that “he people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.” Wis. Const. art. I, § 25. A Wisconsin citizen has a constitutionally protected right to openly carry a firearm for any of the enumerated purposes, absent the application of a reasonable regulation properly imposed as an exercise of police power. See, e.g., Wis. Stat. § 941.29 (preventing certain classes of persons from possessing firearms); State v. Thomas, 2004 WI App 115, ¶ 16, 274 Wis. 2d 513, 683 N.W.2d 497 (“he right to bear arms is a qualified right, subject to reasonable restrictions under the state’s police power”). (Footnote 3)

¶4. In State v. Schwebke, 2002 WI 55, ¶ 24, 253 Wis. 2d 1, 644 N.W.2d 666 (footnote omitted), the Wisconsin Supreme Court established the contours of Wisconsin’s disorderly conduct statute:

Wisconsin Stat. § 947.01 . . . states as follows: “Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor.” The State must prove two elements to convict a defendant under this statute. State v. Douglas D., 2001 WI 47, ¶ 15, 243 Wis. 2d 204, 626 N.W.2d 725. “First, it must prove that the defendant engaged in violent, abusive, indecent, profane, boisterous, unreasonably loud, or similar disorderly conduct.” Id. “Second, it must prove that the defendant's conduct occurred under circumstances where such conduct tends to cause or provoke a disturbance.” Id. An objective analysis of the conduct and circumstances of each particular case must be undertaken because what may constitute disorderly conduct under some circumstances may not under others. See State v. A.S., 2001 WI 48, ¶ 33, 243 Wis. 2d 173, 626 N.W.2d 712.



Footnote 3 Prosecutors and law enforcement officers should bear in mind that, in addition to the felon-in-possession statute, other statutory limitations on possession of firearms remain in full force and effect. They apply to certain situations involving both open and concealed carry. See, e.g., Wis. Stat. §§ 167.31 (specifying manner in which persons may lawfully use and transport firearms); 941.20 (endangering safety by use of dangerous weapon, various circumstances); 941.235 (carrying firearm in public building); 941.237 (carrying handgun where alcohol may be sold and consumed); 948.60 (possession of firearm by juveniles, with sporting exceptions); 948.605 (possession and use of firearms in school zones).

Wisconsin District Attorneys, Deputy District Attorneys and Assistant District Attorneys
April 20, 2009
Page 3

See also State v. Maker, 48 Wis. 2d 612, 616, 180 N.W.2d 707 (1970) (footnote omitted): This court's emphasis upon the relatedness of conduct and circumstances in the statute is no more than a recognition of the fact that what would constitute disorderly conduct in one set of circumstances, might not under some other. When a famed jurist observed, ‘The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic,’ the comment related to the crowdedness of the theater as well as to the loudness of the shout. It is the combination of conduct and circumstances that is crucial in applying the statute to a particular situation.

¶5. The decision to charge a defendant with disorderly conduct necessarily depends on the totality of the circumstances. Reasonableness, not bright-line rules, should guide your decision. See, e.g., State v. Werstein, 60 Wis. 2d 668, 671-72, 211 N.W.2d 437 (1973) (“Wisconsin’s disorderly conduct statute proscribes conduct in terms of results which can reasonably be expected therefrom, rather than attempting to enumerate the limitless number of anti-social acts which a person could engage in that would menace, disrupt or destroy public order”) (footnote omitted). Even when an act facially resembles the exercise of a protected right, the facts and circumstances of a case may give rise to a disorderly conduct charge. For example, the First Amendment of the United States Constitution and Article I, § 3 of the Wisconsin Constitution both protect the right to freedom of speech. Yet it has long been recognized that speech-only activity can cross the line between protected expression and disorderly conduct. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942) (“t is well understood that the right of free speech is not absolute at all times and under all circumstances”); accord State v. Zwicker, 41 Wis. 2d 497, 510, 164 N.W.2d 512 (1969). See also Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949) (noting that some categories of speech are “likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest”).

¶6. Applying these principles to open carry matters, we recognize that under certain circumstances, openly carrying a firearm may contribute to a disorderly conduct charge. But this determination must take into account the constitutional protection afforded by Article I, § 25 of the Wisconsin Constitution. The Department believes that mere open carry of a firearm, absent additional facts and circumstances, should not result in a disorderly conduct charge. For example, a hunter openly carrying a rifle or shotgun on his property during hunting season while quietly tracking game should not face a disorderly conduct charge. But if the same hunter carries the same rifle or shotgun through a crowded street while barking at a passerby, the conduct may lose its constitutional protection. See Werstein, 60 Wis. 2d at 672-73 (collecting cases illustrating disorderly conduct) (“In each of these cases, convictions for being ‘otherwise disorderly’ resulted from the inappropriateness of specific conduct because of the circumstances involved”) (emphasis added).4 4 While Werstein preceded the adoption of Article I, § 25, we believe the emphasized principle still applies.

Wisconsin District Attorneys, Deputy District Attorneys and Assistant District Attorneys
April 20, 2009
Page 4

¶7. The same concepts should apply to handguns. The state constitutional right to bear arms extends to openly carrying a handgun for lawful purposes. As illustrated by a recent municipal court case in West Allis, a person openly carrying a holstered handgun on his own property while doing lawn work should not face a disorderly conduct charge.(Footnote 5) If, however, a person brandishes a handgun in public, the conduct may lose its constitutional protection. Again, “t is the combination of conduct and circumstances that is crucial in applying the statute to a particular situation.” Maker, 48 Wis. 2d at 616.

¶8. Finally, several law enforcement agencies have asked whether, in light of Article I, § 25, they may stop a person openly carrying a firearm in public to investigate possible criminal activity, including disorderly conduct. We say yes. An officer may stop and briefly detain a person for investigative purposes (known as an investigative or Terry stop) if he has “reasonable suspicion,” based on articulable facts, of criminal activity. Illinois v. Wardlow, 528 U.S. 119, 123 (2000); United States v. Sokolow, 490 U.S. 1, 7 (1989); Terry v. Ohio, 392 U.S. 1, 30 (1968). The existence of reasonable suspicion depends on the totality of the circumstances, including the information known to the officer and any reasonable inferences to be drawn at the time of the stop. United States v. Arvizu, 544 U.S. 266 (2002) (reaffirming “totality of the circumstances” test). Even though open carry enjoys constitutional protection, it may still give rise to reasonable suspicion when considered in totality. It is not a shield against police investigation or subsequent prosecution. See State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763 (1990) (police officers not required to first eliminate the possibility of innocent behavior before making investigatory stop).

¶9. And “even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individual's identification,” as long as the police do not convey a message that compliance is mandatory. Florida v. Bostick, 501 U.S. 429, 434-35 (1991). The Fourth Amendment does not prevent police from making voluntary or consensual contact with persons engaged in constitutionally protected conduct. See United States v. Mendenhall, 446 U.S. 544, 553-54 (1980). Accordingly, a law enforcement officer does not violate the Fourth Amendment by approaching an individual in public and asking questions. Florida v. Royer, 460 U.S. 491, 497 (1983). An officer may approach and question someone as long as the questions, the circumstances and the officer's behavior do not convey to the subject that he must comply with the requests. Bostick, 501 U.S. at 435-36. The person approached need not answer any questions. As long as he or she remains free to walk away, there has been no intrusion on liberty requiring a particularized and objective Fourth Amendment justification. See Mendenhall, 446 U.S. at 554.

Footnote 5 See Linda Spice, “West Allis Man Not Guilty In Open Carry Gun Case,” Milwaukee Journal-Sentinel, Feb. 17, 2009, online at < http://www.jsonline.com/news/crime/39722082.html> (last visited March 26, 2009).

Wisconsin District Attorneys, Deputy District Attorneys and Assistant District Attorneys
April 20, 2009
Page 5

¶10. For further information on this subject, please feel free to contact Assistant Attorneys General Greg Weber at 608.266.3935, or Roy Korte at 608.267.1339. JBV:RPT:KMS:GMW:cma

[amandabeech]

134. As you state, the opinion does not have the status of law.

The circumstances under which the opinion was requested could not and now cannot be the subject of a formal opinion.

Nonethless, the "informal" opinion lays out the arguments based on the Wisconsin Constitution, state laws and probably case law that would be used by a plaintiff's attorney in a suit against the city and the chief of police in a civil action with respect to any damages or intentional torts caused by an officer's takedown of a gun carrier engaged in otherwise lawful activity.

Frankly, the AG's informal opinion looks like a winner.

For a brave and aggressive prosecutor (the kind running or looking to run for elective office), some of the reasoning could be used to buttress a prosecution of the police officer for assault and/or battery, as well as kidnapping and some sort of theft against the gun carrier.

I appreciate the chief of police's position, but I think that in most cases it will be legally indefensible.

This will be resolved by the courts eventually, but until then, I don't see things going all that in Milwaukee and possibly elsewhere.

[baldguy]

120. 2 minutes

[Canuckistanian]

121. Look, the problem is simple

Even if you HAVE a concealed carry permit and you "whip it out" in the plain sight of a police officer investigating a call, you're going down.

Simple as that.

If you can't holster your weapon when the "cavalry" arrives, then expect to be treated as a perp by the "men in blue".

You've got to see their side. 100+ murders a year, they're going to be suspicious of ANY firearm they see.

Pocket it, shut up and walk away.

[X_Digger]

122. WI doesn't have concealed carry.. n/t

[Canuckistanian]

123. Oh, sorry, I misunderstood

In that case, any obvious handgun carrier PERIOD is fair game.

[X_Digger]

124. There's quite a bit of history..

WI is one of the few states whose constitution specifically mentions self-defense, and recent court cases have said that open carry is legal (if you can't carry concealed, and you can't carry openly, how exactly is the constitution being followed?)

WI also has implicit preemption that means that a locality / municipality may not pass laws stricter than their state's laws. That's the other big thing in this case- cops aren't likely to stop you for open carry in backwater towns, but are in Milwaukee (according to this article).

[Canuckistanian]

125. So let me get this straight

MI doesn't have "concealed carry", but they won't prosecute you if they catch you.

But the municipalities are forbidden to pass stricter laws that won't get enforced anyways?

Oy.

In Canada, we just outlaw handguns altogether. I think we have a better system, results-wise.

[Psephos]

127. ???? Michigan does have concealed-carry

Here are the requirements:

http://www.michigan.gov/msp/0,1607,7-123-1591_3503_4654-10926--,00.html

Meanwhile, I notice that Canada doesn't have a constitutional guarantee of free speech. I think we have a better system, results-wise. :)

[X_Digger]

129. I think the poster mis-typed MI instead of WI n/t

[Psephos]

130. As I read up-thread, it looks that way

If Canuckistanian ever visits Michigan, I personally vouchsafe s/he will not be thrown to the ground for acting in accordance with our laws. :)

So come on by, C. :hi: We'll take in a hockey game at The Joe.

[X_Digger]

128. Sorta..

"open carry" refers to carrying, well, openly- visible on your hip. That's technically legal in WI, but in Milwaukee, it seems as though you'll be stopped, put on the ground and questioned. In the rest of the state? Probably not so much.

"concealed carry" refers to carrying, well, concealed- in a holster under your jacket, in a holster inside your waistband, in a purse, in a fanny pack, etc. In other states where concealed carry is legal, you can't even 'print' which would be being able to see the outline of your holster through your jacket or shirt. WI is only one of two states that don't have some kind of legal concealed carry.

Preemption isn't unique to this particular issue. Some states preempt localities from imposing additional sales taxes, or traffic laws so that a person living or traveling though a state doesn't have to deal with a patchwork of possibly contradictory laws.

[melm00se]

136. let's see

a police officer making a decision and taking action that is in direct contravention of statute?

No one see a problem with that?

[X_Digger]

137. He'll be forgiven..

"Just following orders" *grrr*

[Butch350]

139. Openly carrying a gun???

Is that sme kind of new macho thing. Why would anyone need to strap a gun on?
Isn't that what the police dept is for? Openly carrying a fire arm can lead to confusion and trouble.

I have no problems with owing a gun - I keep my pump very handy - but I don't feel a need to lug it around
with me where ever I go.

[X_Digger]

140. Police are for investigating after / catching criminals..

In WI, concealed carry is illegal, so anyone wanting to protect themselves legally must carry openly.

The police have no legal obligation to protect you unless you are in custody, yes, even in California..

http://concealed.wordpress.com/2007/12/12/%E2%80%A2-police-no-obligation-to-protect/

Ruth Brunell called the police on 20 different occasions to plead for protection from her husband. He was arrested only one time. One evening Mr. Brunell telephoned his wife and told her he was coming over to kill her. When she called the police, they refused her request that they come to protect her. They told her to call back when he got there. Mr. Brunell stabbed his wife to death before she could call the police to tell them that he was there. The court held that the San Jose police were not liable for ignoring Mrs. Brunell’s pleas for help. Hartzler v. City of San Jose, 46 Cal. App. 3d 6 (1st Dist. 1975).

Consider the case of Linda Riss, in which a young woman telephoned the police and begged for help because her ex-boyfriend had repeatedly threatened “If I can’t have you no one else will have you, and when I get through with you, no-one else will want you.” The day after she had pleaded for police protection, the ex-boyfriend threw lye in her face, blinding her in one eye, severely damaging the other, and permanently scarring her features. “What makes the City’s position particularly difficult to understand,” wrote a dissenting opinion in her tort suit against the City, “is that, in conformity to the dictates of the law, Linda did not carry any weapon for self-defense. Thus, by a rather bitter irony she was required to rely for protection on the City of New York which now denies all responsibility to her.” Riss v. New York, 240 N.E.2d 860 (N.Y. 1968)

Warren v. District of Columbia is one of the leading cases of this type. Two women were upstairs in a townhouse when they heard their roommate, a third woman, being attacked downstairs by intruders. They phoned the police several times and were assured that officers were on the way. After about 30 minutes, when their roommate’s screams had stopped, they assumed the police had finally arrived. When the two women went downstairs they saw that in fact the police never came, but the intruders were still there. As the Warren court graphically states in the opinion: “For the next fourteen hours the women were held captive, raped, robbed, beaten, forced to commit sexual acts upon each other, and made to submit to the sexual demands of their attackers.” The three women sued the District of Columbia for failing to protect them, but D.C.’s highest court exonerated the District and its police, saying that it is a “fundamental principle of American law that a government and its agents are under no general duty to provide public services, such as police protection, to any individual citizen.” Warren v. District of Columbia, 444 A.2d 1 (D.C. Ct. of Ap., 1981).

The seminal case establishing the general rule that police have no duty under federal law to protect citizens is DeShaney v. Winnebago County Department of Social Services (109 S.Ct. 998, 1989). Frequently these cases are based on an alleged “special relationship” between the injured party and the police. In DeShaney the injured party was a boy who was beaten and permanently injured by his father. He claimed a special relationship existed because local officials knew he was being abused, indeed they had “specifically proclaimed by word and deed intention to protect him against that danger,” but failed to remove him from his father’s custody. (”Domestic Violence — When Do Police Have a Constitutional Duty to Protect?” Special Agent Daniel L. Schofield, S.J.D., FBI Law Enforcement Bulletin, January, 1991.)

The Court in DeShaney held that no duty arose because of a “special relationship,” concluding that Constitutional duties of care and protection only exist as to certain individuals, such as incarcerated prisoners, involuntarily committed mental patients and others restrained against their will and therefore unable to protect themselves. “The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.” (DeShaney v. Winnebago County Department of Social Services, 109 S.Ct. 998 (1989) at 1006.)

About a year later, the United States Court of Appeals interpreted DeShaney in the California case of Balistreri v. Pacifica Police Department. (901 F.2d 696 9th Cir. 1990) Ms. Balistreri, beaten and harassed by her estranged husband, alleged a “special relationship” existed between her and the Pacifica Police Department, to wit, they were duty-bound to protect her because there was a restraining order against her husband. The Court of Appeals, however, concluded that DeShaney limited the circumstances that would give rise to a “special relationship” to instances of custody. Because no such custody existed in Balistreri, the Pacifica Police had no duty to protect her, so when they failed to do so and she was injured they were not liable.

A citizen injured because the police failed to protect her can only sue the State or local government in federal court if one of their officials violated a federal statutory or Constitutional right, and can only win such a suit if a “special relationship” can be shown to have existed, which DeShaney and its progeny make it very difficult to do. Moreover, Zinermon v. Burch (110 S.Ct. 975, 984 1990) very likely precludes Section 1983 liability for police agencies in these types of cases if there is a potential remedy via a State tort action.

Many states, however, have specifically precluded such claims, barring lawsuits against State or local officials for failure to protect, by enacting statutes such as California’s Government Code, Sections 821, 845, and 846 which state, in part: “Neither a public entity or a public employee {may be sued} for failure to provide adequate police protection or service, failure to prevent the commission of crimes and failure to apprehend criminals.”