CCW Case Analysis

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The decision is far less significant than it was expected to be.

The issue, as certified by the court of appeals, was as follows: “whether the concealed weapon statute can be enforced against a tavern owner who keeps a loaded gun in the glove compartment of his car for protection because he routinely makes large cash deposits in a high-crime neighborhood.” State v. Fisher, 2005WL1300725 (Ct.App., June 2, 2005).

That question remains unanswered, as the Supreme Court rejected the circuit court’s factual finding that there was a high-crime neighborhood involved.

Any business owner who transports cash deposits from a business in a genuinely high-crime neighborhood to a bank can plausibly seek to distinguish this case on that basis.

Furthermore, the case can also be distinguished if the business owner keeps the gun on his person, rather than leaving it in the car.

The court noted that Fisher is most vulnerable when transporting money from the tavern itself to his car; at these times, however, he would be unarmed, and would only become armed once he reached the safer haven of his vehicle.

If a business owner keeps the gun on the business premises and carries it between the business and the car, there would be a strong argument that the case at bar can be distinguished on that basis.

Finally, it can’t be ignored that less than two weeks before the arrest, at 2:45 a.m., Fisher’s truck was stolen, after he left it unattended, with the engine running, and several guns inside. The court may not have made a big issue of this fact, but it surely undermined Fisher’s claims that his security was threatened, and he needed to carry a concealed weapon.

When such a case does present itself, the parties should also be aware that the entire process by which courts should evaluate as-applied constitutional challenges to the CCW statute is subject to challenge.

The process is as follows: first, the defendant must show that his interest in concealing the weapon substantially outweighs the state’s interest in enforcing the statute; second, the defendant must show that he lacked a reasonable alternative to concealment; finally, if the defendant secures affirmative answers to these two questions, he or she is entitled to raise a constitutional defense to the jury, and the state must then prove at trial that the defendant had an unlawful purpose in concealing the weapon. Hamdan, 2003 WI 113, pars. 86-87.

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Justice Ann Walsh Bradley concurred in Hamdan, but wrote separately, declining to join that part of the opinion adopting this procedure, and calling it “confusing.”

In the case at bar, Bradley wrote the majority opinion; the dissent by Crooks, joined by two others, took issue with the procedure.

Thus, a majority of the court’s members have expressed concern over the procedures by which constitutional challenges to the CCW statute are raised.

Stare decisis may require that the procedure continue to be employed; but a defendant who can propose a good alternative may find the court very receptive to it.

– David Ziemer

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David Ziemer can be reached by email.