Gun Toting in Madison: Are All Constitutional Rights Considered Equal?

With the exception of Berkeley, California, the city of Madison, Wisconsin is probably the most liberal town in the United States, although activists there prefer the label “progressive.”  But an incident that occurred at a northeast side restaurant is testing the Madison Police Department’s respect for the state and federal Constitutions.   

On September 18, five men decided to pay a visit to a Culver’s restaurant, located near the popular East Towne Mall.  Seated at a picnic table outside, the men politely conversed over some custard that they had purchased.  The only thing that distinguished these particular customers from the others was the holstered firearms that they openly carried. 

Wondering if such conduct was lawful, a 62-year-old woman contacted the Madison police.  Soon, a swarm of officers responded to the call of gun-toting, custard eating men. 

When the officers arrived, they demanded identification.  Two of the five men politely declined to identify themselves.  They were handcuffed, searched, and issued tickets for obstructing the issuance of a citation.  In Wisconsin, however, individuals contacted by law enforcement are not required to identity themselves unless they’re operating a motor vehicle, where the law requires the production of a driver’s license.

A legal representative for the five men, members of a group that advocates the open carry of firearms, immediately threatened legal action.

And it looks as if the men may have a case.

It seems the actions of the Madison officers, and the subsequent response from their chief-of-police, runs contrary to a April 19, 2009, opinion issued by Wisconsin Attorney General J.B. Van Hollen.

“His [Attorney General Van Hollen’s] memorandum to prosecutors” writes Milwaukee Journal Sentinel reporter Patrick Marley, “says the mere act of having a gun does not warrant a charge of disorderly conduct, a position that pro-gun advocates have argued in several recent legal cases.” 

Van Hollen further explained that openly carrying firearms, even if technically legal, does not exempt those who do so from questioning.  Of course, the current state of the law allows a law enforcement officer to contact virtually anyone in a public place.  There is some ambiguity in the AG’s opinion as it relates to an official stop and the subsequent temporary detention of an individual if a reasonable suspicion does not exist that they are violating a local ordinance or state law, which goes to the heart of the Madison Police Department’s actions. 

After all, absent an officer’s belief that a reasonable suspicion exists that a crime is being committed, has been committed or is about to be committed, citizens are not obligated to comply when simply contacted by the police.

But instead of apologizing to the two men, who were handcuffed, searched and cited for doing nothing illegal, it appears that the Madison police have dug in their heels. After releasing the two citations for obstructing the issuance of a citation, Madison’s police chief, Noble Wray, ordered his officers to issue each of the five men disorderly conduct citations.

“The complaint clearly reveals she [the woman who called the police] recognized the potential for violence from these armed men and it was this fear that motivated her call to police,” Madison Police Department spokesman Joel DeSpain told the Wisconsin State Journal. 

On Friday, however, WTMJ talk-show host and former Assistant U.S. Attorney Jeff Wagner obtained the 62-year-old woman’s 911 call, where she clearly told the 911 operator that she was not disturbed but simply found the presence of openly carried firearms out of place.  On his show, Wagner went so far as to call Madison’s police chief “a liar.”

Listen to the 911 call by following this link: http://www.examiner.com/gun-rights-in-washington-dc/madison-five-911-call-video

It appears that, after the fact and facing the possibility of legal action from the open carry organization, the Madison Police Department sent detectives to re-interview the woman. Why these detectives were assigned follow-up to a complaint, that any objective person, having listened to the 911 tape would find baseless, I believe, points to some skillful posterior covering. 

But the police chief’s response goes further. 

In a September 22, 2010, news release, Noble Wray tells his officers that, “The individual [openly carrying a firearm] should be contacted, controlled, and frisked for weapons if appropriate. Officers should separate the suspect from any weapons in his/her possession during the encounter.”

But what if the party simply being ‘contacted’ for conduct the Wisconsin Attorney General believes is lawful does not wish to comply and is then ‘controlled’ and their lawfully held property seized for examination? Wray’s memo seems to place his officers in the field between the proverbial rock and a hard place.

You can bet that open carry advocates will continue to push the envelope and many of these issues will likely be decided in state and federal courts. 

In the meantime, taxpayers in the city of Madison—hang on to your wallets.

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Steven Spingola is a former Milwaukee Police Department homicide detective and the author of Predators on the Parkway: a Former Homicide Detective Explores the Colonial Parkway Murders.

© Steven Spingola, Wales, WI, 2010

9 Responses

  1. Glenn Frankovis

    Wray’s memo: http://www.cityofmadison.com/news/view.cfm?news_id=2231

    I agree with your assessment of this incident, Steve. Wray and/or the Madison City Attorney obviously recognized that there was no basis for the issuance of “Obstructing” citations, however Wray and/or the City Attorney elected to compound the problem by ordering the issuance of citations for D/C to all 5 guys. Wray’s basis for concluding that the elements of D/C had been met is an incredible stretch. For example, I have done extensive travelling throughout the United States since I retired from the Milwaukee Police Department in 2004. I’ve observed men openly carrying handguns in holsters in Arizona, other parts of Wisconsin and even here in the Milwaukee area. At no time did I feel concerned. What’s interesting in this Culver’s case is that only one person apparently exhibited enough concern to call the Madison PD, yet all the other customers and employees were not concerned enough to flee the establishment and/or call the Police. I would expect Wray’s Detectives would have attempted to interview those people as well to determine whether or not the conduct of these armed men tended to “cause or provoke a disturbance” in their minds. It is my opinion, based upon my 29 + years of Police experience (of which 23 years included supervisory positions through the rank of Captain of Police), that this was a decision made purely based on politics and not upon any facts sufficient to warrant such a disposition.

    September 25, 2010 at 7:38 pm

  2. Steve Spingola

    Glenn:

    I believe your assessment is right on the money. But, then again, you have a plethora of street level experience, both as an officer and as a supervisor. Those that don’t (and I’ve heard that Wray and some of the other command staff types there have very little hands on experience as street coppers) make decisons based on outcome-based, politically motivated ethics, not the Constitution. My concern is for his officers. He instructs them to make contact, which an officer can do at almost anytime, but then takes them directly to control (i.e. at a minimal a stop), and then to a seizure of lawfully possessed property for examination. Whatever happened to a developing a reasonable suspicion? Now they’re trying to make a square peg fit into a round hole.

    Steve

    September 25, 2010 at 8:37 pm

  3. Glenn Frankovis

    There is always another side of the story that we don’t often get, but from what has been reported, and Wray’s release of the Obstructing citations, I believe that what was reported was pretty close to accurate if not completely accurate. Any cop who has been properly trained should know that a cop can ask for ID but cannot issue a citation for Obstructing if the subject refuses to comply. Absent some other offense, there is no violation of law for refusing to identify yourself. Now Wray’s interpretation of D/C is absurd. Under his definition, if I’m sitting in my car outside a bank, and someone inside the bank gets scared simply because I’m parked out there and calls the cops, I could be issued a citation for D/C. That is bullshit and any real cop would know that. In fact, I wouldn’t even have to identify myself to the cops who responded in such a scenario. Obviously there are many factors which could alter my obligation to comply with an Officer’s directive, but I’m talking about normal business hours and merely sitting in my car.

    I understand very well how any cop would feel under the Culver’s scenario, however I have been to numerous places in the country – and even in the Milwaukee metro area – where I happened upon one or more guys who were openly carrying and never once did I feel uncomfortable. Now if I was in uniform, I’d be paying close attention to them as I am readily identifiable unlike a plainclothes guy, but under the current law there is no legal basis for a cop to approach the subject and take his weapon while talking with him nor is there any legal requirement for the subject to even talk with the cop absent any other surrounding circumstances. I know that sounds crazy, and it goes against everything I learned during my time on the job, but that’s how it is now. Again, circumstances dictate and if the guy is agitated or gets agitated, then the cop has to take all necessary precautions.

    So what would I advise my people to do? Approach as you would any other FI but be on guard and provide clear directions to the subject not to make any movement toward his weapon. No less than two Officers should be sent to such an assignment with one taking a position where he can cover and the other doing the talking. I wouldn’t even have a problem if the cover Officer had his weapon at what we call the low ready, meaning it’s out of the holster but not pointed at the subject(s).

    You know, this is going to be an issue even when we get Concealed Carry. Officers will/should be taught to ask if the person they are dealing with is armed and a procedure will have to be in place providing the Officer with directions as to how to proceed if the subject is armed. Flynn’s bullshit of “putting them down on the ground” ain’t gonna cut it. As I have said in the past when this topic first came up after Van Hollen’s Opinion, I wouldn’t follow such a directive. I would merely hold my hands/arms out to the side and away from my weapon and inform the Officer that I am legally armed. If the Officer wanted to draw down on me, that’s okay, but I’m not going to the ground if my only offense was that some old lady was afraid of a gun that I had every legal right to carry.

    September 25, 2010 at 10:34 pm

  4. Neal

    Dear Spingola Files,

    Please get the word out that the municipal tickets given to the five men are going to City of Madison Municipal Court. Judge Daniel P. Koval resides over this court. He is the brother of Madison police sergeant Mike Koval, who teaches law to Madison police recruits at their academy. Dan Koval is a former employee of the Madison City Attorney’s office. No conflict of interest here, right?

    http://www.cityofmadison.com/municipalcourt/

    In Dane County, the local pols pretty much cover for each other. They understand whomever controls the machinery rules the day. If Dan Koval does the right thing and recuses himself, you can bet the city’s political hacks will find another ringer out there to give them the verdict they want. Then where will these law-abiding gun owners appeal? The Dane County Circuit Court or the Court of Appeals that is located in Madison? Good luck. All are backers of the city’s powers structure. Only the state supreme court will judge the cases on their actual legal merits.

    Neal

    September 27, 2010 at 10:55 am

  5. Steve Spingola

    Neal,

    I don’t know the people involved in these open carry organizationns. Hopefully, they will read your post on my stie. If what you say is true, the judge should recuse himself.

    Steve

    September 27, 2010 at 9:13 pm

  6. James J

    Just curious, how does the officer know that the man with the gun “exercising his constitutional rights” is not a criminal without getting his name and running a check? If it is legitimate for an officer to do the same for a traffic stop why isn’t it legitimate for a gun check?

    I hate to also bring in the specter of racism into the discussion but if an officer encountered a black man “exercising his constitutional rights” at 34th & Brown would he also see no cause for alarm?

    October 13, 2010 at 3:49 am

  7. Steve Spingola

    James,

    Believe it or not, the pollice cannot just randomly stop people and “check” them out. In order for a stop to fall under the perview of Terry v. Ohio, an officer must articulate that a “reasonable suspicion” exists that a crime or ordinance violation is being committed, has been committed, or will be committed. Simply carrying a gun in the open is not a crime, as Wisconsin’s attorney general noted. Arresting, searching, and handcuffing a person for doing nothing unlawful (such as not identifiying one’s self) is tough to justify. As far as race goes, African-American citizens have the same rights as white citizens do.

    Steve

    October 13, 2010 at 6:17 pm

  8. MITCHELL

    Some of the comments here lend themselves to debate. If a person is legally open carryining and a officer draws on the person who is open carryining for the sake of checking him out, the open carry person would have the right to draw on the officer.

    December 4, 2010 at 4:03 am

  9. Steve Spingola

    Mitchell, before you post items and put thoughts in the minds of those on the fringes of the debate, you should get a grasp of the law in the State of Wisconsin.

    Wisconsin State Statute 941.20(1m)(b) states:

    “Whoever intentionally points a firearm at or towards a law enforcement officer, a fire fighter, an emergency medical technician, a first responder, an ambulance driver, or a commission warden who is acting in an official capacity and who the person knows or has reason to know is a law enforcement officer, a fire fighter, an emergency medical technician, a first responder, an ambulance driver, or a commission warden is guilty of a Class H felony.”

    The bottom line: the public cannot legally use force or the threat of force against a peace officer in Wisconsin. The altervative is the state and federal courts, where criminal violations are prosecuted and/or lawsuits brought.

    Furthermore, if a police officer confronts a person with a gun, it certainly would not be unreasonable for an officer to remove his or her firearm from their holster and move it to the ‘ready’ position. If the person armed made any movements, whatsoever, after the officer gave commands, in my opinion, it would NOT be unreasonable for the officer to point his or her firearm at the person armed. It is way over the line to suggest that police officers should be required to put their lives on the line by guessing who is a good guy and who is a bad guy. They start from assuming that an armed person may try to take their life and then investigate. Walk-a-mile in the shoes of a police officer and you’ll understand. The kind of game you’re asking the police to pay will result in officers being shot.

    December 4, 2010 at 1:28 pm

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