Not Guilty of Disorderly Conduct for Open Carry
A West Allis municipal judge today ruled in favor of a local man arrested for disorderly conduct after a neighbor complained that he was carrying a gun while planting a tree.
Judge Paul Murphy found Brad Krause not guilty of disorderly conduct in a case that drew to a hearing numerous gun rights advocates to witness what may be the first open carry gun case heard in a Wisconsin courtroom.
For Krause, however, the significance of the case extended beyond gun rights: It was an infringement on civil liberties, he said after today’s decision.
“The reason people are upset about this is it’s not about guns. It’s about civil liberties. And we obviously have a property issue. There was no warrant issued, no exigent circumstances, no permission to enter the property, yet the police stormed in with guns drawn and put my life at risk,” Krause said. “My wife was very worried that she would be a widow in short order because I was planting a tree.”
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Why was the 2nd amendment written so poorly? Can anyone explain that? It is just a terrible sentence.
Posted by .(JavaScript must be enabled to view this email address) on February 17, 2009 at 1514 hrs
Why was the 2nd amendment written so poorly? Can anyone explain that? It is just a terrible sentence.
I always think the same thing. Even if you take out the first half of the sentence (which most gun rights activists do on a regular basis
) it still reads, “the right of the people to keep and bear Arms, shall not be infringed.” Why have the last comma there at all, if not to separate “shall not be infringed” from “the right of the people…”? This is why any gun control legislation or discussion needs to be moderate and logical. Nobody on either side can look at that sentence and say, “See! Clearly, right there is says Militia! So you need to have a militia to own guns!” or “See! If you just ignore the ‘regulated’ part and take out that last comma, I have every right to my gun!”
Ambiguity 1, Founding Fathers 0
Posted by .(JavaScript must be enabled to view this email address) on February 17, 2009 at 1533 hrs
P.S. Since moving to Virginia, I really don’t care either way about guns. What I do care about is people scoring political points off ridiculous pro-gun or anti-gun rhetoric. My jokes in the previous post are just that—jokes.
Posted by .(JavaScript must be enabled to view this email address) on February 17, 2009 at 1535 hrs
P.P.S. Not to be a comment hog…
On topic:
Of course the guy was found not guilty, as he always should be. We can discuss the civil liberties another time, but I think thea neighbor complained that he was carrying a gun while planting a tree.
shows how silly the situation was. And wtf is a cop doing citing the guy for anything? Please be less of an idiot, local law enforcement.
Posted by .(JavaScript must be enabled to view this email address) on February 17, 2009 at 1539 hrs
Congratulations to Brad and to Steve, and Godspeed to Mr. Cain in his bid today for the municipal judgeship here in the land of Oz.
On another note, the 2nd Amendment was not written poorly at all. While in today’s legal climate it may be necessary to use language such as WI embraced in our 1998 RKBA amendment, it is rediculous to retroactively apply our “lowest common denominator” standards to an enlightened and philosophically mature people.
Even if they had said plainly “No governing body of these United States, or any subdivision thereof, may make any law abridging the natural right of the non-imprisoned members of the populace at large to keep and bear arms of any kind suitable for security, defense, recreation, hunting, or any other lawful purpose,” there still would be sniveling little weasels running around trying to say it doesn’t say what it says.
Posted by Mike Gallo on February 17, 2009 at 1554 hrs
Congrats! Its good to see something good coming out of Wisconsin!
Posted by .(JavaScript must be enabled to view this email address) on February 17, 2009 at 1631 hrs
Even if they had said plainly “No governing body of these United States, or any subdivision thereof, may make any law abridging the natural right of the non-imprisoned members of the populace at large to keep and bear arms of any kind suitable for security, defense, recreation, hunting, or any other lawful purpose,” there still would be sniveling little weasels running around trying to say it doesn’t say what it says.
Okay then, what does it say?
Posted by .(JavaScript must be enabled to view this email address) on February 17, 2009 at 1728 hrs
For a specific reason, an absolute statement; it says that prior restraint is not to be used by the federal government (and states, post 14th amendment) in any case against the right to arms. Yeah, that means that anyone not imprisoned can own an RPG or crew-served machinegun. It does not mean they may use it in an otherwise illegal manner such as murder, theft, etc. It’s really a lot more simple than you thought, but you’re scared of the implications from a policy standpoint.
Why, what did you think it meant?
Posted by Mike Gallo on February 17, 2009 at 1758 hrs
This one should have been a non-issue if the police officers of West Allis have at one point or another read the annotated version of the WI Constitution:
The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.
[1995 J.R. 27, 1997 J.R. 21, vote November 1998]The concealed weapons statute is a restriction on the manner in which firearms are possessed and used. It is constitutional under Art. I, s. 25. Only if the public benefit in the exercise of the police power is substantially outweighed by an individual’s
need to conceal a weapon in the exercise of the right to bear arms will an otherwise valid restriction on that right be unconstitutional. The right to keep and bear arms for security, as a general matter, must permit a person to possess, carry, and sometimes conceal arms to maintain the security of a private residence or privately operated business, and to safely move and store weapons within those premises.
State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785, 01?0056.
Posted by .(JavaScript must be enabled to view this email address) on February 17, 2009 at 2133 hrs
Its nice to see common sense and freedom win for once.
And disturbing that completely and entirely by the facts of the case there wasn’t a SHRED of anything disorderly or deserving of having 2 west allis cowboys…er I mean police officers come at him guns drawn. Placing him a rookie cops trigger-twitch away from being killed. Thank god he didn’t wear an IPOD while planting his tree. A false move and the Stallis renegades would have claimed they had every reason to fill him with lead.
If thats department policy in West Allis (to come at a law-abiding citizen who is planting trees on their own property with a holstered legally carried side arm) with guns drawn, there is a SERIOUS need to re-evaluate policy. Otherwise those officers need to be seriously reprimanded for their behavior.
Shame on the municipal judge for failing to return his property. Having been found not guilty that court has an obligation to return his gun to him. Shameful.
Good luck to Brad as he pursues civil action against the city of West Allis.
Posted by .(JavaScript must be enabled to view this email address) on February 17, 2009 at 2158 hrs
Guess you guys really aren’t into civilization.
The only problem with this child who insists on wear his toy around the house is if this gun would have somehow slipped out of the holster and gone off, the gun could have become his neighbor’s problem.
Posted by .(JavaScript must be enabled to view this email address) on February 18, 2009 at 0800 hrs
Keith you are funny. Good lord. You don’t know much about firearms. Guns don’t just go off even if they fall! And holsters are designed to keep them nice and secure until such time as you need to draw the weapon. With your thinking all that ammo I have stored in my house will just go off and kill my family when they are sleeping! Get a grip man!
Posted by .(JavaScript must be enabled to view this email address) on February 18, 2009 at 0906 hrs
Keith,
Generally when you carry a side arm there isn’t a round in the chamber. At least that is how I carry. So if I for some ungodly reason manage to drop my pistol, it can’t just go off and kill my neighbor. If I need it, all I have to do is work the slide, take off the safety, and engage the threat. Someday Keith you may get the chance to thank someone for saving your ass while you were waiting for the police to show up and help you.
Posted by .(JavaScript must be enabled to view this email address) on February 18, 2009 at 1023 hrs
I always carry with a round chambered so I don’t have to waste valuable seconds working the slide.
If you have a modern firearm the safety devices in them will prevent any miss fire from happening when dropped. The ONLY time you may have an issue is when you are carrying in Condition 2 with the firing pin against the round.
Most people I know carry in Condition 1 or 3. I however carry in Condition 0 since my Glock does not have a thumb safety.
Posted by .(JavaScript must be enabled to view this email address) on February 18, 2009 at 1107 hrs
The only problem with this child who insists on wear his toy
Poor Keith, ignorant and afraid of an object, has to judge and force his point of view onto the rest of civilization.
Posted by .(JavaScript must be enabled to view this email address) on February 18, 2009 at 1203 hrs
Keith lives in the make believe world. The world where guns “mysteriously” slip out of holsters fall to the ground and “go off”
Likely the same make-believe world where fender-benders turn into wild-west shootouts when concealled carry legislation is passed and about a dozen other make-believe pejorative scenarios when it comes to gun possession.
Its funny living in Wisconsin. The ignorant-gun-haters here are the laughing stock of most of the rest of the country. Given that wisconsin and illinois are the only 2 states where law-abiding citizens are denied the right to carry concealled weapons. Wisconsin anti-gun people have more of a practical intelligence void to toss around their make-believe and fear-based scenario’s in. The rest of the country where weapons are commonly carried by law-abiding citizens even anti-gun folks would be embarrassed to try to use these non-existent scenarios of guns just “going off” or ANY of the other tired non-sensical counter-arguements to allowing citizens to exercise their constitutional rights.
Posted by .(JavaScript must be enabled to view this email address) on February 18, 2009 at 1317 hrs
Poor Keith, ignorant and afraid of an object, has to judge and force his point of view onto the rest of civilization.
I am not against the open carrying of weapons especially when on your own property.
Having said that I have to ask what this guy was afraid of that he had to carry while planting a tree in his yard? Was his neighbor going to steal his tree? If I lived in a neighborhood so bad that I could not be in my yard planting a tree then I would probably not waste my time planting a tree.
I realize you will label me “anti-gun” but the arguments fall flat. I would rather see the gun and know he has it than to wonder if every lunatic (law abiding lunatic) on the street might have one.
I am not afraid to go outside without protection but if you feel insecure enough that you need a gun to plant a tree then you go right ahead, just keep it in the open.
Posted by .(JavaScript must be enabled to view this email address) on February 18, 2009 at 1415 hrs
Having said that I have to ask what this guy was afraid of that he had to carry while planting a tree in his yard?
No you don’t have to ask. Why should you ask, it’s his property, and he can do what he wants on it since it doesn’t infringe on anyone else’s rights.
Was his neighbor going to steal his tree?
What a strawman question that is.
If I lived in a neighborhood so bad that I could not be in my yard planting a tree then I would probably not waste my time planting a tree.
Good for you, Mr Strawman.
I realize you will label me “anti-gun” but the arguments fall flat.
Personally, I don’t care if you’re anti-gun…. you have the right to be as hateful or fearful of guns as you want (and that goes to anyone in our “civilization”), just as I have the right to own and carry a gun.
I am not afraid to go outside without protection but if you feel insecure enough that you need a gun to plant a tree then you go right ahead, just keep it in the open.
And that’s exactly what he did, until the police showed up, trespassed, falsely imprisoned him, and stole his property.
Posted by .(JavaScript must be enabled to view this email address) on February 18, 2009 at 1429 hrs
Having said that I have to ask what this guy was afraid of that he had to carry while planting a tree in his yard? Was his neighbor going to steal his tree? If I lived in a neighborhood so bad that I could not be in my yard planting a tree then I would probably not waste my time planting a tree.
First, I don’t know why Brad wanted to keep a gun on him in his yard. Its none of my business.
I think the important thing that we NEVER forget is that “rights don’t require explanations”
Having said that, I will offer you some suggestions. I suspect that if you are as objective as you indicate that you are, you will see that there are MANY legitimate reasons to carry a weapon while planting a tree:
-perhaps Brad has children in the home. Perhaps when he’s outside planting a tree, he wants his gun on his person in the retention holster that it was in, where he knows where it is and has COMPLETE control over it at all times.
-perhaps Brad is in a profession where people have reason to want to inflict harm upon him.
-perhaps Brad has been threatened by someone and if that someone intent on causing him harm were to pull up outside his home, he’d be in a defensive situation with a gun INSIDE.
-perhaps Brad understands that a right not excercised is a right LOST. If he doesn’t exercise his right to openly carry NOW, when he REALLY needs to openly carry (abusive neighbor moves in, or he goes somewhere where he doesn’t feel safe) he won’t be able to openly carry when it REALLY counts.
-perhaps knowing that violent crime AND murders DO happen in West Allis (go ahead, look up last years crime stats) he wants to be prepared for the unexpected.
-perhaps because EVEN in completely safe neighborhoods the news is FULL of stories of people who fall victim to a violent crime that say “I never thought it would happen here, nothing like this has happened here before”
Remember the mass shooting/massacre at the church service at the hotel in brookfield a couple years ago. How many of those people who are now DEAD would have, 5 minutes prior to the shooting said “its rediculous that someone would feel unsafe at this church service and feel the need to be armed”
-perhaps with all of the theft and break-ins that occur in VERY nice neighborhoods (EVERYONE of my 3 friends who live in Tosa in nice neighborhoods has had their home broken into) Brad wants to advertise to anyone who drives by casing houses that HIS house and HIS neighborhood is one that criminals should pass on by.
People put BIG huge signs in their front yard advertising that they have a security system. I think a gun on the hip is a GREAT advertisement to criminals that they are not in control and that they had better think TWICE before they cause harm to law-abiding citizens.
Posted by .(JavaScript must be enabled to view this email address) on February 18, 2009 at 1441 hrs
No you don’t have to ask. Why should you ask, it’s his property, and he can do what he wants on it since it doesn’t infringe on anyone else’s rights.
I agree it is his yard, and he wasn’t hurting anyone.
Personally, I don’t care if you’re anti-gun…. you have the right to be as hateful or fearful of guns as you want (and that goes to anyone in our “civilization”), just as I have the right to own and carry a gun.
I am not hateful or fearful, now I am wondering about you.
And that’s exactly what he did, until the police showed up, trespassed, falsely imprisoned him, and stole his property.
The police were responding to a call from his neighbor. The neighbor is the one you should be hating on.
Posted by .(JavaScript must be enabled to view this email address) on February 18, 2009 at 1444 hrs
If I lived in a neighborhood so bad that I could not be in my yard planting a tree then I would probably not waste my time planting a tree.
I don’t know if you realized what you just said, but what a bigoted thing to say.
So someone who lives on 35th and Fond du lac shouldn’t “waste time planting a tree”?
Isn’t one of the things that gentrifies a neighborhood people who take pride in the appearance of their home and that starts with things like landscaping and taking care of your property?
Are you suggesting that an up-and-coming person who can afford to purchase a home in these neighborhoods (but not pay $200,000 for a home in a “nice” :roll should not take pride in the appearance of their home, try to build a better life for themselves and their family by increasing the value of their home, taking pride in their neighborhood?
It seems like you are saying if you live in a “poor” neighborhood you should just stay inside like a captive?
Posted by .(JavaScript must be enabled to view this email address) on February 18, 2009 at 1449 hrs
I don’t know if you realized what you just said, but what a bigoted thing to say.
Don’t talk to me about bigots, I read it hear all the time.
I am just saying that if he has to worry about protecting himself while planting a tree then maybe he has bigger things to worry about.
Maybe, just maybe, all the reasons you state that Brad may need to carry while doing yard work are legitimate. Why wouldn’t the neighbor understand this and not call the police?
Posted by .(JavaScript must be enabled to view this email address) on February 18, 2009 at 1907 hrs
First off, the neighbor only called to ask if it was “legal” this is a matter of record (I was at the hearing)
Second, the neighbor testified that he was worried that the gun which he testified was holsterd and was never removed from the holster at any time would “go off or something”
So if you’re going to ask me to apply logic to the thoughts of a guy who clearly knows SO little about guns that he was worried a holstered fire are would “just go off”. I’m sorry, I can’t do it.
I am just saying that if he has to worry about protecting himself while planting a tree then maybe he has bigger things to worry about.
Look, you asked a question, I have you some more than plausible answers. As I suspected you are just pretending to be mr. objectivity, when i reality, you have a feeling on the issue and you are only interested in making snarky comments that support your feelings.
Carry on
Posted by .(JavaScript must be enabled to view this email address) on February 18, 2009 at 2145 hrs
edit: the 3rd paragraph should read “worried a holstered firearm would” (not holstered fire are)
Posted by .(JavaScript must be enabled to view this email address) on February 18, 2009 at 2146 hrs
Lets turn this into a car arguement and for the sake of having fun lets say the guy next door called because the guy was drunk and eh was afraid that he would get into his car and perform an illegal activity, would the cops have the right to come onto the property and arrest the guy and take his car? Would the cops have any reason to believe that having the car in the driveway and being drunk would mean that he would drive and thereby break the law? the same thing applies here. He was perfectly legal with the gun in plain sight. Not concealed, not being discharged, not being dangerous. Just like the drunk sitting in the driveway next to his car, nothing illegal had happened yet. The issue is that people don’t see the car as the great evil object that gun are considered.
Posted by fishaddict on February 19, 2009 at 0059 hrs
Moveforward, why do you feel the need to spout crap? I think that regardless of the constitutional right to free speech, we need to shut the stupid people up. Guns don’t just go off, guns don’t kill people, guns do not leap out of the holster(or fall for that matter) and go on killing sprees. When was the last time you heard of a cop’s gun falling out of the holster and killing someone? It just does not happen. He had the right to do it and it is nobody’s business why he wanted to. He does not need a reason to exercise a right.
Posted by fishaddict on February 19, 2009 at 0106 hrs
In light of the continued ignorance of the Stallis Renegades, err… West Allis Police Department, I am calling on all citizens of West Allis who are of a situation to afford such action, to excercise their rights under the WI constitution and begin carrying legally a sidearm within the confines of their property. This spring will probably be the best time to begin the action by raking our front yards with holstered fire arms. Unfortunately is snowed again yesterday (damn winter), but the only way to draw attention to this injustice is for everyone who can to excercise their rights lawfully and respectfully.
Posted by .(JavaScript must be enabled to view this email address) on February 19, 2009 at 0909 hrs
In light of the continued ignorance of the Stallis Renegades, err… West Allis Police Department, I am calling on all citizens of West Allis who are of a situation to afford such action, to excercise their rights under the WI constitution and begin carrying legally a sidearm within the confines of their property.
West Allis really does have a problem with its police force. Its well documented. West Allis needs to seriously re-evaluate the mission of what police are suppose to do. The police are there to protect our rights, not to impose their will on law abiding citizens.
There are so many aspects of this case that are completely disturbing with regard to the actions of the West Allis police department.
First, that a citizen only called to ask if this action was legal and the POLICE decided they wanted to nail Brad spent 45 minutes in his front yard with him in handcuffs and had to place a call to their supervisor before they could figure out what he could be charged with, and only then coerced the neighbor into being a complainant for disorderly conduct. (again all a matter of public record)
Second, that police would storm onto a law-abiding citizen who was planting a tree in his yard with GUNS DRAWN.
Third, that now that Brad has been found NOT GUILTY they have REFUSED to return his property to him (firearm and holster)
This is tyrannical behavior. If you can be found not guilty but not get your property back? Well perfect, West Allis can just arrest everyone they want to, confiscate their weapon, and even though the person will be found not guilty, have already inflicted the punishment of attorney fees and the cost of a $500 weapon.
I hope the people of west allis are ready to have their taxpayer dollars go to pay penalties of the civil lawsuits that will be filed against their police department.
Lastly, (not that you were saying it was Carl) but I just want to remind people that NOTHING about the facts of this case had to do with Brad being IN his own yard. In article I section 25 of the Wisconsin state constitution which says: The people have the right to keep and bear arms for
security, defense, hunting, recreation or any other lawful purpose.There is NO requirment that this all must be done on one’s own property. IN fact, its intuitive that most of those things would not happen on ones property.
If there is nothing disorderly about having a sidearm while you are planting a tree in your yard, there is nothing disorderly about taking your dog for a walk at 11pm with an UNconcealled sidearm. Its your right as a wisconsin citizen. Unfortuantely for the citizens of West Allis, YOUR POLICE CHIEF has decided he doesn’t like that right, and he is willing to UNLAWFULLY take that right from you. (mind you that if you live in Madison, you could walk down the street walking your dog with a sidearm and as long as you weren’t doing something else to warrant being stopped, you would not need to fear arrest) BUT IN WEST ALLIS, your POLICE CHIEF. An UNELECTED government employee is going to do everything in his power to DENY you your rights. And when a court of law finds you guilty. HE DOESN’T CARE, he’s going to keep your gun anyway.
This should bother every citizen who believes in freedom.
Posted by .(JavaScript must be enabled to view this email address) on February 19, 2009 at 1007 hrs
darn it, last line should read “when a court of law finds you NOT guilty,” They will keep your gun anywhere.
Oh, and along those lines Carl. I own rental property in West Allis, you can be assured that when I do my spring lawn work there. I will be wearing a sidearm.
Posted by .(JavaScript must be enabled to view this email address) on February 19, 2009 at 1014 hrs
Guns don’t just go off, guns don’t kill people, guns do not leap out of the holster(or fall for that matter) and go on killing sprees.
I never spouted that “crap”, that was someone else putting words in someone elses mouth.
Posted by .(JavaScript must be enabled to view this email address) on February 19, 2009 at 1146 hrs
I unfortunately live withing 1000 ft of a school (Frank Lloyd Wright) so I have to stick to my yard. Hmm, that would be an intesting question to ask of the chief of police and the DA. But I’m sure that my stainless Ruger Blackhawk will draw plenty attention glistening in the sun this spring.
Posted by .(JavaScript must be enabled to view this email address) on February 19, 2009 at 1329 hrs
My huymblest apologies to MoveForward. My second rant was misdirected. I was refering to Kieth’s comment about how if the gun were to ‘go off’ it would be the neighbors problem. I will be more careful in the future to know my target before ranting.
Posted by fishaddict on February 19, 2009 at 1620 hrs
xxpilot has pretty much nailed it.
If you remember, the judge stated right up front that he was not going to hear any constitutional arguments because he did not believe this was a constitutional matter of law. So he took away the defense of using the right to keep and bear arms protected by state’s constitution from Brad. Thank you judge.
What was done to overcome this was Brads last brief filed two weeks ago today, was to establish Brad’s authority to go armed under state statute (rather than the state constitution). Brad’s attorney argued he was lawfully authorized to carry under the states open carry law Wis. Stat. § 941.23. This law has been on the books for 137 years. It does not ban carry nor does it ban open carry. It only prohibits concealed carry. Brad was in fact doing what the letter of the law demanded that he do.
That put the judge in a position he did not anticipate. Although he chose to ignore the constitution, now he could not choose ignore the state statute.
So, now Wisconsin has a brand new 137 year old open carry law. The cat is out of the bag.
This is a process and there still are things we must do before everyone can openly carry in Wisconsin without being harassed and arrested as Brad was. Believe me you do not want to go through what he has been put through.
This is not a matter of who is the governor. Wisconsin’s open carry law has been on the books for 137 years. We want it enforced now. If ignorance of the law is no excuse for you or me, it certainly is no excuse for law enforcement officers either.
The “enforcer” (the AG) is the one person who needs to decide this law is equally important to enforce along with all other laws in the state that he enforces every day. I’m not sure he is ready to do this yet, but he is paying attention at least. We will continue to encourage him to do his job through all available means. That is all we ask.
The law enforcement community needs direction from the AG and perhaps some training about how to lawfully interact with citizens who are lawfully armed. Those officers who over react and respond inappropriately put themselves and the community they are supposed to serve at high risk. God forbid if they cause someone to be shot or killed. Brads situation could have very easily gone horribly wrong. I personally do not think the AG should wait until that tragedy happens to speak out.
Posted by ccwtrainer on February 20, 2009 at 1002 hrs
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