(Full story at: http://www.jpfo.org/alerts02/alert20081212b.htm )
His first hearing was December 16, where the story started to unfold under oath. The prosecution admitted into evidence a small semi-automatic handgun, positive retention holster, and self-defense ammunition, each item being the type of equipment police officers are known to use for their own protection, not the sort of thing criminals tend to carry.
The first witness was the man who had called the police. Normally this person is the victim of a robbery, mugging, or other violent attack, but in this case the man testified he called the police to find out if a person could legally carry a handgun within city limits. He went on to say that although he thinks only police officers should carry weapons for self defense, it was never his intention "for Brad, excuse me, I mean Mr. Krause, to end up in court." He testified that "Mr. Krause" is a nice guy, they get along fine, and the first time they met was when "Mr. Krause" came over to help him dig his car out of the snow. There was no sign of animosity between the neighbors who apparently are still on a first-name basis.
The next witness was the first officer to respond, who said he saw a man with a gun and immediately called for backup. A back-and-forth line of questioning ensued:
Attorney: "Officer, you were the first person to see Mr. Krause in his yard, correct?" Officer: "Correct."
Attorney: "What was he doing when you saw him in his yard?" Officer: "I believe he was planting a tree."
Attorney: "Was he in any way handling the gun?" Officer: "No."
Attorney: "Was the gun plainly and openly carried?" Officer: "Yes."
Attorney: "You had no question that was a handgun on his hip?" Officer: "Yes, I knew it was a handgun on his hip in a holster."
Attorney: "And he was not handling it, waving it, doing anything with it?" Officer: "No. I believe he had a shovel in his hand and was in the process of planting a tree."
The questioning continued, eventually with the officer testifying Mr. Krause was cooperative the entire time, and never used any profanity or even raised his voice.
The second officer testified what happened when they approached:
Officer 2: "...we approached the person that was in the side yard of that residence."
Attorney: "And how did you approach him? Was there any special precautions that you took? Officer 2: "Yes, I drew my gun and pointed it at him."
Attorney: "And why is that?" Officer 2: "Because he was armed."
He continued to testify that by Mr. Krause wearing a gun visible to the public, that created a disturbance, and that was disorderly, so Mr. Krause was therefore arrested for Disorderly Conduct While Armed.
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Wisconsin has a unique set of laws pertaining to guns:
- The WI Constitution has an amendment for individual citizens to keep and bear arms in Article I Section 25.
- Concealed carry is illegal under WI Statute 941.23, but openly carrying a handgun is legal without any sort of permit or training, according to several WI Supreme Court cases.
- The state does not allow local governments to create laws more restrictive than state laws (WI Stat. 66.0409).
- The WI Supreme Court has stated repeatedly that laws can't be applied to restrict Constitutionally guaranteed rights.
Confused yet? The end result is that almost anyone can carry a gun in public if others are able to see it -- no training or permit required, but stick it in your pocket and you're a criminal.
What makes this case unusual is that most cases in Wisconsin are about people concealing a weapon and therefore breaking a law, but claiming they had a right under the WI Constitution due to need. This is the first case where no law was broken, but the person is being prosecuted anyway.
If no law was broken and another law is being misapplied in order to prosecute the case, what happened to property rights and the right to be free from unlawful search and seizure? Apparently, like the rest of your rights, they don't exist when the government says they don't.
The judge questioned the prosecutor at length about the right to expression, unfortunately using the Nazi flag as his example. Does the judge's neighbor have the right to fly the Nazi flag? "It depends," was the prosecution's answer. The judge tried to repeatedly narrow the question, and eventually the answer came down to the city claiming to have the ability to make the decision. What happens if it's just the German flag? Or the Swiss flag? Depending on who doesn't like it, the outcome might not be so good.
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The next hearing is Tuesday, February 17th, 2009 at 8:00 AM. It is open to the public, and you are encouraged to attend.
West Allis Courthouse 11301 West Lincoln Avenue West Allis, WI 53227