1/9/2009 9:19:00 AM
First of a two-part series
The Wisconsin Department of Natural Resources has a simple, blunt message for hunters in Wisconsin: When a DNR warden asks you to give up your legal firearm, do so, plain and simple, no matter what.
What's more, that goes for all citizens, the agency has asserted. Citizens with firearms, the DNR argues, should always do exactly what law enforcement officers tell them to do, regardless of the circumstances of the situation.
To which one former hunter education instructor for the department has an equally simple and blunt response: The agency's directive is unconstitutional, plain and simple, and citizens don't have to hand over their firearms without any probable cause.
That viewpoint is the reason Mark Palan, the owner of Palan's Outpost Sporting Goods in Iowa County, has the word 'former' attached to his title. After 14 years as a volunteer instructor, the DNR cast him out last year for, in the agency's words, misrepresenting agency standards to hunter education students.
The issue promises to affect many more people than hunters in the coming year. In fact, the DNR's foray into gun rights issues on the Palan matter represents just one cloud in a growing storm over what authority law enforcement officers actually have to seize openly carried but legal firearms, whether it's from a hunter in the field or a citizen on the street.
Wisconsin is ostensibly an open-carry state; the media debate thus far has focused on whether to extend so-called carrying rights to concealed weapons.
But the latter could soon be yesterday's news; the DNR's excommunication of Palan, and its subsequent articulation of a broad grant of power for law enforcement to confiscate legal firearms, has suddenly called the legitimacy and reality of open carry itself into question.
Just as important, along with an ongoing non-DNR case in West Allis, the agency's expression of support for the ability of police to take away legal firearms upon simple command has in effect opened the door for a de facto state policy for all law enforcement.
The question is, is it constitutional, or, as Palan contends, does the DNR's position characterize an unconstitutional breach of a citizen's Fourth Amendment right against unreasonable search and seizure?
Simply asked, can law enforcement take a person's legally carried firearm without any probable cause that a crime is being committed? Must a hunter in the field surrender his firearm just because a conservation warden tells him to?
To Palan, the answer is no.
"For 14 years, I've been teaching my students the same thing, over and over and over," Palan told The Lakeland Times.
The first thing he teaches is, he said, when a person is on private property and a warden stops and asks to see a license, the first thing to do is ask the warden for his credentials. The second thing, Palan said, is to boot the warden off the property because he's trespassing.
"And when they start throwing their weight around, you just reach in your pocket and dial 911 and have the police come out and have them removed," he said.
Being approached by a warden on public land is different, Palan said.
"If you are on public ground and a warden stops you and wants to see your license, you should ask him for his credentials, then you show him your license," he said. "And when he says, give me your gun, you show him your gun. You set it down on the ground or you can hand it to him. But your right is that you do not have to give him your gun. And if you set it down on the ground and he picks it up, now he's taken your gun without your permission. I've been teaching that for 14 years."
But, Palan said, his instruction collided with DNR attitudes last March when a local conservation warden lectured at one of his classes and discovered what Palan was teaching.
A confrontation ensued, Palan recalls, both in the class that night and a few days later in his store, and Palan says the DNR gave him a choice - either admit to the class that what he had been teaching was wrong, or get kicked out.
Palan got kicked out.
For the record
DNR documents corroborate Palan's version of events.
In an April 28, 2008, letter, DNR hunter education administrator Timothy Lawhern told Palan he was being ousted as a DNR instructor for a variety of reasons, including Palan's alleged refusal to abide by a program instructor code of conduct, his refusal to accept constructive criticism from local conservation warden Joe Frost, and his refusal to teach the program as the DNR wanted.
The removal applied to all recreational safety programs, Lawhern stated, boater education as well as snowmobile education, ATV education as well as hunter education and bow hunter education.
"You have trained many hunter education graduates contrary to our program standards of how to handle a firearm when approached by a law enforcement officer," Lawhern wrote. "This training has now placed those students in a potentially dangerous attitude which could have catastrophic results for themselves and members of the law enforcement community."
Palan certainly had the right to disagree with the DNR's approach, Law- hern added, but that did not give him any authority to teach one of their programs contrary to the agency's guidelines.
"You may disagree with our required training as you have every right to do so," Lawhern wrote. "However, you have no authority to teach our program contrary to our guidelines."
Lawhern followed his April 28 letter to Palan with a May 19, 2008, missive to Palan's former students. That letter instructed them to always follow the commands of a law enforcement officer, no matter the circumstance and even if it meant giving the officer the firearm.
"It has come to our attention that a portion of the training you received while taking the Department of Natural Resources Hunter Education Course in Iowa County was not in compliance with our program policies," Lawhern began. ". . . . The portion of the training I need to clarify for you is what is expected of citizens when they are contacted by a law enforcement officer."
Lawhern didn't name Palan but said the "instructor" had misrepresented the DNR's program training standards regarding such contacts.
"What you should have been taught was to maintain good muzzle control and then follow the instructions of the law enforcement officer," Lawhern wrote. "This will vary depending on what type of contact it is, where it is taking place, the circumstances behind the contact, the officer's intuition or concern about safety and your demeanor during the contact."
What the DNR teaches in its hunter education program must carry over to everyday real-life situations, Lawhern continued.
"That is why it is important to understand that law enforcement communities, regardless of their branch of service (i.e. state trooper, county deputy, municipal police, conservation warden, etc.), have expectations that their instructions will be followed," he wrote. "This is for your safety, the safety of the officer as well as any other citizens that might be nearby."
For the most part, Lawhern wrote, wardens were simply checking for legal firearms for the game being pursued, magazine capacity (waterfowl hunting), and legal ammunition types - all the while maintaining a safe environment.
Examples of instructions a person might receive during a hunting situation might include the following, Lawhern stated: "Please open the action of your firearm"; "Would you mind safely unloading your firearm"; "You may place your firearm safely against that tree until we are finished"; "I'll hold your firearm while you check for your license"; "Allow me to check your magazine for a plug while you find your license."
Listening to law enforcement, no matter what, was the proper course of action, he wrote.
"Your cooperation with law enforcement is vital no matter what the situation is," Lawhern concluded. "To act any other way could result in a tragedy easily avoided by simply following their instructions."
The letter stunned Palan.
"They took the time and the taxpayer dollars to send a letter to every student that I've taught in 14 years, telling them that they were misrepresented by an Iowa county instructor," he said.
But the former instructor said he was more interested in what the letter did not say.
"Now what is expected of citizens?" he asked. "It doesn't say here that the law says that you will hand over your firearm."
To the next level
Even after removing Palan as an instructor, Lawhern wasn't content to leave the issue alone. He also addressed it in the April 2008 issue of the Wisconsin Hunter Education newsletter, which is distributed to hunter education instructors.
In the article, entitled "When a Warden Approaches, What Do I Do with my Gun," he expanded the scope of authority to include all law enforcement and all citizens. In so doing, he put the DNR on a collision course with the state's open-carry law.
"About 8 years ago the International Hunter Education Association raised the question about what is being taught in hunter education courses relative to how hunters should handle their firearms during license checks in the field," Lawhern wrote. "The aftermath of the debate was that a survey should be done within the law enforcement community to determine what they expected as appropriate behavior. The debate caused us to ask all manner of law enforcement since what we teach we wanted to meet every cop, state trooper, county deputy or municipal officer's expectations."
Law enforcement wanted just two things, he said of the survey's results. One was to maintain good muzzle control. The other was to "do exactly what the officer tells you to do."
"This may seem a bit odd as it's a standard that could be different from one officer to the next or different when situations are different," Lawhern wrote. "The officers instructions can and will vary depending on the situation."
Lawhern them moved on to address the likely response of law enforcement in general when officers see someone openly carrying a firearm, which, again, is not illegal per se in Wisconsin.
"Note that the officer on the street doesn't expect to see firearms openly exposed," he wrote. "In most cases when they do see a firearm, they draw theirs and tell the person 'Let me see your hands! Don't move!' In some cases they yell, 'Put the gun down,' or "Drop the gun!'"
Similarly, he stated, there would be times when a warden would ask a hunter to put down a gun or unload it or hand it to the warden.
"The point is, we must be teaching our students to follow the officer's instructions," he concluded.
To Lawhern, then, the mere presence of a firearm was reason enough for the police to give commands that must be obeyed, in addition to launching preliminary use-of-deadly force tactics such as drawing weapons.
Mystified at that reasoning, Palan sought out a legislative viewpoint, asking his state senator, Dale Schultz (R-Richland Center), whether a DNR warden in fact possessed any authority to take custody of a legal firearm, absent any probable cause.
Schultz retrieved an opinion from a senior staff attorney for the Wisconsin Legislative Council. The answer was vague, at best. Still, the attorney, Mark Patronsky, could find no blanket authority, except that arising from certain specifically defined statutory reasons.
"Within the scope of the constitutional prohibition of unreasonable searches and seizures, the courts have carved out authorization for law enforcement officers (such as conservation wardens) to take control of a firearm to protect the safety of the law enforcement officer," Patronsky wrote. "The officer, after further investigation and determination of a probable cause, may proceed to arrest the individual and seize the firearm."
Other situations in which a firearm might be seized included violations of various ammunitions and transporting regulations or the creation of a public nuisance.
The bottom line was, though, police needed some reason for the seizure.
"The statutes and administrative rules described in this memorandum, as well as a variety of other statutes and rules, do allow a warden to take a person's firearm for various reasons," he wrote.
Palan says that means a warden simply can't take a firearm without some probable cause.
"Nowhere in the hunters' education manual, nowhere in the instructors manual, nowhere in any state statutes that I can find, does it say you must hand over your firearm," he said. "Nowhere."
One practical effect of Lawhern's expansive grant of confiscatory powers to police, not to mention their supposed prerogative to draw their weapons on gun-carrying citizens, would be a practical evisceration of Wisconsin's open carry status.
That status is already murky.
On the one hand, despite Lawhern's drawn-gun scenario, the heads of multiple Wisconsin law enforcement agencies told The Lakeland Times their officers would not act in the manner Lawhern described upon merely seeing someone with a gun. They acknowledged the legality of open carry.
In addition, the Use of Deadly Force policy of the Oneida County Sheriff's Department would seem to prohibit such conduct, without some other probable cause or suspicion.
"In any use of force decision, the officer must be certain that he or she has the right to make contact," the policy states. "The intervention must have legal beginning based upon articulable facts or circumstances. Officer presence can be based upon invitation, reasonable suspicion, community caretaker function, probable cause, exigent circumstances or other 'legal beginnings.'"
According to the policy, officer presence - which presumably could include a drawn gun - is the lowest level of use of force, but, the policy emphasizes, "an excessive or negative presence must be avoided or, if used, must be justified."
How could Lawhern's scenario be reconciled with such a policy? That could only logically occur if open-carry was by itself illegal, by definition constituting reasonable suspicion, probable cause, exigent circumstance or some other "legal beginning" that justified police contact and presence.
Then, too, both the state, under then attorney general Jim Doyle, and the Supreme Court recognized open-carry rights in State of Wisconsin v Hamdan, in which the High Court carved out a concealed weapon exemption for small storeowners.
The Department of Justice argued against the exemption, citing the ability of citizens to already possess and carry an open weapon: "The State argues that even under the strictest enforcement of the [concealed carry] statute, a person lawfully in possession of a firearm will always retain the ability to keep the firearm in the open - holding the weapon in the open, keeping the weapon in a visible holster, displaying the weapon on the wall, or otherwise placing the weapon in plain view," the court stated in summing up the DOJ's brief.
In her dissent of the final decision, chief justice Shirley Abrahamson went even further.
"That is, [the law] does not prevent anyone from carrying a firearm for security, defense, hunting, recreation, or other lawful purposes," Abrahamson wrote. "Rather, it limits the manner of carrying weapons, by requiring that a weapon that is on a person or within a person's reach not be concealed. The gist of the offense is the concealment."
On the other hand, police have increasingly begun to cite those openly carrying firearms for disorderly conduct, which a September 2000 memorandum by the Legislative Reference Bureau warned could happen.
"Wisconsin law does not specifically prohibit the open carrying of loaded or unloaded firearms in public, but a person doing so may risk being arrested, and charged with disorderly conduct, on the grounds that the display threatens the public peace or safety," the brief stated.
If that's the case, then police departments and the DNR could effectively make open carry illegal by defining it as disorderly conduct from the get-go, making an end run around both the Supreme Court and the Legislature. Using the same logic, any law enforcement commands not obeyed could result in a disorderly conduct citation.
Until recently, those charged with disorderly conduct for carrying open firearms have not fought the issue. That changed last year.
In West Allis, in August, in a scenario eerily similar to the one Lawhern outlined, West Allis police drew their weapons and arrested Bruce Krause, who was wearing a holstered legal pistol while planting trees on his own property.
In a case that could finally clarify both police authority to seize firearms and the state's open carry law, Krause is fighting back, and a landmark U.S. Court of Appeals decision last month could be decisive in the outcome.
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