Constitutional Law — right to bear arms — qualified immunity

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United States Court of Appeals For the Seventh Circuit

Civil

Constitutional Law — right to bear arms — qualified immunity

While Wisconsin law was in flux regarding the legality of openly carrying firearms, officers who arrested the plaintiff for disorderly conduct, for carrying a firearm, are entitled to qualified immunity.

“Although the district court’s probable-cause analysis did not sufficiently account for the right to bear arms under the state and federal constitutions, we agree that the officers are entitled to qualified immunity. At the time of the arrests, the state constitutional right to bear arms was relatively new, and Wisconsin law was unclear about the effect of the right on the scope of the disorderly conduct statute. Moreover, the Supreme Court had not yet decided McDonald v. City of Chicago, Ill., 130 S. Ct. 3020, 3050 (2010), applying the Second Amendment to the States. Given this legal uncertainty, it was reasonable for the officers to believe that the circumstances of Gonzalez’s open carrying gave them probable cause to arrest him for disorderly conduct. The delayed return of Gonzalez’s handguns was not a ‘seizure’ under the Fourth Amendment. Finally, Gonzalez’s various Privacy Act claims fail for several reasons. Assuming the Act confers a private right of action, the officers did not violate § 7(a); they are entitled to qualified immunity for the alleged § 7(b) violation; and there is insufficient evidence that West Milwaukee had a policy, custom, or practice that would give rise to municipal liability for the alleged § 7(b) violation.”

Affirmed.

10-2356 Gonzalez v. Village of West Milwaukee

Appeal from the United States District Court for the Eastern District of Wisconsin, Adelman, J., Sykes, J.