West Allis man not guilty in open carry gun case
By Linda Spice of the Journal Sentinel
Posted: Feb. 17, 2009
West Allis - As Brad Krause planted a tree in his yard last summer, a neighbor noticed that in addition to a shovel, Krause had a tool not usually required for yard work - a gun in a holster.
Police arrived and gave Krause a ticket alleging disorderly conduct, launching a case that a national gun-rights group has been watching for months.
On Tuesday, Krause won acquittal in what some advocates say is one of the first so-called open-carry gun cases heard in a Wisconsin court.
Municipal Judge Paul Murphy said he had reviewed several state statutes and court cases related to the right to keep and bear arms. "There being no law whatsoever dealing with the issue of an unconcealed weapon or the so-called open carry is why we're here today," Murphy said.
In the end, he determined Krause's actions did not rise to disorderly conduct and found him not guilty.
City Attorney Scott Post declined to comment Tuesday.
Police responded to Krause's home in August after the neighbor called. They arrested Krause, gave him a disorderly conduct ticket and seized his gun.
Krause hired an attorney, Steven Cain, and fought the charge during a court trial in December.
After Murphy's ruling Tuesday, Krause said the significance of the case extends beyond gun rights.
"The reason people are upset about this is it's not about guns. It's about civil liberties. And we obviously have a property issue. There was no warrant issued, no exigent circumstances, no permission to enter the property, yet the police stormed in with guns drawn and put my life at risk," Krause said. Asked why he was carrying a gun to plant a tree, Krause said, "There's no requirement to justify why you're able to exercise constitutional rights. I and everyone else are able to go to church, they're able to vote, they're able to speak their mind. Even though the city might not like it, we have that right."
His attorney said the overarching issue in the case was whether it is legal to openly carry a gun.
"The law in Wisconsin really only limits concealed carry," Cain said. Cain argued that the U.S. Supreme Court decision last year that found Washington, D.C.'s gun ban unconstitutional concluded that open carry is "an individual right that shouldn't be abridged by law enforcement. That's what the case is generally all about."
West Allis Deputy Chief Rick Balistrieri said Tuesday's verdict will not change the way his officers respond to similar calls, noting they must assess all calls on a case-by-case basis, particularly when a gun is involved.
Krause's case had been one of several around the country followed closely and promoted by Virginia-based OpenCarry.org.
"Really, the larger issue is not even a gun rights issue," said organization co-founder John Pierce. "It's the issue of having a disorderly conduct statute that is a catch-all statute for otherwise legal behavior."