Attorney plans to challenge constitutionality of felony gun charge (UPDATE)

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A felony gun case against a Wauwatosa attorney took a unique twist Tuesday when the defense announced plans to challenge the constitutionality of Wisconsin’s gun silencer statute.

Sole practitioner Thomas Barrett appeared in court Tuesday morning on charges of allegedly paying $400 to purchase stolen guns and an illegal silencer. Police arrested him in August and if convicted, he faces up to three years in prison and an additional three years of supervision.

But Barrett’s attorney Allison Ritter, of Ritter Law Office LLP, Milwaukee, said there is room to argue that state law governing firearm silencers is ambiguous in its definition of a silencer.

“Even though this case is pretty simple; was there a silencer and did he possess it?” she said, “It’s complicated, too, because what is a silencer? Is it a pillow?”

That is a question Milwaukee County Circuit Judge Charles Kahn will answer May 15 once motions and reply briefs on the issue are filed starting March 15.

Wis. Stat. 941.298 defines a firearm silencer as “any device for silencing, muffling or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating such a device, and any part intended only for use in that assembly or fabrication.”

While detailed, the interpretation of the statute is largely untested, said Milwaukee criminal defense attorney Ray Dall’Osto, of Gimbel, Reilly, Guerin & Brown LLP.

In his 34 years of practice, which have included constitutional challenges of Wisconsin’s firearm laws, Dall’Osto said he has never seen a challenge to the silencer statute.

But a pair of recent U.S. Supreme Court rulings regarding Second Amendment rights paved the way for challenges to the statute, he said, and revised the way judges evaluate what constitutes an essential part of firearms.

“The fields have been opened for plowing,” Dall’Osto said. “Whether they hit a stone or are able to get through depends on what the court rules.”

In 2008, the court in District of Columbia v. Heller (128 S.Ct. 2783 (2008)), ruled that that the constitution protects individuals rights to possess firearms for lawful use, such as self defense.

Two years later, the Supreme Court extended the constitutional right to bear arms to states in McDonald v. Chicago (561 U.S. (2010)), thereby directing judges to take a broader stance when scrutinizing the necessity of gun accessories.

“Would a silencer be considered to be an intrinsic part of the gun, such that it is part of the firearm that can’t be separated?” Dall’Osto questioned. “Or is it just something you put on the barrel and don’t need to have to operate the gun?”

Barrett declined to comment Tuesday on his case.

According to court documents, a police informant arranged the purchase with Barrett and told him during a recorded phone conversation that one of the pieces was a silencer.

Two guns involved in the transaction – a semiautomatic .22 caliber High Standard Sportking gun with a silencer attached and a 9 mm Smith & Wesson semiautomatic handgun – were “prop guns” that belonged to the federal Bureau of Alcohol, Tobacco and Firearms, according to court documents.

Ritter declined to elaborate on the grounds for Barrett’s constitutional challenge beyond saying it is an unusual circumstance.

“Usually with a challenge of statute, it’s just going to be a challenge on its face,” she said. “This one hasn’t really been challenged.”

On at least three occasions since the Heller decision, federal courts rejected constitutional challenges to state statutes governing silencers or other gun parts ruled nonessential to the performance of a firearm.

Federal courts in Michigan and Nebraska rejected constitutional challenges to the charges of owning a silencer and a machine gun, respectively, on the basis that Heller did not provide protection of ownership for those items.

In 2009, the Ninth Circuit Court of Appeals made a similar ruling in a case that dealt with illegal possession of a machine gun. According to the decision, the court held that Second Amendment protection doesn’t extend to “dangerous and unusual weapons.”

It is unknown how the case law will apply in Wisconsin, Dall’Osto said.

“The courts have wrestled with what kind of scrutiny should apply,” he said. “I would think one could say there are certain aspects and challenges that could be made on a constitutional basis.”

The case is set for trial on June 4.