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Carrying Concealed Weapon, § 941.23 (2009-10) – Facially Constitutional; Constitutional, as Applied; Defense of Coercion, § 939.46(1)

State v. Clarence E. Brown, 2011AP2049-CR, District 1, 4/17/12

court of appeals decision (1-judge, not for publication); for Brown: Daniel R. Drigot; case activity

Carrying Concealed Weapon, § 941.23 (2009-10) – Facially Constitutional

The court upholds the constitutionality of the prior version of § 941.23, CCW, as not violating the right to bear arms (since-modified, to allow conceal-carry under specified circumstances, 2011 WI Act 35). District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), discussed and applied – essentially, the court rejects the idea of strict scrutiny, in favor of a reasonableness test that balances private and government interests (self-defense vs. public safety).

¶26      Certainly, it is true that “the State may not apply these regulations in situations that functionally disallow the exercise of the rights conferred under [a]rticle I, [s]ection 25.”  Hamdan, 264 Wis. 2d 433, ¶41.  But Wis. Stat. § 941.23 does not do so.  Unlike the statute addressed in Heller, which completely banned handgun possession, and the statute addressed in Ezell, which completely banned firing ranges, which were necessary for gun licenses, § 941.23 does not restrict firearm possession or even the right to possession in self-defense.  It restricts concealed possession unless in self-defense or as authorized by the statute for significant public safety reasons.

¶27      As the court in Hamdan observed, Wis. Stat. § 941.23 promotes several valuable public safety purposes:  (1) it discourages a person from acting violently on impulse, whether from anger or fear; (2) it puts people on notice when they are dealing with an individual who is carrying a dangerous weapon; and (3) it promotes the preservation of life by stigmatizing malfeasant behavior, such as carrying a concealed weapon contrary to the law.  Hamdan, 264 Wis. 2d 433, ¶¶53-56.

¶28      Applying our Wisconsin jurisprudence, “[i]n analyzing reasonableness, one must balance the conflicting rights of an individual to keep and bear arms for lawful purposes against the authority of the State to exercise its police power to protect the health, safety, and welfare of its citizens.”  Id., ¶45.  Brown has failed to establish that there are no applications of Wis. Stat. § 941.23 in which it would be constitutionally permissible under the Second Amendment.  See Cole, 264 Wis. 2d 520, ¶30.  Like the court in Cole, we conclude that § 941.23 is a reasonable regulation and does not unreasonably infringe on the right to keep and bear arms.  See Cole, 264 Wis. 2d 520, ¶28.

Same fate, in State v. Little, No. 2011AP1740 (1/26/12), and State v. Flowers, No. 2011AP1757 (12/13/11); petitions for review pending in both. Contrary circuit court authority: State v. Joshua D. Schultz, Clark County Case No. 10CM138, 10/12/10 (CCW statute doesn’t withstand “strict scrutiny,” because it is neither “narrowly tailored” nor  “least restrictive means” available, to achieve governmental interests of health, safety and welfare of citizenry).

CCW – Constitutional, as Applied 

Brown’s claim, that he picked up a gun and put it in his pants to keep it from children after shots were fired, didn’t preclude CCW prosecution under an “as-applied” analysis:

¶29      Brown next argues that under the test established in Hamdan, Wis. Stat. § 941.23 is unconstitutional as applied to him under article I, section 25 of the Wisconsin Constitution, which states:  “The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.”

¶30      Under the test established in Hamdan, to sustain an as applied challenge to Wis Stat. § 941.23, a defendant must show that: (1) the defendant’s need to conceal the weapon substantially outweighed the State’s interest in exercising its police power, and (2) the defendant lacked any other reasonable alternative to concealment, to exercise his or her constitutional right to bear arms.  Hamdan, 264 Wis. 2d 433, ¶86.

¶38      The State has a compelling interest in prohibiting concealed carry when police officers enter an area where shots have been fired.  See id., ¶55.  For their own safety as well as the safety of others in the area, police officers must be aware of who is carrying dangerous weapons.  In contrast, Brown’s need to conceal the weapon in this situation is not as compelling because he had other reasonable alternatives to concealing the gun and the police were on the scene, mitigating any threat to Brown’s or others’ safety.  We conclude that Wis. Stat. § 941.23 as applied to Brown served the very public safety purposes recognized in Hamdan, 264 Wis. 2d 433, ¶¶53-56, and does not violate the Wisconsin Constitution.

Compare, however,  State v. Jeremy D. Pinnow, Milwaukee Co. Circ. Ct. No. 2010CM1978, 2/11/11 (CCW statute unconstitutional as applied to Pinnow: he had demonstrable security need for gun he carried in his car on business, and gun was encased and unloaded so he didn’t pose immediate danger). Unmentioned by the court as part of this analysis: Brown had taken the bullets out of the gun, ¶2. Certainly, the gun needn’t be loaded to support CCW conviction, but is the readiness of firing wholly irrelevant to an as-applied challenge, which requires weighing the safety considerations in the event?

Defense of Coercion, § 939.46(1) 

¶39      We turn next to Brown’s argument that the trial court erred in denying his request for the coercion jury instruction.  Brown contends that he was entitled to the instruction because, in order to prevent death or great bodily harm to himself or a group of children, he had no reasonable alternative, other than to conceal the gun on his person and violate Wis. Stat. § 941.23 thereby.  We disagree and affirm because coercion is not an available defense to § 941.23 under State v. Dundon, 226 Wis. 2d 654, 594 N.W.2d 780 (1999), and even if it was, the evidence does not support giving the coercion jury instruction here.

¶43      We are compelled to follow the mandates of our supreme court.  See Jennings, 252 Wis. 2d 228, ¶¶17-19.  Thus, we conclude coercion is not an available defense to Wis. Stat. § 941.23.

¶44      But even if the defense of coercion was generally available in a Wis. Stat. § 941.23 case, Brown would still have to show that there was sufficient credible evidence to show that his belief of death or great bodily harm was reasonable, so that concealing the gun in his pants was justified under the privilege of coercion.  A defendant is entitled to any instruction on a valid defense theory if it is timely and supported by credible evidence.  See Dundon, 226 Wis. 2d 654, ¶46.  Although the defendant has the burden of producing sufficient evidence, sufficiency is viewed from the light most favorable to the defendant.  See Coleman, 206 Wis. 2d at 213.

¶48      Brown fails to show sufficient evidence in the record justifying the giving of the coercion jury instruction.  His belief that concealing the gun was the only means of preventing death or great bodily harm was not reasonable under the circumstances.  Certainly, he has failed to establish that he had “no possible escape other than the commission of a criminal act.”  See id.  Thus, we conclude that the trial court did not err in denying the coercion instruction.

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