Judge finds Krause not guilty in open carry tangle

A municipal judge has found West Allis resident Brad Krause not guilty of disorderly conduct for openly carring a holstered firearm while planting trees in his yard, saying state law does not prohibit open carry and that state and local ordinances cannot trump the U.S. Constitution.

Judge Paul Murphy also used his oral decision to chastise the state Legislature for not clarifying the legality of open carry - the carrying of legal firearms in plain public view - and he chided the state's attorney general for refusing to take a stand.

West Allis police stormed Krause's property with their weapons drawn last August after a neighbor had called police and inquired about the legality of Krause's visible firearm. Officers subsequently charged him with disorderly conduct and confiscated the pistol.

Speaking to reporters on the courthouse steps after the verdict, Krause said he was simply exercising his constitutional rights - an exercise he did not need to justify.

"The state constitution applies border to border, so whether I'm in my yard or walking down the street, as long as it's not a place where it is prohibited by law to possess a weapon and I'm not a felon who is not allowed to possess a weapon, this is an infringement on human rights," Krause said. "The freedom of rights is one of the things that sets America apart from other countries and that is something we hold very dear to us."

"The reason people are upset is because this is not just about guns, but about civil liberties," he said, acknowledging the almost 50 people who appeared at the courthouse to support him. "The police had no permission to enter my property. There were no exigent circumstances. But they entered my property and put my life at risk. My wife was worried she was going to be a widow because I was planting a tree."

Gun rights advocates hailed the verdict but said the question of open carry was far from settled.

"I actually hope the city will appeal because we need clarity on the issue," said Gene German, a founder of Wisconsin Patriots, a grassroots organization that promotes individual rights. "The question is, if Brad straps a gun on his hip tomorrow, what will the police do? Will we be here all over again?"

Echoing German, Murphy underscored the limited reach of his decision - on that day in August, he concluded, Krause's conduct was not disorderly - but he nonetheless recognized the constitutional underpinnings of the case, and engaged in a broad discussion of their inherent complexities.

"The constitution is an important matter in this case," Murphy said at the outset, citing the Second Amendment and the U.S. Supreme Court's decision last year upholding an individual's right to keep and bear arms.

The gist of the case, he said, revolved around that latter right, and he quickly tipped his hand about the direction in which he was heading.

"The Bill of Rights exists to protect people from government, and does not exist to sanction government to do certain things to people," he said.

Within that constitutional framework, the judge began to dissect whether Krause's conduct was disorderly.

In so doing, he observed that the neighbor had called to inquire about the legality of Krause's gun-carrying and that the police had responded to an incident involving a "proverbial man with a gun."

"The neighbor testified (at an earlier hearing) that he was concerned about the gun going off," Murphy recounted. "But [the neighbor] said [Krause] was not causing a disturbance. [The neighbor] was concerned about the defendant's safety and about the legality. There were no children present. The court concluded that the neighbor wanted the police department to have a talk with the defendant and didn't think he would be arrested."

Murphy also cited police testimony from the earlier hearing, in which officers conceded that Krause was not agitated.

"Again, he was not doing anything but gardening on his property," the judge said. "He was a planting a tree, as I recall."

The judge referred implicitly to the statutory and case-law standards for proving disorderly conduct. That conduct is defined as behavior that is violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly, and the state must prove that the defendant's conduct occurred under circumstances where such conduct tends to cause or provoke a disturbance.

Clearly, Murphy said, Krause was not violent, abusive, indecent, profane, boisterous, or unreasonably loud.

"So the issue is, was he 'otherwise disorderly,' under circumstances that would tend to cause a disruption?" Murphy said.

To answer the question, the judge focused on the state's gun laws, noting there is no open-carry statute, only a prohibition on concealed carry. The state also has created specific exceptions to carrying firearms, such as in public buildings, he said.

Interestingly, he observed, the statutes also prohibit the carrying of a handgun where alcoholic beverages may be sold or consumed.

"It doesn't say anything about concealed or unconcealed, and other guns are apparently permitted," Murphy said. "It says 'handguns.' Presumably you could carry a shotgun or a rifle."

Murphy characterized some restrictions as 'preposterous,' such as requiring licensed private security guards or private detectives to openly carry firearms in a state such as Wisconsin, where, he said, "people wear coats and jackets."

Beyond statutory restrictions, Murphy pointed to various occasions on which people carry firearms openly and are not arrested or hampered by police.

"Open carry is allowed in many places," he said. "In West Allis, for years, there was a parade (where people carried openly), and I don't recall anyone being arrested. On Memorial Day and Veterans Day, there are gun salutes fired by proud veterans who served us honorably. They have open weapons on public land. That's allowed and it should be."

In addition, Murphy pointed to Civil War re-enactments by the West Allis Historical Society, events during which guns are carried and discharged.

Murphy then cited state of Wisconsin v. Hamdan, in which the state Supreme Court carved out an exception allowing private employers to carry concealed weapons.

Given actual practices and the lack of statutory clarity, Murphy suggested it might be time for the Legislature to act, and he cited the Hamdan decision, in which justice David Prosser encouraged the Legislature to do just that.

"The approval of a state constitutional right to keep and bear arms for security, defense, hunting, recreation, and any other lawful purpose will present a continuing dilemma for law enforcement until the legislature acts to clarify the law," Prosser wrote for the majority. "We urge the legislature to thoughtfully examine [the concealed carry statute] in the wake of the amendment and to consider the possibility of a licensing or permit system for persons who have a good reason to carry a concealed weapon. We happily concede that the legislature is better able than this court to determine public policy on firearms and other weapons."

That decision was filed July 15, 2003, Murphy pointed out, and he said the Legislature had ignored the admonition.

"From 2003 until now, to this court's knowledge, the Legislature has done nothing," the judge said. (In fact, the state Legislature has twice passed concealed carry legislation since 2003; Gov. Jim Doyle vetoed both versions).

One easy solution, Murphy said, would be for the Legislature to simply add "unconcealed carry" to the concealed carry prohibition, and let the courts deal with its constitutionality.

The judge also took a swipe at attorney general J.B. Van Hollen for not offering his own opinion on the legality of open carry.

"The attorney general declined to weigh in, I read in the newspaper," Murphy said. "The attorney general could have taken a great step to clarify the issue, but, for reasons known only to him, he did not."

The judge said the refusal of political officials to tackle the matter had put police departments in jeopardy.

"The troubling aspect of this is, what impact does all this have on the police department and what are they supposed to do?" Murphy stated. "I don't know. The inaction of the Legislature has put the police department at risk no matter what they do because the Legislature has refused to clarify [this issue] despite the strident warning of justice Prosser."

And so, the judge said, with no law dealing with open carry, or legal clarity on the question, "that is why we are here today."

The lack of a statutory prohibition on open carry and existing open carry practices notwithstanding, the judge did consider one other way Krause might have been disorderly: Did his conduct rise to such an offensive level that it would likely lead to a disturbance?

"In his testimony, [the neighbor] testified that he was concerned and disturbed," Murphy said. "He didn't like the idea of a gun in a holster across the street."

Murphy said his court had held lengthy discussions before about offensive behavior, including the display of a Nazi flag.

"To me that is one of the most abhorrent symbols of all, but in and of itself it is constitutionally protected," he said

Murphy cited the U.S. Supreme Court's famous decision allowing a uniformed Nazi march in Skokie, Ill.

"The march never did take place, but the Supreme Court allowed it, even though they found it was likely to provoke a disturbance," the judge said. "The conclusion is, the constitution has to trump over state law. You cannot restrict a constitutional right by virtue of an ordinance."

Given the clear and direct facts of the case, Murphy concluded, the court "finds that the defendant's conduct was not 'otherwise disorderly' and finds the defendant not guilty."

For one thing, Krause has filed a notice of claim against the city of West Allis, a necessary precursor to a potential civil suit. For another, the city itself might appeal.

Even if they don't, the police still have Krause's gun, and Krause said after the verdict he thought they planned on keeping it for some time.

"My understanding is, they will not be returning my gun," he said. "My only option is a civil suit, to sue them to get my property back."

Indeed, Murphy said his court lacked the jurisdiction to order the gun's return, no matter the verdict. If the police don't voluntarily return the firearm, Krause must seek relief in circuit court.

In other remarks, Krause said he had hoped things would never reach the point they did.

"I had hoped that we could come to some agreement before we got to this stage," he said. "But that was not the city's position. They were going to take it as far as they could."

"This is a prime opportunity for the attorney general to clarify the issue, whether open carry is legal or it isn't, so other people are not put in the same position I was put in," he said.

"This is first and foremost a training issue," he said. "The Department of Justice has guidelines on the use of lethal force and the police should follow them. We give these guys badges and stars and guns, but there's no adequate training."

Why can't the large papers hire someone who writes as clearly and who investigates as well as Richard Moore?

Oops, I forgot. It doesn't fit their agenda. (Though I must say that the Milwaukee Journal Sentinel did not do too badly with Linda Spice on this story)

Even if they don't, the police still have Krause's gun, and Krause said after the verdict he thought they planned on keeping it for some time.

"My understanding is, they will not be returning my gun," he said. "My only option is a civil suit, to sue them to get my property back."

Time and again we are shown that not all thieves have to fear the police, a fair number enjoy their protection.

This actually sounds like a sensible judge. A rare and vanishing species.

He lays it all out so anyone can understand the decision—and the negligence of the cowardly politicians.

The problem stems from a neighbor who couldn’t mind his own business and who has an illogical fear that a holstered gun will fire of its own accord;my experience is that police officers are involved in lots of accidental discharges.The local city dept nearby has had one officer killed at the kitchen table and another fired off a round in the mental health clinic!

“In his testimony, [the neighbor] testified that he was concerned and disturbed,” Murphy said. “He didn't like the idea of a gun in a holster across the street.”

And yet the neighbor somehow isn't disturbed about the idea of hoards of policemen swarming in with their guns drawn and arresting his neighbor? There is no legal ambiguity in the words “shall not be infringed”, and yet we find a judge wringing his hands over whether a homeowner was violating a law by wearing a firearm openly on his own property. Clearly, to me at least, he wasn't. I've read the Constitution. It doesn't contain a preemptive clause that says “unless your neighbor's nose gets bent out of shape”.

Why shouldn’t they? It’ll cost more than the gun is worth to fight for it in court and these thieves are counting on him letting it go.

They win either way, he is out his gun or he is out a large chunk of cash in legal bills and the message is sent, “Don’t dare go against the badge or you lose. One way or the other.”

"In his testimony, [the neighbor] testified that he was concerned and disturbed," Murphy said. "He didn't like the idea of a gun in a holster across the street."
Murphy said his court had held lengthy discussions before about offensive behavior, including the display of a Nazi flag. "To me that is one of the most abhorrent symbols of all, but in and of itself it is constitutionally protected," he said
Judge, are you an idiot? Carrying a gun in a holster is also constitutionally protected, no matter how offensive it may be to an anti-gun nut across the street.

Speaking of nuts across the street, Perhaps Krause should be calling the police on him every time he does something that annoys him, like breathing, running a lawnmower too loud, public indecency etc.

Better to file a lawsuit on constitutional grounds and when the city tries to settle get the gun thrown into the settlement.

The guy has a decent curtilage argument in this case. At least good enough to scare the city attorneys. Within his curtilage and without exigent circumstances the police don't have grounds to enter the property.

Attention Freeper Dopers: This is just an example. Don't attack. Go back to your bongs.

Let's use the example of the same guy planting a marijuana plant. If it's inside the white picket fence, it should still require a warrant. It is an Open Field observation, so a warrant will be easy to get, but it still requires a warrant.

The police action was all based on the holstered weapon being some threat to the public, and that obviously didn't hold up in court. Partly because of the law and partly because the neighbor testified that he didn't feel threatened. If the two neighbors were arguing on the sidewalk about the disposition of dog poop things would probably be different.

“In his testimony, [the neighbor] testified that he was concerned and disturbed,” <<

Disturbed? Hmmm..I think he meets one of the criteria of “Disorderly Conduct” ....The police arrested the wrong man!

Mr. Krause needs to file a Federal Civil Rights suit using 18USC241 and sue the City into Bankruptcy along with every single Police Officer involved.

I'd toss the Prosecutor in there, too.

Once he owns the streets, sidewalks, and parks of West Allis he can enter into 'negotiations' with them as to when he takes City Hall as his new home.

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