Lannon seeks DA guidance on gun laws

Posted: June 16, 2009

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Hector de la Mora - Lannon Village Attorney

Hector de la Mora - Lannon Village Attorney

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Village of Lannon — Attorney Hector de la Mora is looking into Lannon's ordinance against carrying a loaded or assembled gun in the village to see if it passes constitutional muster.

While his staff hasn't yet completed its research for the Village Board's legislative committee, which meets later this month, de la Mora said he was "waiting for the district attorney's office to sort through this situation to find out where they're going on this."

Waukesha County District Attorney Brad Schimel wrote a memorandum May 5 "to all Waukesha County law enforcement agencies … to give them some practical guidance."

Schimel said his memorandum was prompted by inquiries from Lannon Police Chief Mark Flessert and Mukwonago Village Police Chief Fred Winchowky in the wake of a memorandum April 20 from Wisconsin Attorney General J.B. Van Hollen, which reiterated the state Constitution's guarantee of an individual's "right to openly carry firearms."

The Constitution also forbids local governments from enacting or enforcing gun laws "more stringent than" state law. That means, Van Hollen wrote, "the mere open carrying of a firearm by a person, absent additional facts and circumstances, should not result in a disorderly conduct charge from a prosecutor."

State law does allow local ordinances that prohibit openly carrying guns in a tavern, government building or school and within 1,000 feet of a school.

That still leaves "a gray area," Schimel said in an interview last week, when it comes to carrying guns on government "property and appurtenances," such as government building parking lots and public parks and beaches.

The Village of Pewaukee debated whether to extend its government building gun ban to the Village Hall parking lot and its beaches when it amended its gun ordinance May 19 to comply with Van Hollen's memorandum.

In the end, however, the Village Board decided to restrict its amended ordinance just to the buildings themselves, including the downtown beach house, park pavilions and well houses, but not to the public parking lots, beaches or parks around them.

Sussex, Lisbon and Butler simply "reference state law" in their gun ordinances, according to local officials, though Sussex also forbids hunting within its borders.

The state Constitution allows cities, villages and towns to enact an ordinance "that restricts the discharge of a firearm."

Asked about the public property "gray area," Butler Village Administrator Tim Rhode said, "I can tell you what I'd do if I saw somebody openly carrying a gun on the Village Hall parking lot - I'd call the police."

Rhode said the Village Board had a similar discussion when it came to prohibiting smoking in public buildings. Trustees and village employees who smoked would go out to the Village Hall parking lot on breaks to indulge their habit.

"We had a lively discussion at the board level," Rhode said. "It's what makes local government fun."

If Rhode were to call the police in that situation, they would find their hands were not entirely tied by the state Constitution or Van Hollen's memorandum.

"If an officer has an articulable suspicion that a person may be involved in unlawful conduct, the officer may stop and detain the person to investigate," according to Schimel's memorandum.

"You have to look at the totality of the circumstances," added municipal attorney Eric Larson in an interview Monday.

He said police officers do have the authority "to intervene to stop a crime from happening" if they see someone openly carrying a gun on a government building parking lot and "threatening to go into the building."

Larsen, who works for Arenz, Molter, Macy and Riffle, the Waukesha legal firm that serves as municipal attorney for Sussex and a number of Lake Country communities, said a municipality could "probably" pass an ordinance extending the government building gun ban to its parking lots, "but it would have to be carefully written."

But because police officers may already stop "a threat to commit a crime," local governments "probably don't need such an ordinance," Larsen added.