Rights Group Sues over School Gun Zones
I’ll be watching this.
A gun-rights group has sued the state and two cities over enforcement of Wisconsin’s law against carrying firearms within 1,000 feet of a school.
The lawsuit, filed Friday in federal court in Milwaukee, claims that “Wisconsin’s Gun Free School Zone Act covers such a broad area that it practically forecloses a meaningful right to keep and bear arms in large parts of the state.” It calls the law “an onerous restriction that has the potential to ensnare thousands of law-abiding citizens exercising their constitutionally guaranteed rights and expose them to felony charges.”
The lawsuit was filed by Wisconsin Carry Inc., David Bernson of Milwaukee and Frank Hannan Rock of Racine. It names as defendants Gov. Jim Doyle, the City of Milwaukee and one of its police officers, and the City of Racine and two Racine officers. It seeks to have the law declared unconstitutional and damages for the two men over their arrests and confiscation of guns.
I’ve always thought that gun free zones were unconstitutional. If a school - public or private - bans guns on its property, then that’s one thing. But when they say that guns can’t be within 1,000 feet (or whatever) of a school, it’s unconstitutional. That zone includes private property and places where having a gun would otherwise be legal. If you live within that zone you can’t have a gun in your own home? What if you are unfamiliar with the neighborhood and drive through a zone? The whole thing does place an undue burden on a law-abiding person’s right to possess a firearm. Let’s hope the case goes well.
This part of the case, is just outright theft.
Bernson was arrested near his home in May 2008, and though he was released without charge, the city has refused to return a gun that was seized from Bernson’s home. Bernson’s request for the gun was denied in part because he had allegedly possessed it at a gas station within 1,000 feet of a school.
Assuming the allegations are correct, the police stole his weapon. He hasn’t been charged with anything, been provided due process, or given just compensation for his weapon (if they were attempting some twisted use of eminent domain). They just flat out stole his property.
Interesting topic. I wonder. Assume a school is right along the highway (Like WB East and WB West). Would a hunter going to his/her favorite hunting spot and driving past the school (and thereby within 1000 feet) be breaking this law?
Posted by .(JavaScript must be enabled to view this email address) on January 09, 2010 at 0951 hrs
Wisconsin law, which was modeled on the federal Gun-Free School Zone Act of 1990, prohibits the possession or shooting of a firearm within a school zone. It defines a school zone as in the school building, the school grounds, and the area within 1000 feet of the school grounds. The law provides a number of exceptions, including possessing a firearm on private property, using a firearm for a school program, or carrying a firearm while crossing a school zone to get to lands open to hunting, and it excludes beebee guns, air guns, and starter pistols from the definition of “firearm” [s. 948.605
http://www.legis.state.wi.us/LRB/pubs/wb/00wb11.pdf
It says nothing about crossing the zone for any other purpose than hunting. What if I’m heading to the range? What if it’s not hunting season?
Posted by Owen on January 09, 2010 at 0959 hrs
Over at the opencarry website, they seem to be saying that the law is actually thus:
The person may openly have/carry a firearm on private property, regardless of the school zone.
The person may transport the firearm in a unloaded and cased manner, regardless of the school zone.
Not sure how accurate that is, but that’s what the language of the law seems to say.
Posted by .(JavaScript must be enabled to view this email address) on January 09, 2010 at 1022 hrs
I can’t believe how things have changed. Back inthe late 60’s and early 70’s we used to bird hunt across the street from the high school.
Posted by .(JavaScript must be enabled to view this email address) on January 09, 2010 at 1139 hrs
I’m sure the crazies with evil intent will check with the police prior to bringing their AK-47 into the lunch room and opening up on a bunch of kids. Crooks who want to be on the safe side always check to be sure there are laws that restrain honest people before they start blasting.
Gun control laws - not on a crook’s to do list.
Posted by .(JavaScript must be enabled to view this email address) on January 09, 2010 at 1534 hrs
Yes, if you are on private property (yours or anyone elses) GFSZ does not apply. But if you live in or near a school zone and step ONE foot off of private property onto a public street or sidewalk… FELONY!
If your wife goes to walk the dog at night while armed and crosses a school zone (note these invisible zones aren’t marked, NOR are what qualifies as a school marked) she is exposing herself to a FELONY. And the school may be three blocks away 3 streets over where you cant even see it.
If you look at MPD’s “unofficial school zone map” the war memorial building on Lincoln Memorial Drive has a school in it… “who knew” FELONY…
check out these maps of mke county and tell me how many HUNDREDS of thousands of people can’t carry anywhere within MILES of their home…
http://opencarry.mywowbb.com/attachment.php?id=6377
Now mind you the law says “knowingly” violate a school zone.,..
Do you want to accidentally cross a school zone, get arrested and go to court and HOPE with a felony hanging over your head the judge believes you didnt know??? Hope you trust the courts more than I do. Then again I’m sure given the MPD attitude towards law abiding open carriers so far if you say “my officer I didnt know there was a school there” they’ll just tip their cap and say “ok, be more careful next time”
Looking at the MPD “unofficial map” you’ll note that residents of milwaukee county really cant go ANYWHERE without likely crossing a school zone. Yet the federal and state constitution and federal supreme and wisconsin supreme court call the right to carry fundamental… How can a fundamental right have NO practical ability to be exercised?
this law has got to go. join wisconsin carry today!
http://www.wisconsincarry.org/
http://www.wisconsincarry.org/pdf/MembershipApplication.pdf
Posted by .(JavaScript must be enabled to view this email address) on January 09, 2010 at 1848 hrs
also comment #1 in WI you are not allowed to “possess a firearm in your vehicle” (don’t worry, we have that law on our radar also.)
http://www.petitiononline.com/wi1848oc/petition.html
Posted by .(JavaScript must be enabled to view this email address) on January 09, 2010 at 1850 hrs
Tru dat. The Milwaukee cop shop has a lot more to worry about than some business-type who wanders in/out of a school zone with a cased/unloaded hunting rifle in his trunk.
Posted by dad29 on January 09, 2010 at 1916 hrs
Just to clarify:
In Wisconsin it is illegal to possess a firearm within 1000ft of school property UNLESS: The firearm is unloaded and in a case OR you are on private property.
So unloaded and encased, you can walk it down the street to your car. The problem comes in when it is not in a case.
All of our veterans (those who carry in the parades) are subject to felony charges if the parade comes within 1000ft of a school. The bicycle rider, who was being severely beaten in Racine and defended himself by displaying a firearm, is subject to a greater penalty than those who were beating him up.As to the comment about going to court IF you walk into the school zone…....As I understand it, this would be a felony arrest. As such, the government would seize ALL YOUR FIREARMS and restrict you from having any until the case was settled (leaving you with no means of defense).
Posted by .(JavaScript must be enabled to view this email address) on January 09, 2010 at 2339 hrs
For immediate release:
On January 8th 2010 Wisconsin Carry, Inc. filed a lawsuit in Federal Court to challenge the constitutionality of Wisconsin’s onerous Gun Free School Zone Act.
Wisconsin’s Gun Free School Zone Act (GFSZA), which was modeled on the federal Gun-Free School Zone Act of 1990, prohibits the possession or shooting of a firearm within a school zone. It defines a school zone as in the school building, the school grounds, and the area within 1000 feet of the school grounds. The Federal GFSZA was struck down as unconstitutional in 1995. Wisconsin’s GFSZA remains.
In 1998 79% of the voters in the great state of Wisconsin voted Article 1 Section 25 into our state constitution. “The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose”. The Constitutions of the United States and Wisconsin guarantee the right of individuals to keep and bear arms; and as the United States Supreme Court held in the DC gun ban case, DC v. Heller, “bear” means “carry.” Wisconsin’s Gun Free School Zone Act covers such a broad area that it practically forecloses a meaningful right to keep and bear arms in large parts of the state. It is an onerous restriction that has the potential to ensnare thousands of law-abiding citizens exercising their constitutionally guaranteed rights and expose them to felony charges. Wisconsin’s GFSZ Act places someone who was innocently walking their dog around their subdivision at night while armed in danger of felony charges if they should happen to cross these invisible school zones which extend nearly a quarter mile out from the edge of school property and many properties that are not identified as schools!
More than 2000 people have signed our online petition calling on the Governor and Legislature to repeal this law. http://www.petitiononline.com/wi1848oc/petition.html
Wisconsin Carry is a non-profit corporation dedicated to the preservation and reclamation of the basic rights critical to a free society. Our membership believes in the founding principles of our country and our constitution: That all are created equal, that governments exist to protect the rights of individuals, and that governments derive their power from the consent of the governed. Our mission is to preserve, advance and expand these basic rights which law-abiding citizens are entitled to have a practical ability to exercise.
A copy of the Federal Lawsuit can be viewed at:
http://www.wisconsincarry.org/pdf/GFSZ_Complaint.pdfWisconsin Carry, Inc.‘s Website is http://www.wisconsincarry.org
Membership forms are available here: http://www.wisconsincarry.org/pdf/MembershipApplication.pdf
Posted by Wisconsin Carry, Inc. on January 09, 2010 at 2345 hrs
Wow, this case is a total mess.
It’s worth noting that the ban that was passed in 1990 and ruled unconstitutional in 1995 was overwhelmingly reinstated by a Republican-controlled Congress in 1996, with a technical modification designed to make the law constitutional. SCOTUS has not addressed that law subsequently, nor is that law subject to challenge in this case since the individuals bringing the case do not appear to have been charged under it.
Also, US v. Lopez centered on technical matters in Article I, Section 8 involving the commerce clause, as opposed to this convoluted filing, which appears to try and raise three separate issues. First, in regards to the 14th amendment, which has nothing to do with guns in particular. Second, that law enforcement was applying state law in an overly broad manner by seizing weapons located on private property within a school zone. Third, by then going for the big reach - that Wisconsin’s gun-free school zone law is in conflict with the 2nd amendment.
Interesting approach. The filing appears to hand the courts an easy out, by reinforcing that possession on private property in a school zone is not against state law (948.605(2)(b)1. makes that plainly clear). By ruling that state law was applied improperly against the plaintiffs, there’s absolutely zero need for the court to consider the constitutionality of the larger law.
As other posters have stated, possession of a weapon on private property in a school zone is not a crime. That’s what we’re dealing with here. The court won’t consider hypothetical questions about sidewalks or streets or cars driving by because that’s not relevant to this case.
My prediction? Plaintiffs win, nothing changes, big snoozer.
Posted by Recess Supervisor on January 10, 2010 at 1257 hrs
was overwhelmingly reinstated by a Republican-controlled Congress in 1996, with a technical modification designed to make the law constitutional.
the “technical modification” that allowed the act to be reinstated made the fed GFSZA completely impotent… It affects virtually no one (but surely gave enterprising incumbent politicians good symbol-over-substance campaign commercial material.
The original act made it a Federal crime to knowingly bring a gun within 1,000 feet of a school or to fire a gun in these zones, with carefully crafted exceptions. (that was struck down) The Gun-Free School Zones Act of 1995 does exactly what the old act did. However, it adds a requirement that the prosecutor prove as part of each prosecution that the gun moved in or affected interstate or foreign commerce
http://wise.fau.edu/~tunick/courses/conlaw/gunlaw.htmlrecess supervisor… perhaps with your legal expertise you can check just how many prosecutions have taken place with the “reworked” federal gun free school zone act since it was reintroduced 15 years ago???????????
I’ll save u the time… ZERO
the fed GFSZA is virtually irrelevant
Wisconsin’s is a different story.
Lastly, I’m sure we all appreciate your conclusions about how the case will be settled… For some reason I’m feeling more confident in our attorneys legal expertise than yours.
Posted by .(JavaScript must be enabled to view this email address) on January 10, 2010 at 1321 hrs
The technical modification changed virtually nothing about the intent of the law and is written so broadly that virtually anything could be found to fit within the constraints it sets forward. Whether the federal government uses its authority is another story, but the phrase “that has moved in or that otherwise
affects interstate or foreign commerce” isn’t stopping the federal government from doing boo. To think otherwise is absolutely foolhardy.Lawyers love money and attention, and I’m yours will get one, the other, or both out of your cause. Please congratulate him for me.
Posted by Recess Supervisor on January 10, 2010 at 1629 hrs
I’ll do so RS. You keep workin your keyboard.
There are many aspects of this case. Our legal strategy has been carefully planned.
Everyone, gun owner or not should be supportive of this case. At a bare minimum, even those who could care less about gun rights should desire municipalities to follow the law and due process. That includes, as Owen quickly discovered, The City of Milwaukee stealing property of law abiding citizens who neither committed, not were charged with any crime. Cases like these in other states have made a huge difference in keeping the police and municipalities in line with the law. In addition, the constitutional issues exist at a state and federal level. You cant have a state and federally guaranteed right to bear arms but have no practical meaningful ability to exercise that right.
Posted by .(JavaScript must be enabled to view this email address) on January 10, 2010 at 2045 hrs
I probably won’t since I’m really not all that enamored with second amendment issues. There are enough people who are (on both sides) that I’ll probably focus my keyboard on things that actually interest me.
Based on what I know from media accounts, I think the 14th amendment grounds are probably valid, as could well be objection to confiscation of property on private land without a clearly defined cause. Let me be clear about that, if I wasn’t.
I do think your side has given the courts enough outs that they’ll probably take them instead of trying to use the case to consider a larger question. I say that based only on the history of our judicial system, which tends to value precedent and to deliberate only on those details of a case that are absolutely necessary in order to reach a conclusion relevant to that case. I think it’s entirely likely that a court would agree that the state law was misapplied and in doing so, decline to consider anything further since it’s no longer relevant to the case in question.
A court would only need to consider your broader constitutional argument if it found that the state law was correctly applied - something you clearly don’t believe happened. So if the case can be ruled in your favor on the smaller point, why bother to deliberate the larger issue? Would the courts use a case in which state law was misapplied to further determine whether a constitutional issue exists? Why bother if the plaintiff has already won?
Posted by Recess Supervisor on January 10, 2010 at 2149 hrs
I’m sure you’ll understand if I can’t share our legal strategy with you.
Posted by .(JavaScript must be enabled to view this email address) on January 10, 2010 at 2247 hrs
It is not uncommon to have weapons taken during an investigation and either never returned or returned in an unusable state. I have successfully threatened the whitewater police and most recently the milwaukee police to return weapons. Whitewater actually broke into my car and took a shotgun that did not have the zipper completely closed on the soft case. It took over 6 months after the case was thrown out to recover the weapon. Most recently, my sister had some issues. When my brother in law called to have her taken away, they confiscated all of his shotguns and a pistol for safety reasons. It took 4 months to get them back. The key is to find the Sgt. in charge of the investigation and inform him/her that not only would you like to file a complaint for theft against the dept but also personally against the Sgt and the confiscating officer. Then you inform them that you will have to contact your lawyer concerning sueing them personally as well as the dept for illegal seizure of property. They will give you a run around but usually when you make it personal against individuals they tend to care a bit more.
Posted by fishaddict on January 11, 2010 at 1142 hrs
Of course, xxpilot. The questions were more rhetorical and for the sake of discussion than anything else. I can appreciate why you wouldn’t want to delve into those areas.
Posted by Recess Supervisor on January 11, 2010 at 1207 hrs
Then you inform them that you will have to contact your lawyer concerning sueing them personally as well as the dept for illegal seizure of property. They will give you a run around but usually when you make it personal against individuals they tend to care a bit more.
Or you could actually sue them (or join a group that already is) and for $15 bucks do your part to actually get a damage award that will send a resounding message to municipalities across the state that when they seize property outside of the law and without due process, it will come back to bite them. For way too long departments could do so with impunity. No one ever “really” sued them. They know people are all talk.
Between the monies awarded in similar cases in other states in addition to the costs the municipalities will spend in legal bills to defend themselves… in an economy like this, with government at all levels strapped for funds, it establishes an effective precedent (legally and in practice) very quickly.
Posted by .(JavaScript must be enabled to view this email address) on January 11, 2010 at 1236 hrs
Between the monies awarded in similar cases in other states in addition to the costs the municipalities will spend in legal bills to defend themselves… in an economy like this, with government at all levels strapped for funds, it establishes an effective precedent (legally and in practice) very quickly.
As someone who has has been in litigation with muncipalities, here’s my thoughts, take them for what they are worth.
Municipalities usually will have have city attorneys on their staff, (it does depend on the size of the municipliaty.) In other words, you will incurring more legal bills than they would. Thus, avoiding legal bills won’t be much of an incentive to secure an early settlement. Also, given the strapped budgets, they are not generally willing to settle easily. Remember, the City Counsel needs to approve the settlement and most of them don’t want to lose their pet project to a settlement proceeds.
To ultimately prevail you would likely need to not only go through trial court but through the appellate courts as well. That don’t come cheap but if your willing to see it through and spend several hundred thousand dollars you might have a chance.
Cheers.Posted by .(JavaScript must be enabled to view this email address) on January 13, 2010 at 0031 hrs
To ultimately prevail you would likely need to not only go through trial court but through the appellate courts as well. That don’t come cheap but if your willing to see it through and spend several hundred thousand dollars you might have a chance.
Cheers.I’ll pass on your legal advice to our attorneys.
Posted by .(JavaScript must be enabled to view this email address) on January 13, 2010 at 1246 hrs
If you live within a school zone and need to walk to the store for whatever reason, you are prevented from exercising your RTKBA while walking to/from the store. This is the law as it stands now.
Many people, throughout the state, believe EVERY law-abiding citizen should have the right to walk to/from the store while exercising their RTKBA, not just those who live outside school zones.
Posted by Wisconsin Carry, Inc. on January 16, 2010 at 1442 hrs
Regardless of current or future law, I do not openly display my cased or uncased firearms to neighbors nor do I discuss them with anyone but the closest friends. (Yea, I live in a school zone)
Advertising is a great way to attract robbers.
Posted by .(JavaScript must be enabled to view this email address) on January 16, 2010 at 1905 hrs
At the rate things are going, all we’ll be allowed as an “arm” is pepper spray…Of course that will also be made illegal to carry except in the enclosure of your house… -.-
Posted by .(JavaScript must be enabled to view this email address) on January 26, 2010 at 0117 hrs
We filed this lawsuit on January 8, 2010 and details are available on our web site WISCONSINCARRY.ORG. Wisconsin Carry was formed to take substantive action to protect and advance YOUR gun rights in Wisconsin. We chose to do more than talk about advancing gun rights but rather “do” something. Filing a federal lawsuit was not cheap, nor did it come without months of preparation and significant time and money investment from those involved. This investment was made, and the lawsuit filed before seeking funding or support from anyone. We took action first and are now asking for your support with a $15 donation to support what we have done, not what we promised we would do.
To that end, Wisconsin Carry, Inc. will be at the 2010 Northern Wisconsin Deer Classic & Outdoor Expo Booth #130 in Eau Claire, WI this weekend January (29,30,31) if you would like to meet in person.
Alternatively, if you would like to donate $15 or more to our cause, please visit our web site WISCONSINCARRY.ORG and fill out our online membership application. All donations are handled securely through PayPal.
For those who have already joined and/or donated we thank you for your generous support.
Hubert Hoffman, Vice President
Wisconsin Carry, Inc.
WISCONSINCARRY.ORG
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