Gonzalez v. Village of West Milwaukee

In the

United States Court of Appeals
For the Seventh Circuit

No. 10-2356

JESUS G ONZALEZ,
Plaintiff-Appellant,
v.

V ILLAGE OF W EST M ILWAUKEE, et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 09CV384—Lynn Adelman, Judge.

A RGUED N OVEMBER 29, 2010—D ECIDED F EBRUARY 2, 2012

Before B AUER, W OOD , and S YKES, Circuit Judges.
S YKES, Circuit Judge. Jesus Gonzalez was active in Wis-
consin’s “open carry” movement, which advocates for
the right to carry unconcealed firearms in public. On
two occasions in 2008 and 2009, he openly carried a
holstered handgun into retail stores in the Village of
West Milwaukee and the City of Chilton, Wisconsin.
On each occasion he was arrested for disorderly
conduct and his gun was confiscated. He was not prose-
2 No. 10-2356

cuted for either incident, however, and his handguns
were eventually returned.
Gonzalez sued the arresting officers and the two munici-
palities under 42 U.S.C. § 1983, asserting several
claims for relief. First, he alleged that the officers falsely
arrested him in violation of the Fourth Amendment
because his open carrying was not disorderly conduct
and was protected under the state and federal constitu-
tions. On this claim he sought damages and prospective
declaratory relief. He also claimed the municipalities
retained his handguns for too long after each arrest,
amounting to an unconstitutional seizure of his prop-
erty. Finally, he alleged that West Milwaukee and its
officers violated § 7(a) and § 7(b) of the Privacy Act
of 1974 when they obtained his Social Security number
during the booking process.
The district court granted summary judgment for the
defendants on all claims. The judge held that the
officers had probable cause to arrest Gonzalez for disor-
derly conduct, or alternatively, were entitled to qualified
immunity. The property-seizure claim was dismissed
as both underdeveloped and meritless. Finally, the judge
rejected the Privacy Act claims for two reasons: The § 7(a)
claim was factually insufficient, and § 7(b) grants
no private right of action enforceable under § 1983.
Gonzalez appealed. In the meantime several devel-
opments changed the contours of the case. Effective
November 2011, Wisconsin adopted a concealed-carry
permitting regime and in connection with that legisla-
tion, amended its statutes to clarify that openly carrying
No. 10-2356 3

a firearm is not disorderly conduct absent “circumstances
that indicate a criminal or malicious intent.” W IS. S TAT.
§ 947.01(2); see Wis. Act 35, 2011-2012 Wis. Legis. Serv.
825, 849 (West). Also in November 2011, Gonzalez was
convicted of homicide and may no longer lawfully
possess firearms. These events moot his claim for pros-
pective declaratory relief; his various claims for
damages remain.
On the remaining claims, we affirm. Although the
district court’s probable-cause analysis did not suf-
ficiently account for the right to bear arms under the
state and federal constitutions, we agree that the officers
are entitled to qualified immunity. At the time of the
arrests, the state constitutional right to bear arms
was relatively new, and Wisconsin law was unclear
about the effect of the right on the scope of the
disorderly conduct statute. Moreover, the Supreme
Court had not yet decided McDonald v. City of Chicago,
Ill., 130 S. Ct. 3020, 3050 (2010), applying the Second
Amendment to the States. Given this legal uncertainty,
it was reasonable for the officers to believe that the cir-
cumstances of Gonzalez’s open carrying gave them prob-
able cause to arrest him for disorderly conduct. The
delayed return of Gonzalez’s handguns was not a “sei-
zure” under the Fourth Amendment. Finally, Gonzalez’s
various Privacy Act claims fail for several reasons. As-
suming the Act confers a private right of action, the
officers did not violate § 7(a); they are entitled to
qualified immunity for the alleged § 7(b) violation;
and there is insufficient evidence that West Milwaukee
4 No. 10-2356

had a policy, custom, or practice that would give rise
to municipal liability for the alleged § 7(b) violation.

I. Background
Because we are reviewing a grant of summary judg-
ment in favor of the defendants, the following account
describes the facts in the light most favorable to Gonzalez.

A. Gonzalez’s Arrest in West Milwaukee
On May 14, 2008, Gonzalez entered a Menards home-
improvement store in West Milwaukee, a suburb im-
mediately adjacent to the City of Milwaukee. The store
was “fairly busy,” and there were about 75 employees
in the building. Gonzalez wore a black leather trench coat
and visibly carried a handgun in a black thigh holster.
An employee saw the gun and was “startled”; he also
thought the heavy trench coat was “out of place” for
the season. He alerted assistant manager Kristopher
McCloy and manager Jeffrey Jensen. McCloy regarded
the alert as a “serious situation,” and Jensen was
“shocked, surprised,” and concerned for the safety of
his employees and customers.
McCloy, Jensen, and several other employees went
to look for Gonzalez and found him near the
children’s play area. After debating the legality of having
a firearm in the store, McCloy asked Gonzalez to secure
the gun in his car before he continued shopping.
Gonzalez refused. Some employees expressed concern
No. 10-2356 5

about the children nearby and told Gonzalez that they
would call the police if he refused to leave. Gonzalez
eventually complied with McCloy’s request that he put
his gun in his car before continuing his shopping.
In the meantime Jensen called the West Milwaukee
Police Department, where he reached Officer Patrick
Krafcheck. Jensen told Krafcheck there was a man with
a gun in the store who was argumentative and was
“creep[ing] people out” and generally making them
uncomfortable and nervous. Krafcheck later described
the gist of the call this way: There was a “man in the
store with a gun” who was making people “nervous,
wigged out, freaked out, geeked out, something to that
effect.” Krafcheck and Officer Charles Donovan went to
Menards, where they found Gonzalez in the parking lot
loading items into his pickup truck. Gonzalez was no
longer carrying his gun but still wore the holster. Donovan
asked Gonzalez where his gun was; Gonzalez refused to
answer. Donovan then arrested Gonzalez for disorderly
conduct. Krafcheck seized Gonzalez’s gun, magazines,
ammunition, and a gun case from the truck.
During the booking process at the West Milwaukee
police station, Donovan and Krafcheck asked Gonzalez
for his Social Security number, in addition to other
basic identifying information. Neither officer informed
Gonzalez whether disclosure of this information was
mandatory, by what statutory authority they requested
it, or what uses they would make of it. When Gonzalez
resisted giving his identifying information, Krafcheck
said “something to the effect of, [i]f we can’t get the
6 No. 10-2356

information, you’re going to be here longer than you
need to be.” The officers eventually obtained Gonzalez’s
Social Security card from his wallet. Gonzalez was
released after booking with an order to attend a
charging conference at the Milwaukee District Attorney’s
office. His gun and other property were held for several
months until the district attorney decided not to press
charges.

B. Gonzalez’s Arrest in Chilton
Sometime after 11 p.m. on April 10, 2009, Gonzalez
visited a Wal-Mart store in Chilton, a small town about
40 miles south of Green Bay. Gonzalez again openly
carried a handgun at his side. Because of the late hour,
only about four customers and ten employees were
in the store at the time. Gonzalez headed toward the
sporting-goods department to buy ammunition. An
employee saw the gun and alerted assistant manager
Jennifer Fairchild. Fairchild felt “uneasy” because it was
“late in the evening, and the gentleman was asking to
purchase ammunition,” which she found “very odd,”
especially for “such a little town.” She was also
alarmed because some employees were collecting money
from the store’s cash registers at the time, and she “did
not know what [kind of] situation was truly going on.”
Fairchild called the Chilton Police Department, and
Officer Michael Young responded to the scene. When
Young arrived and spoke to Fairchild, she “seemed like
she was anxious and nervous” or “upset.” Young found
Gonzalez completing his ammunition purchase. Young
No. 10-2356 7

drew his gun, pointed it at Gonzalez, and told him to
“freeze.” Young arrested Gonzalez for disorderly
conduct, took him to the police station, and tried to
contact the Calumet County District Attorney for
guidance about how to proceed. Unable to reach either
the district attorney or the assistant district attorney,
Young decided to release Gonzalez but retained his
gun. About two weeks later, the district attorney
notified Gonzalez that he would not be pressing charges
and Gonzalez could retrieve his gun.

C. The District Court’s Decision
Gonzalez sued Officers Krafcheck, Donovan, and
Young, alleging that they falsely arrested him in viola-
tion of the Fourth Amendment. He also claimed the
West Milwaukee and Chilton Police Departments
retained his handguns too long in violation of the
Fourth Amendment. Finally, he claimed that the request
for his Social Security number in connection with
his booking in West Milwaukee violated his rights
under the Privacy Act.
The district court granted summary judgment for the
defendants and dismissed all claims. The court held
that the West Milwaukee and Chilton officers had
probable cause to arrest Gonzalez for disorderly conduct
because “[n]o reasonable person would dispute that
walking into a retail store openly carrying a firearm is
highly disruptive conduct which is virtually certain to
create a disturbance.” The court added that even if the
officers lacked probable cause, they were entitled to
8 No. 10-2356

qualified immunity. The court dismissed the property-
seizure claim, finding it insufficiently developed and
deficient on the merits; the court held that the munic-
ipalities did not violate the Fourth Amendment by re-
taining Gonzalez’s firearms until after prosecutors
decided not to file charges. Finally, the court rejected
the Privacy Act claims against West Milwaukee and
its officers, reasoning that (1) the officers did not violate
§ 7(a); (2) § 7(b) does not confer an individual right; and
(3) even if § 7(b) did confer an actionable individual
right, Gonzalez had not established that West Milwaukee
had a policy or practice giving rise to municipal liability.

II. Discussion
We review the district court’s order granting sum-
mary judgment de novo, construing the facts and
drawing reasonable inferences in the light most favorable
to Gonzalez. Castronovo v. Nat’l Union Fire Ins. Co.,
571 F.3d 667, 671 (7th Cir. 2009).

A. Fourth Amendment False-Arrest Claims
Gonzalez argues that the district court was wrong to
reject his Fourth Amendment false-arrest claims against
Officers Krafcheck, Donovan, and Young because the
officers lacked probable cause to arrest him. Openly
carrying a firearm, he contends, does not amount to
disorderly conduct and is protected as an exercise of the
right to bear arms for self-defense guaranteed by the
Wisconsin Constitution and the Second Amendment.
No. 10-2356 9

Before addressing the merits, we note that one form
of relief Gonzalez requests is now moot. After we heard
argument and took this case under advisement,
Wisconsin clarified its law on whether openly carrying
a firearm can constitute disorderly conduct. Effective
November 2011, the state legislature amended Wis-
consin’s longstanding ban on carrying concealed
firearms and adopted a licensing regime in its place.
See Wis. Act 35, 2011-2012 Wis. Legis. Serv. 825 (West).
In that same legislation, lawmakers added the following
language to the disorderly conduct statute:
Unless other facts and circumstances that indicate
a criminal or malicious intent on the part of the
person apply, a person is not in violation of, and
may not be charged with a violation of, this section
for loading, carrying, or going armed with a firearm,
without regard to whether the firearm is loaded or
is concealed or openly carried.
W IS. S TAT. § 947.01(2); see Wis. Act 35, 2011-2012 Wis.
Legis. Serv. 825, 849 (West). The legislature also adopted
a new statute similarly providing that openly carrying
a firearm cannot constitute disorderly conduct under
any local ordinance, subject to the same proviso
regarding criminal or malicious intent. See W IS. S TAT.
§ 66.0409(6); Wis. Act 35, 2011-2012 Wis. Legis. Serv. 825,
828 (West). Also in November 2011, Gonzalez was con-
victed of first-degree reckless homicide and sentenced
to 20 years in prison. Accordingly, he cannot lawfully
possess a firearm. See W IS. S TAT. § 941.29(2)(a); 18 U.S.C.
§ 922(g)(1). These events moot Gonzalez’s claim for
10 No. 10-2356

prospective declaratory relief but not his claim for
damages against the individual officers.
“False arrest” is shorthand for an unreasonable seizure
prohibited by the Fourth Amendment. Ienco v. Angarone,
429 F.3d 680, 683 (7th Cir. 2005). To prevail on this claim,
a plaintiff must show that the arresting officer lacked
probable cause to make the arrest. Jackson v. Parker, 627
F.3d 634, 638 (7th Cir. 2010). An officer has probable
cause to arrest if he has reason to believe, in light of the
facts known at the time, that the suspect has committed
or is about to commit a crime. Wheeler v. Lawson,
539 F.3d 629, 634 (7th Cir. 2008); Purtell v. Mason, 527 F.3d
615, 626 (7th Cir. 2008).
The district court held that the West Milwaukee and
Chilton officers had probable cause to arrest Gonzalez
for disorderly conduct because “[n]o reasonable person
would dispute” that openly carrying a firearm in a retail
store “is highly disruptive conduct” and “virtually
certain to create a disturbance.” This is so, the court held,
because store personnel and shoppers would “likely . . .
be frightened and possibly even panicky,” and would
“likely . . . think that the person with the gun is either
deranged or about to commit a felony or both.” Someone
would surely call the police, and “when police respond
to a ‘man with a gun’ call, they have no idea what the
armed individual’s intentions are.” This “inherently
volatile situation,” the court held, “could easily lead
to someone being seriously injured or killed.” The judge
thought the facts of Gonzalez’s two arrests confirmed
these general observations. The judge summarily re-
No. 10-2356 11

jected Gonzalez’s argument that the Second Amend-
ment and the state constitutional right to bear arms
affected the probable-cause analysis. In the alternative
the court held that the officers are entitled to qualified
immunity.
For reasons that will be apparent in a moment, the
district court’s probable-cause holding did not ade-
quately account for the effect of the state constitutional
right to bear arms on the crime of disorderly conduct
in Wisconsin. At the time of Gonzalez’s arrests, it was
unclear whether a person who openly carries a firearm
could be arrested for disorderly conduct in light of the
state and federal constitutional guarantees. To hold,
as the district court apparently did, that openly
carrying a firearm in a retail store is disorderly conduct
as a categorical matter goes too far. As we will see, at the
relevant time, the question was far from settled.
Before proceeding, however, we note that without
the constitutional right to bear arms in the mix, this
would be a fairly straightforward case. Wisconsin’s
disorderly conduct statute provides: “Whoever, in a
public or private place, engages in violent, abusive,
indecent, profane, boisterous, unreasonably loud or
otherwise disorderly conduct under circumstances in
which the conduct tends to cause or provoke a
disturbance is guilty of a Class B misdemeanor.” W IS.
S TAT. § 947.01(1). Only the catch-all “otherwise disor-
derly” clause is implicated here, and the Wisconsin Su-
preme Court reads it quite broadly. The “otherwise
disorderly” clause requires only that the defendant’s
12 No. 10-2356

conduct be similar in kind to the conduct enumerated
in the statute and that it have a tendency to cause or pro-
voke a disturbance, either public or private; it need not
actually cause a disturbance. See State v. Schwebke, 644
N.W.2d 666, 674-75 (Wis. 2002); In re Douglas D.,
626 N.W.2d 725, 737-38 (Wis. 2001); In re A.S., 626
N.W.2d 712, 722-23 (Wis. 2001).
The Menards employee who first spotted Gonzalez
with his holstered gun was “startled” and concerned
enough about his own safety and the safety of others in
the store that he alerted his manager and assistant man-
ager. Gonzalez’s attire also fueled suspicion; he was
wearing a black leather trench coat, which was “out
of place” for a day in mid-May. Jensen, the Menards
manager, was “shocked” and said he felt “some sense
of urgency” when he heard there was a man with a gun
in the store. He was immediately concerned about the
safety of shoppers and employees, and said there was
“a lot of adrenaline pumping” during his encounter
with Gonzalez. When he called the police and reached
Officer Krafcheck, he reported that “everyone is like, oh,
my God, this guy’s got a gun in the store,” and said
Gonzalez was “creep[ing] people out.” McCloy, the
assistant manager, testified that he “didn’t want a bunch
of parents with their kids seeing a guy walk around
with a gun on him. . . . [T]hat would have caused a little
bit of panic, I believe.” When he first approached
Gonzalez, McCloy felt “a little bit afraid, but after
talking to him, that feeling calmed down.”
Fairchild, the Wal-Mart assistant manager, called the
police because the company’s policy manual instructed
No. 10-2356 13

her to do so whenever she felt that a “person would be
of any harm to any of the associates or customers that
were within the building.” She felt “[v]ery nervous”
about Gonzalez and his gun. It was late in the evening,
employees were collecting money from the registers,
and she was concerned for her own safety and the safety
of her employees and customers.
Creating this kind of public unease and agitation is
ordinarily sufficient to establish probable cause to
arrest for disorderly conduct under Wisconsin law. See
State v. Givens, 135 N.W.2d 780, 784 (Wis. 1965) (“The
crime of disorderly conduct is based upon the
principle that in an organized society one should so
conduct himself as not to unreasonably offend the senses
or sensibilities of others in the community.” (quotation
marks omitted)). Although the statute does not apply to
conduct that offends the hypersensitive, Douglas D., 626
N.W.2d at 737, the circumstances of Gonzalez’s openly
carrying a firearm were on the whole enough to give
the officers reason to believe that persons of ordinary
and reasonable sensibility would be disturbed.
Matters are not so straightforward, however, when
the constitutional right to bear arms is factored in. At the
time of Gonzalez’s arrest, the legality of open carrying
was debatable and had in fact been debated in
two cases in the state supreme court testing the scope
of Wisconsin’s recently adopted constitutional provision
guaranteeing an individual right to bear arms. See State
v. Cole, 665 N.W.2d 328, 335-36 (Wis. 2003); State v.
Hamdan, 665 N.W.2d 785 (Wis. 2003). (More about Cole
14 No. 10-2356

and Hamdan in a moment.) Accordingly, although we
think the district court’s probable-cause finding was too
categorical, its alternative holding—that the officers were
entitled to qualified immunity—was on much firmer
ground.
“[Q]ualified immunity protects government officials
from liability for civil damages when their conduct does
not violate clearly established statutory or constitu-
tional rights of which a reasonable person would have
known.” McAllister v. Price, 615 F.3d 877, 881 (7th Cir.
2010). Claims of qualified immunity involve two
inquiries: (1) whether the official violated a constitu-
tional or statutory right, and (2) whether the right was
clearly established at the time of the alleged misconduct.
Whitlock v. Brown, 596 F.3d 406, 410 (7th Cir. 2010). A
negative answer to either question entitles the official to
the defense. Hanes v. Zurick, 578 F.3d 491, 493 (7th Cir.
2009). We may, in our discretion, take the second inquiry
first. Pearson v. Callahan, 555 U.S. 223, 236 (2009); Whitlock,
596 F.3d at 410. It makes good sense to do so here.
Gonzalez argues that openly carrying a firearm cannot
be disorderly conduct because the people of Wisconsin
have reserved to themselves a fundamental right to bear
arms, secured by a recent amendment to the state con-
stitution. Article I, § 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.” W IS. C ONST. art. I, § 25. Adopted
in 1998, Article I, § 25 appears in the state constitu-
tion’s declaration of rights and has the status of a funda-
mental individual right. Cole, 665 N.W.2d at 335-36.
No. 10-2356 15

When the right-to-bear-arms provision was ratified,
however, Wisconsin broadly prohibited the carrying of
concealed weapons. See W IS. S TAT. § 941.23 (“Any
person except a peace officer who goes armed with a
concealed and dangerous weapon is guilty of a Class A
misdemeanor.”), amended by Wis. Act 35, 2011-2012 Wis.
Legis. Serv. 825, 843 (West) (effective Nov. 1, 2011). The
crime of carrying a concealed weapon had been on the
books in one form or another since 1872. See Cole, 665
N.W.2d at 331-32. Before its sweeping modification in
2011, the concealed-weapon statute was in significant
tension with the newly adopted constitutional right.
Gonzalez argues that because section 941.23 prohibited
him from carrying his handgun concealed, carrying it
openly was the only way he could meaningfully exercise
his state constitutional right to bear arms; his acts of open
carrying therefore could not be punished as disorderly
conduct. He is not alone in this view. In a pair of cases
in the state supreme court in 2003, the Wisconsin De-
partment of Justice (“DOJ”) advanced the open-carry
option in defending the concealed-weapon statute
against facial and as-applied challenges under the newly
ratified state constitutional right to bear arms. See Cole,
665 N.W.2d 328; Hamdan, 665 N.W.2d 785. The Attorney
General argued that although carrying a concealed
firearm was a crime, “a person lawfully in possession of
a firearm will always retain the ability to keep the firearm
in the open—holding the weapon in the open, keeping
the weapon in a visible holster, displaying the weapon
on the wall, or otherwise placing the weapon in plain
view.” Hamdan, 665 N.W.2d at 808-09. Because firearms
16 No. 10-2356

could be kept or carried in the open, banning concealed
carry did not violate the Article I, § 25 right to bear arms.
Id. Or so the Attorney General argued.
The Wisconsin Supreme Court was skeptical of this
aspect of the Attorney General’s case, casting doubt on
the view that open carrying was always a viable option.
In Hamdan the court noted that openly carrying or dis-
playing a firearm would often be “impractical, unsettling,
and possibly dangerous,” and “could expose a gun
owner to other liability, both criminal and civil.” Id. at
809. Indeed, the court cited the disorderly conduct
statute to illustrate the kind of criminal liability that
might arise from openly carrying a firearm. Id. (citing
W IS. S TAT. § 947.01). In the end, resolving questions
about open-carry rights was unnecessary to decide
Cole and Hamdan. In Cole the court rejected the facial
challenge to the concealed-weapon statute but held it
was subject to individual as-applied challenges. 665
N.W.2d at 340-45. In Hamdan the court crafted a frame-
work for adjudicating as-applied constitutional chal-
lenges to individual prosecutions under section 941.23.
665 N.W.2d at 809-11. The dispute about open carrying
was left for another day.
The open-carry issue was still unsettled when Gonzalez
was arrested in West Milwaukee in May 2008 and in
Chilton in April 2009. Soon after the Chilton arrest, how-
ever, the Attorney General issued an informal Advisory
Memorandum titled “The Interplay Between Article I, § 25
Of The Wisconsin Constitution, The Open Carry of Fire-
arms And Wisconsin’s Disorderly Conduct Statute, Wis.
No. 10-2356 17

Stat. § 947.01.” Though not a formal Attorney General’s
opinion, the Advisory was directed to Wisconsin’s district
attorneys and intended for the education of front-line
prosecutors and law-enforcement officers within their
jurisdictions. Issued on April 20, 2009, the Advisory
begins by noting that the DOJ had received “multiple
inquires” asking whether openly carrying a firearm
could be prosecuted as disorderly conduct. The Attor-
ney General’s response: “The Wisconsin Department of
Justice . . . believes that the mere open carrying of a
firearm by a person, absent additional facts and circum-
stances, should not result in a disorderly conduct charge
from a prosecutor.”
The Advisory emphasized that any decision to charge
an act of open carrying as disorderly conduct “necessarily
depends on the totality of the circumstances,” but “must
take into account the constitutional protection afforded
by Article I, § 25 of the Wisconsin Constitution.” To
illustrate, the Advisory gave two examples at opposite
extremes: “[A] hunter openly carrying a rifle or shotgun
on his property during hunting season while quietly
tracking game should not face a disorderly conduct
charge,” but “if the same hunter carries the same rifle
or shotgun through a crowded street while barking at a
passerby, the conduct may lose its constitutional pro-
tection.”
To the extent the DOJ’s advice helped to guide the
discretion of Wisconsin prosecutors and police officers
before the concealed-weapon and disorderly conduct
statutes were amended in 2011, it could be of no use to
18 No. 10-2356

the officers here, who were faced with a decision
whether to arrest Gonzalez for disorderly conduct before
the Advisory was issued.1 Officers Krafcheck, Donovan,
and Young were acting at a time of significant legal
uncertainty about how to draw a difficult constitutional
line; as such, qualified immunity applies. See Purtell,
527 F.3d at 625-26. Although Gonzalez vigorously argues
to the contrary, the right to openly carry a firearm
was hardly well established under the state constitution
at the time of his arrests. Until the 2011 amendment
to section 947.01, the legal landscape was uncharted.
Gonzalez also relies on the Second Amendment, but
this argument is not well developed. Invoking District of
Columbia v. Heller, 554 U.S. 570, 595 (2008), he argues
that the core Second Amendment right to bear arms for
self-defense must include the right to openly carry a
holstered handgun. But Heller was decided after
Gonzalez’s arrest in West Milwaukee. And McDonald,
130 S. Ct. at 3050, which applied the Second Amendment
to the States, was decided after both arrests. Whatever
the Supreme Court’s decisions in Heller and McDonald
might mean for future questions about open-carry rights,
for now this is unsettled territory. See Eugene Volokh,
Implementing the Right to Keep and Bear Arms for Self-Defense:
An Analytical Framework and a Research Agenda, 56 UCLA

1
Gonzalez filed this lawsuit four days after his arrest in
Chilton, six days before the DOJ issued the Advisory. Indeed,
the Advisory specifically notes the recent filing of Gonzalez’s
suit.
No. 10-2356 19

L. R EV. 1443, 1520 (2009) (open-carry rights under the
Second Amendment may be “a major area of debate in
courts in the coming years”); see also Nelson Lund, Two
Faces of Judicial Restraint (Or Are There More?) in
McDonald v. City of Chicago, 63 F LA. L. R EV. 487, 505
(2011) (“We do not yet know how the courts will rule on
laws that forbid both open and concealed carry of fire-
arms.”).2
The “clearly established” inquiry in qualified-immunity
analysis asks whether the unlawfulness of the officer’s
conduct would have been apparent to a reasonable
officer in light of pre-existing law. See Purtell, 527 F.3d at
621. Here, the most that can be said is that the officers
failed to make a sensitive judgment about the effect of
the state constitutional right to bear arms on the disorderly
conduct statute and failed to predict Heller and McDon-
ald. To the extent that any mistakes about probable
cause were made, they were entirely understandable;

2
For further discussion of the tension between the Second
Amendment and concealed-carry bans, and the practical and
legal difficulties of open carrying, see, e.g., Nelson Lund, The
Second Amendment, Heller, and Originalist Jurisprudence,
56 UCLA L. R EV . 1343, 1359-62 (2009); Eugene Volokh, Imple-
menting the Right to Keep and Bear Arms for Self-Defense: An
Analytical Framework and a Research Agenda, 56 UCLA L. R EV .
1443, 1521-24 (2009); Michael P. O’Shea, The Right to Defensive
Arms After District of Columbia v. Heller, 111 W. V A . L. R EV . 349,
377-79 (2009); see also Minutes from a Convention of The Federalist
Society: Civil Rights: The Heller Case, 4 N.Y.U. J. L. & L IBERTY
293, 321-23 (2009).
20 No. 10-2356

state law was in flux, and the meaning and application
of the Second Amendment was then under consideration
by the Supreme Court. 3 “Qualified immunity tolerates
reasonable mistakes regarding probable cause.” Whitlock,
596 F.3d at 413. Because open-carry rights were not

3
An additional complexity arises where, as here, the open
carrying occurred on private property. As we have noted,
section 947.01 punishes disorderly conduct “in a public
or private place.” W IS . S TAT . § 947.01(1) (emphasis added).
Gonzalez was arrested for disorderly conduct for openly
carrying his handguns on private property, albeit property
held open to the public; though the Menards and Wal-Mart
stores had some obligations to invitees as places of public
accommodation, the property retained its character as private
property. See Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972) (“Nor
does property lose its private character merely because the
public is generally invited to use it for designated purposes);
Jacobs v. Major, 407 N.W.2d 832, 835, 838-40 (Wis. 1987). It’s not
clear how the disorderly conduct statute applies in cases
involving conflicts between an individual’s right to bear arms
and a private-property owner’s right to set the terms of ad-
mittance. There might be a distinction between the “disorder-
liness” of openly carrying a gun in a public place and
the “disorderliness” of openly carrying a gun on private
property over the objection of the owner. The recent amend-
ments to section 947.01 do not specifically address the matter;
as we have noted, under the amended statute, carrying
a firearm—whether openly or concealed—does not con-
stitute disorderly conduct “[u]nless other facts and circum-
stances . . . indicate a criminal or malicious intent.” W IS . S TAT .
§ 947.01(2); see Wis. Act 35, 2011-2012 Wis. Legis. Serv. 825, 849
(West).
No. 10-2356 21

clearly established under the state or federal constitu-
tions at the time of Gonzalez’s arrests, the officers are
entitled to qualified immunity.

B. Illegal-Seizure Claim Against the Municipalities
Gonzalez also argues that the Village of West Milwaukee
and the City of Chilton violated his rights under the
Fourth Amendment by retaining his handguns too long
after the initial seizure. As in the district court, Gonzalez
does not meaningfully develop this argument on appeal,
and we agree with the district court that Lee v. City of
Chicago, 330 F.3d 456 (7th Cir. 2003), forecloses the claim.
In Lee we held that “[o]nce an individual has been mean-
ingfully dispossessed, the seizure of the property is
complete.” Id. at 466. In other words, a “seizure” of prop-
erty occurs when property is taken from its owner; nor-
mally—and here, given the short duration of the depriva-
tion—the government’s continued possession is not sepa-
rately actionable as a Fourth Amendment violation. Id.
at 460. But see Segura v. United States, 468 U.S. 796, 812
(1984) (“[A] seizure reasonable at its inception because
based upon probable cause may become unreasonable
as a result of its duration . . . .”).
Gonzalez argues, however, that in Lee the initial seizure
of property was lawful, whereas here his gun “was not
lawfully seized in the first place.” Even if Gonzalez were
correct, the distinction is immaterial. Lee’s holding that
a seizure occurs upon the initial act of dispossession
does not depend on the legality of the seizure. Stated
22 No. 10-2356

differently, continued retention of unlawfully seized
property is not a separate Fourth Amendment wrong. The
district court properly granted summary judgment for
the municipalities on Gonzalez’s illegal-seizure claim.

C. Privacy Act Claims Against West Milwaukee and Its
Officers
The Privacy Act of 1974 aims to safeguard personal
identifying information by regulating how governmental
agencies collect, maintain, use, and disseminate it. See
Privacy Act of 1974, § 2(b)(1), 5 U.S.C. § 552a (2011).
Gonzalez maintains that West Milwaukee and Officers
Krafcheck and Donovan violated two provisions of § 7 of
the Act when they obtained his Social Security number
during the booking process. More specifically, he claims
West Milwaukee and its officers violated § 7(a), which
makes it unlawful for a governmental agency to deny
“any right, benefit, or privilege” based on a person’s
“refusal to disclose his social security account number,”
and § 7(b), which requires governmental agencies to
provide certain explanatory information when they ask
for a person’s Social Security number.

1. Applicability of § 7 to Municipal Agencies
Before addressing the merits, there is a threshold
dispute about whether § 7 even applies to municipalities.
By its terms § 7 applies to “[a]ny Federal, State or local
government agency.” However, based on the unusual
way in which the Privacy Act is codified in the U.S.
No. 10-2356 23

Code, the Sixth Circuit has concluded that the Privacy
Act “applies solely to federal agencies.” See Schmitt v.
City of Detroit, 395 F.3d 327, 328 (6th Cir. 2005).
When Congress passed the Privacy Act and published
it in the Statutes at Large as Public Law 93-579, the
statute contained §§ 2 through 9, and of these, only § 3
was codified in the main text of the Code, at 5 U.S.C.
§ 552a, pursuant to the directives of § 4. There were no
instructions pertaining to the codification of the other
sections, so the revisor of the Code placed them in the
“Historical and Statutory Notes” accompanying 5 U.S.C.
§ 552a, instead of as a separate section in the main text.
See Schwier v. Cox, 340 F.3d 1284, 1288 (11th Cir. 2003).
Section 3(a)(1) states that “[f]or purposes of this section,”
the term “agency” is defined by ultimate reference to
5 U.S.C. § 551(1),4 which provides that ” ‘agency’ means
each authority of the Government of the United States.”
In Schmitt the Sixth Circuit interpreted the phrase
“[f]or purposes of this section” in § 3(a)(1) to refer to all
of 5 U.S.C. § 552a, including its notes. The court found
§ 7 “inherently inconsistent” with § 3 because § 3(a)(1)’s
definition of “agency” “contains no language to indicate
that it does not apply to the Privacy Act as a whole,” while

4
Section 3(a)(1) defines “agency” by reference to 5 U.S.C.
§ 552(e), but that section was redesignated as § 552(f) by the
Freedom of Information Reform Act of 1986, Pub. L. No. 99-570,
100 Stat. 3207 (1986). Section 552(f), in turn, refers to the defini-
tion in 5 U.S.C. § 551(1). See Schmitt v. City of Detroit, 395
F.3d 327, 329 (6th Cir. 2005).
24 No. 10-2356

§ 7 “by its terms includes state and local agencies within
its ambit.” Schmitt, 395 F.3d at 330. The court could
not reconcile the inconsistency and looked to two
sources to decide which provision should prevail: (1) the
congressional findings and purposes expressed in § 2 of
the Act; and (2) a Senate report in the Act’s legislative
history. These sources led the court to conclude that
the Privacy Act applies exclusively to federal agencies.
Id. at 331.
The Eleventh Circuit, on the other hand, as well as some
district courts—including the district court here—have
adhered to § 7’s plain language. See Schwier, 340 F.3d at
1288-89; Ingerman v. Del. River Port Auth., 630 F. Supp. 2d
426, 437-38 (D.N.J. 2009). 5 Schwier and Ingerman rely on
United States v. Welden, 377 U.S. 95 (1964), a case that
exposes the flaws in the Sixth Circuit’s reasoning. In
Welden the Supreme Court explained that when a
Statute at Large takes on a rearranged form in the U.S.
Code, the rearrangement carries no significance. See id.
at 98 n.4. Even for those titles of the Code that
Congress has enacted into positive law, including Title 5,
the Court said any change of arrangement “cannot be
regarded as altering the scope and purpose of the enact-
ment. For it will not be inferred that Congress, in

5
In Dittman v. California, 191 F.3d 1020, 1029 (9th Cir. 1999),
the Ninth Circuit held that “the prohibitions of § 7(a)(1) apply
to all governmental entities, including state and local gov-
ernments,” although it went on to find that § 7 cannot be
enforced through 42 U.S.C. § 1983. The defendants incorrectly
cite Dittman for a contrary proposition.
No. 10-2356 25

revising and consolidating the laws, intended to change
their effect, unless such intention is clearly expressed.”
Id. (quotation marks omitted).6
Following Welden and the Eleventh Circuit’s reasoning
in Schwier, we see no conflict between §§ 3 and 7. As
published in the Statutes at Large, the Privacy Act

6
To appreciate these statements in Welden, some background on
the mechanics of the legislative process may be helpful. After
laws are passed by Congress and signed by the President, they
are published in chronological order in the Statutes at Large,
which serve as “legal evidence” of the law. See 1 U.S.C. § 112;
Mary Whisner, The United States Code, Prima Facie Evidence, and
Positive Law, 101 L AW L IBR . J. 545, 546 (2009) (hereinafter
“Whisner”). But “[b]ecause that chronological arrangement
isn’t efficient for researchers,” the statutes are arranged by
subject matter for publication in the U.S. Code. See Whisner,
at 546; see also 2 U.S.C. § 285b. The Code is generally considered
“prima facie” evidence of the laws, yielding to the Statutes
at Large in cases of conflict. See 1 U.S.C. § 204(a); Whisner,
at 546-47.
In an ongoing process, however, the Office of Law Revision
Counsel has prepared and continues to prepare titles of the
Code for reenactment as positive law by Congress. The positive-
law-codification process is meant to “remove ambiguities,
contradictions, and other imperfections both of substance and
of form,” while “conform[ing] to the understood policy, intent,
and purpose of the Congress in the original enactments.”
2 U.S.C. § 285b(1); see also Whisner, at 553-56. With respect to
those titles that Congress has enacted into positive law, the
Code constitutes “legal evidence” of the law. See 1 U.S.C.
§ 204(a). For a list of these titles, see id. at § 204 note.
26 No. 10-2356

contains eight separately numbered sections, and it
seems clear that when § 3(a)(1) defines agencies as federal
agencies “[f]or purposes of this section,” it refers only to § 3.
(Emphasis added.) Section 3’s subsequent codification at
5 U.S.C. § 552a and § 7’s relegation to the “Historical
and Statutory Notes” in the same section of the Code
cannot change the statute’s meaning. Accordingly, there
is no need to look beyond the unambiguous text of § 7
to determine its applicability. By its express terms, § 7
applies to federal, state, and local agencies.7

2. Enforceability of § 7 Through 42 U.S.C. § 1983
The defendants argue that even if § 7 applies to munici-
pal agencies, Gonzalez cannot use § 1983 to remedy a § 7
violation. As the Supreme Court has explained,
§ 1983 does not provide an avenue for relief every time
a state actor violates a federal law. . . . [T]o sustain a
§ 1983 action, the plaintiff must demonstrate that
the federal statute creates an individually enforceable
right in the class of beneficiaries to which he belongs.
Even after this showing, “there is only a rebuttable
presumption that the right is enforceable under

7
On a similar analysis, we reject the defendants’ attempt to
claim protection under the exemption provided in § 3(j)(2) of
the Privacy Act. That provision states that certain records
“pertaining to the enforcement of criminal laws” may be
“exempt . . . from any part of this section.” (Emphasis added.)
We read the exemption to apply only to the requirements of § 3.
No. 10-2356 27

§ 1983.” The defendant may defeat this presumption
by demonstrating that Congress did not intend that
remedy for a newly created right. Our cases have
explained that evidence of such congressional intent
may be found directly in the statute creating the
right, or inferred from the statute’s creation of a
“comprehensive enforcement scheme that is incom-
patible with individual enforcement under § 1983.”
“The crucial consideration is what Congress intended.”
City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113,
119-20 (2005) (citations omitted). Two questions thus
arise: Does § 7 create individual rights? And even if so,
have the defendants rebutted the presumption that the
individual rights are enforceable under § 1983?
Based on its reading of the statutory text, the district
court concluded that § 7(a)(1) creates an individual
right enforceable through § 1983, while § 7(b)(1) does not.
See Jogi v. Voges, 480 F.3d 822, 828 (7th Cir. 2007) (stating
that there are “two relevant inquiries” for determining
whether a statute confers an individual right: “(1) whether
the statute by its terms grants private rights to any iden-
tifiable class; and (2) whether the text of the statute
is phrased in terms of the persons benefitted”). However,
other courts have disagreed about which parts of § 7,
if any, are enforceable through § 1983. See, e.g., Schwier,
340 F.3d at 1291-92 (holding that all of § 7 can be enforced
through § 1983 but examining only the language of § 7(a));
Dittman v. California, 191 F.3d 1020, 1029 (9th Cir. 1999)
28 No. 10-2356

(holding that § 7(a) is not enforceable through § 1983).8
At a minimum this disagreement suggests that the issue
is not easy. We need not wrestle with it here. The
Privacy Act claims fail for far more straightforward
reasons.

3. Section 7(a) Claim
With exceptions not applicable here, § 7(a)(1) of the
Privacy Act makes it unlawful for an agency to “deny to
any individual any right, benefit, or privilege provided
by law because of such individual’s refusal to disclose
his social security account number.” Gonzalez argues
that the West Milwaukee officers violated § 7(a) when
they asked for his Social Security number and told him
“that he would be incarcerated over the weekend if he
did not disclose the number.”
The factual record simply does not support this claim.
The officers asked Gonzalez for a variety of identifying
information, including his name, date of birth, address,
and Social Security number. Krafcheck testified in deposi-
tion that “[a]ll these things became hard to get from

8
The defendants also cite Polchowski v. Gorris, 714 F.2d 749
(7th Cir. 1983), to support their argument that § 1983 cannot be
used to enforce § 7. Polchowski states that the “comprehensive
private remedies” available under the Privacy Act “appl[y]
only to agencies of the United States Government,” but it is
clearly referring to only § 3, not § 7. See id. at 752. To the
extent Dittman relies on Polchowski, see 191 F.3d at 1028-29,
Dittman is unpersuasive.
No. 10-2356 29

[Gonzalez], and we needed to get that information before
we could . . . let him go.” So Krafcheck told Gonzalez
“something to the effect of, [i]f we can’t get the informa-
tion, you’re going to be here longer than you need to
be.” The officers eventually found Gonzalez’s Social
Security card in his wallet. Gonzalez neither disputes
Krafcheck’s account nor adds additional detail.
Krafcheck’s sparse testimony does not support a § 7(a)
violation. First, there is no evidence that the officers
denied Gonzalez any “right, benefit, or privilege,” or even
threatened to do so “because of” his refusal to disclose
his Social Security number. The officers sought a variety
of basic identifying information from Gonzalez, all of
which proved difficult to obtain. Perhaps they would
have been satisfied had Gonzalez willingly provided his
name, birthdate, and address. Regardless, because the
officers eventually obtained Gonzalez’s Social Security
number from his wallet and promptly released him,
there was no actual “denial” of any right, benefit, or
privilege. The claimed § 7(a) violation is factually unsup-
ported.

4. Section 7(b) Claim
Section 7(b) of the Privacy Act provides that an
agency that “requests an individual to disclose his social
security account number shall inform that individual
whether that disclosure is mandatory or voluntary, by
what statutory or other authority such number is solic-
ited, and what uses will be made of it.” It is undisputed
that when the West Milwaukee officers asked Gonzalez
30 No. 10-2356

for his Social Security number, they did not give him
the information listed in § 7(b).
The omission, however, is covered by qualified immu-
nity. At the time of Gonzalez’s arrest, the officers’ obliga-
tion to make the disclosures specified in § 7(b) was not
clearly established. Our holding that § 7 applies to munici-
palities resolves a question of first impression in this
circuit; the Sixth Circuit has held otherwise. Under
these circumstances it would not have been ” ‘clear to a
reasonable officer that his conduct was unlawful in the
situation he confronted.’ ” Purtell, 527 F.3d at 621 (quoting
Saucier v. Katz, 533 U.S. 194, 202 (2001)). At most
Krafcheck and Donovan made a reasonable mistake;
qualified immunity shields officers from liability for
precisely this kind of error.
Gonzalez also asserted a Monell claim against West
Milwaukee for the alleged § 7(b) violation. See Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). A municipality
can be liable under § 1983 only if its officers acted
pursuant to: (1) an official policy; (2) a practice or custom
that although not officially authorized, was widespread
and well settled; or (3) instructions from a city official
with final policy-making authority. Thomas v. Cook Cnty.
Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2010) (citing
Monell, 436 U.S. at 690). Gonzalez’s claim against West
Milwaukee rests entirely on the officers’ testimony that
they asked for his Social Security number as “part of
the booking process,” and they were “[g]oing down [a]
checklist.” Without more, this snippet of testimony
is not enough for a reasonable jury to find that West
No. 10-2356 31

Milwaukee had an official policy, that the officers were
acting under instructions from a policy-making superior,
or that asking for Social Security numbers without
making the § 7(b) disclosures was a widespread practice
in the West Milwaukee Police Department. The district
court properly granted summary judgment for West
Milwaukee and its officers on the Privacy Act claims.
A FFIRMED.

2-2-12