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    Default Federal court: Open carry of guns is disorderly conduct

    http://www.lakelandtimes.com/main.as...rticleID=11406

    Gonzalez lawsuit tossed; Gonzalez arrested for murder after shooting
    Richard Moore
    Investigative Reporter




    A federal judge has dismissed Jesus C. Gonzalez's federal lawsuit in Wisconsin alleging unlawful arrest and an unreasonable seizure of firearms after he was arrested for openly carrying his gun, effectively declaring that police in Wisconsin can consider open carry to be disorderly conduct.

    That ruling contradicts other federal appeals court findings, so federal law remains divided on the issue.

    In his lawsuit, according to federal court documents, in two separate incidents Gonzalez challenged his arrest for disorderly conduct for openly carrying in retail stores. He filed federal claims against three police officers and two municipalities, saying there was no probable cause to arrest him.

    Meanwhile, just days after federal judge Lynn Adelman of the U.S. District Court of the Eastern District of Wisconsin dismissed the suit, Gonzalez was involved in a Milwaukee incident in which he allegedly shot and killed one man and wounded and paralyzed another.

    In that case, the survivor shot by Gonzalez said there was no altercation when he and the other man were shot, and he was simply walking to a friend's house. Gonzalez says the two men attempted to assault him.

    Gonzalez was due in court May 20 for a preliminary hearing. He has been charged with one count of first degree intentional homicide and one count of attempted first degree intentional homicide.

    The court case

    While Gonzalez's murder charge may be more dramatic and headline grabbing, the court decision is far more substantive on the larger question of open carry in Wisconsin and, indeed, across the nation.

    Wisconsin law does not statutorily prohibit the open carry of firearms, so some police departments have used disorderly conduct statutes to arrest those carrying guns openly, saying the behavior fits the legal definition of disorderly conduct, because it "causes a disturbance or has the propensity to provoke or tendency to cause a disturbance."

    Attorney general J.B. Van Hollen has disagreed with that interpretation, citing constitutional protections in an April 2009 advisory memorandum to state district attorneys.

    "Applying (legal) principles to open carry matters, we recognize that under certain circumstances, openly carrying a firearm may contribute to a disorderly conduct charge," he wrote. "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."

    Open carry advocates also say a prohibition on open carry nullifies a citizen's right to keep and bear arms because the state does not allow concealed carry. If open carry can be construed by law enforcement as disorderly and thus also illegal conduct, the constitutional right is effectively proscribed, they argue.

    Enter Gonzalez

    In the end, the federal appeals court judge sided with open-carry opponents. According to Adelman, the very act of carrying a firearm in a public place is likely to provoke a disturbance.

    And, the judge said, reasonable people would know this to be the case.

    "No reasonable person would dispute that walking into a retail store openly carrying a firearm is highly disruptive conduct which is virtually certain to create a disturbance," Adelman wrote in her decision. "This is so because when employees and shoppers in retail stores see a person carrying a lethal weapon, they are likely to be frightened and possibly even panicky. Many employees and shoppers are likely to think that the person with the gun is either deranged or about to commit a felony or both."

    What's more, Adelman continued, it is almost certain that someone will call the police.

    "And when police respond to a 'man with a gun' call, they have no idea what the armed individual's intentions are," she stated. "The volatility in such a situation could easily lead to someone being seriously injured or killed."

    Gonzalez's case had stemmed from incidents in West Milwaukee and in Chilton.

    In May 2008, he entered a Menards store in West Milwaukee with an unconcealed firearm in a holster strapped to his thigh, the court stated. The store manager called the police.

    The officer taking the call told another officer they needed to go to the Menards "because the manager is complaining about a guy in the store with a gun" and that "employees were nervous, wigged out, freaked out, geeked out, something to that effect."

    Employees asked Gonzalez to leave the store, which he did. Police approached Gonzalez in the parking lot; he acknowledged wearing the firearm in the store and was subsequently arrested for disorderly conduct.

    In the Chilton case, in April 2009, Gonzalez and a cousin entered a Wal-Mart, again with Gonzalez carrying an unconcealed firearm in his holster. The store manager called 911, saying she was concerned about safety in the store.

    She also told police that seeing the gun "had shocked one of the store's employees, frightening him so much that he pretended not to have the keys necessary to obtain the ammunition that plaintiff wanted to buy," the court decision states.

    Officials did not ultimately pursue the disorderly conduct charge against Gonzalez in either case, but, in her decision, Adelman said that was irrelevant.

    Gonzalez subsequently filed suit, alleging he was arrested without probable cause in violation of his Fourth and Fourteenth Amendment rights.

    In assessing the issue of probable cause, Adelman again used what she termed a standard of reasonableness.

    "In determining whether an officer had probable cause, I place myself in the shoes of a reasonable person in the position of the officer, not an omniscient observer . . ., and I consider the totality of the circumstances," she wrote.

    And, she stated, probable cause does not require evidence sufficient to support a conviction nor even evidence demonstrating that it is more likely than not that the suspect committed a crime.

    "As long as the totality of the circumstances reveals a probability or substantial chance of criminal activity on the suspect's part, probable cause exists," Adelman stated.

    Therefore, she continued, determining whether there was probable cause to arrest Gonzalez for disorderly conduct boiled down to the question of whether "defendants reasonably believed that his conduct was 'otherwise disorderly ... under circumstances in which the conduct tends to cause or provoke a disturbance.'"

    And walking into a store with an openly carried gun would almost invariably cause a disturbance, she said.

    "(The officers) had probable cause to arrest plaintiff for disorderly conduct," she concluded. "Both officers had reason to believe that plaintiff had or was engaged in disruptive conduct under circumstances in which such conduct tended to provoke a disturbance."

    Georgia on my mind

    Of course, Adelman's opinion directly flies in the face of a Dec. 4, 2008, declaratory judgment in the United States District Court for the Southern District of Georgia, which declared that the seizure of a firearm in almost identical circumstances did violate the constitutional rights of the person.

    In that case, Zachary Nelson Mead filed a federal civil rights action after a sheriff's deputy, Tadum Townsend, stopped him outside a Kroger grocery store as Mead was returning to his car from shopping, according to federal court records. Mead was carrying an exposed handgun in a holster on his belt.

    The deputy seized the pistol.

    Though the sheriff's department eventually returned the firearm, Mead sued, contending the deputy had no probable cause to believe Mead had or was about to commit a crime and had no reasonable 'articulable' suspicion that he was committing or about to commit a crime.

    But, as in the Gonzalez case, the sheriff's department contended the deputy did have probable cause, because customers and employees were nervous. In that case, it was alleged that Mead was also acting "obnoxiously."

    According to the deputy, who was on routine patrol in the Kroger parking lot, "he was waved down by a customer who indicated there was an individual in Kroger acting in a bizarre and obnoxious manner and carrying a firearm."

    Unlike Adelman, who said officers did not have to have any evidence that a crime was about to be committed, or likely to be committed, the judge in the Georgia case said the officer had to have a "reasonable, articulable suspicion that criminal activity is afoot" beyond nervous customers.

    To make a showing that he or she in fact had reasonable suspicion, the court continued, "[t]he officer must be able to articulate more than an 'inchoate and unparticularized suspicion or hunch of criminal activity.'"

    The Georgia judge then wondered: Does the mere existence of an openly carried firearm represent reasonable articulable suspicion that "criminal activity is afoot"?

    The court then cited a number of precedents in which the mere presence of a gun did not justify a stop. In the end the court concluded the officer had no right to seize the firearm because the officer "under the facts and circumstances of the case" had no articulable reason to believe a crime was being committed but was instead acting solely on complaints from other shoppers.

    So, in the Georgia case, complaints by citizens who don't like the conduct were not sufficient to stop a person and seize a legally carried firearm, or provide probable cause for arrest, absent any other evidence of a crime; in the Gonzalez case, the judge declared, the carrying of the firearm itself is a crime because of the disruption citizens feel.

    What the two cases mean is that the issue will likely collide in the U.S. Supreme Court. Meanwhile, states that want to do so will probably use the recent decision to outlaw open carry through the disorderly conduct statutes.

    The shooting

    Meanwhile, Gonzalez faces felony counts of murder and attempted murder.

    According to the criminal complaint, on May 9 officers in Milwaukee responded to calls and reports of a shooting and arrived to find Danny John and Jered Corn with gunshot wounds.

    John, who died of his injuries, was having a hard time talking, the complaint states, but Corn was speaking with officers. He initially told one officer he did not know who shot him.

    In transport to the hospital, Corn told police that he and John were drinking in a bar, and he was walking by himself when an unknown Hispanic male shot him. Corn said he didn't have any altercation with anyone, and he did not know the person who had shot him, the complaint states.

    The bar he referred to was Mamie's, several doors from Gonzalez's home.

    "Corn said they (he and John) walked to that bar together," the complaint states. "Corn said that while inside there were no problems and that the two of them were laughing with each other but were not bothering anyone else. Corn said they were there for about 30 to 45 minutes when they decided they were going to go to one of John's friends house who lives just down the block."

    Corn told police he observed Gonzalez as he reached the driveway portion of the bar parking lot, standing about eight to 10 feet in front of him.

    "Corn described Gonzalez as standing there with his arm extended pointed at him," the complaint states. "Corn said that Gonzalez . . . then 'cocked the gun.'"

    Corn said he put his arms up and backed up approximately 10 feet with Gonzalez following him, when Gonzalez shot him.

    "Corn said he did not make any actions that could be perceived as a threat nor did he verbally threaten Gonzalez prior to being shot," the complaint states.

    John was found outside his running automobile, which he had gone to retrieve while Corn walked to the friend's house. The windows had apparently been shot out.

    Gonzalez's version

    For his part, after the shooting, Gonzalez himself called 911. Officers arrived to find him wearing an empty holster; a black handgun was sitting on top of what looked like stacked boxes inside the foyer between the outer door and the inner door of the residence in plain sight, the complaint states.

    During the 911 call, Gonzalez told the operator he had been attacked.

    "The operator then says 'Caller?' and a male voice answers, 'Yes' then the operator asks the caller what is going on and the male voice states, 'I just had two individuals try to assault me when I was going outside to move my car,'" the complaint states.

    The 911 operator asked Gonzalez if the men were armed.

    "I don't know what they had but they must have thought that I was not armed," he replied. He tells the operator he had been armed.

    Other versions

    In addition to the disparity between Corn's account of no altercation and Gonzalez's assertion that he had been assaulted, other witnesses provided stories that conflicted with Corn's version of events, though none so far are of the shooting itself.

    For example, one witness painted a different picture of the scene in Mamie's bar.

    That witness said John arrived first, followed by Corn.

    "(The witness) said when John walked in he had a bottle of beer with him and the bartender told John he could not have the beer and she took it away from him," the complaint states. "He said a short time later, about 30 seconds, another male wearing a white t-shirt came into the back door of the tavern and sat near the first subject. He said both were seated at the bar near the back and ordered a beer and were being loud, swearing and using the 'F word' a lot. He said at one point the bartender asked them to stop swearing but they continued to act foolishly. At one point they began burning money at the end of the bar. He said the two subjects were inside the bar about 5 to 10 minutes before the bartender finally asked them to leave."

    The witness told police they left but John took a bottle of beer with him; the bartender followed him, told him he could not take the beer, and John threw it in a dumpster.

    Not long after, the witness stated, police began to show up.

    Two cousins of John also indicate there was at least some kind of altercation with somebody. The cousins had called John on a cell phone between 12 and 1 a.m.

    "(One cousin) stated that he heard Danny's voice and the voice of another (cousin), identified as the above named Jered J. Corn, speaking on the other end of the cell phone," the complaint states. "(The cousin) said he initially heard Jered's voice yelling in the background but could not make out what Jered was saying. He then heard Danny's voice advising Jered to calm down. He then heard Danny's voice say something about something on a car that was broken. Danny further stated, 'Why did you do that?'"

    Another cousin in the room at the time of that phone call relayed a slightly different version to police, but nonetheless said she "believed that Danny may have been getting into a fight at that point."
    "Having a gun and thinking you are armed is like having a piano and thinking you are a musician" Col. Jeff Cooper (U.S.M.C. Ret.)
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  2. #2
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    Default Re: Federal court: Open carry of guns is disorderly conduct

    This is what people mean by "legislating from the bench", where a single judge decides that certain conduct should be illegal, even though the government branch that actually has the power to make it illegal has decided NOT to make it illegal.

    It's a form of tyranny, no better than if the Legislative branch sent people to jail, or the Executive enacted new laws (which the President does when he over-reaches with Executive Orders).

    This judge is doing exactly what only the Legislature has the power to do: say that this conduct, openly carrying a gun in public, is always a crime. That's a new "law". Judges can interpret and enforce the laws enacted by the Legislature and signed by the Executive, but judges are not allowed to create laws like this.

    The problem goes all the way up to the Supreme Court, which created the Miranda warning, abolished restrictions on abortion, and often creates new statutory rules without there being statutes properly enacted.

    Of course, with Congress deciding that there are no limits on Congressional power, and the President acting as though Executive Orders have the power of law, it's hard to blame the courts and state entities for usurping the same privileges.
    Attorney Phil Kline, AKA gunlawyer001@gmail.com
    Thanks to all who attended my Firearms Law Workshops this year!

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    Default Re: Federal court: Open carry of guns is disorderly conduct

    So what does this mean in plain English? in general?

    Then for us?

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    Default Re: Federal court: Open carry of guns is disorderly conduct

    It's sad that there is so much unfamiliarity with firearms that "non-gun" people can be afraid at the mere sight of someone carrying.

    If open carry can be considered criminal, then undercover, off-duty, retired, and any other non-uniformed law enforcement officer must be barred from open carry. The judge said it's a bad thing, likely to cause a disturbance.

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    Default Re: Federal court: Open carry of guns is disorderly conduct

    If open carry can be considered criminal, then undercover, off-duty, retired, and any other non-uniformed law enforcement officer must be barred from open carry. The judge said it's a bad thing, likely to cause a disturbance.

    Found the Judge's order:

    http://www.georgiacarry.com/gonzalez...0on%20MSJs.pdf

    Officers Donovan & Young had probable cause to arrest plaintiff for disorderly conduct. Both officers had reason to believe that plaintiff had or was engaged in disruptive conduct under circumstances in which such conduct tended to provoke a disturbance. No reasonable person would dispute that walking into a retail store openly carrying a firearm is highly disruptive conduct which is virtually certain to create a disturbance. This is so because when employees and shoppers in retail stores see a person carrying a lethal weapon, they are likely to be frightened and possibly even panicky. Many employees and shoppers are likely to think that the person with the gun is either deranged or about to commit a felony or both. Further, it is almost certain that someone will call the police. And when police respond to a “man with a gun” call, they have no idea what the armed individual’s intentions are. The volatility inherent in such a situation could easily lead to someone being seriously injured or killed.
    Hopefully they appeal.

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    Default Re: Federal court: Open carry of guns is disorderly conduct

    Just noticed this thread ... all I can say is WTF!

    This guy HAS to appeal this to a higher court!

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    Default Re: Federal court: Open carry of guns is disorderly conduct

    No reasonable person would dispute that walking into a retail store wearing a hoodie is highly disruptive conduct which is virtually certain to create a disturbance. This is so because when employees and shoppers in retail stores see a person wearing a hoodie, they are likely to be frightened and possibly even panicky. Many employees and shoppers are likely to think that the person wearing a hoodie is either deranged or about to commit a felony or both.
    See any parallels here?

    Any judge who makes sweeping statements about what any reasonable person would dispute, especially when it comes to the possession of inanimate objects, is an immoral person.
    Any mission, any conditions, any foe at any range.
    Twice the mayhem, triple the force.
    Ten times the action, total hardcore.

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    Default Re: Federal court: Open carry of guns is disorderly conduct

    By the judge's own "logic", driving a car must also be disorderly conduct. As it is a lethal instrument and the person driving "could" be deranged.
    _________________________________________

    danbus wrote: ...Like I said before, I open carry because you don't, I fight for all my rights because
    you won't, I will not sit with my thumb up my bum and complain, because you will.
    Remember Meleanie

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    Default Re: Federal court: Open carry of guns is disorderly conduct

    This makes me rage. When will people stop walking all over the constitution?

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    Default Re: Federal court: Open carry of guns is disorderly conduct

    Lets take this another way..

    No reasonable person would dispute that walking into a retail store with black skin is highly disruptive conduct which is virtually certain to create a disturbance. This is so because when employees and shoppers in retail stores see a person with black skin, they are likely to be frightened and possibly even panicky. Many employees and shoppers are likely to think that the person with black skin is either deranged or about to commit a felony or both.
    (emphasis and changes obviously mine)

    When are we going to treat it was such? I see the parallel, do you?

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