Still a Crime to Drive in WI With a Gun in Hand

CHICAGO (CN) - Uncertain whether Wisconsin's new open-carry law applies, the 7th Circuit upheld the arrest of a man who drove through downtown Madison with a gun in his hand.

It had been another driver who called the police in July 2012 to report that a young man in a red Jeep was driving through downtown Madison, Wis., holding a handgun near his head, pointed at the roof of the car.

The caller said the driver was not threatening anyone, and it was unclear whether the gun was real or not, but that he was "speeding really fast." She told police that the man parked at Dexter's Pub, gave a description of the driver and gave the vehicle's license plate number.

Officer Brooke Lomas arrived at Dexter's Pub as a man matching the given description walked out of the bar.

Roric Gibbs soon found himself handcuffed in the back of a squad car.

He disputes that he authorized Lomas and another officer to search his vehicle, where they found two very detailed replicas of real firearms known as airsoft guns.

Lomas released Gibbs after citing him for misdemeanor disorderly conduct.

Gibbs then sued the police officer, claiming he had been arrested without probable cause and that his car was searched without a warrant.

A federal judge denied Lomas immunity based on amendments Wisconsin made to its disorderly conduct statute shortly before Gibbs's arrest. The changes include an exemption for "loading, carrying, or going armed with a firearm, without regard to whether the firearm is loaded or is concealed or openly carried."

In a unanimous reversal Tuesday, however, the 7th Circuit found that, "even if Officer Lomas was mistaken in believing that she had probable cause to arrest Mr. Gibbs, such a mistake was reasonable in light of the facts and circumstances of this case and in light of the undeveloped case law regarding subsection 947.01(2)."

Given the recent enactment of the amended law, there is little guidance as to whether Gibbs's conduct should be described simply as "going armed" or is unprotected conduct, such as brandishing a weapon in public, which would be punishable as disorderly conduct.

In an advisory memorandum, the Wisconsin attorney general said that the "mere open carrying of a firearm" should not give rise to a disorderly conduct charge. The memo also acknowledges, however, that "even when an act facially resembles the exercise of a protected right, the facts and circumstances of a case may give rise to a disorderly conduct charge."

Therefore, a reasonable officer could conclude that Gibbs's conduct was more than simply visibly carrying a firearm, and was not protected by the Wisconsin's new open carry law, the court said.

Judge Kenneth Ripple wrote the opinion for the three-member panel.

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