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City failed to prove gun was used in commission of a crime, so it must be returned to owner

Aaron v. Ols v. City of Milwaukee, 2013AP1882, District 1, 6/24/14 (not recommended for publication); case activity

Ols is entitled to the return of his firearm under § 968.20 because there is insufficient evidence that Ols used the firearm in the commission of a crime.

Ols was charged with disorderly conduct while armed (later reduced to a municipal ordinance violation) for getting in a verbal altercation with another man in the park across the street from his home. Ols had his gun with him but kept it holstered. After Ols retreated to his property, the other man followed and threatened Ols, so he drew his gun and pointed it at the ground. (¶¶2-6).

When Ols sought return of the gun under § 968.20 the City argued it couldn’t be returned because it was used in the commission of a crime, § 968.20(1m)(b). At a hearing on his request Ols described what happened; the City presented no evidence, and even conceded Ols was arrested for his conduct in the park, not on his property. (¶¶3-4, 9-11). The circuit court denied Ols’s motion on the grounds the incident was one continuous event. (¶7).

The court of appeals reverses, rejecting the City belated argument that the incident was one ongoing event (¶11) and holding it hasn’t proven by the greater weight of the credible evidence (¶8) that Ols’s firearm was used to commit a crime:

12      Given the City’s concession before the circuit court, we are limited in our review to the incident in the park. The parties both admit that the record is woefully undeveloped regarding what happened at the park. All we have is Ols’s statement that he went to the park, while armed, and confronted a man, his fiancée, and two children, to tell them that they were violating park rules. According to Ols, the man “became belligerent” with him first, and, in response, Ols used profanity in front of the man’s children. There is nothing in the record indicating that while Ols was at the park he touched his firearm, flashed his firearm, referenced his firearm, or that the man was even aware that Ols had a firearm in the park. In short, even if we assume that Ols’s behavior at the park amounted to disorderly conduct under the law, there is no evidence in the record that he used his firearm to commit the crime. …

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