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Tuesday, May 21, 2024 | Back issues
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Qualified Immunity Shields Gun Case Officers

CHICAGO (CN) - A Wisconsin gun-rights activist cannot sue officers in two municipalities who arrested him for disorderly conduct after he openly carried a holstered handgun into two retail stores in 2008 and 2009, the 7th Circuit ruled.

Jesus Gonzalez first ran into trouble with the law in May 2008 when he entered a West Milwaukee Menards wearing a black leather trench coat with a handgun strapped visibly in a thigh holster.

After a confrontation with the store manager near the children's play area, Gonzalez complied with a request to return the gun to his car before returning to shop. By the time he was leaving the store, however, Officer Patrick Krafcheck had responded to the store's call. When Gonzalez refused to tell Krafcheck the location of the gun, he was arrested.

In April 2009, Gonzalez was again arrested while openly carrying a handgun at a Chilton Wal-Mart. Officer Michel Young responded to the emergency call, and confronted Gonzalez while he was completing an ammunition purchase.

Young drew his own weapon, told Gonzalez to freeze, and then arrested him for disorderly conduct. Unable to contact the District Attorney to determine whether Gonzalez's actions constituted disorderly conduct, Young released Gonzalez but decided to confiscate his gun, which was eventually returned.

Gonzalez was not prosecuted, but he filed suit against both municipalities and the arresting officers, alleging violations of his Fourth Amendment rights. According to Gonzalez, he was arrested without probably cause and his guns were illegally seized.

Wisconsin federal Judge Lynn Adelman granted summary judgment to the defendants, finding that they did have probable cause to arrest Gonzalez and were alternatively entitled to qualified immunity. She also dismissed the seizure claim, calling it undeveloped and meritless.

While Gonzalez appealed, Wisconsin adopted a concealed-carry permitting regimen and amended statutes to clarify that openly carrying a firearm is not disorderly conduct absent "circumstances that indicate a criminal or malicious intent."

In the same month, Gonzalez was convicted of first degree reckless homicide after he shot and killed a man and wounded another on the street near his home. As a convicted felon, Gonzalez may no longer possess firearms, mooting his request for prospective declaratory relief.

The 7th Circuit affirmed the lower court decision, though on slightly different grounds.

"Although the district court's probable-cause analysis did not sufficiently account for the right to bear arms under the state and federal constitutions, we agree that the officers are entitled to qualified immunity," Judge Diane Sykes summarized.

Though all elements of a disorderly conduct were present, the court ruled, Gonzalez's constitutional right to bear arms impacted the outcome.

At the time of the incidents, "Legality of open carrying was debatable and had in fact been debated in two cases in the state supreme court testing the scope of Wisconsin's recently adopted constitutional provision guaranteeing an individual right to bear arms," Sykes pointed out.

However, she continued, the officers were entitled to qualified immunity because "At the time of the arrests, the right to bear arms was relatively new, and Wisconsin law was unclear about the effect of the right on the scope of the disorderly conduct statute. Moreover, the Supreme Court had not yet decided McDonald v. City of Chicago."

The court affirmed dismissal of the gun seizure claim, saying that Gonzalez had failed to develop the claim.

Gonzalez had also sued the City of West Milwaukee under the Privacy Act of 1974, claiming that they illegally obtained his Social Security number during booking. District Court Judge Adelman dismissed this claim as factually insufficient, as well as noting that no private enforcement action existed under the statute. The 7th Circuit affirmed dismissal, making the limited conclusion that the claim lacked factual support.

Gonzalez is currently serving his twenty-year prison sentence for first degree reckless homicide.

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