Open Carry Lawsuit in Wisconsin

On Saturday, September 18th, five members of Wisconsin Carry met and ate at a Culver's (mid-west burger chain) in Madison, Wisconsin. According to the story in the Wisconsin State Journal:

Eight officers came to the restaurant and demanded identification from the five men, Gold said, adding that when two of them refused, they were handcuffed, disarmed and searched for identification, then given municipal citations for obstruction and released. Wisconsin Carry won a $10,000 settlement for a Racine man in a similar situation.

Two days later, the charges for obstruction were dropped against the two members who refused to provide identification. The Madison Police Department then filed disorderly conduct charges against all five of the Wisconsin Carry members. According to the press release from the MPD:

The complainant's statement clearly reveals that she recognized the potential for violence from these armed men, and it was this fear that motivated her call to police. On the basis of this fact, the MPD will be rescinding the 2 obstructing citations. They were issued in error. Instead, citations for City Ordinance DC will be given to those who engaged in the behavior that led to the need for police to be called.

The DC statute does not require an actual disturbance take place, only that conduct in question is of a type that tends to cause or provoke a disturbance.

 However, there is some dispute as to whether the "complainant" felt threatened or in fear. Wisconsin Carry summarizes the 9-1-1 call as follows:

At or about the time that the WCI members finished their meal and left the restaurant, a woman in her car observed them openly carrying handguns and called 911 to report it to the City of Madison Police Department. The 911 caller informed the dispatcher that she didn't know if it was an emergency, the men were doing nothing wrong and appeared totally relaxed, weren't threatening anyone and the restaurant was full of people but they each had sidearms and she didn't know if that was legal.

Upon being informed by the 911 dispatcher that open-carry is legal the woman stated "then there is no problem and its not an emergency". The dispatcher then suggests that if the woman is concerned or disturbed then it becomes a problem and the woman says "no they weren't threatening anybody or acting threatening". When the dispatcher informs the caller they are sending officers she says "well I feel bad then because they weren't doing anything wrong".

 The full 9-1-1 call can be heard here.

It is important to note that while Wisconsin is one of the two states that still doesn't allow concealed carry, open carry is legal. In April 2009, Wisconsin Attorney General J. B. Van Hollen issued an advisory memorandum regarding open carry. The memo's summary states:

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.

If the behavior reported in the 9-1-1 call is accurate, then it appears that the actions of the Madison Police Department go beyond what the Attorney General's advice suggests. The memo specifically states that under a Terry or investigative stop, while officers can ask questions, the person is under no obligation to answer them or to be compelled to identify him or herself.

In response to these charges of disorderly conduct and the subsequent policy proclamations in the City's press release, Wisconsin Carry and four of the individuals involved filed a lawsuit against the City of Madison and Madison Police Chief Noble Wray in U.S. District Court for the Western District of Wisconsin on this past Wednesday (Sept. 29th). They are represented by the Troupis Law Firm of Middleton, WI and John Monroe of Roswell, GA. Monroe is the VP of GeorgiaCarry.Org and is currently handling a CalGuns Foundation sponsored case, Peterson v. LaCabe,  in Denver, Colorado.

The lawsuit, Wisconsin Carry, Inc. v. City of Madison et al,  alleges three causes of action in their request for a permanent injunction against Madison and Chief Wray. First, the suit alleges that the City of Madison and Chief Wray are violating the Second and Fourteenth Amendment rights of the plaintiffs by their demands for ID or face arrest solely because they were openly carrying a firearm. The suit goes on to say that the new policies announced by the Madison Police Department in their press release (see above link) are "designed and intended to chill and prevent WCI’s members free exercise of their Constitutional right to keep and bear arms."

The second cause of action alleges that Madison and Chief Wray are subjecting "WCI members and other persons to invidious discrimination, and constitutes a violation of their right to Equal Protection secured by the Due Process Clause of the Fifth Amendment to the United States Constitution." The plaintiffs allege the new policy and procedures outline on September 22nd in the press release constitute harrassment, establishes a policy of unreasonable search and seizures, and is hostile to the right to keep and bear arms.

The third and final cause of action states that by maintaining and enforcing the laws, policies, and procedures set forth in response to the open carry movement, Madison and Chief Wray are violating the Second and Fourteenth Amendment rights of Wisconsin Carry members and the other named plaintiffs. Wisconsin Carry and the other plaintiffs:

are deprived of equal protection by virtue of the fact that the Defendants are enforcing criminal laws against the Plaintiff’s members based solely on the exercise of their constitutional right to keep and bear arms, and specifically, on their choice to openly carry a firearm as allowed by law.

Specifically, the suit asks the court to provide a permanent injunction that mandates:

the City of Madison and its Police Department to rescind and retract the orders and recommendations contained in its press release issued on September 22, 2010, and requiring these Defendants to take immediate corrective action to instruct its police officers and the general public that these orders and recommendations violate the Constitutional rights of these Plaintiffs and others, and are therefore not to be followed.

 The suit also asks for attorney fees and costs as well as damages in an amount to be determined at trial.

The City of Racine, Wisconsin had a similar incident in 2009 and was sued by Wisconsin Carry in U. S. District Court for the Eastern District of Wisconsin. In March of this year, a judgment was entered in favor of Wisconsin Carry. The City of Racine and two of their officers had to pay $10,000 as a result. Given that, I wouldn't be surprised to see a negotiated settlement in this case along with a recision of the new Madison PD policies and procedures.