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 in such a situation could easily lead to someone being seriously injured or killed.

So sayeth the United States District Court Eastern District of Wisconsin.

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2 COMMENTS

  1. I hope he's able to appeal because I think the court got it wrong.

    I'm not a fan of open carry, as I've stated many times here. And I'm even less a fan of confrontational, open-carry advocates, most of whom seem to be a couple rounds shy of a full magazine, if you know what I mean.

    But the issue, to me, is this: Was carrying a weapon legal under Wisconsin state law?

    That's not a subtle or a nuanced question, it's a simple one that the Court dodged. It's black-and-white. Either the open carrying of firearms is legal under State law or it's not. (The court's statement that the Wisconsin Constutition does not explicitly allow open carry is a dodge – there are other sources of law besides the State Constitution, specifically the state and municipal codes.)

    Now, if open carry is legal in Wisconsin and in the municipality in which this occurred (which I assume it was because the plaintiff here was not charged and his weapon was returned to him), then the next question is this: If the open carrying of a firearm is explicitly legal under state law, can the mere fact that other people are offended, shocked or frightened by it, enough to make it inherently disruptive?

    I don't see how it could be. Now, if he walked in with the gun on his hip, and was making threatening, suspicious, or incoherent statements and actions, then I think the Court could argue that such things would cause a reasonable person to think a crime was about to be committed. But those are questions of fact that should be submitted to a jury, not questions of law that can be used as a basis for summary judgment (in this case, summary judgment = judge dismisses the case before it gets to a jury.)

    I don't see how one persons' conduct, which is explicitly legal, can be made illegal by the fact that some other person reacted badly to it. Take a similar situation in a 1st amendment context:

    Nobody would dispute that if a person was standing in front of Wal-Mart waving placards, screaming "Abortion is Murder!" at the top of his lungs, haranguing passersby and otherwise creating a disturbance, that this would be disruptive conduct that is punishable by law.

    But suppose instead that the Anti-abortion activist walks into wal-mart with a T-shirt showing a graphic photo of an aborted baby and the words "Abortion is Murder." Can the passive wearing of that shirt be transformed into "disruptive conduct" by the fact that someone else is shocked, offended, or angered by it?

    I see this as a similar fact pattern. If all he was doing was wearing the gun (which I presume is legal) and nothing more, then how can his actions be disruptive?

    If Wal-Mart wants to post a sign that reads "No firearms permitted on our property" they are, of course, free to do so (bet they have a sign like that now – which is another reason I oppose open carry.) But in the absence of such a sign, seems to me their recourse should be to courteously inform the gentleman that firearms are not permitted and tell him to either put the weapon in his car or leave the store. Now if, at that point, he becomes belligerent or threatening, by all means, call the po-po and throw his ass in jail for creating a disturbance.

    But in this case, the Court has far overstepped its bounds by making a legal act (the open carry of firearms) presumptively illegal by characterizing it as "inherently disruptive."

    Sorry, but defining crimes is the job of the legislature, not the Court.

  2. This judge is simply ANTI-GUN. Everybody knows it. The police ADMIT to every thing alleged in the suit and the judge still dismissed.

    Hold no weight as far as I'm concerned, I carried yesterday and I'll carry again today.

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