MKE's Chief Flynn: The fallout continues

When last we checked in with WTMJ radio's a cappella vocalist Jeff Wagner, he was experiencing some difficulty engaging with the infamous "baby mama" court of appeals opinion of January '09.

Now he's claiming that Milwaukee Chief of Police Edward Flynn has "ordered his officers to ignore the law."

This is pure fantasy, of course.

Wisconsin Attorney General J.B. Van Hollen's celebrated gun memo is no more "the law" than is this here blog post. Strictly speaking, Van Hollen's memo isn't even a "legal opinion," as Jeff Wagner calls it.

It's an "informal Advisory Memorandum," and it includes an express statement distinguishing it from the AG's opinions mentioned in Wis. Stat. § 165.015(1). It's meant only to be "educational and informational" (and the former purpose has turned out to include for a number of delightfully unintentional effects).

Which is especially noteworthy because Jeff Wagner himself links to a WTMJ news item that depicts Flynn as telling Milwaukee police officers to "ignore the memo." So how Wagner gets from there to "ignore the law" remains an ineffable mystery of construction.

Recall that the memo's function was simply to expound on whether openly carrying a firearm might per se warrant a charge of disorderly conduct, which is ultimately a question for the district attorney.

How police officers in the field deal with Wisconsinites wandering about armed on city streets is a different story. Indeed, the memo wasn't even addressed to police officers, so in that sense alone, Chief Flynn's advice to the rank and file is perfectly appropriate.

It's like saying, 'Don't read John Chisholm's inter-office mail.'

Anyway, Jeff Wagner's recent pontifications are in service of congratulating the Deputy Chief of Police in Waukesha, Wayne Dussault. Dussault, enthuses Wagner, is a law enforcement officer who "actually believes in following the law." As opposed to Edward Flynn, apparently, who actually doesn't believe in following the law.

What Dussault told the Milwaukee Journal-Sentinel, however, is that carriers of "exposed and holstered handguns" will only be "observ[ed to] see if they're committing any actions that draw suspicion."

Observed for how long, for which actions, and by how many officers, he doesn't say. (And prospective open keepers and bearers may want to further bear that potential commitment of LE resources in mind.)

Except among the several hypothetical scenarios proffered by Van Hollen, Dussault's relatively innocuous situation won't be found. Instead Van Hollen contemplates, for example, a shotgun-bearing hunter "quietly tracking game" along a "crowded street" who may or may not be overheard "barking" at passersby.

And that manner of activity, affirmed Dussault, "would be approached differently." Who knows, the said urban hunter may even have to be "taken down," as Chief Flynn suggested.

Like AG Van Hollen himself memorandum'd, by way of citing a series of U.S. and Wisconsin Supreme Court decisions governing police action obtaining from legally permissible inferences of reasonable suspicion, it "depends on the totality of the circumstances":

Even though open carry enjoys constitutional protection, it may still give rise to reasonable suspicion when considered in totality. It is not a shield against police investigation or subsequent prosecution.

And the cases teach that among such circumstances are those where a suspect may warrant being "taken down." That is, after all, the memo's bottom line: It depends. But everybody already knew that.

One should be grateful to Chief Flynn if not for his demonstrated commitment to maintaining public safety on the streets of Milwaukee, then at least for his ability to prod the local conservative blogogentsia to even more fantastical flights of silliness.

P.S. And that would be Townes Van Zandt's Pancho and Lefty. A poncho is a Peruvian Snuggie™ where Willie Nelson stashes his bud.