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Openly carrying firearms didn’t violate loitering ordinance

Village of Somerset v. Mark J. Hoffman, 2015AP140, District 3, 5/17/16 (not recommended for publication); case activity (including briefs)

Viewed through the interpretive prism mandated by § 66.0409(6), a local ordinance prohibiting “wander[ing] or stroll[ing] in an aimless manner” that is “not usual for law abiding individuals under circumstances that warrant alarm for the safety of persons” isn’t violated by a person walking around with a loaded semi-automatic rifle slung over his shoulder and a loaded handgun in a holster on his hip.

In light of the enactment of § 66.0409(6), Somerset’s ordinance (reproduced in the court’s opinion here) can’t be violated by a guy who is carrying his arsenal around “[u]nless other facts or circumstances … indicate a criminal or malicious intent on the part of the person….” Given that mandate, Hoffman’s loitering ticket should have been dismissed after the state presented its case, for the evidence wasn’t sufficient to show he had a criminal or malicious intent:

¶20     The Village produced no evidence indicating Hoffman had a criminal or malicious intent while carrying a firearm, or from which a jury could reasonably reach such an inference. All five citizen witnesses and [Police Sergeant] Sirovatka testified there was no evidence Hoffman had a malicious intent, and the only witness to testify as to Hoffman having a criminal intent did so based solely on Hoffman carrying a firearm.[12] Although Hoffman refused to identify himself to law enforcement or explain why he was carrying firearms, no officer testified Hoffman’s lack of cooperation evidenced any criminal or malicious intent. Further, the fact that Hoffman refused the opportunity to dispel the alarm caused by his carrying firearms—which opportunity the ordinance requires law enforcement to provide him—cannot, without more, transform this statutorily prohibited basis for “warrant[ing]” alarm into a violation of the ordinance. ….


12 Notably, Wis. Stat. § 66.0409(6) provides that no ordinance relating to other inappropriate behavior may be enforced against any person for carrying a firearm “[u]nless other facts and circumstances that indicate a criminal or malicious intent on the part of the person apply.” (Emphasis added.) As such, the mere fact a person is carrying a firearm cannot itself be evidence of criminal or malicious intent.

Hoffman claims § 66.0409(6) “preempts” the Somerset ordinance, but the court rightly finds that argument “confusing. (¶17). By its plain language the statute has nothing to do with preemption and everything to do with mandating how a local ordinance can be applied under particular facts—namely, when a person is loading, carrying, or going armed with a firearm. The court’s sufficiency-of-the-evidence approach is therefore consistent with the statute’s language.

Hoffman makes another preemption argument—that § 66.0409(2) preempts the Somerset ordinance entirely. (¶14). As the court points out, this argument completely ignores the fact that § 66.0409(2) applies only to local laws explicitly regulating guns. (¶15). A casual glance at the Somerset ordinance shows it does nothing of the sort. In fact, the Somerset ordinance illustrates why § 66.0409(6) was created: To limit the use of ordinances of general applicability in prosecutions where the defendant was carrying a gun.

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