search
top

I Think a Lawsuit is in Order

The City of Madison apparently aren’t backing down on Disorderly Conduct charges on five open carriers, though they are dropping the obstruction charges on the two who refused to turn over identification. In order to conduct a Terry Stop, the officer has to have reasonable, articulable suspicion that a crime has taken place. Open carry is lawful in Wisconsin. It is the only form of carry that is lawful. In addition, the Attorney General of Wisconsin’s opinion is that open carry alone does not amount to disorderly conduct. So what was the suspicion that a crime was taking place? If there was none, their Fourth Amendment rights have been violated, along with their Second. The only disturbance being caused was apparently from a woman who becomes unhinged at the sight of firearms.

That said, I don’t get the obsession with refusing identification. I know you’re right dammit, but I think here is a place to consider what the goals of the movement are. The best example for the hysterical 911 caller would have been for the police to show up, do their thing, and send the gun carrying folks on their way with a, “Have a nice day,” and for said hysterical woman to hear, “Sorry ma’am, they aren’t breaking any laws.” In addition to her, it matters for other witnesses as well. If you want open carry to be normal an accepted, and given that’s the only choice in Wisconsin, I would think that’s a worthwhile goal, then part of that is going to be people calling the police and being told “Well, are they doing something illegal? Because carrying a gun isn’t a crime” Seeing the gun carriers cuffed, hauled off to jail, or cited only reinforces the wrong message: that carrying a firearm is wrong and criminal. To me the primary goal should be getting the police to go away quietly, and if that involves some damage to your pride, so be it. If the police are stopping you, your rights are already being violated.

The only thing refusing to show identification accomplishes is creating an incident where one doesn’t need to exist, and getting that self-satisfied feeling that you’re right dammit. Turning over identification, even if the order is unlawful, doesn’t hurt your subsequent lawsuit any. As soon as you’re not free to leave, you’re technically under arrest, and into Fourth Amendment territory. You’re also getting your Second Amendment rights violated, in a context that would be favorable for asserting a right to carry. I do favor civil rights lawsuits.

21 Responses to “I Think a Lawsuit is in Order”

  1. Sebastian,

    You have a point here … but I believe that the long-term goal is to show (force, if necessary) the police (and by extension, the public) that carrying a firearm openly is not only legal, but very unlikely to result in criminal behavior.

    And I’m going to put a lot of the blame on the dispatcher. On the WI open carry forum, you can hear the 911 call where the operator tells the complainant that carrying openly is legal, and you can clearly hear the complainant saying that there’s no emergency, and sorry for bothering them.

    IMO, the most that a responding officer should have done was to observe, and just see what was up …. given what the open carriers were doing (having a bite to eat), once that’s confirmed, wish them a nice day.

  2. Sebastian says:

    I wouldn’t argue you can always avoid an unpleasant confrontation with police, and one should certainly assert their rights, but there are ways to assert your rights, and still comply, that preserves your ability to sue.

    It’s going to be having to defend officers in expensive civil rights lawsuits that’s going to make departments train everyone properly, where you’ll get the dispatcher telling hysterical people calling about MWG that they aren’t reporting anything that’s illegal. That’s probably the only way, because civil rights lawsuits are a real cost burden, and in some cases, you can sue the police personally.

  3. Sebastian says:

    I’d also note, that it would help in a civil rights lawsuit, if the jury thought it was the cops being jerks, rather than the citizen, so that’s another factor in favor of asserting your rights, but complying.

  4. Bob S. says:

    I wonder if the refusal to identify is part of a plan to improve the chances in case it goes to trial.

    Here are average people doing something completely legal with no signs of disturbance and how do the cops respond?

    Not only with citations for disorderly conduct but they also break the law in requiring identification. Clearly points out the illegal and in my opinion excessive conduct of the cops.

    I will also point out that Texas as recently changed part of it’s law regarding those with a Concealed Handgun License and Identification.

    We are still required to produce not only our CHLs but also our State Identification Card and Driver’s License if asked for identification by a law enforcement officer or a magistrate.

    Not on suspicion of a crime but upon request. If a non-CHL holder is asked to identify themselves, all they have to do is state name and address.

    When and how do we address being treated like second class citizens because we choose to exercise our right to keep and bear arms if not when the cops are clearly in the wrong ?

  5. I think I agree with Bob. It may help if the jury doesn’t think you look like a jerk, but it also helps when you can show that the officers were either so ignorant of or apathetic about the law that they arrested you on _two_ unlawful charges.

    I don’t know if that was the actual motivation in this case, but it seems sensible, especially if you’re recording the encounter and can prove that you were being polite and unjerky.

  6. Weer'd Beard says:

    “The only thing refusing to show identification accomplishes is creating an incident where one doesn’t need to exist”

    I disagree, it helps solidify a contested right. This is no different than a home owner being asked by police if they can have a look around his house for whatever reason and the home owner saying “Not without a warrant”

    The whole “If you have nothing to hide you have nothing to worry about” mentality needs to die, and unfortunately the line gets drawn in the sand by people politely refusing. (BTW have you heard the Audio recorded of that day? Everybody, including the police were very polite and professional)

    By somebody walking around carrying openly rather than concealed, they’re helping protect the less forward of us from getting proned out in an OC-legal state when our shirt slips above our holster, or our coat blows open in the wind.

    If we all comply just for the sake of not rocking the boat, before long we’ve signed our rights away.

  7. Sebastian says:

    I think in the larger picture of solidifying carry rights in Wisconsin, solidifying the right not to show ID is an ancillary issue. I’m not suggesting people roll over. There’s the whole “Sue them into next week” part after the initial incident is over that’s meant to ensure it doesn’t happen to others.

  8. Weer'd Beard says:

    Maybe our resident lawyers could chime in. In the recording all or most expressed a desire to not show ID. The Officer incorrectly said that it was required and failure to present ID would result in an arrest.

    Given that the whole interaction was being recorded, do all participants have as solid a case against the Police Action presenting ID when improperly prompted as they would if they were wrongfully arrested?

    I don’t think activists need to be single-issue. They can be about the 4th and 5th as well as about the 1st and 2nd.

  9. Bob S. says:

    Sebastian,

    I probably wouldn’t support a person’s refusal to identify if there was confusion about who was the criminal or not.

    In this case, there is no confusion, there was no crime in progress, there was no reason to identify the people.
    If I was a trial lawyer, I would definitely be grilling the police on how often criminals Open Carry while peaceably having dinner; I’m betting there isn’t a much experience with that phenomenon.

    While I appreciate your focus on ‘firearm related rights’, I think we shouldn’t loose the focus on a simple fact — we need to reclaim all of our rights. What better time then now?

    I don’t see it as an ancillary issue, I see it as part and parcel of what we have to do — trim back the power of the government. A win in one area (identification) supports the other (RKBA) and vice-versa.

  10. With regard to defending all rights, the practical choice depends on your goal. Are you just standing up for yourself, or trying to begin a legal challenge to the current laws? If it’s general principle, by all means stand up for every right on the spot. Good on you, and I admire your dedication.

    But if you’re trying to get a test case, Heller and McDonald are examples of the importance of keeping to one “variable” at a time. You don’t win your gun rights back by asking the Court to strike down the NFA and GCA; you ask it to declare that the 2A is an individual right. Then you build on that in the next case, asking the Court to incorporate the right. Then you ask them to apply strict scrutiny…

    Whether it was a good idea may depend on their goal.

  11. Sean Sorrentino says:

    I seriously disagree with you Sebastian. People need to understand their rights and they need to stand up for them all. The cops knew or should have known what the law requires. There is no “he has a gun” exception to the 4th Amendment. My only qualm about the whole encounter is that they should have stuck to
    1. Am I being detained?
    2. OK then, I would like to speak to a lawyer.
    3. Silence.
    Cops need to learn that cooperation with them is voluntary and contingent on their respect for our rights.

    Secondly, In the case of the two who refused to identify, there will be no question at all in court about whether or not they were cooperating willingly and waiving their rights or they were complying under duress. The cops would like to claim that they were having a consentual encounter, they asked politely and everyone just willingly handed over their IDs. The cop’s lawyers will attempt to throw in some reasonable doubt about the situation and hope to get off on Qualified Immunity. Since the two refused and were arrested, that avenue is closed off pretty effectively.

  12. Sebastian says:

    You make a good point on the qualified immunity bit. I may have to reconsider this.

  13. denton says:

    The audio of the 911 call has been released. It poses a huge problem for the Madison PD. The caller made clear that there was no problem or disturbance. The people in question were just sitting there, very relaxed. The dispatcher informed her that open carry was legal, and she was fine with that.

    Clearly, Madison PD is going to be writing some big settlement checks. But are the officers off the hook because they followed department policy, or is this going to be a 42 USC 1983 civil action against them personally?

  14. Sebastian says:

    Oh wow… so the caller wasn’t hysterical? The lawsuit on this one is going to be a doozy.

  15. denton says:

    Here is a link to the audio:

    http://www.examiner.com/gun-rights-in-washington-dc/madison-five-911-call-video

    The dispatcher sort of invites the caller to claim that she is disturbed or distressed, and the caller declines.

  16. charlesgibsonsucks says:

    “Officers should verify that the firearm is not stolen,”
    provided that the persons were not doing anything illegal before the police arrive, this would be an illegal seizure of property AND running the serial numbers to make sure that it wasn’t “stolen”… that would be an illegal search.

    “firearms in public places will take a pro-enforcement approach.” well it seem like your pro enforcement approach is in violation of the law.

  17. I am not too familiar with Wisconsin open carry law. However, I tend to believe Wisconsin law requires the “open carriers” to identify themselves when the officers make such demand. Particularly in this instance “where a woman who becomes unhinged at the sight of firearms” call to report alleged “disturbance.” The call, I think will supply the “Terry Stop” excuse.

    I agree with the person who suggests the “open carriers” should have asked if they were been detained, demand to speak to a lawyer, and be silence. This is solid advice I advocate. I discuss it extensively in my book Silence is Power.

    Yes, I support the “open carriers” right to enforce their rights in court. I doubt the success of the cops lawyer’s Qualified Immunity claim. It appears the law is clearly established in Wisconsin regarding open carry – the Attorney General’s Opinion, Terry stop, 2nd and 4th Amendments.

    Prince Adebayo Ogunmeno, BA, JD
    Author: Silence Is Power, A Lawyer’s Step-by-Step Guide to
    Handling Police Interrogations and Protecting Your Freedom

  18. denton says:

    Adebayo, I think that Terry Stop excuse isn’t going to work. The caller was not at all agitated, and simply said that she thought it was odd to see people with openly carried guns. The dispatcher told her that unless the guns were concealed or used in a threatening manner, the owners were not breaking the law. The caller was fine with that. The caller specifically, overtly stated that there was no disturbance and that the men involved were, in fact, “very relaxed”.

    It will be interesting to see how this plays out.

    Thank you for your interesting and informative comments.

  19. Vince Lyons says:

    “The only thing refusing to show identification accomplishes is creating an incident where one doesn’t need to exist…”

    You are missing the point and making a mistake about who is creating an incident. When a LEO demands identification without RAS, he or she is the instigator of the incident. Such demands are illegal and exceed their authority.

    Denying to comply with an unlawful demand or complying without consent isn’t about preserving your right to sue because your rights were violated. The point is their rights should never have been violated in the first place.

    I’m sure it’s not easy being a LEO and they can’t be walking encyclopedias of legal facts but the basics of the Constitution that they’ve in theory sworn to protect should be a no-brainer and something that they should never tread upon.

  20. M Gallo says:

    To clear things up:

    1) WI does have a requirement to identify during a detention, HOWEVER, this does not include physical ID (your name and place of residence complies), and there is no penalty for not doing so. There is also caselaw in the annotated statutes that failure to identify or to answer other questions is specifically NOT obstruction.

    2) WI does not have a OC law, we have a CC prohibition; we also have statewide firearms preemption saying that no subsidiary of the state can make laws more stringent than state laws. Therefore, we can openly carry firearms wherever there is no other statutory prohibition from carry (no handguns in places with certain liquor licences, no guns uncased or loaded in school zones or cars, and no gov’t. buildings at all).

    That said, I’m pretty appalled at this. This is a show of force by the police department, and I can’t see how an honest judge could apply QI. However, this is Madison, which is a cesspool of stark raving mad batshit fucking insane authoritarian collectivists.

  21. The stopping power of the Glock 36 is just rediculous. I wish I had one.

top