Letter to WI Governor and GOP Lawmakers
I sent this out last night after reading, re-reading and thinking long and hard about the FAQ posted by the WI DOJ. Given the circumstances in WI, a place where LEO's have never ever had to deal with an armed citizenry, I see trouble coming if these issues are not addressed.
Governor Walker, Senators & Assembly Members,
I am writing to you because there are no email contacts listed for Attorney General Van Hollen.
The DOJ website has a long FAQ document in re the new CCW law at http://www.doj.state.wi.us/dles/cib/..._questions.pdf
In reading the document I have discovered a serious problem in the instructions to CCW holders in the event of contact with a LEO. On page 26 the following question is posed and answered:
What should I do if I have a CCW license and I have contact with a law enforcement officer while in possession of a concealed weapon?
The statute itself requires that a permit holder produce identification, but only upon a specific request by the LEO. It has no other legal requirement in the event of casual contact or even during a routine traffic stop.
The FAQ then goes on with the following instructions:
While the law does not impose any specific requirements other than displaying a photo ID and CCW license upon request of a law enforcement officer, there are some recommended actions you should take when you have contact with a law enforcement officer. Contact can include a traffic or other stop and situations where you contact an officer or when an officer approaches you for information or otherwise. If you have a CCW license and you have contact with a law enforcement officer while carrying a concealed weapon, you should do the following:
1. Immediately tell the officer that you're carrying a concealed weapon and where it's located.
2. Keep your hands where the officer can see them.
3. Cooperate fully with the officer.
4. Don't make any quick movements, especially toward the weapon.
5. If you're in a vehicle:
• Roll down your window and place your hands in plain view on the steering wheel
• If it is at night, turn on the vehicle's dome light.
• Calmly tell the officer you have a CCW license and that you have a weapon with you. Ask the officer if they have particular instructions concerning the weapon.
• Do not touch or attempt to touch the weapon unless specifically told to do so by the officer.
• Do not leave your vehicle unless specifically told to do so by the officer.
In certain circumstances, a law enforcement officer may ask to take temporary possession of the weapon or may seize the weapon during interaction with the individual to ensure the safety of the officer and others or to secure the weapon as evidence. The officer will return the weapon at the end of the stop unless the individual is placed under arrest for a violation of the law that allows the weapon to be seized.
The advice above is contrary to the requirements of the statute. That alone merits that they be pulled, reviewed and revised so they are in agreement with the statute. By issuing these instructions, the DOJ is setting up the potential for a serious incident between a LEO and a permit holder.
The notion that a permit holder must announce his status in each and every contact he has with a LEO is ridiculous. If he rolls down his window or approaches a LEO on the street to ask directions, must he also tell him he is a permit holder, currently armed?
How is the LEO supposed to react to this? Did his department outline a specific protocol? If so, does it differ from the protocols in neighboring jurisdictions? What should a permit holder expect in each case, each town? Will he be disarmed and detained, however briefly, for the simple act of asking for directions.
Another serious problem with these instructions is that statute does not provide for any situation short of arrest or self defense action in which the LEO has legal authority to request or demand that the permit holder disarm.
Nor should it. Unless and until a LEO makes the decision to place the permit holder under arrest the LEO has no legal right to disarm the permit holder. If the legislature had intended otherwise, they would have covered it in the statute. Further, any such statutory authority would run the risk of a Constitutional challenge.
The instructions are based on the incorrect premise that a LEO may ask the permit holder to disarm and surrender his weapon during ANY contact. If this takes place during a traffic stop or simple non-crime related contact, the LEO is setting the stage for a civil rights lawsuit against himself and his department. Worse yet, it could rapidly escalate to a situation in which the LEO draws his weapon and even fires on the permit holder.
The picture of a nervous LEO trying to disarm a permit holder during a late night traffic stop is horrifying. It simply CANNOT be done safely by a single officer without the complete cooperation of the permit holder. Even with said cooperation, the potential for the LEO to misinterpret any motions or actions could result in the wounding or death of an innocent civilian.
Now picture this scenario taking place EVERY TIME there is contact between a permit holder and a LEO.
The most critical failure in these instructions is that they are written as if the statute permitted the LEO to act in the prescribed manner. Because there is no such authority granted by the statute, law enforcement agencies are going to be unable to create legal protocols and procedures that match the instructions being given to permit holders by the DOJ.
Further, the permit holders are for the most part going to be completely aware of the scope and limitations of the statute. Experience shows that in many cases they will have a better grasp of the statute than many LEO's. Attempts by LEO's to exceed the authority granted under the statute will result in incidents and civil actions by the permit holders.
The sad truth is that my comments above are not simply speculation. They are based on the real world experiences from around the nation.
The most critical time period for Wisconsin law enforcement will be the 3-6 months after the permits begin to flow to the public. It is essential that the DOJ issue strict and detailed instructions to all agencies in the state describing the potential pitfalls of exceeding the authority granted in the statute.
A key point to consider is the lack of experience for any officer in the state with a CCW holder. LEO's in Wisconsin have always dealt with concealed weapons as an extremely dangerous situation requiring swift action with the safety of the "perp" being secondary to the safety of the officers. This new law is going to change the way LEO's are required to react to the presence of a weapon virtually overnight.
Since the ruling by the AG that open carry is legal, some LEO's have gained limited exposure to openly armed civilians. There have also been some incidents that could have been avoided with better training. There is no comparison between open carry and CC. Wisconsin LEO's have NEVER had to deal with an armed citizenry. It may be a difficult transition for some of them. This is especially true in the major urban areas.
LEO's MUST be trained to work within the limits of the statute. The DOJ needs to issue a retraction of the above noted instructions ASAP, and should inform all agencies in the state of the retraction and the reason for it. Any conflict between the actual authority granted under the law and the instructions issued by the DOJ is going to be the source of serious, possibly even deadly problems.
Finally, I will also suggest that any attempt by the DOJ to exceed the legal limits in the statute through excessive regulation will draw the attention of interested parties in the gun lobby. Organizations like the NRA-ILA and several others have substantial resources devoted to monitoring and countering such actions through legal challenges.
I hope you take this in the spirit it is offered. I am very concerned about the potential for tragedy. DOJ instructions that directly conflict with the statute set the stage for such a tragedy. Please don't allow such an obvious problem to persist. Lives may be at stake.