2018 WI 29
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP173-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Brian Grandberry,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 372 Wis. 2d 834, 890 N.W.2d 49
(2016 – Unpublished)
OPINION FILED: April 10, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 20, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Janet C. Protasiewicz
JUSTICES:
CONCURRED: KELLY, J. concurs (opinion filed).
DISSENTED: R.G. BRADLEY, J. dissents (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
and an oral argument by Leon W. Todd, assistant state public
defender.
For the plaintiff-respondent, there was a brief and oral
argument by Jeffrey J. Kassel, assistant attorney general, with
whom on the brief was Brad D. Schimel, attorney general.
Amici curiae briefs were filed on behalf of Wisconsin
Carry, Inc. by John R. Monroe and John Monroe Law, P.C.,
Roswell, Georgia.
2018 WI 29
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP173-CR
(L.C. No. 2014CM4581)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v.
APR 10, 2018
Brian Grandberry,
Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 MICHAEL J. GABLEMAN, J. This is a review of an
unpublished decision of the court of appeals, which affirmed the
Milwaukee County Circuit Court's1 judgment of conviction against
Brian Grandberry. State v. Grandberry, No. 2016AP173-CR,
unpublished slip op., ¶9 (Wis. Ct. App. Nov. 29, 2016).
¶2 Grandberry was convicted of carrying a concealed and
dangerous weapon contrary to Wis. Stat. § 941.23(2) (2013-14)2
1
The Honorable Janet C. Protasiewicz presiding.
2
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
No. 2016AP173-CR
(the "Concealed Carry Statute"), resulting from an incident in
which police discovered a handgun in the glove compartment of
his motor vehicle during a traffic stop. Grandberry appealed
his conviction, arguing that his conduct was in compliance with
Wis. Stat. § 167.31(2)(b), which regulates the transportation of
firearms in motor vehicles (the "Safe Transport Statute"),3 and
that his compliance with the Safe Transport Statute precluded
his conviction under the Concealed Carry Statute. The court of
appeals affirmed, holding that compliance with the Safe
Transport Statute does not preclude conviction for a violation
of the Concealed Carry Statute.
¶3 Grandberry raises two issues. First, he argues that
there is insufficient evidence to support his conviction. He
reaches this conclusion by asserting that a conflict exists
between the two statutes that can be resolved only by holding
that persons in compliance with the Safe Transport Statute do
not violate the first element of the crime of carrying a
concealed and dangerous weapon contrary to the Concealed Carry
Statute. We hold that the Concealed Carry Statute and Safe
Transport Statute are not in conflict because Grandberry could
have complied with both by either obtaining a license to carry a
3
Although we have previously referred to Wis. Stat.
§ 167.31(2)(b) as the "vehicle statute," Wisconsin Carry, Inc.
v. City of Madison, 2017 WI 19, ¶12, 373 Wis. 2d 543, 892
N.W.2d 233, we adopt the term used by the parties and court of
appeals, "Safe Transport Statute," because it hews more closely
to the actual text of the statute, which is entitled "Safe use
and transportation of firearms and bows."
2
No. 2016AP173-CR
concealed weapon pursuant to Wis. Stat. § 175.60 (hereinafter
"concealed carry license" or "license") or by placing his loaded
handgun out of reach.
¶4 Second, Grandberry argues that the Concealed Carry
Statute is unconstitutionally vague because a person of ordinary
intelligence would reasonably believe that complying with the
Safe Transport Statute is sufficient to lawfully place a loaded,
uncased handgun in the glove compartment of a motor vehicle. We
hold that the Concealed Carry Statute is not unconstitutionally
vague because a person of ordinary intelligence has sufficient
notice that carrying a concealed and dangerous weapon is
unlawful unless one of the enumerated exceptions in the
Concealed Carry Statute applies.
¶5 Accordingly, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶6 Grandberry was charged with one count of carrying a
concealed and dangerous weapon, contrary to Wis. Stat.
§ 941.23(2). The charge arose out of a traffic stop in the City
of Milwaukee. At the bench trial held on the matter, Grandberry
and the State stipulated to the truth of the facts in the
criminal complaint. Accordingly, no testimony was taken. The
complaint states, in relevant part:
On November 9, 2014, [two] City of Milwaukee Police
Officer[s] . . . conducted a [traffic] stop of a
vehicle . . . driven by the defendant [on] N. 60th St.
Upon stopping the vehicle, the defendant identified
himself by name but stated he did not have his wallet
[or] identification. [One officer] then asked the
defendant if he had any firearms in the car[,] and the
3
No. 2016AP173-CR
defendant stated he did[,] in the glove compartment.
[The officer] then asked the defendant if he had a
valid [concealed carry license] and the defendant
stated he did, but did not have it with him. Officers
then conducted a search of the [license] database and
discovered that the defendant did not, in fact, have a
valid [concealed carry license]. Officers then went
to the glove compartment and discovered a loaded, Hi-
Point, .45 [caliber], semi-automatic pistol.
Upon arresting the defendant and conveying him to the
station, the defendant made unprovoked statements to
the effect of[:] "The gun in the glove compartment is
mine, I took the [concealed carry license] class but
never actually got a [license]." Additionally, the
defendant is not a peace officer.
Based upon these facts, the circuit court entered a judgment of
conviction against Grandberry. Grandberry then appealed his
conviction.
¶7 The court of appeals affirmed, holding that the Safe
Transport Statute did not apply to Grandberry.4 Grandberry,
unpublished slip op., ¶9. The court of appeals then applied the
4
The court of appeals concluded that the Safe Transport
Statute "only applies [sic] to those who have passed the
rigorous conditions for obtaining a [concealed carry license]"
because the Safe Transport Statute borrows the definition of
"Handgun" from Wis. Stat. § 175.60, which regulates concealed
carry licenses. State v. Grandberry, No. 2016AP173-CR,
unpublished slip op., ¶9 (Wis. Ct. App. Nov. 29, 2016).
We pause briefly to expressly note our disagreement with
this analysis, as it lacks any support in the language of either
of the relevant statutes. Furthermore, merely defining a term by
reference to another statute does not expand or limit the scope
of the original statute. The United States Court of Appeals for
the D.C. Circuit aptly stated this concept when it said "[w]hen
one statute . . . incorporates a definition from
another . . . it imports only the specified definition and not
the broader purpose of the statute from which it comes." Owens
v. Republic of Sudan, 864 F.3d 751, 776 (D.C. Cir. 2017).
4
No. 2016AP173-CR
stipulated facts to the elements of Wis. Stat. § 941.23(2), and
held that the State proved all elements beyond a reasonable
doubt. Id., ¶11.
¶8 As to the second issue, the court of appeals held that
the Concealed Carry Statute is not unconstitutionally vague
because Grandberry had actual knowledge that he needed a
concealed carry license to lawfully carry a concealed handgun in
the glove compartment of his motor vehicle. Grandberry,
unpublished slip op., ¶19.
¶9 Grandberry petitioned this court for review, which we
granted on March 13, 2017.
II. STANDARD OF REVIEW
¶10 Grandberry challenges the sufficiency of the State's
evidence to support his conviction. "We . . . independently
review whether the evidence was sufficient to sustain a jury
verdict, but in so doing, we view the evidence most favorably to
sustaining the conviction." State v. Hanson, 2012 WI 4, ¶15,
338 Wis. 2d 243, 808 N.W.2d 390.
¶11 The proper interpretation of Wis. Stat.
§§ 167.31(2)(b) and 941.23(2) is foundational to Grandberry's
sufficiency-of-the-evidence challenge; we review issues of
statutory interpretation de novo. Id., ¶15. "In construing or
interpreting a statute the court is not at liberty to disregard
the plain, clear words of the statute." State ex rel. Kalal v.
Circuit Court for Dane Cty., 2004 WI 58, ¶46, 271 Wis. 2d 633,
681 N.W.2d 110 (citations omitted). We assume that legislative
intent is expressed in the statutory language. Id., ¶43. We
5
No. 2016AP173-CR
interpret statutory language in context, "not in isolation but
as part of a whole; in relation to the language of surrounding
or closely-related statutes; and reasonably, to avoid absurd or
unreasonable results. Statutory language is read where possible
to give reasonable effect to every word, in order to avoid
surplusage." Id., ¶46 (citations omitted).
¶12 This case also requires us to determine whether Wis.
Stat. § 941.23(2) is unconstitutionally vague. The
constitutional validity of a statute presents a question of law
that this court reviews de novo. State v. Pittman, 174 Wis. 2d
255, 276, 496 N.W.2d 74 (1993). "It falls to the party
challenging the constitutionality of a statute to prove that the
statute is unconstitutional beyond a reasonable doubt." State
v. Cole, 2003 WI 112, ¶11, 264 Wis. 2d 520, 665 N.W.2d 328. The
court indulges "every presumption to sustain the law . . . and
if any doubt exists about a statute's
constitutionality . . . [the court] must resolve that doubt in
favor of constitutionality." Id.
III. ANALYSIS
¶13 We begin our analysis by first setting out the
relevant portions of both the Concealed Carry and Safe Transport
Statutes. We then address Grandberry's argument that a person
in compliance with the Safe Transport Statute cannot, as a
matter of law, violate the first element of the Concealed Carry
Statute, which he frames as a sufficiency-of-the-evidence
challenge. Finally, we address Grandberry's argument that the
Concealed Carry Statute is unconstitutionally vague.
6
No. 2016AP173-CR
A. Statutory Background
1. The Concealed Carry Statute
¶14 The Concealed Carry Statute, with certain exceptions,
criminalizes the carrying of concealed and dangerous weapons.
The Concealed Carry Statute states, in relevant part:
(2) Any person, other than one of the following, who
carries a concealed and dangerous weapon is guilty of
a class A misdemeanor:
(a) A peace officer . . .
(b) A qualified out-of-state law enforcement
officer . . .
(c) A former officer . . .
(d) A licensee, as defined in
s. 175.60(1)(d)[5] . . .
(e) An individual who carries a concealed and
dangerous weapon, as defined in s.
175.60(1)(j),[6] in his or her own dwelling
or place of business . . .
Wis. Stat. § 941.23(2).
¶15 We read the Concealed Carry Statute as having two
parts. First, we refer to the part that creates the crime of
carrying a concealed and dangerous weapon as the "general
prohibition:" "Any person . . . who carries a concealed and
5
"Licensee" is defined as "an individual holding a valid
license to carry a concealed weapon." Wis. Stat.
§ 175.60(1)(d).
6
"Weapon" is defined as "a handgun, an electric
weapon, . . . or a billy club." Wis. Stat. § 175.60(1)(j).
7
No. 2016AP173-CR
dangerous weapon[7] is guilty of a Class A misdemeanor." See id.
In order to convict a defendant of carrying a concealed and
dangerous weapon contrary to Wis. Stat. § 941.23(2), the State
must prove three elements:
1. The defendant carried a dangerous weapon.
"Carried" means went armed with.
2. The defendant was aware of the presence of the
weapon.
3. The weapon was concealed.
Wis JI——Criminal 1335 (2016).
¶16 Almost 90 years ago, we first used the term "within
reach" to describe when a person "goes armed" with a concealed
and dangerous weapon for purposes of the Concealed Carry
Statute. Mularkey v. State, 201 Wis. 429, 432, 230 N.W. 76
(1930) ("[T]he driver of an automobile goes armed, within the
meaning of [the Concealed Carry Statute], when he has a
dangerous weapon within reach on a shelf in back of his seat.").
Nearly 50 years later, the definition was subsequently clarified
so that "'going armed' [with a concealed and dangerous weapon]
meant that the weapon was on the defendant's person or that the
weapon [was] within the defendant's reach . . . ." State v.
Asfoor, 75 Wis. 2d 411, 433-34, 249 N.W.2d 529 (1977). We
articulated the current definition of "went armed with" in State
7
For purposes of the general prohibition, a "dangerous
weapon" includes "any firearm, whether loaded or unloaded."
Wis. Stat. § 939.22(10). We note that, for purposes of the
exception enumerated in Wis. Stat. § 941.23(2)(e), the
legislature provided a narrower definition. See supra note 6.
8
No. 2016AP173-CR
v. Fry, 131 Wis. 2d 153, 182, 388 N.W.2d 565 (1986) (emphasis
added) ("The elements of the crime of carrying a concealed
weapon are: (1) the defendant had a dangerous weapon on his
person or within his reach . . . ."), overruled on other grounds
by State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786
N.W.2d 97.
¶17 The statute's second part sets forth enumerated
exceptions to the general prohibition. Wis. Stat.
§ 941.23(2)(a)-(e). These exceptions are affirmative defenses
to a charge of unlawfully carrying a concealed and dangerous
weapon. State v. Williamson, 58 Wis. 2d 514, 524, 206
N.W.2d 613 (1973) (holding that defendants must raise their
status as a peace officer as an affirmative defense). The
enumerated exceptions were expanded in 2011. 2011 Wis. Act. 35,
§§ 50-56. Before the 2011 amendment, only peace officers could
lawfully carry a concealed and dangerous weapon. Wis. Stat.
§ 941.23(2) (2009-10).
2. The Safe Transport Statute
¶18 The Safe Transport Statute states in relevant part:
(b) [N]o person may place, possess, or transport a
firearm[8] . . . in or on a vehicle, unless one of the
following applies:
1. The firearm is unloaded or is a handgun.[9]
8
"Firearm" is defined as "a weapon that acts by force of
gunpowder." Wis. Stat. § 167.31(1)(c).
9
No. 2016AP173-CR
Wis. Stat. § 167.31(2)(b)1.10 This statute was amended in the
same act that created Wisconsin's concealed carry license
regime. 2011 Wis. Act. 35, § 31. Prior to the 2011 amendment,
the Safe Transport Statute required all firearms (including
handguns) that were placed within a motor vehicle to be unloaded
and encased. Wis. Stat. § 167.31(2)(b) (2009-10). The current
version of the statute does not include a requirement that any
firearm be encased. § 167.31(2)(b). Further, though the statute
generally requires firearms be unloaded, it expressly excepts
handguns from this requirement. § 167.31(2)(b)1. Therefore,
under the terms of the Safe Transport Statute, handguns in a
motor vehicle may be both loaded and uncased.11 Id.
B. Grandberry's Conviction is Supported by Sufficient Evidence.
1. The nature of Grandberry's argument
9
"Handgun" is defined as "any weapon designed or
redesigned, or made or remade, and intended to be fired while
held in one hand and to use the energy of an explosive to expel
a projectile through a smooth or rifled bore." Wis. Stat.
§ 167.31(1)(cm) (citing Wis. Stat. § 175.60(1)(bm)). Machine
guns, short-barreled rifles, and short-barreled shotguns are
specifically excepted from the definition of "handgun." Wis.
Stat. § 175.60(1)(bm).
10
The Safe Transport Statute does not apply "to a firearm
that is placed or possessed on a vehicle that is stationary."
Wis. Stat. § 167.31(4)(ag).
11
The State does not contest that Grandberry complied with
the Safe Transport Statute, nor do we find any reason to
conclude he did not. Thus, we assume without deciding that
Grandberry did comply with its terms.
10
No. 2016AP173-CR
¶19 Grandberry frames his first issue as a sufficiency-of-
the-evidence challenge; however, Grandberry does not raise the
challenge in the traditional sense such that he asks us to
review the evidence and apply it to the elements of the
Concealed Carry Statute in order to determine whether there is
"sufficient evidence" to support his conviction. See State v.
Smith, 2012 WI 91, ¶41, 342 Wis. 2d 710, 817 N.W.2d 410.
Rather, Grandberry uses his sufficiency of the evidence argument
as the means by which he argues that the relevant statutes are
in conflict.
¶20 Grandberry's argument consists of three components:
two premises and a conclusion. His first premise is that the
two statutes are in conflict because the same conduct——placing a
loaded handgun in a motor vehicle——can comply with the Safe
Transport Statute yet violate the Concealed Carry Statute. His
second premise is that this purported conflict between the
statutes must be resolved by a holding from this court that a
person in compliance with the Safe Transport Statute does not
"carry" for purposes of the Concealed Carry Statute.12
12
Grandberry refers to his second premise as a "safe
harbor." His use of this phrase is an improper inversion of
that term of art, as a safe harbor is defined as "a provision
(as in a statute or regulation) that affords protection from
liability or penalty." Black's Law Dictionary 1536 (10th ed.
2014). No statute contains a provision affording the protection
Grandberry seeks and we decline to either invent one or to
contort our reading of the plain language of the statutes to
suit Grandberry's purposes. State ex rel. Kalal v. Circuit
Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110 ("If the meaning of the statute is plain, we
ordinarily stop the inquiry.").
(continued)
11
No. 2016AP173-CR
Grandberry's conclusion is that he complied with the Safe
Transport Statute, and so, as a matter of law, his conduct could
not violate the first element ("carry") of the offense of
carrying a concealed and dangerous weapon contrary to the
Concealed Carry Statute.
2. The Safe Transport Statute and Concealed Carry Statute are
not in conflict.
¶21 Grandberry's first premise is false because the two
statutes are not in conflict. In order for two statutes to be
in conflict, it must be impossible to comply with both. See
City News & Novelty, Inc. v. Waukesha, 170 Wis. 2d 14, 22, 487
N.W.2d 316 (Ct. App. 1992). The two statutes serve distinct
purposes: the Safe Transport Statute regulates the
transportation of firearms in motor vehicles to ensure the
transportation is done safely, see Wis. Stat. § 167.31 (entitled
"Safe use and transportation of firearms and bows."),13 while the
Grandberry bases his "safe harbor" argument on a footnote
in a court of appeals decision in which the court clarified that
its holding, which concerned whether a firearm was concealed for
purposes of the Concealed Carry Statute, "in no way limits the
lawful placement, possession, or transportation of[]
unloaded . . . and encased[] firearms . . . in vehicles as
permitted by [the Safe Transport Statute]." State v. Walls, 190
Wis. 2d 65, 69 n.2, 526 N.W.2d 765 (Ct. App. 1994) (emphasis in
original). The "safe harbor" argument is relevant only if the
statutes are in conflict. Thus, we decline to further consider
the merits of Grandberry's reading of Walls because we conclude
the statutes are not in conflict.
13
"Although titles are not part of statutes, Wis. Stat.
§ 990.001(6), they may be helpful in interpretation." Aiello v.
Pleasant Prairie, 206 Wis. 2d 68, 73, 556 N.W.2d 697 (1996).
12
No. 2016AP173-CR
Concealed Carry Statute regulates the carrying of concealed
firearms to ensure the safety of the public, see State v. Walls,
190 Wis. 2d 65, 71, 526 Wis. 2d 765 (Ct. App. 1994) (quoting
Williams v. Commonwealth, 261 S.W.2d 807, 807-808 (Ky. 1953)
(governments historically prohibited the carrying of concealed
weapons "because persons becoming suddenly angered and having
such a weapon in their pocket[] would be likely to use it, which
in their sober moments they would not have done, and which could
not have been done had not the weapon been upon their
person.")). When a person places a loaded handgun in a motor
vehicle, he can both transport a firearm in that motor vehicle
(an act governed by the terms of the Safe Transport Statute) and
carry a concealed and dangerous weapon (an act governed by the
Concealed Carry Statute). Contrary to Grandberry's assertions,
compliance with both statutes is not only possible, it is
required.
¶22 Grandberry argues that it is impossible to comply with
the Safe Transport Statute without violating the Concealed Carry
Statute. Grandberry asserts that "Wisconsin courts
have . . . generally considered firearms located anywhere inside
the interior portion of a vehicle to be within a defendant's
reach and thus 'carried' for purposes of the [Concealed Carry
Statute]." According to Grandberry, a person who transports a
loaded handgun in a motor vehicle that lacks a trunk separate
from the passenger area (e.g., a minivan, SUV, hatchback, or
station wagon) complies with the Safe Transport Statute yet is
always in violation of the Concealed Carry Statute. This is so,
13
No. 2016AP173-CR
he says, because the loaded handgun would always, as a matter of
law, be "within reach," and thus "carried" for purposes of the
Concealed Carry Statute.
¶23 This would be a compelling argument if it were true.
As it is, however, his assertion is wholly unsupported by any
statute, case law, or regulation.14
¶24 Grandberry, perhaps recognizing that no Wisconsin
court has ever defined "within reach" as broadly as he does,
seeks to bolster his reading of the statute by drawing an
analogy to search incident to arrest law under the Fourth
Amendment. The Fourth Amendment permits warrantless searches
"within 'the area into which an arrestee might reach in order to
grab a weapon or evidentiary [item].'" New York v. Belton, 453
14
Grandberry cites four cases to support the proposition
that Wisconsin courts consider the entire passenger area "within
reach," as a matter of law, for purposes of the Concealed Carry
Statute. In two of them, we merely considered whether a
reasonable finder of fact could conclude that the firearm was
"within reach" in the circumstances of each particular case.
State v. Fry, 131 Wis. 2d 153, 182, 388 N.W.2d 565 (1986)
(holding reasonable jury could find handgun in glove compartment
was within reach of driver), overruled on other grounds by State
v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97;
Mularkey v. State, 201 Wis. 429, 432, 230 N.W. 76 (1930)
(concluding a handgun on a shelf behind the driver's seat is
within reach of the driver). The other two were constitutional
challenges to the Concealed Carry Statute, in which the question
of whether the firearm was within reach was not at issue. State
v. Fisher, 2006 WI 44, ¶¶1-2, 290 Wis. 2d 121, 714 N.W.2d 495;
State v. Cole, 2003 WI 112, ¶49, 264 Wis. 2d 520, 665
N.W.2d 328. Significantly, no decision Grandberry cites——nor
any decision we could find——has reviewed a factual finding that
the trunk or cargo area of a motor vehicle was "within reach"
for purposes of the Concealed Carry Statute. See id.
14
No. 2016AP173-CR
U.S. 454, 460 (1981) (quoting Chimel v. California, 395 U.S.
752, 763 (1960)) (alteration in original). Grandberry construes
the Court's words in Belton to mean "within reach." We are not
so convinced. Rather, federal courts have described the area
subject to a warrantless search incident to arrest as the
arrestee's "grab area." See, e.g., United States v. Gandia, 424
F.3d 255, 261 (2d Cir. 2005).15 After equating the grab area of
Fourth Amendment jurisprudence to "within reach" for purposes of
the Concealed Carry Statute, Grandberry goes on to argue that
the terms have the same meaning regardless of the context in
which they are applied.16 They do not.
¶25 Grandberry and the concurrence fail to recognize the
important distinctions between these terms. Both Grandberry and
the concurrence conflate judicial interpretations of the Fourth
Amendment with a factfinder's application of laws to a given set
of facts. The determination of whether police conduct comports
with Fourth Amendment jurisprudence concerning searches incident
to arrest is a question of law. State v. Harris, 206
15
Accordingly, we employ the term "grab area" when
referring to Fourth Amendment jurisprudence concerning searches
incident to arrest and employ the phrase "within reach" for
discussion related to the Concealed Carry Statute.
16
The result of Grandberry's argument is that any area
accessible from the passenger compartment (including the cargo
area of minivans, station wagons, SUVs, and the like) is within
reach, as a matter of law, because federal courts consider those
areas to be within the person's "grab area," United States v.
Stegall, 850 F.3d 981, 985 (8th Cir. 2017) (citing United States
v. Mayo, 394 F.3d 1271, 1277 (9th Cir. 2005)).
15
No. 2016AP173-CR
Wis. 2d 243, 249-50, 557 N.W.2d 245 (1996). On the other hand,
the question of whether a handgun is within reach is one of
fact.17 See McNair v. Coffey, 279 F.3d 463, 476 (7th Cir. 2002)
(Coffey, J., concurring in the judgment and dissenting in part)
("It is a basic premise of our legal system that juries are the
triers of fact only; it is for the judge, not the jury to
interpret the law and to draw the line in the sand separating
conduct that is protected and unprotected under the
constitution.").
¶26 Accordingly, it would be improper for us to set forth
an exhaustive list of nooks and crannies within the various and
sundry configurations of motor vehicles wherein the armed, but
unpermitted, motorist may place his dangerous weapon. Our
inability is a matter of legal proscription and not lack of
will. Put simply, we do not provide the certainty both
Grandberry and the concurrence seek because our system of
criminal justice assigns the task of defining statutory terms to
this court (as we did when we defined "go armed with" to mean
"within reach"), but assigns the task of determining whether a
set of facts fits that definition (in this case, whether a
17
E.g., Fry, 131 Wis. 2d at 182 (affirming jury verdict
that handgun in glove compartment was within driver's reach);
State v. Asfoor, 75 Wis. 2d 411, 435, 249 N.W.2d 529 (1977)
(affirming jury verdict that handgun on floorboard of motor
vehicle was within reach); Mularkey, 201 Wis. at 432 (affirming
jury verdict that handgun on shelf behind front seat was within
reach); State v. Keith, 175 Wis. 2d 75, 79, 498 N.W.2d 865 (Ct.
App. 1993) (affirming jury verdict that handgun in defendant's
purse was within reach).
16
No. 2016AP173-CR
dangerous weapon is "within reach") to the jury. State v.
Leist, 141 Wis. 2d 34, 37-38 & n.2, 414 N.W.2d 45 (Ct. App.
1987) (citing United States v. Goetz, 746 F.2d 705, 708 (11th
Cir. 1984) and State v. Christensen, 100 Wis. 2d 507, 510, 302
N.W.2d 448 (1981)); cf. Curtis v. Montgomery, 552 F.3d 578, 581-
82 (7th Cir. 2009) (quoting People v. Curtis, 820 N.E.2d 1116,
1124 (Ill. App. Ct. 2005)) ("whether a particular set of
circumstances constitutes 'surveillance' as defined in the
statute is a question of fact for the jury.").
¶27 Next, Grandberry and the concurrence fail to recognize
that the two bodies of law developed independently. As
discussed above, we first used the term "within reach" to define
"go armed with" in 1930. Mularkey, 201 Wis. at 432; see also
supra, ¶16. The concept of search incident to arrest originated
in 1914. Chimel, 395 U.S. at 755 (citing Weeks v. United
States, 232 U.S. 383 (1914)). However, no phrase that resembles
"within reach" or "grab area" was used in the search incident to
arrest context before 1969. Id. at 763 ("There is ample
justification, therefore, for a search of the arrestee's person
and the area 'within his immediate control'——construing that
phrase to mean the area from within which he might gain
possession of a weapon or destructible evidence."); see also id.
at 755-762 (recounting development of search incident to arrest
jurisprudence).
¶28 This independent development of the two distinct legal
concepts is significant because we have never conflated the
concepts of grab area and within reach when construing the
17
No. 2016AP173-CR
Concealed Carry Statute. One example of this separateness is
Fry. Most of our decision in that case centers on our
consideration of Fourth Amendment jurisprudence concerning
searches incident to arrest. See generally Fry, 131 Wis. 2d at
161-81. However, in a discreet part of the opinion, we
separately considered whether the evidence adduced at trial was
sufficient to uphold the defendant's conviction for carrying a
concealed and dangerous weapon. The defendant argued that the
handgun in his glove compartment could not, as a matter of law,
be within reach because he testified at trial that his glove
compartment would not open when the passenger seat was occupied.
Id. at 182. We rejected his argument because the jury "was free
to discount" his testimony in resolving the factual issue of
whether his handgun was within reach. Id. (quoted source
omitted).
¶29 In Fry, we properly treated the concepts of "grab
area" and "within reach" as entirely separate concepts, as we
have for decades and as we do here. Id. The two areas of law
developed separately, and it is only by coincidence that they
employ similar language. Confusion between the two contexts
exists only because Grandberry threw it out like so much chum
upon the waters and the concurrence took the bait hook, line,
and sinker. To define "within reach" in the same way the United
States Supreme Court defines "grab area" is to: (1) assign a
definition to "within reach" that was not and could not have
18
No. 2016AP173-CR
been intended when the term was first used;18 (2) confuse two
entirely separate and distinct areas of the law; and (3) lead
naturally to the illegal usurpation of the role of the jury. We
decline Grandberry's invitation to do so, no matter how
vociferously the concurrence urges us to accept it.
3. Grandberry's argument fails because there is no conflict
between the statutes.
¶30 We start by observing that no part of a motor vehicle
is, as a matter of law, within reach. Rather, defining what
areas of a motor vehicle are within reach has been, is now, and
(absent legislative amendment) will continue to be a question to
be resolved on a case-by-case basis by finders of fact and by
courts reviewing the sufficiency of the evidence in particular
cases. See generally Fry, 131 Wis. 2d at 182. Citizens who
seek to comply with both statutes have at least two reasonable
18
This court had been using "within reach" for purposes of
the Concealed Carry Statute for approximately 39 years before
the United States Supreme Court introduced the phrase "within
his immediate control" to Fourth Amendment jurisprudence. See
Mularkey, 201 Wis. at 432; Chimel, 395 U.S. at 763.
19
No. 2016AP173-CR
means of doing so: (1) obtaining a concealed carry license;19
or, (2) placing their firearms out of reach.
¶31 Grandberry and the amicus devote a considerable
portion of their respective arguments within their briefs
describing the parade of horribles they claim will result from
our decision to affirm the court of appeals. They raise the
specter of promiscuous prosecution of hunters and sport shooters
who will be left struggling to comply with both statutes. The
myriad of hypothetical circumstances that may arise in factual
backgrounds in prosecutions for carrying a concealed and
dangerous weapon render it impossible for this court to
establish a bright-line rule setting forth which parts of a
vehicle are and are not within reach. Nor is it, absent
legislative directive, our place to do so. See Kittias Cty. v.
E. Wash. Groth Mgmt. Hearings Bd., 256 P.3d 1193, ¶23 (Wash.
2011) (rejecting proposed bright-line rule where inquiry is "a
question of fact based on the specific circumstances of each
case"). Nonetheless, citizens and factfinders can find
19
Grandberry argues that requiring citizens to obtain a
concealed carry license puts an economic barrier on their right
to bear arms. This argument is rendered moot by our holding
that persons without a concealed carry license can comply with
both statutes by placing their firearms out of reach. Further,
Grandberry raises the economic barrier argument as a bare one-
sentence assertion in a footnote and never develops it. We need
not address this argument, and given its undeveloped state, it
would be imprudent to do so. State v. Gracia, 2013 WI 15, ¶28
n.13, 345 Wis. 2d 488, 826 N.W.2d 87 ("we do not usually address
undeveloped arguments").
20
No. 2016AP173-CR
guidance20 in our precedent and common sense, and should consider
factors such as the location of the dangerous weapon in the
motor vehicle relative to the location of its possessor, the
motor vehicle's size, and the possessor's ability to reach the
dangerous weapon while in the motor vehicle.
C. Grandberry Failed to Satisfy His Burden to Prove the
Concealed Carry Statute is Unconstitutionally Vague.
¶32 We next consider whether the Concealed Carry Statute
is unconstitutionally vague21 as applied to Grandberry. He
admits that "[v]iewed separately, the [Concealed Carry Statute]
and the [Safe Transport Statute] appear clear." However, he
argues that "read together, they create unconstitutional
vagueness." This argument is based on the same premise as his
sufficiency-of-the-evidence argument——that the two statutes are
20
We resist the invitation of Grandberry and the amicus to
make broad pronouncements based on hypothetical facts. See
State v. Steffes, 2013 WI 53, ¶27, 347 Wis. 2d 683, 832
N.W.2d 101:
[T]his court does not issue advisory opinions on how a
statute could be interpreted to different factual
scenarios in future cases. See Grotenrath v.
Grotenrath, 215 Wis. 381, 384, 254 N.W. 631 (1934)
("[C]ourts will not ordinarily render advisory
opinions where the questions propounded have not
arisen and may never arise."). Rather, it is our job
to adjudicate the dispute in front of us. It is thus
not necessary for us to resolve the hypotheticals laid
out by [the Defendant].
21
The terms "unconstitutionally vague" and "void for
vagueness" describe the same concept and are thus used
interchangeably. See State v. McManus, 152 Wis. 2d 113, 135,
447 N.W.2d 654 (1989).
21
No. 2016AP173-CR
in conflict——and for the same reasons we hold that the Concealed
Carry Statute provides sufficient notice of what conduct is
prohibited.
¶33 "[T]he void-for-vagueness doctrine requires that a
penal statute define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement." Beckles v. United States, 137 S.
Ct. 886, 892 (2017) (citing Kolender v. Lawson, 461 U.S. 352,
357 (1983)). See also State v. Cissell, 127 Wis. 2d 205, 224,
378 N.W.2d 691 (1985) (quoting Kolender for the definition of
void-for-vagueness); Wayne R. LaFave, 1 Substantive Criminal Law
§ 2.3 (2d ed.), Westlaw (database updated Oct. 2017) ("The void-
for-vagueness doctrine . . . require[s] that a criminal statute
be declared void when it is so vague that men of common
intelligence must necessarily guess at its meaning and differ to
its application").
¶34 Grandberry's constitutional challenge is as-applied.
In an as-applied challenge, a court assesses the merits of the
constitutional claim by considering the facts of the particular
case, not hypothetical facts in other situations.22 State v.
Hamdan, 2003 WI 113, ¶43, 264 Wis. 2d 433, 665 N.W.2d 785.
Thus, in this case, we consider whether a person of ordinary
22
This is in contrast to a facial challenge, which requires
the court to determine whether a statute may be constitutionally
applied in any circumstance. Cole, 264 Wis. 2d 520, ¶30.
22
No. 2016AP173-CR
intelligence in Grandberry's situation (i.e., placing a loaded
handgun in the glove compartment of a motor vehicle) would have
fair notice that his conduct violates the Concealed Carry
Statute. State v. Hahn, 221 Wis. 2d 670, 679, 586 N.W.2d 5 (Ct.
App. 1998).
¶35 Grandberry's argument boils down to a complaint that
the statutes overlap such that placing his loaded handgun in his
glove compartment constitutes both transporting under the Safe
Transport Statute and carrying under the Concealed Carry
Statute, and thus his conduct can comply with one statute while
simultaneously violating the other. Grandberry asks how a
person reading the Safe Transport Statute can possibly know that
complying with the terms of that statute may, in some
circumstances, also violate the Concealed Carry Statute. Unlike
the bulk of Grandberry's arguments, the answer to his question
is straightforward and elegant in its simplicity: read the
Concealed Carry Statute. Due process does not demand that every
regulation on a certain subject be in the same statute; such a
requirement would be absurd. Rather, where multiple statutes
govern a defendant's conduct, due process requires that the
terms of the statute under which the defendant was charged be
sufficiently clear. Cissell, 127 Wis. 2d at 216-17 (citing
United States v. Batchelder, 442 U.S. 114, 123 (1979)).
¶36 The Concealed Carry Statute provides sufficient notice
to a person of ordinary intelligence that carrying a concealed
and dangerous weapon is prohibited unless one of the statutory
exceptions enumerated in Wis. Stat. § 941.23(2)(a)-(e) applies.
23
No. 2016AP173-CR
See Asfoor, 75 Wis. 2d at 435 (holding prior version of the
Concealed Carry Statute was not unconstitutionally vague). The
statute clearly defines what conduct is prohibited: "Any
person . . . who carries a concealed and dangerous weapon is
guilty of a Class A misdemeanor." § 941.23(2). The language
creating the exceptions, "other than one of the following," is
equally clear that the only way a person can lawfully carry a
concealed and dangerous weapon is to fall within one of the
enumerated exceptions. Id. Grandberry could not reasonably
believe that placing a firearm in the glovebox of his motor
vehicle is permitted under the terms of the Concealed Carry
Statute23——something Grandberry obliquely acknowledged at the
time of his arrest when he told the arresting officers
(untruthfully) that he possessed a concealed carry license.
Thus, Grandberry's due process challenge fails.
IV. CONCLUSION
¶37 We hold that the Concealed Carry Statute and Safe
Transport Statute are not in conflict because Grandberry could
have complied with both by either obtaining a concealed carry
23
Because this is an as-applied challenge, see supra ¶32,
our conclusion that the Concealed Carry Statute is
constitutionally applied to Grandberry does not mean that the
Concealed Carry Statute is constitutionally applied in all
circumstances. If, for instance, this opinion opens the wide
floodgates to the variety and volume of prosecutions posited by
Grandberry and the amicus, it will be up to the relevant courts
to determine whether the Concealed Carry Statute may be
constitutionally applied in each of those particular
circumstances. See supra ¶29 n.20.
24
No. 2016AP173-CR
license pursuant to Wis. Stat. § 175.60 or by placing his loaded
handgun out of reach. Further, we hold that the Concealed Carry
Statute is not unconstitutionally vague because a person of
ordinary intelligence has sufficient notice that carrying a
concealed and dangerous weapon is unlawful unless one of the
enumerated exceptions in the Concealed Carry Statute applies.
For these reasons, we affirm the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
25
No. 2016AP173-CR.dk
¶38 DANIEL KELLY, J. (concurring). Mr. Grandberry tells
us he did not "carr[y] a concealed and dangerous weapon" when he
placed a handgun in his vehicle's glove compartment. See Wis.
Stat. § 941.23(2). This is so, he says, because of a statute
that exempts handguns from the type of firearms one may not
place in a vehicle. Today, the court concludes Mr. Grandberry
was wrong——he did carry a concealed and dangerous weapon, and no
statute excused his actions. Therefore, his conviction was and
is sound. And I agree with that.
¶39 But in reaching that conclusion, we created
unnecessary ambiguity about what it means to "carry" a weapon.
Whereas that concept bore only one meaning before today, now it
bears two——one for measuring the propriety of vehicle searches
under the constitution, and another for espying a violation of
Wis. Stat. § 941.23(2) (the "Concealed Carry Statute"). This is
both unnecessary and unwise.
¶40 The Concealed Carry Statute's proscription is clear,
and the process of determining whether Mr. Grandberry violated
it covers well-travelled ground. The statute says "[a]ny
person, other than one of the following, who carries a concealed
and dangerous weapon is guilty of a Class A misdemeanor." Wis.
Stat. § 941.23(2). All agree that Mr. Grandberry did not fit
within any of the exceptions, so we next inquire into what it
means to "carry" a weapon. The Concealed Carry Statute provides
the answer: "'Carry' has the meaning given in s.
175.60(1)(ag)." § 941.23(1)(ag). Following this cue, we find
1
No. 2016AP173-CR.dk
in the referenced section that "'[c]arry' means to go armed
with." Wis. Stat. § 175.60(1)(ag).
¶41 We have a long history with the phrase "to go armed
with" as it relates to the Concealed Carry Statute. Nearly a
century ago we decided, as a matter of law, that a person is
armed when he has a firearm "within reach." Mularkey v. State,
201 Wis. 429, 432, 230 N.W. 76 (1930) ("[T]he driver of an
automobile goes armed, within the meaning of section 340.69,
Stats.,[1] when he has a dangerous weapon within reach on a shelf
in back of his seat." (citations omitted)). We said essentially
the same thing in State v. Asfoor, 75 Wis. 2d 411, 433-34, 249
N.W.2d 529 (1977), stating that "'going armed' meant that the
weapon was on the defendant's person or that the weapon must
have been within the defendant's reach." We confirmed this
understanding of the phrase in State v. Fry, another case
involving a handgun in a vehicle's glove compartment. 131
Wis. 2d 153, 182, 388 N.W.2d 565 (1986) ("The elements of the
crime of carrying a concealed weapon are: (1) the defendant had
a dangerous weapon on his person or within his reach . . . ."
(citation omitted)), overruled on other grounds by State v.
Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97.
¶42 We now arrive at the end of the definitional chain in
which "carry" means "go armed with," and "go armed with" means
1
This statute was the precursor to the Concealed Carry
Statute, and provided that "[a]ny person who shall go armed with
any concealed and dangerous weapon shall be punished." Wis.
Stat. § 340.69 (1929-30).
2
No. 2016AP173-CR.dk
to have a weapon "within reach." A weapon is "within reach" if
it is in a vehicle's passenger compartment. We know this on no
less an authority than the United States Supreme Court. In
describing the permissible scope of a warrantless search
incident to arrest, the Court said: "Our reading of the cases
suggests the generalization that articles inside the relatively
narrow compass of the passenger compartment of an automobile are
in fact generally, even if not inevitably, within 'the area into
which an arrestee might reach in order to grab a weapon or
evidentiary ite[m].'" New York v. Belton, 453 U.S. 454, 460
(1981) (quoting Chimel v. California, 395 U.S. 752, 763 (1969)),
abrogated on other grounds by Arizona v. Gant, 556 U.S. 332, 343
(2009). Some courts include "the hatchback or rear hatch area
of a vehicle" within the meaning of "passenger compartment," so
long as "an occupant could have reached [that] area while inside
the vehicle." United States v. Stegall, 850 F.3d 981, 985 (8th
Cir. 2017) (quoted source omitted). The rear cargo area of an
SUV may also fall in that category. See United States v.
Olguin-Rivera, 168 F.3d 1203, 1205 (10th Cir. 1999); see also
United States v. Henning, 906 F.2d 1392, 1396 (10th Cir. 1990)
("Where, . . . the vehicle contains no trunk, the entire inside
of the vehicle constitutes the passenger compartment and may be
lawfully searched.").
¶43 This last definitional step is where we created
ambiguity. We said that what is "within reach" for Fourth
Amendment purposes is something different from what is "within
reach" for purposes of the Concealed Carry Statute. The court
3
No. 2016AP173-CR.dk
offers two reasons for its belief that these are "entirely
separate concepts." See majority op., ¶29. First, it says they
are substantively different because the court decides one, while
the jury decides the other. The second is just a matter of
rhetoric. Literally. The court chose synonymous phrases to
describe the same concept and then asserted the synonyms created
a substantive difference. I'll address each of these reasons in
turn.
¶44 "Within reach," the court said, is a question of law
in the Fourth Amendment context, while in the context of the
Concealed Carry Statute it is a question of fact. Id., ¶25.
Therefore, the court concluded they mean different things
because the court decides the former and juries decide the
latter. See id. Get it? I don't. And I don't think the court
does either. Whether it is a question of law or a question of
fact, both questions address precisely the same consideration:
Can a person reach the firearm? The length of a person's arm
doesn't change because a jury measures it instead of a judge.
The only real significance presented by the different contexts
is that one deals with a potentiality and the other with the
resolution of the potentiality. Here is what I mean.
¶45 The lawful scope of a warrantless search incident to
an arrest is defined by a potentiality, to wit, the space into
which a person could conceivably reach to retrieve a weapon.
The purpose of such searches is "'to remove any weapons that
[the arrestee] might seek to use in order to resist arrest or
effect his escape' and the need to prevent the concealment or
4
No. 2016AP173-CR.dk
destruction of evidence." Belton, 453 U.S. at 457 (quoting
Chimel, 395 U.S. at 763). It is the danger created by an
arrestee's potential access to a weapon that justifies the
search. The Supreme Court emphasized this justification in
Arizona v. Gant, in which it rejected a reading of Belton that
allowed vehicle searches even when there was no reasonable
chance the arrestee could access the passenger compartment:
"Accordingly, we reject this reading of Belton and hold that the
Chimel rationale authorizes police to search a vehicle incident
to a recent occupant's arrest only when the arrestee is
unsecured and within reaching distance of the passenger
compartment at the time of the search." Arizona v. Gant, 556
U.S. 332, 343 (2009); accord State v. Dearborn, 2010 WI 84, ¶29,
327 Wis. 2d 252, 786 N.W.2d 97.
¶46 The Supreme Court's concern is entirely functional,
and is focused on the physical reality that a quick movement
within the passenger compartment could put a weapon in the
suspect's hand. The Court has decided, as a matter of law, that
the entirety of a vehicle's passenger compartment can be reached
by such a movement. Presumably, it had a good basis for making
that determination. If it did not, we would have to conclude
that the Court's understanding of the Fourth Amendment in this
context has its roots in a factual fallacy. Nothing suggests we
ought to entertain that possibility, so I must conclude that the
Court truly meant that a firearm in a vehicle's passenger
compartment is within an occupant's reach.
5
No. 2016AP173-CR.dk
¶47 Now for the court's rhetorical distinction between
"within reach" and "within reach." The court says the federal
judiciary "describe[s] the area subject to a warrantless search
incident to arrest as the arrestee's 'grab area,'" majority op.,
¶24 (quoting United States v. Gandia, 424 F.3d 255, 261 (2d Cir.
2005)), whereas our court uses "within reach" to describe the
area subject to the Concealed Carry Statute. And then the court
says "Grandberry and the concurrence fail to recognize the
important distinctions between these terms." Id., ¶25. Well,
that much is certainly true. But I take comfort in the fact
that the Belton court——upon which the court relies for its
rhetorical distinction——shares the same purported failure.
Belton said the "the passenger compartment of an automobile" is
subject to search because it is "within 'the area into which an
arrestee might reach in order to grab a weapon or evidentiary
ite[m].'" Belton, 453 U.S. at 460 (quoted source omitted).
This is the actual sentence in which the court says it
discovered a substantive difference between "grab area" and
"within reach." See majority op., ¶24.
¶48 The problem with the court's discovery is twofold.
First, there is not even a theoretical difference between "grab
area" and an area that is "within reach." To conclude otherwise
would be to say that one may grab something beyond one's reach,
or that one may reach something one cannot grab. The second
problem is grammatical. The court reads Belton as using "grab"
to define an area. That's not what Belton was doing. It was
describing what a suspect might do in an already defined area——
6
No. 2016AP173-CR.dk
to wit, "grab a weapon or evidentiary ite[m]." Belton, 453 U.S.
at 460 (quoted source omitted). How did the Belton court define
where that might be done? It said a weapon might be grabbed
from "within the area into which an arrestee might reach." Id.
Or, with the judicious use of one's editing pencil, this
definition can be shortened——without losing a jot or tittle of
meaning——to "within . . . reach." So the court's discovery of a
substantive difference between "within reach" and "within reach"
is both illogical and ungrammatical. I am confident the Belton
court would find no "important distinctions between these
terms." See majority op., ¶25.
¶49 The court also faults me (and Mr. Grandberry) for not
substantively distinguishing "within reach" (Fourth Amendment)
from "within reach" (Concealed Carry Statute) based on the
separate lines of cases in which the concept has been used. See
id., ¶27. I acknowledge that I find this to be a distinction
without a difference, but I don't think it's a fault. The
Concealed Carry Statute concerns itself with the same physical
reality addressed by Belton and Gant. In the Fourth Amendment
context, the concern is whether there could be a weapon within
reach. In the Concealed Carry Statute context, the concern is
whether there actually was a weapon within reach.
¶50 This just means that the jury resolves as a factual
matter the potentiality described by our Fourth Amendment
jurisprudence. The Fourth Amendment defines the outer
parameters of what could be lawfully within a defendant's reach;
the jury decides whether a specific defendant could actually
7
No. 2016AP173-CR.dk
reach that location under the circumstances of a specific case.
If he could, then the weapon was "within reach" within the
meaning of the Concealed Carry Statute. However, if
circumstances arise that make it impossible for a defendant to
obtain a weapon from the area described by Belton and Gant, the
jury may acquit. The defendant attempted this very gambit in
State v. Fry. He argued that the glove compartment in which he
placed his gun would not open when the passenger seat was
occupied, so the gun was not within reach. See Fry, 131 Wis. 2d
at 176. The jury convicted him anyway, and we found no error.
Id. at 156. Nor did we address the concealed-carry question as
anything other than a particularized inquiry into the
relationship between the weapon and the area described by Belton
and Gant.
¶51 Mr. Grandberry's concerns have a good foundation, and
we shouldn't have dismissed them as abruptly as we did. The
court said that "[a]ccording to Grandberry, a person who
transports a loaded handgun in a motor vehicle that lacks a
trunk separate from the passenger area (e.g., a minivan, SUV,
hatchback, or station wagon) complies with the Safe Transport
Statute yet is always in violation of the Concealed Carry
Statute." Majority op., ¶22. We then concluded that this would
be a compelling argument but for the lack of any "statute, case
law, or regulation" to support it. Id., ¶23. But in actuality
we are the ones who lack a statute, opinion, or regulation to
answer Mr. Grandberry's concern. No law defines "within reach"
more narrowly in the concealed-carry context than in the Fourth
8
No. 2016AP173-CR.dk
Amendment context. Consequently, if Mr. Grandberry encases a
handgun and puts it in the furthest corner from the driver's
seat in an SUV, he is at risk of prosecution for violating the
Concealed Carry Statute.
¶52 Ultimately, the court doesn't finish the job it set
out for itself. It proposed that the concept of "within reach"
could describe one area for purposes of the Fourth Amendment,
and a different area for purposes of the Concealed Carry
Statute. But the court went no further than opining on why it
believes the concept should describe different areas. That is
to say, the opinion doesn't describe what the difference
actually is. In fact, we affirmatively refused to say what it
might be. Instead, we chillingly advised the people of
Wisconsin to risk criminal liability on multi-factor tests and
common sense: "[C]itizens and factfinders can find guidance in
our precedent and common sense, and should consider factors such
as the location of the dangerous weapon in the motor vehicle
relative to the location of its possessor, the motor vehicle's
size, and the possessor's ability to reach the dangerous weapon
while in the motor vehicle." Id., ¶31 (footnote omitted).
Anent the last clause of this formulation: How does "ability to
reach the dangerous weapon while in the motor vehicle" differ
from "within the area into which an arrestee might reach"?
Common sense will utterly exhaust itself trying to find any room
between the two, and we aren't saying what the difference might
be. And yet, a person placing a firearm in a vehicle hazards
9
No. 2016AP173-CR.dk
criminal prosecution if he can't figure out a distinction that
we refuse to describe.
¶53 The Concealed Carry Statute is not unconstitutionally
vague, but only because its proscription reaches the entirety of
the passenger compartment. This is a readily-ascertainable
prohibition. But if criminality depends on a non-exclusive list
of variables like the size of a vehicle, the placement of a
weapon, and "common sense," then we have denied the people of
Wisconsin the ability to identify with any certainty what the
statute prohibits with respect to vehicles. So, ironically, in
the process of explaining why the statute is not
unconstitutionally vague, we have made it so. See Kolender v.
Lawson, 461 U.S. 352, 357 (1983) ("[T]he void-for-vagueness
doctrine requires that a penal statute define the criminal
offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does
not encourage arbitrary and discriminatory enforcement."
(citations omitted)).
*
¶54 I agree with the court's mandate because Mr.
Grandberry could comply with both the Concealed Carry Statute
and Wis. Stat. § 167.31(2)(b) (the "Safe Transport Statute").
As we have described elsewhere, the Safe Transport Statute (as
relevant here) simply exempts handguns from a prohibition
against placing loaded firearms in a vehicle. Wis. Carry, Inc.
v. City of Madison, 2017 WI 19, ¶¶12, 47-51, 373 Wis. 2d 543,
892 N.W.2d 233 (referring to the "Safe Transport Statute" as the
10
No. 2016AP173-CR.dk
"Vehicle Statute"). Nothing about its terms excuses the
individual from complying with all other applicable laws. So,
although Mr. Grandberry did not violate the Safe Transport
Statute when he placed his handgun in the glove compartment, he
most assuredly violated the Concealed Carry Statute.
¶55 And now, a postscript of sorts: Given Wisconsin's
proud hunting heritage, it's worth noting the Concealed Carry
Statute's shockingly broad proscriptions. In amending our
statutes to offer the opportunity to carry concealed handguns,
the legislature simultaneously made it unlawful to carry a
concealed rifle or other long gun. This may have been
inadvertent, but we give effect only to what the legislature
does, not what it tried to do.2 The Concealed Carry Statute
prohibits an individual from carrying a "dangerous weapon."
Wis. Stat. § 941.23(2). A "[d]angerous weapon" is, inter alia,
"any firearm, whether loaded or unloaded." Wis. Stat.
§ 939.22(10). There is no exception for rifles, shotguns, or
other long guns. A person can, of course, obtain a permit to
carry a concealed weapon, but they are available only for
handguns, electric weapons, and billy clubs. Wis. Stat.
§ 941.23(2)(d) (2015-16); Wis. Stat. § 175.60(1)(j) (2015-16).
So if you hunt, you may not put your rifle in a case. And if
you put your rifle in the passenger compartment of a vehicle,
2
"We assume that the legislature's intent is expressed in
the statutory language. . . . It is the enacted law, not the
unenacted intent, that is binding on the public." State ex rel.
Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶44, 271
Wis. 2d 633, 681 N.W.2d 110.
11
No. 2016AP173-CR.dk
you must display it in such a way that it is readily observable.
Mularkey, 201 Wis. at 432 ("If the weapon is hidden from
ordinary observation it is concealed. Absolute invisibility to
other persons is not indispensable to concealment. The test is,
was it carried so as not to be discernible by ordinary
observation." (citation omitted)). The State is aware of this
overbreadth, which is why it instructs game wardens to ignore
the Concealed Carry Statute as it relates to hunters and their
long guns. In the course of arguing this case, the State
acknowledged that "as a practical matter, the DNR does not treat
rifles in a case as 'concealed.'"
¶56 Finally, a post postscript. The Concealed Carry
Statute also puts at risk all those who do not have concealed
carry permits who nonetheless bring their handguns to shooting
ranges. To comply with the statute, one would have to keep the
handgun uncased at all times, and if placed in the passenger
compartment of a vehicle, it would have to be situated so that
it is readily observable.
¶57 Neither of these postscripts, however, affect Mr.
Grandberry, so his conviction remains sound. Therefore, I
concur and join the court's mandate.
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¶58 REBECCA GRASSL BRADLEY, J. (dissenting). The
majority's interpretation of the carrying concealed weapons
statute, Wis. Stat. § 941.23, ("Concealed Carry Statute"), the
license to carry a concealed weapon statute, Wis. Stat.
§ 175.60, (the "Concealed Carry Licensing Statute"), and the
safe use and transportation of firearms and bows statute, Wis.
Stat. § 167.31, ("Safe Transport Statute"), criminalizes hunters
transporting long guns to hunting grounds, domestic violence
victims transporting handguns to shooting ranges, and archers
transporting crossbows to archeries. I instead construe these
statutes to enable citizens who lawfully own firearms,
crossbows, and bows to safely transport their weapons without
subjecting themselves to criminal liability. The majority
concludes the statutes clearly instruct how to comply with the
law. I disagree. The interplay of these statutes does not
provide clear notice or effective direction on how to comply
with the law, and the lack of clarity allows for selective
enforcement of Wis. Stat. § 941.23 (2013-14).1 Consequently, the
application of the Concealed Carry Statute and the Safe
Transport Statute here is unconstitutional under the void for
vagueness doctrine. Grandberry's conviction should be reversed.
¶59 In a 1930 case, Mularkey v. State, 201 Wis. 429, 432,
230 N.W. 76 (1930), this court adopted a definition of "go
1
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
1
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armed" to mean "on the defendant's person" or "within the
defendant's reach." See State v. Asfoor, 75 Wis. 2d 411, 433-
34, 249 N.W.2d 529 (1977) (reciting Mularkey's holding).
Mularkey pulled this definition from Texas cases interpreting
Texas' "unlawfully carrying arms" statute, 1911 Tex. Crim. Stat.
475, which proscribed carrying a weapon "on or about his person,
saddle or in his saddle bags." See Wagner v. State, 188 S.W.
1001, 1002 (1916).2 The Mularkey court's reliance on Texas case
law to import "within reach" into Wisconsin's definition of "go
armed" should be overruled for three reasons. First,
Wisconsin's concealed carry statute never had language similar
to the Texas statute. Compare Wis. Stat. § 340.69 (1930) ("Any
person who shall go armed with any concealed and dangerous
weapon shall be punished . . .") with Tex. Penal Code Art. 475
(1911) ("[I]f any person in this state shall carry on or about
his person, saddle or in his saddle bags, any [weapon] he shall
2
Mularkey v. State, 201 Wis. 429, 432, 230 N.W. 76 (1930)
cited additional cases from Texas purportedly using the "within
reach" terminology: Leonard v. State, 119 S.W. 98 (1909); Hill
v. State, 100 S.W. 384 (1907); Mayfield v. State, 170 S.W. 308
(1914); DeFriend v. State, 153 S.W. 881 (1913); and Garrett v.
State, 25 S.W. 285 (1894). None of these cases use the term
"within reach." Defriend comes close to "within reach," but
does not use that wording. It says:
"[O]n or about his person," as used in our statutes in
connection with the carrying a pistol, is meant that
the pistol that is alleged to have been carried must
have been within easy access of the person carrying
it; that the pistol could have been secured with
practically no effort on the part of the person
charged.
Id., 153 S.W. at 882.
2
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be punished . . ."). Second, the Texas cases did not interpret
"go armed" or specifically the word "carry"; instead, the Texas
courts focused on the "about his person" language in Texas' law.
Third, the United States Supreme Court's decision in District of
Columbia v. Heller, 554 U.S. 570, 584 (2008) (quoting Muscarello
v. United States, 524 U.S. 125, 143 (1998)), identifies the
"natural meaning" of "bear arms" as to "wear, bear, or
carry . . . upon the person or in the clothing or in a pocket."
Accordingly, this court should abandon Mularkey's "within reach"
expansion of what it means to "go armed." Doing so would honor
the textual distinction between going "armed with" a concealed
weapon and transporting a weapon in a vehicle, while confining
the Fourth Amendment standard as to what is within a person's
reach or immediately accessible to vehicle searches incident to
arrest. See State v. Fry, 131 Wis. 2d 153, 181, 388 N.W.2d 565
(1986) (holding that when police search a vehicle incident to an
arrest, "the area in the defendant's reach or presence" within
the vehicle is authorized under the Fourth Amendment).
I. VOID FOR VAGUENESS
¶60 Grandberry argues the interplay of Wis. Stat. § 941.23
and Wis. Stat. § 167.31 renders the Concealed Carry Statute void
for vagueness as applied to a person who transports a firearm in
a vehicle in a manner consistent with the Safe Transport
Statute. Specifically, he contends the ordinary person would
not have fair notice that if he complies with the Safe Transport
Statute, he nevertheless might be guilty of violating the
Concealed Carry Statute. He also points out common scenarios in
3
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which it would be impossible to comply with the Concealed Carry
Statute when transporting a firearm.
A. Standard of Review & Applicable Principles of Law
¶61 Whether a statute is constitutional presents an issue
of law reviewed de novo. State v. Pittman, 174 Wis. 2d 255,
276, 496 N.W.2d 74 (1993). Although statutes are generally
presumed constitutional, when the challenge is not to the
statute itself, but to how it is applied, no presumption exists.
Soc'y Ins. v. LIRC, 2010 WI 68, ¶27, 326 Wis. 2d 444, 786
N.W.2d 385 ("While we presume a statute is constitutional, we do
not presume that the State applies statutes in a constitutional
manner."). "As such, neither the challenger nor the enforcer of
the statute face a presumption in an as-applied challenge." Id.
¶62 The void for vagueness doctrine protects individuals
from unreasonable prosecution. The Fourteenth Amendment to the
United States Constitution declares that no state may "deprive
any person of life, liberty, or property, without due process of
law." U.S. Const. amend. XIV. This constitutional guarantee is
protected when courts declare a statute invalid that would
otherwise violate individual procedural due process. Kolender
v. Lawson, 461 U.S. 352, 357 (1983). Courts may invalidate
unconstitutional statutes by applying the void for vagueness
doctrine. Id. "[T]he void-for-vagueness doctrine requires a
penal statute to define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement." Id.
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¶63 This court set forth a two-part test in applying the
void-for-vagueness doctrine: (1) is the statute "sufficiently
definite to give persons of ordinary intelligence who seek to
avoid its penalties fair notice of the conduct required or
prohibited"? and (2) does the statute "provide standards for
those who enforce the laws and adjudicate guilt" so the statute
can be applied consistently? State v. McManus, 152 Wis. 2d 113,
135, 447 N.W.2d 654 (1989). "If the statute is so obscure that
people of common intelligence must necessarily guess at its
meaning and differ as to its applicability, it is
unconstitutional." City of Oak Creek v. King, 148 Wis. 2d 532,
546, 436 N.W.2d 285 (1989). Of particular relevance here, if a
statute lacks adequate notice of what is prohibited, causing
"basic policy matters [being left] to policemen, judges, and
juries for resolution on an ad hoc and subjective basis," it is
unconstitutional. Dog Fed'n of Wis., Inc. v. City of So.
Milwaukee, 178 Wis. 2d 353, 359-60, 504 N.W.2d 375 (1993)
(quoting Grayned v. City of Rockford, 408 U.S. 104, 108-09
(1972)).
¶64 In assessing the clarity of a statute, normally only
"a reasonable degree of clarity" is required for it to be
constitutional; however, when the statute infringes on a
constitutionally protected right, the law requires more exacting
precision, and "a more stringent vagueness test should apply."
Id. (first quoting Roberts v. United States Jaycees, 468 U.S.
609, 629 (1984); then citing Grayned, 408 U.S. at 110; Vill. of
5
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Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
489, 499 (1982)).3
B. Application
¶65 The Concealed Carry Statute makes it a crime to carry
"a concealed and dangerous weapon" unless an exception applies.
Wis. Stat. § 941.23. The exception at issue here covers a
"licensee" who obtained a license under Wis. Stat. § 175.60.
Wis. Stat. § 941.23(2)(d). Section 175.60 allows a person who
owns a handgun, electric weapon, or billy club to get a license,
which authorizes carrying the weapon concealed. However, the
Safe Transport Statute allows any person to "place, possess, or
transport a firearm, bow, or crossbow in or on a vehicle" as
long as the "firearm is unloaded or is a handgun" and as long as
a bow does "not have an arrow nocked" and a crossbow is not
"cocked or is unloaded and enclosed." Wis. Stat.
§ 167.31(2)(b). The Safe Transport Statute does not delineate
where in a vehicle the weapon must be placed and it does not
contain any licensing requirements.
3
Grandberry's failure to make an argument grounded in the
Second Amendment does not mean we should ignore the fundamental
constitutional right to bear arms in analyzing his void for
vagueness challenge. See State v. Cole, 2003 WI 112, ¶20, 264
Wis. 2d 520, 665 N.W.2d 328 ("We find that the state
constitutional right to bear arms is fundamental."). Article I,
Section 25 of the Wisconsin Constitution provides: "The people
have the right to keep and bear arms for security, defense,
hunting, recreation or any other lawful purpose." The Second
Amendment to the United States Constitution provides: "A well
regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not
be infringed." U.S. Const. amend. II. I note that Grandberry
did raise this fundamental right in the circuit court.
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¶66 The question is whether these statutes give fair
notice that a person who wants to transport a weapon in his
vehicle must either have a concealed carry license or put the
weapon out of reach. And, does the State's admission that law
enforcement looks the other way when a hunter has a long gun
concealed in his vehicle demonstrate that Wis. Stat. § 941.23
violates constitutional due process guarantees?
1. Fair Notice
¶67 This court reviews whether fair notice exists from the
perspective of a person of ordinary intelligence. McManus, 152
Wis. 2d at 135. Would a person of ordinary intelligence know
from reading the statutes that in order to transport a firearm
in his vehicle he must get a license or put it out of reach?
Not likely. Instead, Wis. Stat. § 941.23 when read together
with the Safe Transport Statute is more likely to "trap the
innocent by not providing fair warning" of what is permissible
and what is prohibited under law. Grayned, 408 U.S. at 108-09.
¶68 Wisconsin Stat. § 941.23 broadly proscribes carrying a
concealed weapon unless certain exceptions apply. This statute
informs any person who is not a current or former law
enforcement officer that in order to lawfully carry a concealed
handgun, electric weapon, or billy club outside of that person's
own home, land, or business4 a license is required under Wis.
Stat. § 175.60. A license is available only for those three
weapons——but not a rifle, shotgun, crossbow or bow. Wis. Stat.
4
Wisconsin Stat. § 941.23(2)(e) allows a person to carry
concealed weapons in these places.
7
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§ 175.60(1)(j). Section 941.23(1)(ag) adopts the definition of
"carry" given in § 175.60(1)(ag), which tells a person that
"'[c]arry' means go armed with." Neither statute defines
"carry" to mean "have within reach." Section 175.60 also
prohibits licenses for those "less than 21 years of age." Wis.
Stat. § 175.60(3)(a).
¶69 These statutes certainly give fair notice that anyone
over the age of 21 who wants to carry a concealed handgun,
electric weapon, or billy club outside his property or business
must get a license. But the language of these statutes does not
mention vehicles or transportation at all; further, these
statutes do not allow the owner of a long gun, bow, or crossbow,
or any gun owner under the age of 21 to get a license.
Significantly, these statutes define "carry" only as "go armed
with." There is nothing in the statutory text suggesting that
"carry" means having a weapon "within reach" in a vehicle.
The "within reach" part of the "carry" definition comes from our
case law, not from the statutes.
¶70 Although, generally speaking, every person is presumed
to know the law, see Putnam v. Time Warner Cable of Se. Wis.,
Ltd. P'ship, 2002 WI 108, ¶13 n.4, 255 Wis. 2d 447, 649 N.W.2d
626, this case turns on whether the statutory language gives
fair notice to a person of ordinary intelligence, not whether
this court's decisions interpreting the statutory language do.
¶71 In addressing "fair notice" this court observed:
Actual notice of the statute may be irrelevant in
applying the concept of fair notice. Courts require
the law be clear so that those who consult the law are
not confused or misled. Justice Holmes observed that
8
No. 2016AP173-CR.rgb
"[a]lthough it is not likely that a criminal will
carefully consider the text of the law before he
murders or steals, it is reasonable that a fair
warning should be given to the world in language that
the common world will understand, of what the law
intends to do if a certain line is passed. [To make
the warning fair, so far as possible the line should
be clear.]"
State v. Neumann, 2013 WI 58, ¶50 n.29, 348 Wis. 2d 455, 832
N.W.2d 560 (quoting McBoyle v. United States, 283 U.S. 25, 27
(1931)). The line is far from clear in the matter before this
court, except perhaps to a lawyer so well-versed in the laws
governing weapons as to be aware of this court's reach into
Fourth Amendment jurisprudence, which transfigured the rather
simple concept of "carrying" into something altogether detached
from the person.
¶72 A person of ordinary intelligence who is trying to
learn the legal ways to transport a firearm (or bow or crossbow)
would logically turn to the Safe Transport Statute because it
addresses transportation of these weapons in vehicles. The text
of the Safe Transport Statute allows a person to "place,
possess, or transport a firearm, bow, or crossbow in or on a
vehicle" if the firearm is unloaded or is a handgun, if a bow
does not have an arrow nocked, and if a crossbow is either not
cocked or is unloaded and encased. The Safe Transport Statute
says nothing about where any weapon must be placed in the
vehicle, and specifically requires concealment of one type of
weapon as one method of compliance. The Safe Transport Statute
plainly gives fair notice that: (1) a loaded handgun can be
placed, possessed or transported in a vehicle; (2) any other
unloaded firearm can be placed, possessed or transported in a
9
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vehicle; (3) a bow without an arrow nocked can be placed,
possessed or transported in a vehicle; and (4) a crossbow can be
placed, possessed or transported in a vehicle if it is either
not cocked or is unloaded and in a carrying case. The Safe
Transport Statute's text does not say that only a concealed
carry licensee can place, possess or transport a handgun in a
vehicle. Further, it gives no instruction on specifically where
in the vehicle these weapons must be placed.
¶73 The majority concludes that these statutes are not
void for vagueness because Grandberry could have complied with
both by either getting a concealed carry license or putting his
handgun out of reach in his vehicle.5 How would a person of
ordinary intelligence know this? The text of both statutes does
not alert a gun owner of any connection between the two, much
less a dependency of the Safe Transport Statute on the Concealed
Carry Licensing Statute. Other states' statutes combine their
carrying a weapon statute with transportation of a weapon in a
vehicle statute so a person clearly knows what is lawful and
what will subject a person to prosecution. See, e.g., Tex.
Penal Code Ann. § 46.02 (West 2017); Ohio Rev. Code Ann.
§ 2923.12 (West 2017-18). Wisconsin's Concealed Carry Licensing
5
According to the record, Grandberry had lawfully purchased
the firearm involved, passed a background check, attended the
concealed carry licensing class, and had sent in his paperwork
to obtain the license at the time of the traffic stop in this
case. Further, according to Grandberry, he did not lie to the
police when asked whether he had a concealed carry license;
instead, he told the officer he had sent in the paperwork for
his license. His application for a license was denied because
of this case.
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Statute limits licenses to handguns, billy clubs, and electric
weapons and requires all licensees to be at least 21 years old.
If the majority's conclusion is correct, then a large group of
gun (and all bow/crossbow) owners, for whom concealed carry
licenses are unavailable, are treated differently than handgun
owners 21 years old or older. Under the majority's statutory
construction, it is impossible for long gun owners who drive
small vehicles without trunks to lawfully transport their guns.
Additionally, most gun ranges require weapons to be encased when
they are brought into these facilities.6 However, such
concealment is prohibited by the Concealed Carry Statute, making
it impossible to lawfully take a long gun from a car into a
range.
¶74 The majority's conclusion absolves the legislature
from enacting laws that give fair notice to Wisconsin citizens
who exercise their Second Amendment right to bear arms on how to
lawfully transport them. Instead, the majority declares it
reasonable to expect the ordinary person reading the statutes to
6
See, e.g., Range Safety Rules, Wisconsin Firearms Training
Center, https://www.wifirearms.com/rangemanagement/info.cfm?titl
e=range-safety-rules (last visited Feb. 27, 2018) ("All firearms
are to be unloaded, cased, with actions open when entering or
leaving the facility."); Range Rules, The Range of Richfield,
https://therangewi.com/range-rules/ (last visited Feb. 27,
2018) ("All firearms are to be unloaded, cased, with actions
open when entering or leaving the facility."); Shooting Range
Indus. LLC, First Time at Shooting Range? Proper Indoor &
Outdoor Gun Range Etiquette & Rules for Beginners http://www.sho
otingrangeindustries.com/first-time-shooting-range-proper-
indoor-outdoor-gun-range-etiquette-rules-beginners/ (last
visited Feb. 27, 2018) ("It is proper to have your gun in a gun
case of some type. You never want to walk in with a naked gun.")
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do the work of a lawyer and study, analyze, and properly
interpret case law (assuming he can find it) in order to
reconcile two conflicting statutes. Even more absurdly, the
majority expects, indeed requires a person of ordinary
intelligence to know what is "within reach" despite the
inability of the justices on this court to define it. See
majority op., ¶31 (recognizing "it [is] impossible for this
court to establish a bright-line rule setting forth which parts
of a vehicle are and are not within reach").
¶75 Even if a person of ordinary intelligence was able to
find and read every applicable Wisconsin case and to understand
that a gun placed "within reach" in a vehicle violates Wis.
Stat. § 941.23, that person would also have necessarily read
footnote 2 in State v. Walls, 190 Wis. 2d 65, 69 n.2, 526
N.W.2d 765 (Ct. App. 1994), which provides:
We are mindful "that there is a long tradition of
widespread lawful gun ownership by private individuals
in this country." Staples v. United States, 511 U.S.
600 (1994). Thus, our conclusion in this case in no
way limits the lawful placement, possession, or
transportation of, unloaded (or unstrung) and encased,
firearms, bows, or crossbows in vehicles as permitted
by § 167.31(2)(b) . . . .
¶76 After reading this footnote, a person of ordinary
intelligence would turn to the current Safe Transport Statute,
which allows transportation of a handgun in a vehicle. Walls,
in essence, says transportation of a gun in a vehicle does not
violate Wis. Stat. § 941.23 as long as a person follows the Safe
Transport Statute.
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¶77 The text of these statutes leads to uncertainty and
lacks "sufficient definiteness [such] that ordinary people can
understand what conduct is prohibited." Kolender, 461 U.S. at
357. The statutes here do not even give a reasonable degree of
clarity, let alone meet the heightened standard required for
statutes that infringe upon constitutionally protected rights.
Grayned, 408 U.S. at 110; Vill. of Hoffman Estates, 455 U.S. at
499. These statutes do not give fair notice to the person of
ordinary intelligence who needs to transport her firearm or bow
or crossbow from her home to another destination of how to
lawfully accomplish this routine activity; therefore, the first
part of the void for vagueness test is satisfied.
2. Standards for Enforcement
¶78 The second part of the void for vagueness test
requires this court to analyze whether the text of the statutes
give clear guidance to those who enforce and adjudicate the
laws. Our statutes must be capable of being enforced
objectively and should not result in ad hoc, discriminatory, or
subjective enforcement. Grayned, 408 U.S. at 108-09; Kolender,
461 U.S. at 357-58. Here, the State conceded that law
enforcement looks the other way when hunters carry their long
guns concealed in violation of Wis. Stat. § 941.23. This is
necessary because hunters must transport their long guns to
reach their hunting destinations, and Wisconsin does not issue
concealed carry licenses for long guns. Finding a place in most
vehicles where a group of hunters traveling together could place
multiple long guns without violating § 941.23 is highly unlikely
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if not altogether impossible. If law enforcement arrested
hunters every time they violated § 941.23, our court system
would be overwhelmed with thousands of such cases and repeat
offenders every hunting season.7
¶79 The text of these statutes unavoidably encourages
selective enforcement and prosecution, thereby satisfying the
second part of the void for vagueness test because the statutes
currently permit "a standardless sweep allow[ing] policemen,
prosecutors and juries to pursue their personal predilections."
Kolender, 461 U.S. at 358 (quoting Smith v. Goguen, 415 U.S.
566, 575 (1974)).
II. "GO ARMED WITH" DEFINITION
¶80 I also write separately because our continued
adherence to Mularkey's importation of "within reach" as
Wisconsin's definition for "go armed" is textually and
constitutionally unsound. Wisconsin Stat. § 941.23 says: "Any
person, other than one of the following, who carries a concealed
and dangerous weapon is guilty of a Class A misdemeanor."
Section 941.23 does not define "carries," but rather cross
references to a definition provided in Wisconsin Stat. § 175.60.
See § 941.23(1)(ag) ("'Carry' has the meaning given in s.
175.60(1)(ag)"). Section 175.60 defines "[c]arry" to mean "go
7
A variety of other problematic scenarios further support
my conclusion. For example, how is a 19-year-old who owns a
handgun for personal protection supposed to transport her
handgun from her home to her grandmother's house for the
holidays while driving her subcompact hatchback car? She simply
cannot do so without violating Wis. Stat. § 941.23 and
subjecting herself to criminal liability.
14
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armed with." Wis. Stat. § 175.60(1)(ag). Section 175.60 is
additionally linked to § 941.23 because the latter exempts
concealed carry licensees from its prohibition of concealed
carry. See Wis. Stat. § 941.23(2)(d).
¶81 As noted, our case law holds that to "go armed" means
to have the weapon "on the defendant's person or that the weapon
must have been within the defendant's reach and that the
defendant was aware of the presence of the weapon." Asfoor, 75
Wis. 2d at 433-34 (citing Mularkey, 201 Wis. at 432).
¶82 This judicial expansion of the "go armed" definition
to encompass having a firearm "within reach" has no basis in
Wisconsin law and contradicts the definition of "bear arms"
recognized by the United States Supreme Court in Heller. We
should take this opportunity to discard the judicially-invented
"within reach" part of this definition and align our definition
of "go armed" with Heller's definition of "bear arms." The
Court in Heller explained that "bear" means "carry," and adopted
the "most familiar meaning" of "carries a firearm" as: to
"wear, bear, or carry . . . upon the person or in the clothing
or in a pocket, for the purpose . . . of being armed and ready
for offensive or defensive action in a case of conflict with
another person." 554 U.S. at 584 (quoting Muscarello v. United
States, 524 U.S. 125, 130, 143 (1998)) (interpreting the meaning
of "carries a firearm" in a federal criminal statute)).
¶83 Wisconsin should adopt Heller's definition of "carry"
to mean the weapon is "upon the person or in the clothing or in
a pocket." Both the United States Constitution and the
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Wisconsin Constitution protect the right of the people to "bear"
arms. The United States Supreme Court recognizes that "bear"
means "carry" and what it means to carry is the pivotal word in
this case. Wisconsin statutes define "carry" to mean "go armed
with." Constitutionally and textually, this can only mean upon
the person or in the person's clothing.
¶84 When the Mularkey court injected "within reach" into
our definition of "go armed" in 1930, it did so based on a Texas
case interpreting Texas' unlawfully carrying arms statute, which
contains language Wisconsin's statute never used. Specifically,
the Texas statute provided:
Unlawfully carrying arms.——If any person in this state
shall carry on or about his person, saddle, or in his
saddle bags, any pistol, dirk, dagger, slung shot,
sword cane, spear, or knuckles made of any metal or
any hard substance, bowie knife, or any other knife
manufactured or sold for purpose of offense or
defense, he shall be punished by fine or not less than
one hundred dollars nor more than two hundred dollars,
or by confinement in the county jail not less than
thirty days nor more than twelve months, or by both
such fine and imprisonment.
1911 Tex. Crim. Stat. 475 (second emphasis added). The crucial
difference between the Texas statute and Wisconsin's is the
presence of "about his person" in Texas' statute, language that
never appeared in Wisconsin's concealed carry statute. See
State v. Dundon, 226 Wis. 2d 654, 672, 594 N.W.2d 780 (1999)
(summarizing the history of Wis. Stat. § 941.23). One Texas
court equated "about his person" with having a pistol on a wagon
seat nearby——in other words, within reach. Garrett v. State, 25
S.W. 285 (1894). In contrast, the Wisconsin legislature enacted
the first concealed weapons law in 1872, and it used "person
16
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shall go armed with" language. Dundon, 226 Wis. 2d at 671
(quoting § 1, ch. 7, Laws of 1872). Although the statute was
amended in 1878, this "shall go armed" language remained
essentially the same: "Any person who shall go armed with any
concealed and dangerous weapon shall be punished . . . ."
Dundon, 226 Wis. 2d at 672 (quoting Wis. Stat. § 4397 (1878)).
The legislature did not change the "go armed with" language
until it enacted 2011 Wis. Act 35, which included both the
current version of § 941.23 and the licensing statute, Wis.
Stat. § 175.60. And then the change was merely structural and
not substantive; the legislature replaced the "go armed with"
language with "carries" and said "'[c]arry' has the meaning
given in s. 175.60(1)(ag)."8 Section 175.60(1)(ag) defines
"carry" to mean "go armed with." Wisconsin never enacted
language like the Texas statute; therefore, Mularkey's reliance
upon Texas cases was improper in 1930 and remains improper now.
Nothing in the text of Wisconsin's concealed carry statutes,
historically or currently, proscribes concealment of a weapon
"within reach" in a vehicle. This criminalization was
accomplished by the judiciary reading something into § 941.23
that is not there, resulting in a statutory construction without
basis in the text and therefore unknowable to the average
citizen responsible for complying with the law.
¶85 Some states apply these statutes only "where the
weapon is worn on the person of the defendant." W.M. Moldoff,
8
See Wis. Stat. § 941.23(1)(ag).
17
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Annotation, Offense of carrying concealed weapon as affected by
manner of carrying or place of concealment, 43 A.L.R.2d 492,
§ 4(d); see State v. Weston, 94 S.E. 871 (S.C. 1918) (holding
that pistol placed in a satchel or suitcase does not constitute
"carrying an unlawful weapon"); Watson v. Stone, 4 So. 2d 700
(Fla. 1941) (holding that pistol in the glove pocket attached to
the inside of the dash of his vehicle did not violate statute).
The Florida Supreme Court in Watson distinguished cases from
those states that specifically use the "on or about the person"
language in their statutes, concluding that because the Florida
statute does not include the "on or about" language, the pistol
placement in the glove pocket did not violate Florida's law
prohibiting carrying or having a pistol in one's manual
possession. 4 So. at 702. The Florida Supreme Court
specifically distinguished Florida's statutory language of
"carrying" or "having a pistol in his manual possession" from
foreign statutes "making it unlawful for the weapon of the
defendant to be on, under or behind the seat, cushion, door,
side floor or pockets of an automobile." Id. This same
reasoning should have been applied when Mularkey was decided——
the Wisconsin statute does not use the "on or about" language
and instead prohibits concealed "carrying"; therefore, this
court misguidedly added the "within reach" language to the
definition of "go armed."
¶86 While adhering to precedent is an important doctrine
for lending stability to the law, not every decision deserves
stare decisis effect. After all, the purpose of stare decisis
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"is to make us say that what is false under proper analysis must
nonetheless be held to be true, all in the interest of
stability." Antonin Scalia, A Matter of Interpretation:
Federal Courts and the Law 138-40 (1997). However, "[t]he
principle of stare decisis does not compel us to adhere to
erroneous precedents or refuse to correct our own mistakes."
State v. Outagamie Cty. Bd. of Adjustment, 2001 WI 78, ¶31, 244
Wis. 2d 613, 628 N.W.2d 376. This is particularly true when
following flawed precedent criminalizes behavior that a person
of ordinary intelligence would reasonably consider statutorily
permissible. "Reflexively cloaking every judicial opinion with
the adornment of stare decisis threatens the rule of law,
particularly when applied to interpretations wholly unsupported
by the statute's text." Manitowoc v. Lanning, 2018 WI 6 (R.
Grassl Bradley, J., concurring).
¶87 "Stare decisis is neither a straightjacket nor an
immutable rule." Johnson Controls, Inc. v. Employers Ins. of
Wausau, 2003 WI 108, ¶100, 264 Wis. 2d 60, 665 N.W.2d 257
(quoting Carpenters Local Union No. 26 v. United States Fid. &
Guar. Co., 215 F.3d 136, 141 (1st Cir. 2000)). There are
circumstances in which a court may overturn "outdated or
erroneous holdings." Johnson Controls, Inc. 264 Wis. 2d 60, ¶96
(quoted source omitted). Among other factors, in deciding
"whether to depart from stare decisis" this court considers
"whether the prior decision is unsound in principle" and
"whether it is unworkable in practice . . . ." Id., ¶99
(citations omitted). This case vividly exemplifies both
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factors. The foundation of Mularkey's adoption of "within
reach" rests not on the text of Wisconsin's statute but on
Texas' markedly different statutory language. This court's
interpretation of "go armed with" as encompassing having a
firearm "within reach" clouds a plain reading of the statutes,
thereby impairing the ability of any person of ordinary
intelligence to comply with the law.
¶88 In this case, "[i]t is well to keep in mind just how
thoroughly [the Mularkey court's opinion] rewrote the statute it
purported to construe." Johnson v. Transp. Agency, 480 U.S.
616, 670 (1987) (Scalia, J., dissenting). Because Mularkey's
interpretation of the statute's "go armed with" language reaches
well beyond the statutory text, I decline to perpetuate this
court's error on the altar of stare decisis, particularly when
the error creates a trap for the well-intentioned but unwary
citizen.
¶89 Correcting the error that originated in Mularkey and
survived for nearly 90 years would quite appropriately eliminate
"within reach" from concealed carry cases, confining the "within
reach" concept to Fourth Amendment incident to arrest searches
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where it belongs.9 The majority opinion instead attempts to
ascribe a different meaning of "within reach" in concealed carry
cases than Fourth Amendment search incident to arrest cases give
it,10 but it could avoid this linguistic fallacy by applying the
definition of "go armed" as set forth by the United States
Supreme Court in Heller to mean "upon the person or in the
clothing or in a pocket." Because this court continues to
define "go armed" under Wis. Stat. § 941.23 to include "within
9
The Fourth Amendment vehicle search incident to arrest
cases broadly define what is in within reach (or accessible to
the defendant without leaving the vehicle) and therefore
searchable without a warrant. See Arizona v. Gant, 556 U.S.
332, 335 (2009) (clarifying Chimel v. California, 395 U.S. 752
(1969) and New York Belton, 453 U.S. 454 (1981), but agreeing
that police who search incident to arrest may search any area
"within an arrestee's 'immediate control,' meaning 'the area
from within which he might gain possession of a weapon or
destructible evidence.'"). Courts have held this includes the
cargo area in a hatchback car, the trunk area if accessible from
the back seat, and a covered cargo area in a sport utility
vehicle. See United States v. Stegall, 850 F.3d 981, 985 (8th
Cir. 2017); United States v. Allen, 469 F.3d 11, 15-16 (1st Cir.
2006); United States v. Arnold, 388 F.3d 237, 239-41 (7th Cir.
2004) (collecting cases) (protective search case); United States
v. Olguin-Rivera, 168 F.3d 1203, 1206 n.1 (10th Cir. 1999)
(collecting cases).
10
The majority's attempt to separate "within reach" in the
concealed carry context from the incident to arrest framework
may create more problems than it purports to resolve. Going
forward, the majority's decision prevents the State from using
any "within reach" incident to arrest cases as the basis for
argument in a concealed carry case. It also necessitates a
trial in every concealed carry "within reach" case, regardless
of where the weapon is located in the car. Consequently, even
if a handgun is sitting on a defendant driver's seat, a jury
would need to decide whether the handgun was "within reach"
instead of allowing the circuit court to conclude as a matter of
law that the carrying element of the test was satisfied.
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reach," I cannot join it. I would align Wisconsin law with the
constitutions of both this state and the United States and apply
the original meaning of "go armed with" as defined in Heller.
Because the majority renders many of Wisconsin's law-abiding gun
owners criminals, but for the benevolence of law enforcement and
the discretion of prosecutors, I respectfully dissent.
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