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Restaurant incident reveals confusion over open carry(WI)
madison.com ^ | 21 September, 2010 | SANDY CULLEN

Posted on 09/23/2010 5:24:36 AM PDT by marktwain

A 62-year-old woman visiting a local Culver's sees several restaurant patrons with guns on holsters in plain view.

She doesn't know that Wisconsin law allows people to openly carry a firearm, so she notifies authorities, later telling them, "I didn't want to be that one person that saw guns and didn't call and something horrible happens."

Officers arrive to find five armed men at the restaurant near East Towne Mall. In an effort to determine whether there is any threat to public safety, they ask to see the men's identification to make sure they're not felons, who are prohibited from possessing firearms.

To some, the actions by Madison police Saturday evening are reasonable. But members of gun rights organizations say police had no reason to suspect the men were felons. And what happened next, they say, amounted to the illegal search and detention of two of the men when they refused to provide their IDs.

Shawn M. Winrich, 33, of Madison, said he remained silent when police asked if he would provide his ID. Police then told him he was being placed under arrest, and he was handcuffed, disarmed, searched and held until police determined he was not a felon, Winrich said.

Winrich and Frank R. Hannan-Rock, 53, of Racine, were then given municipal citations for obstructing an officer, Madison police spokesman Joel DeSpain said.

But Auric Gold, secretary of Wisconsin Carry, and Mike Stollenwerk, cofounder of OpenCarry.org, said police do not have the right to demand that people identify themselves without probable cause to believe they've committed or are about to commit a crime.

That was not the case with the five Wisconsin Carry members who had simply gotten together to meet and have a meal, Winrich said.

Winrich said he began carrying a gun about four months ago for personal safety and routinely takes it anywhere it is lawfully permitted without incident.

"People know it is legal and it's not something to be concerned about," he said. "Most people really don't have much of a problem with it. They're just kind of curious."

But Winrich, who made an audio recording of the encounter with Madison police, said he carries a recorder in case a problem arises. He said he chose not to give his ID to Madison police because of "the attitude and the overstepping of authority that they had."

Wisconsin Carry won a $10,000 judgement against the city of Racine and its police department after Hannan-Rock was involved in a similar incident there, Gold said.

Openly carrying a firearm is "just like anybody else carrying a carrot down the street, or a cell phone," Stollenwerk said, adding that police in the 43 states that allow some form of open carry have become accustomed to people's right to have a firearm. "This stuff doesn't happen in the rest of the country anymore."

Madison Police North District Capt. Cameron McLay said he believes officers acted appropriately in responding to a report of armed men in a public place in an urban setting, and the caller's concern that something might happen.

McLay said police were going into "a highly ambiguous situation" and had to determine if a crime had been or was about to be committed and preserve public safety, while assuring the rights of all involved. "This is what the officers did in this case to the best of their ability."

But McLay questioned whether obstruction was the correct citation given the circumstances. On Monday, detectives were sent to Culver's for further investigation to determine if another criminal charge, such as disorderly conduct, is warranted, McLay said.

Based on initial police reports, he acknowledged, "There is no indication that a disturbance had taken place."

McLay declined to comment on the legality of searching and detaining Winrich and Hannan-Rock until the police investigation is completed.


TOPICS: Constitution/Conservatism; Government; News/Current Events; US: Wisconsin
KEYWORDS: banglist; opencarry; police; wi
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To: ltc8k6
officer may stop a person in a public place for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime

so what did they telepathically determine to be the crime ???

remember too, that *if* one of those guys was a 'prohibited' person, he has 5A protection from being required to state it...

121 posted on 09/23/2010 7:28:24 AM PDT by Gilbo_3 (Gov is not reason; not eloquent; its force.Like fire,a dangerous servant & master. George Washington)
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To: stuartcr
How could the operator know if they were carrying legally? They could have been felons, that’s why the ID check.

In the history of our country concealed carry was generally frowned upon since a concealer, unless of known good character, likely had a nefarious reason to conceal. Honest, law-abiding people usually chose to carry openly. There was no question of intent to commit a crime since they obviously were not trying to hide the fact that they were armed.

122 posted on 09/23/2010 7:29:12 AM PDT by antiRepublicrat
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To: stuartcr
They were responding to a 911 call.

Yes, and then started harassing the men.

123 posted on 09/23/2010 7:31:32 AM PDT by Balding_Eagle (If America falls, darkness will cover the face of the earth for a thousand years)
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To: Gilbo_3

They have to reasonably suspect, not prove...

It’s crystal clear. An officer can suspect a crime with no crime. It’s common sense.

There does not have to be an actual crime for an officer to reasonbly think there might be one and detain and question you.

Can’t understand why it’s so hard to grasp...

Here’s some more:

968.24 - ANNOT.
The potential availability of an innocent explanation does not prohibit an investigative stop. If any reasonable inference of wrongful conduct can be objectively discerned, notwithstanding the existence of other innocent inferences that could be drawn, the officers have the right to temporarily detain the individual for the purpose of inquiry. State v. Limon, 2008 WI App 77, 312 Wis. 2d 174, 751 N.W.2d 877, 07-1578.


124 posted on 09/23/2010 7:31:50 AM PDT by ltc8k6
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To: Wonder Warthog

Since it is a crime to have a weapon if you are a felon, how would the police know if these guys were not felons if he didn’t check? I think that is the reasonable suspiscion.

Just think how surprising it would be if a criminal did open carry, knowing that no one would check on them??


125 posted on 09/23/2010 7:32:06 AM PDT by stuartcr (Nancy Pelosi-Super MILF.................................Moron I'd Like to Forget)
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To: chilltherats
even better, the other report stated that the 'tape' had the cops intheir own words saying that the guys were probably not a threat, but that they had to check it out...

cops are hosed and trying to bully their way out...

126 posted on 09/23/2010 7:33:31 AM PDT by Gilbo_3 (Gov is not reason; not eloquent; its force.Like fire,a dangerous servant & master. George Washington)
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To: Balding_Eagle

I do not have a problem with them checking IDs. I do have a problem with what they did after. I think they all should have shown ID, then we probably wouldn’t have even heard of the incident.


127 posted on 09/23/2010 7:34:12 AM PDT by stuartcr (Nancy Pelosi-Super MILF.................................Moron I'd Like to Forget)
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To: antiRepublicrat

They could have been felons, so the police have a responsibility to verify they weren’t.


128 posted on 09/23/2010 7:35:37 AM PDT by stuartcr (Nancy Pelosi-Super MILF.................................Moron I'd Like to Forget)
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To: stuartcr
Driving a car without a license is a crime...so anybody simply driving a car could be checked without having done anything further?

A convicted sex offender cannot pal around with little kids, so shouldn't an officer stop someone out with their kids to check if they're his kids or whether he's a pedophile?

Unless the cop has reasonable suspicion to believe they were felons, he had no reasonable suspicion to question the legality of their actions.

As I said before, however, I think it would have been reasonable for him to request identification, while acknowledging that it was not required. Policing used to be a more cooperative endeavor rather than brute force.

129 posted on 09/23/2010 7:35:48 AM PDT by grady ("Peace is that brief glorious moment in history when everybody stands around reloading." - Unknown)
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To: stuartcr

that is what happened in 1930’s germany.

Papers please.

what next domestic travel permits?


130 posted on 09/23/2010 7:35:55 AM PDT by longtermmemmory (VOTE! http://www.senate.gov and http://www.house.gov)
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To: grady

They don’t need an actual crime. They need to reasonably be suspicious of what might have been going on.

The law in WI is pretty clear and has a wide leeway for the officers.

The 911 call clearly qualifies as a reason to detain and question them under WI law.

If you want to argue about the law, that’s fine, but it’s a completely different argument.

The officers were, under WI law, completely justified in detaining and questioning them as far as I can tell by reading the statutes and the annotations.

http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=968.24


131 posted on 09/23/2010 7:35:58 AM PDT by ltc8k6
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To: Past Your Eyes

Been a Badge Lapper very long?

The Constitutional issues in this situation are hardly guarantees to be waived to keep statists, hoplophobic lil’ old ladies, or ill trained cops happy.


132 posted on 09/23/2010 7:36:52 AM PDT by GladesGuru (In a society predicated upon freedom, it is essential to examine principles,)
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To: Gilbo_3

okay, so i dont like your use of the 1A here, i think I’ll call the po-po and have you investigated...you MUST comply with their illegal demands because i required them to ‘investigate’.


yeah you could really do that in a other forms (and it would not be the cops fault that they had to investigate your call and this is my whole point). this would be easier that you might think. all you would have to do is to call the police and tell them that you heard someone screaming inside my house and short after that you have heard that shots have been fired. guess what would happen? of course the police would come and investigate me (but this would not be the fault of the police!) “btw. i should better be at home because if nobody opens the door “you” would have a good chance that the police would even break your door.


133 posted on 09/23/2010 7:36:59 AM PDT by darkside321
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To: Gilbo_3

Did they say that before or after asking for ID?

http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=968.24


134 posted on 09/23/2010 7:37:38 AM PDT by ltc8k6
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To: longtermmemmory

Then change the law...

http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=968.24


135 posted on 09/23/2010 7:38:23 AM PDT by ltc8k6
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To: marktwain
But Auric Gold, secretary of Wisconsin Carry, and Mike Stollenwerk, cofounder of OpenCarry.org, said police do not have the right to demand that people identify themselves without probable cause to believe they've committed or are about to commit a crime.

This is a joke right? ...wasn't the Ian Flemming character Auric Goldfinger?

.

136 posted on 09/23/2010 7:39:00 AM PDT by Elle Bee
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To: ltc8k6
The operative part:
when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime
If they're just sitting there calmly eating lunch, then there is no reasonable suspicion of a crime, thus no reason for identification. BTW, every state is technically a "stop and identify" state according to the Terry precedent. The laws just clarify things and set statutory limits for police.
137 posted on 09/23/2010 7:39:18 AM PDT by antiRepublicrat
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To: stuartcr

How many felons open carry? In a restaurant?


138 posted on 09/23/2010 7:39:27 AM PDT by Dead Corpse (III, Alarm and Muster)
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To: darkside321

Pretty sure it doesn’t work that way, and the police ended up dropping the charges because they were in the wrong to arrest. Since open carry is legal, there is no probable cause or reasonable suspicion from that basis alone. This wasn’t a roadblock or traffic stop, so the rules that apply to those situations don’t apply here.

Officers can ask for ID, but the legal question is whether or not the men at the table were required to provide it to them, not whether the police could ask. I don’t know Wisconsin law, but the article seems to imply that there was no such requirement to provide ID— or the charges wouldn’t have been dropped.

And since there is an open carry law in Wisconsin, it is the same as carrying a cell phone as far as the law is concerned.


139 posted on 09/23/2010 7:39:39 AM PDT by Comstock1 (You can't have Falstaff and have him thin.)
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To: Blueflag

This is from a poster at madison.com:

Ben Masel said on: September 22, 2010, 6:47 am
@bones1954:

while police may REQUEST ID at any time, they may DEMAND that one identify oneself only when they have “reasonable articulable suspicion” of a particular crime. See Hiibel v Nevada, Brown v Texas, and Kolender v Lawson, Supreme Court cases.

Even then, it’s not required to carry a physical ID except when driving, boarding a plane, etc


140 posted on 09/23/2010 7:39:58 AM PDT by Balding_Eagle (If America falls, darkness will cover the face of the earth for a thousand years)
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