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§ 941.23, CCW – As-Applied Constitutionality, in Light of Wis. Const. Art. I, § 25 – Tavern Owner, Gun in Car Console

State v. Scott K. Fisher, 2006 WI 44, on certification
For Fisher: Paul B. Millis

Issue: Whether the right to bear arms provision of Wis. Const. Art. I, § 25 countenances prosecution for carrying a concealed weapon in a car’s console by a tavern owner who asserted its necessity for security purposes in that he routinely transported large amounts of cash.


¶5        … (W)e conclude that § 941.23 is constitutional as applied to Fisher because his interest in exercising his right to keep and bear arms for purposes of security by carrying a concealed weapon in his vehicle does not substantially outweigh the state’s interest in enforcing § 941.23.…

¶18      … Defendants have the burden of proof. They are required to secure affirmative answers to two questions before they can raise a constitutional defense:

First, under the circumstances, did the defendant’s interest in concealing the weapon to facilitate exercise of his or her right to keep and bear arms substantially outweigh the State’s interest in enforcing the concealed weapons statute? … Second, … did the defendant lack a reasonable alternative to concealment, under the circumstances, to exercise his or her constitutional right to bear arms? …

¶25      Cole and Hamdan must be read together to resolve the as-applied constitutional challenge to § 941.23 that is before us. [3] Those cases establish several principles that inform our analysis.¶26      First, the Hamdan test applies whenever a defendant asserts that § 941.23 is unconstitutional as applied. In other words, the Hamdan test is not limited to challenges to prosecutions for carrying a concealed weapon in one’s home or privately-owned business. …

¶27      Second, the court in Hamdan recognized that there are two places in which a citizen’s desire to exercise the right to keep and bear arms for purposes of security is at its apex: in the citizen’s home or in his or her privately-owned business. Id., ¶67. Thus, it logically and necessarily follows that the individual’s interest in the right to bear arms for purposes of security will not, as a general matter, be particularly strong outside those two locations.

¶28      Third, in a similar vein, under both Hamdan and Cole an individual generally has no heightened interest in his or her right to bear arms for security while in a vehicle. …

¶29      Fourth, while the state’s interest in prohibiting the carrying of concealed weapons may generally be at its weakest in an individual’s home or privately-owned business, Hamdan, 264 Wis. 2d 433, ¶67, the state’s interest will generally be strong when a concealed weapon is being carried in a vehicle. …

¶32      Fifth, because the individual’s interest in carrying a concealed weapon in a vehicle is generally comparatively weak and the state’s interest in prohibiting such weapons in vehicles is relatively strong, it is only in extraordinary circumstances that an individual asserting a constitutional defense under Hamdan> will be able to secure an affirmative answer to the first question in the Hamdan test. …

¶48      In sum, Fisher failed to meet his burden of proof to secure an affirmative answer to the question of whether his interest in concealing a weapon to facilitate the exercise of his right to keep and bear arms substantially outweighed the state’s interest in enforcing § 941.23. The facts here amount to far less than a showing that he had any significant interest in exercising his right to keep and bear arms for security purposes by carrying a concealed weapon in his vehicle. At the time of his arrest, it was 4:00 in the afternoon in Black River Falls, and he was engaged in personal errands and on his way to McDonald’s. Not only was he carrying a concealed weapon in a location that is not one of the “apex” locations identified in Hamdan, but also the other specific circumstances of his case are not particularly compelling.

The court goes on to reject Fisher’s more “categorical” arguments—recent (unsuccessful) legislative action to create a licensing system for carrying weapons suggests legislative doubt about constitutionality of the CCW statute, ¶¶50-53; and, a car should be seen as an extension of the owner’s business, ¶¶54-56. These are, in effect, broad attacks on § 941.23 and the court is having none of it, ¶¶58-62. The court, it is clear, has no sympathy for the transport of guns in cars (unless unloaded and encased, see § 167.31(2)(b)):

¶64      Both the legislature and this court have spoken:  carrying a concealed and dangerous weapon in a vehicle will generally be contrary to the state’s interest in protecting the health, safety, and welfare of Wisconsin citizens, and § 941.23 will not present a constitutional issue under Article I, Section 25 except in extraordinary circumstances.

Any wiggle-room? The court might like to impose an absolute ban, but apparently doesn’t think it can: hence the qualifier “generally” whose insertion may have been grudging but can’t be overlooked. Nor are Fisher’s particular facts terribly compelling (assuming you accept the Hamdan-Cole analytical framework), ¶¶34-47. In theory anyway, with different facts you can argue for a different outcome. But the meta-message is certainly that if the gun is in a car you’ve got your work cut out for you.

Other thoughts: Fisher testified that he knew of other businesses in the area that had been robbed, but “(t)he State has countered [on appeal? at the trial level? – the court doesn’t say] this evidence with publicly-available FBI crime statistics showing that crime rates in Black River Falls (population 6,225, according to the FBI statistics) do not differ significantly from rates in other areas of similar populations. [6] We are not persuaded that Fisher can reasonably characterize Black River Falls at the time of his arrest as a high-crime area. Such a characterization would erase any meaningful distinction between a truly high-crime area and any other area,” ¶41. There are no known reported Wisconsin decisions on how to establish some area as “high crime,” only opinions which unblinkingly accept a cops’ say-so, most baldly in State v. Michael T. Morgan, 197 Wis. 2d 200, 539 N.W.2d 887 (1995) (“Like the court of appeals, we find that an officer’s perception of an area as “high-crime” can be a factor justifying a search. Professor LaFave notes that “the area in which the suspect is found is itself a highly relevant consideration” in justifying a search, and that the cases “most frequently stress that the observed circumstances occurred in a high-crime area.” 3 Wayne R. LaFave, Search and Seizure § 9.3(c), at 456 (2d ed. 1987).”). Interesting, then, that the first time the court ventures into independent review of the matter it finds the area not high-crime. One wonders, too, at the sweeping way in which the court simply labels the entire city of Black River Falls as not being “a high-crime area.” Black River Falls is a relatively small municipality, and more refinement ought to be necessary with respect to more urbanized areas. In any event, whether you’re striving to show that some area is or is not “high-crime,” some thought must be put into establishing a factual record. In the nature of things, this problem is most likely to arise in the search and seizure context, and you’re going to be trying to show that area was not high-crime; perhaps Fisher can be of some benefit but regardless, the following caution is worth keeping mind: “The citing of an area as “high-crime” requires careful examination by the court, because such a description, unless properly limited and factually based, can easily serve as a proxy for race or ethnicity. District courts must carefully examine the testimony of police officers in cases such as this, and make a fair and forthright evaluation of the evidence they offer, regardless of the consequences,” United States v. Montero-Camargo, 208 F.3d 1122, 1138 (9th Cir. 2000) (en banc).


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