Wisconsin Carry, Inc. v. Wray, Noble

Filing 33

ORDER accepting 28 Second AMENDED COMPLAINT against the City of Madison and Noble Wray as the operative pleading. Signed by District Judge Barbara B. Crabb on 7/15/2011. (arw) Corrected docket text on 7/15/2011. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - WISCONSIN CARRY, INC.,
BENJAMIN MOYES, LARRY HERZOG
and WILLIAM J. VEERHUSEN,
ORDER
Plaintiffs,
10-cv-548-bbc
v.
CITY OF MADISON, WISCONSIN,
and NOBLE WRAY, in his official
capacity as Chief of Police of the
City of Madison, Wisconsin,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiffs Wisconsin Carry, Inc., Benjamin Moyes, Larry Herzog and William J.
Veerhusen have filed a second amended complaint in response to this court’s April 4, 2011
order dismissing their previous complaint without prejudice because they failed to include
sufficient allegations showing that their claims were justiciable. In particular, plaintiffs failed
to show that they had standing to challenge a policy of defendants City of Madison and
Noble Wray (the chief of police) regarding the open carrying of firearms or that such a claim
was ripe. They have included additional allegations to address the concerns raised by the

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court in that order. (Brad Chapiewsky was a plaintiff in the previous complaint, but he did
not join the second amended complaint, so I have removed his name from the caption.)
Because the new allegations are sufficient to show at this stage that defendants’ policy is
altering plaintiffs’ behavior, I will allow the case to go forward. I express no opinion on the
merits on plaintiffs’ claims because that is outside the scope of the issues before the court.
The three individual plaintiffs are gun owners who live in or near Madison, Wisconsin
and belong to plaintiff Wisconsin Carry, Inc., an organization devoted to “promoting the
free exercise of the right to keep and bear arms for its members and securing those rights
through education and litigation.” Sec. Am. Cpt. ¶ 1, dkt. #28. They wish to carry firearms
openly where it is legal to do so and are challenging what they describe as a policy of
defendants in a press release from September 2010:
Chief Wray wants to make clear: It is the department’s wish that concerned
citizens call 911 when they see armed subjects.
Following Saturday's incident, he sent an internal memo to all officers:
MPD officers regularly are dispatched to reports of individuals who are armed
with firearms. When responding to these incidents, officers should:
• Approach the suspect using the proper tactical response. The individual
should be contacted, controlled, and frisked for weapons if appropriate.
Officers should separate the suspect from any weapons in his/her possession
during the encounter.
• Officers should conduct a thorough investigation to determine whether any
violations of state statute or city ordinance have occurred. Some of the
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relevant offenses to consider include:
• Carrying a Concealed Weapon (§941.23)
• Disorderly Conduct (§947.01)
• Carrying a Firearm in Public Building (§941.235)
• Carrying Handgun Where Alcohol Beverages May be Sold and Consumed
(§941.237)
• Being a Felon in Possession of a Firearm (§941.29)
• Safe Use and Transportation of Firearms (§167.31)
• Possession of
(§941.28)

Short-Barreled

Shotgun

or

Short-Barreled

Rifle

• Gun-free School Zones (§948.605)
• Possession of a Dangerous Weapon by a Person Under 18 (§948.60)
• Endangering Safety by Use of Dangerous Weapon (§941.20)
• Officers should verify that the firearm is not stolen, and attempt to verify
that the person possessing the firearm is not legally barred from doing so (as
a felon, due to an injunction, etc.). However, someone who has been detained
is not legally obligated to provide identification to officers if no criminal
ordinance violations have occurred. A person who refuses to provide
identification should not be arrested for obstructing; however, if probable
cause for another offense exists the suspect should be arrested for that offense
and can then be identified during the citation or booking process.
• When responding to incidents involving subjects openly carrying firearms
in public places, officers should investigate to determine whether the suspects
actions caused or were likely to cause a disturbance. The primary factors to be
considered include the location, time of day and witness/bystander
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perceptions. Remember that the disorderly conduct statute does not require
that an actual disturbance take place, only that the conduct in question be of
a type that tends to cause or provoke a disturbance.
• It is my expectation that MPD officers encountering individuals who are
armed with firearms in public places will take a pro-enforcement approach. If
the investigation shows probable cause for a violation, the suspect should be
arrested or cited.
(The “Saturday incident” mentioned in the press release involved the arrest of five men who
were charged with disorderly conduct for carrying handguns in holsters at a Culver’s
restaurant on the east side of Madison. Plaintiffs do not rely on that incident to support
their argument, so I do not consider it.)
In the April 4 order, I concluded that it was reasonable to infer from the complaint
that the press release represented the policy of defendant because it includes instructions
directed at all Madison police officers regarding the proper course of action when confronted
with a person carrying a firearm. However, plaintiffs' claims were not justiciable to the
extent they sought to declare as unlawful a potential arrest or prosecution because the policy
at issue does not require or instruct officers to arrest all individuals who are carrying firearms
and none of the plaintiffs alleged that they had any intent to violate any of the laws listed
in the policy. Thus, any claim by plaintiffs that they would be arrested or prosecuted for
carrying a firearm was speculative.
With respect to other unwanted police contact, such as being questioned or having

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their firearm seized during the police encounter, the likelihood of that occurring was less
speculative because the policy does not seem to make police action contingent on the
particular circumstances. In particular, because the policy encourages citizens to call the
police any time they see someone with a firearm and the policy seems to require officers to
have the contacts whenever they receive notification, there is at least a “reasonable
probability” of a police interaction in the event any of the plaintiffs would choose to carry
a firearm openly. MainStreet Organization of Realtors v. Calumet City, Illinois, 505 F.3d
742, 745 (7th Cir. 2007).
The problem with plaintiffs’ challenge to the unwanted police contact was that
plaintiffs were not clear in the complaint whether the prospect of that contact was altering
their behavior. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,
528 U.S. 167, 182-83 (2000) (plaintiff may establish standing to sue with evidence that she
is choosing not to engage in particular behavior in order to avoid being harmed by
defendant). That is, if plaintiffs succeeded on their challenge to the policy, would they carry
a gun openly, even if they could not obtain a declaration regarding potential arrest or
prosecution? Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61(1992) (to obtain
standing, plaintiffs must show that success on their claim is likely to redress their injury).
In their second amended complaint, each of the individual plaintiffs alleges that
defendants’ policy is deterring him from carrying a firearm in Madison and that he will begin
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carrying a firearm openly if the policy is invalidated, “even if [he is] unable to obtain a preenforcement ruling regarding potential arrest or prosecution.” Sec. Am. Cpt. ¶¶ 25, 27 and
29, dkt. #28. That is sufficient at this stage to show that the individual plaintiffs’ claims are
justiciable. Cf. Ezell v. City of Chicago, No. 10-3535, — F.3d —, 2011 WL 2623511, *7
(7th Cir. Jul. 6, 2011) (gun owners had standing to challenge city ordinance that required
all owners to obtain gun training but prohibited training facilities within city limits; although
owners had not been prosecuted and had not violated the law, it was sufficient that they
“took affirmative steps to comply with the Ordinanc[e]”). Because the individual plaintiffs
are members of Wisconsin Carry and the purpose of the group is related to the issues in this
lawsuit, the group has standing as well. Friends of the Earth, 528 U.S. at 181 (organization
has standing to sue when at least one of its members has standing on matter related to
purpose of organization).
In their brief opposing the second amended complaint, defendants primarily repeat
arguments they made in their motion to dismiss about the speculative nature of any
unwanted police contact plaintiffs might have, but I rejected this argument in the April 4
order and need not discuss it again. In addition, defendants suggest that plaintiffs’ claims
fail on the merits. However, plaintiffs do not develop those arguments and they are beyond
the scope of the issue before the court, which is justiciability. If defendants believe that the
policy is constitutional, they are free to file a dispositive motion on that ground. Finally,
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defendants suggest that the court should abstain from deciding the case, but they fail to cite
relevant authority for this view or otherwise develop an argument beyond repeating what
they said regarding standing and ripeness. Defendants have not shown that this is a case in
which the court should depart from “the normal principle that federal courts should
adjudicate claims within their jurisdiction.” Wilton v. Seven Falls Co., 515 U.S. 277, 288
(1995).

ORDER
IT IS ORDERED that the second amended complaint filed by plaintiffs Wisconsin
Carry, Inc., Benjamin Moyes, Larry Herzog and William J. Veehusen, dkt.#28, is
ACCEPTED as the operative pleading in this case.
Entered this 15 th day of July, 2011.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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