View Full Version : Judge Finds Krause Not Guilty in Open Carry Tangle,Constitution ‘Trumps’ State Law .

02-20-2009, 11:11 PM
Judge finds Krause not guilty in open carry tangle,Constitution ‘trumps’ state law, municipal ordinances

A municipal judge has found West Allis resident Brad Krause not guilty of disorderly conduct for openly carring a holstered firearm while planting trees in his yard, saying state law does not prohibit open carry and that state and local ordinances cannot trump the U.S. Constitution.

Judge Paul Murphy also used his oral decision to chastise the state Legislature for not clarifying the legality of open carry - the carrying of legal firearms in plain public view - and he chided the state's attorney general for refusing to take a stand.

West Allis police stormed Krause's property with their weapons drawn last August after a neighbor had called police and inquired about the legality of Krause's visible firearm. Officers subsequently charged him with disorderly conduct and confiscated the pistol.

Police have still not returned the firearm.

Speaking to reporters on the courthouse steps after the verdict, Krause said he was simply exercising his constitutional rights - an exercise he did not need to justify.

"The state constitution applies border to border, so whether I'm in my yard or walking down the street, as long as it's not a place where it is prohibited by law to possess a weapon and I'm not a felon who is not allowed to possess a weapon, this is an infringement on human rights," Krause said. "The freedom of rights is one of the things that sets America apart from other countries and that is something we hold very dear to us."

The issue isn't solely an open-carry dispute, Krause said.

"The reason people are upset is because this is not just about guns, but about civil liberties,"

he said, acknowledging the almost 50 people who appeared at the courthouse to support him. "The police had no permission to enter my property. There were no exigent circumstances. But they entered my property and put my life at risk. My wife was worried she was going to be a widow because I was planting a tree."

Gun rights advocates hailed the verdict but said the question of open carry was far from settled.

"I actually hope the city will appeal because we need clarity on the issue," said Gene German, a founder of Wisconsin Patriots, a grassroots organization that promotes individual rights. "The question is, if Brad straps a gun on his hip tomorrow, what will the police do? Will we be here all over again?"

There was no immediate word whether the city of West Allis planned an appeal.

Tipping point

Echoing German, Murphy underscored the limited reach of his decision - on that day in August, he concluded, Krause's conduct was not disorderly - but he nonetheless recognized the constitutional underpinnings of the case, and engaged in a broad discussion of their inherent complexities.

"The constitution is an important matter in this case," Murphy said at the outset, citing the Second Amendment and the U.S. Supreme Court's decision last year upholding an individual's right to keep and bear arms.

The gist of the case, he said, revolved around that latter right, and he quickly tipped his hand about the direction in which he was heading.

"The Bill of Rights exists to protect people from government, and does not exist to sanction government to do certain things to people," he said.

Within that constitutional framework, the judge began to dissect whether Krause's conduct was disorderly.

In so doing, he observed that the neighbor had called to inquire about the legality of Krause's gun-carrying and that the police had responded to an incident involving a "proverbial man with a gun."

"The neighbor testified (at an earlier hearing) that he was concerned about the gun going off," Murphy recounted. "But [the neighbor] said [Krause] was not causing a disturbance. [The neighbor] was concerned about the defendant's safety and about the legality. There were no children present. The court concluded that the neighbor wanted the police department to have a talk with the defendant and didn't think he would be arrested."

Murphy also cited police testimony from the earlier hearing, in which officers conceded that Krause was not agitated. snip

"It's a long but a good thoughtful decision and well worth reading his reasoning ."