CCW
Case Analysis
May
24, 2006
The
decision is far less significant than it was expected to be.
The
issue, as certified by the court of appeals, was as follows: “whether the
concealed weapon statute can be enforced against a tavern owner who keeps a loaded
gun in the glove compartment of his car for protection because he routinely makes
large cash deposits in a high-crime neighborhood.” State v. Fisher, 2005WL1300725
(Ct.App., June 2, 2005).
That
question remains unanswered, as the Supreme Court rejected the circuit court’s
factual finding that there was a high-crime neighborhood involved.
Any
business owner who transports cash deposits from a business in a genuinely high-crime
neighborhood to a bank can plausibly seek to distinguish this case on that basis.
Furthermore,
the case can also be distinguished if the business owner keeps the gun on his
person, rather than leaving it in the car.
The
court noted that Fisher is most vulnerable when transporting money from the tavern
itself to his car; at these times, however, he would be unarmed, and would only
become armed once he reached the safer haven of his vehicle.
If
a business owner keeps the gun on the business premises and carries it between
the business and the car, there would be a strong argument that the case at bar
can be distinguished on that basis.
Finally,
it can’t be ignored that less than two weeks before the arrest, at 2:45 a.m.,
Fisher’s truck was stolen, after he left it unattended, with the engine running,
and several guns inside. The court may not have made a big issue of this fact,
but it surely undermined Fisher’s claims that his security was threatened,
and he needed to carry a concealed weapon.
When
such a case does present itself, the parties should also be aware that the entire
process by which courts should evaluate as-applied constitutional challenges to
the CCW statute is subject to challenge.
The
process is as follows: first, the defendant must show that his interest in concealing
the weapon substantially outweighs the state’s interest in enforcing the
statute; second, the defendant must show that he lacked a reasonable alternative
to concealment; finally, if the defendant secures affirmative answers to these
two questions, he or she is entitled to raise a constitutional defense to the
jury, and the state must then prove at trial that the defendant had an unlawful
purpose in concealing the weapon. Hamdan, 2003 WI 113, pars. 86-87.
Justice
Ann Walsh Bradley concurred in Hamdan, but wrote separately, declining to join
that part of the opinion adopting this procedure, and calling it “confusing.”
In
the case at bar, Bradley wrote the majority opinion; the dissent by Crooks, joined
by two others, took issue with the procedure.
Thus,
a majority of the court’s members have expressed concern over the procedures
by which constitutional challenges to the CCW statute are raised.
Stare
decisis may require that the procedure continue to be employed; but a defendant
who can propose a good alternative may find the court very receptive to it.
-
David Ziemer
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David
Ziemer can be reached by email.
