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Statute governing transportation of firearms doesn’t preclude CCW conviction

State v. Brian Grandberry, 2016AP173-CR, District 1, 11/29/16 (one-judge decision; ineligible for publication), petition for review granted 3/13/17; affirmed 4/10/18; case activity (including briefs)

Grandberry was charged with carrying a concealed weapon after police stopped the car he was driving and found a loaded pistol in the glove compartment. Citing § 167.31, which regulates the transportation of firearms, he argues he was not “carrying” a concealed weapon but was instead “transporting” it under § 167.31(2)(b)(intro.) and 1., which allow handguns to be transported in a car, even when loaded. (¶6). The court of appeals says this argument misses its mark.

¶8     First, one needs to look at the legislative history of Wis. Stat. § 167.31. The current version of § 167.31(2)(b) was created in November of 2011 through 2011 Wis. Act 51, § 11, to account for the changes that needed to be made after 2011 Wis. Act 35 was passed and created the right of Wisconsin citizens to obtain licenses to carry concealed weapons. Before the change, the statute prohibited a person from placing, possessing, or transporting a firearm unless it was unloaded and encased. See, e.g., Wis. Stat. § 167.31[(2)(b)] (2009-10). Without this change, a person licensed under Wis. Stat. § 175.60 would not have been able to carry a loaded concealed weapon within a vehicle even after obtaining a CCW permit.

¶9     Although the statute is not a model of clarity in explaining who exactly falls within its ambit, Wis. Stat. § 167.31 does make a specific reference to Wis. Stat. § 175.60, which is the detailed statute setting out the requirements to obtain a concealed carry permit. (See § 167.31[(1)](cm)). Thus, § 167.31(2)(b) only applies to those who have passed the rigorous conditions for obtaining a CCW permit. Grandberry did not have a CCW permit, and therefore, the statute regulating the transport of firearms does not apply to him.³

³ Further, to adopt Grandberry’s position would be to practically abrogate the CCW statute and make almost all loaded guns found in vehicles legal. This would be contrary to the legislative purpose behind the CCW permit.

Grandberry makes the alternative argument that, because § 167.31(2)(b)1. authorizes the conduct that was the basis for the CCW charge, he did not have fair notice of the CCW statute’s prohibition against carrying loaded firearms in glove compartments and the CCW statute is therefore void for vagueness when applied to him. The court disagrees:

¶18     …. Grandberry knew he was required to have a CCW permit to put a loaded gun in his glove compartment. This can be deduced from the fact that he originally lied when he told the police that he had a CCW permit. Later, he volunteered that he took a class to obtain a CCW permit but he never actually got one. His actions and admissions strongly suggest that he was aware that he needed a CCW permit in order to lawfully keep a loaded pistol in his glove compartment. Had Granberry really believed that the safe transport law allowed him to carry a loaded gun in his glove compartment, he would have had no reason to lie about having a CCW permit. ….

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