Tuesday marks a great leap forward for human rights in Wisconsin: people can finally carry a concealed handgun without fear of criminal prosecution.
Unfortunately, in order to exercise that basic right, people have to take a course and pay a fee to get a license. Not everyone will do so, though. Some people will continue to carry a gun without going through the hassle.
I’m curious how the state’s police, prosecutors and courts will react when that happens.
Prosecutions for carrying a concealed weapon always perplexed me. They fall into two categories. In one class of cases, the gun was recovered in connection with some criminal activity. The CCW charge, being a misdemeanor only, was the least of the defendant’s problems.
In the other class of cases, the defendant was a law-abiding citizen, exercising his basic right to protect his safety and life, who wound up getting frisked as part of police investigation into a crime he did not commit.
In such cases, you file a motion to suppress, arguing the pat-down was not supported by reasonable suspicion, and when the motion is denied, you plead guilty and proceed to sentencing.
It never makes any sense to put the defendant on probation; the defendants have no need for rehabilitation that probation could supply. The standard conditions of probation, such as drug and alcohol treatment, anger management, vocational training or education, simply are not appropriate.
Of course, some judges are trigger-happy when it comes to conditions of probation. In one case, a judge ordered my client to take parenting classes if he fathered any children during the term of his probation, only to then strike that and order parenting classes whether he had any children or not.
Thankfully, the state conceded error on appeal and the Court of Appeals summarily reversed.
But in most cases, the court would simply impose jail time. Not surprisingly, the practical effect is to reinforce the defendant’s belief that carrying a concealed weapon is a necessary evil.
One judge used to consistently remark that he imposes jail in all CCW cases and would do so even if the defendant was Mother Teresa, or somebody like that.
So, I wonder what will be the effect of the new law. On the one hand, police, prosecutors and judges could be stricter about CCW, reasoning that a defendant could easily have obtained a license to carry, but did not.
On the other hand, they could be more lenient, recognizing that the citizenry has overwhelmingly expressed its view that carrying a concealed handgun is a right, not a crime. They may figure that just as jail is not appropriate for driving a car without a driver’s license, jail also is not appropriate for carrying a concealed gun without a license.
Many police officers already take the view that CCW is not a crime. In some Milwaukee neighborhoods, if you are taking a walk at night and encounter a police officer, he will ask point blank if you’re carrying. If you are, he says, “Good.” If you’re not carrying, he tells you that you should.
With the new law, this view will probably become even more prevalent. But I wonder what our state’s judges will do, when less enlightened officers arrest non-licensees for CCW. Will they impose sentences that consist only of a fine? Or will some persist in the archaic view that even Mother Theresa deserves jail if she exercises her right to protect herself without a license?
David Ziemer is a former news editor for the Wisconsin Law Journal.