April 28, 2009

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.


Anonymous said...

Some, Van Hollen said, mistakenly believed the mere act of wearing a handgun in a visible holster amounted to a violation of the disorderly conduct statute. His advisory was most clear on that point.
Journal Sentinel reporters Patrick Marley, Stacy Forster and Tom Held contributed to this report.
Because takes four reporters to properly fuck up a story.

Anonymous said...

Wish I'd said that:

News reporters should consider the effect of their coverage in deciding whether it appropriately represents the situation being covered. If the effect on viewers or readers is to create an excessive sense of indeterminance on an issue, well, that's not an accurate representation of the truth. It's opinion journalism by incompetence.

xoff said...

Our boy Jeff has a long history as a tool of the gun lobby. Wagner ran for attorney general in 1994, you may recall. NRA honcho Wayne LaPierre stumped the state for him, and Wagner attacked AG Jim Doyle, promising "crime control instead of gun control."

Wagner's campaign fell apart after posing as felons trying to outwit the state's backround check system and buy a gun. The system worked and the scheme blew up in Wagner's face.

And Doyle ran a TV spot showing that, for all his tough talk, as a federal prosecutor Wagner plea bargained 75% of his cases and dismissed or dropped almost half of the gun cases he handled.

illusory tenant said...

'94 was way before my time, so thanks for that.

Anonymous said...

wagner got his law degree out of a box of crackerjacks.

Display Name said...

Sometimes I think Owen is just baiting me when he uses phrases like "He wore his gun outside his pants for all the honest world to feel" in a lede. Follow the logic: "The law is pretty clear."

Asking for an OAG should be pretty easy, Wis. Stat. 165.015 tells who can do it. For free.