Wisconsin Carry in Truck Case Dismissed by Prosecutor, Avoids Precedent

In June of 2016, a 53-year-old truck driver, Guy A. Smith was arrested in Kenosha for having a loaded revolver in the cab of his truck. Smith didn’t have a Wisconsin concealed carry permit. He claimed that he didn’t need one. The Wisconsin Constitution is very clear on the subject (as above).

In 1998, the people of Wisconsin had voted for constitutional carry in a state referendum amending the state constitution.The amendment, which created Article I, Section 25, is very clear and received 74% of the vote.

From Article I Section 25:

The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.

Smith and his attorney insisted on a jury trial. Kudos to Wisconsin Carry for assisting with the case. Smith’s attorneys used a constitutionality defense from the start, and showed that it’s not illegal under Wisconsin law to carry a loaded handgun in a vehicle.

The statue on transport of weapons says:

” … no person may place, possess, or transport a firearm, bow, or crossbow in or on a vehicle, unless one of the following applies: 1. The firearm is unloaded or is a handgun.”

The prosecuting attorney, Thomas Binger, stated that the law could not mean what it said, because it would invalidate the Wisconsin statute on concealed carry. The judge corrected the attorney, noting that it would only invalidate the statute “in cars”.

From jsonline.com:

The defense position “would suggest anyone without a permit can drive around with a loaded weapon in the vehicle,” Binger said. “I decline to read the statute so broadly.” He said Wisconsin’s concealed carry law, Act 35, would have no meaning.

“No meaning in cars,” Circuit Judge Bruce Schroeder clarified.

The case was scheduled to go to trial, starting with jury selection on August 28. But before jury selection began, the state asked that the case be dismissed.

From wicourts.gov:

Kenosha County Case Number 2016CM000842 State of Wisconsin vs. Guy A Smith

All charges against Guy A Smith in this case have been dismissed. These charges were not proven and have no legal effect. Guy A Smith is presumed innocent.

The upshot is that the Smith case won’t establish a legal precedent. The state supreme court won’t have a chance to clarify that Article 1, Section 25 actually means what it says.

Still, the case is known and will have an effect. More people will exercise their constitutional rights. And more such cases will likely come before the courts.

It’s clear the case against Mr. Smith should never have been brought. How many people have plea bargained a guilty verdict because they didn’t have the moral courage or resources of Mr. Smith?  How many took plea bargains because they expected the courts to ignore the state constitution, the law, and simple justice?

The prosecutors should have known this was a doomed case from the beginning. Perhaps they did.

It appears the prosecution has chosen to exercise punishment by process. It cost Mr. Smith considerable time and money to challenge the unjust prosecution. He took the risk that an ideologically driven judge would ignore the constitution and the law. It’s happened before.

Perhaps Mr. Smith can recoup some losses with a wrongful arrest lawsuit. Or not. It has happened before in Wisconsin.

©2017 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch

comments

  1. avatar OldLawProf says:

    Was the dismissal “with prejudice” to refile? Otherwise it is meaningless.

    I will bet that the D.C. Government now wishes they did not appeal in Heller.

  2. avatar uncommon_sense says:

    How many took plea bargains because they expected the courts to ignore the state constitution, the law, and simple justice?

    A boatload of people. I found out first hand in a civil matter that the state, the courts (but I repeat myself), and even the defense attorneys are corrupt.

    It appears the prosecution has chosen to exercise punishment by process. It cost Mr. Smith considerable time and money to challenge the unjust prosecution.

    And, once again, fedzilla should prosecute the police who arrested Mr. Smith and the prosecutor for deprivation of rights under color of law.

    1. avatar The Punisher says:

      To get rid of Fedzilla, or Govzilla or whatever we want to call the beast…one must first starve the beast.

      As long as the beast in nourished and alive it will continue to pillage and destroy. Any attempts to muzzle or restrain the beast are futile.

      We like to bitch about the Fedzilla but the truth is more people are afraid of a reality with the absence of it.

      Otherwise the quickest, simplest way to reform is not through the courts, definitely not through voting or any political activism. We the people stop feeding the beast. Massive, radical non-violent resistance through non-payment of taxes. Period.

      That or peaceful secession.

  3. avatar uncommon_sense says:

    By the way, can someone please tell me where the Wisconsin constitution says that the right to keep and bear arms does not apply to concealed carry nor carry of firearms (handguns or long guns) in vehicles?

  4. avatar MLee says:

    “It’s clear the case against Mr. Smith should never have been brought.” Many cases are won that should never have been brought because the defendants aren’t willing to play the game. It’s the legal game and that’s how it’s played.
    If you have a case, demand a jury trial, don’t take a deal and play the game.

  5. avatar Mike Betts says:

    “Talk is cheap – until you hire a lawyer.” I certainly hope that the assistance rendered by Wisconsin Carry helped defray the costs Mr. Smith incurred.

    1. avatar neiowa says:

      HOPEFULLY they appeal the dismissal and for the BS go to trial. And establish a legal precedent.

      1. avatar Missouri_Mule says:

        Not appealable.

  6. avatar Missouri_Mule says:

    Constitutions are pesky things

    1. avatar Bob says:

      No they aren’t.

      Take Florida for example.

      The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law. (Fla. Const. art. I, § 8, [a]) (1990; previous versions 1968, 1885, 1868, 1838). (Note that subsection (b) imposes a mandatory period of three days, excluding weekends and legal holidays, between the purchase and delivery at retail of any handgun. Holders of a concealed weapon permit as prescribed in Florida law are exempted.)

  7. avatar Hoyden says:

    Why were the PoPo looking in his cab in the first place?

    1. avatar Eric in Oregon says:

      Quoting the original article:

      “The handgun was on the floor of his truck. It was visible to an outside camera. Smith made no attempt to hide the firearm when the truck was inspected by a Wisconsin state trooper, who proceeded to arrest him for carrying a concealed firearm, illegally.”

      http://www.thetruthaboutguns.com/2017/07/dean-weingarten/wisconsin-vehicle-carry-case-offers-chance-to-validate-open-carry-constitutionality/

  8. avatar LHW says:

    Oh they can’t be bothered to abide by that pesky constitution written by white slave owning men.

  9. avatar Joemoma says:

    The only thing he can do now is sue to get the money it cost him. The only thing to stop this stuff is money

    1. avatar Snatchums says:

      The only thing that will stop it is criminally charging the cops and prosecutors for the “punishment by process” bullshit.

      Unfortunately that will NEVER happen though, the prosecuting attorney/LEO cabal would have a collective aneurysm claiming they’re the victims.

      1. avatar Aaron M. Walker says:

        NO !!! I believe that “We the People” need to bring fear back into the hearts of Tyrannical political parties, government official, or Rogue political Law Enforcement…Since, some where along the line…We the people so how lost control of our government on all levels. Now the government is calling all the shots, an IT’S agencies, and LE are dictating the terms of “Privileges” The “Peasants”…The Government no longer fears the “PEOPLE”. Their is No real accountability, or punishment for ” THEM” if they infringe, brutalize, murder, The Citizenry…Maybe “We the People” need bring back the Guillotine for ” Bad Government.”

      2. avatar Aaron M. Walker says:

        P.S. : YOUR also forgetting the Ultra conservative ” Police apologists” !

  10. avatar Dr. Professional says:

    Would NRA’s Carry Guard by the NRA for concealed carry guard cover his carry legal fees to hire NRA approved lawyers, to guard him while carrying concealed?

  11. avatar Mike Betts says:

    Physician, heal thyself. It is customary in written English to capitalize the first word in a sentence. Also, when you have completed a thought in a sentence, it is best to start another sentence to avoid the “run on sentence”. I suspect from your name and the errors in your posting that English may be a second language for you. Should that be the case, perhaps this will help: http://spcollege.libguides.com/c.php?g=254288&p=1695261

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