OPEN CARRY & THE MPD

September 22, 2010

New Charges To Be Issued Regarding Culver's Incident

The Madison Police Department (MPD) has conducted a review of an incident that took place this past Saturday night at Culver's Frozen Custard restaurant, 4301 East Towne Blvd. Based upon the further investigation, Chief Noble Wray has concluded the appropriate charge for all 5 armed individuals is Disorderly Conduct (DC). Accordingly, DC citations will be issued, and Obstructing a Peace Officer tickets given to two will be rescinded.

Officers were dispatched to the restaurant around 6:50 p.m. after a 62-year old Madison woman called 911. She had just observed several men with handguns in holsters enter the crowded Culver's restaurant. In her initial statement to officers, she stated" I didn't know what the law was, and I thought I should at least call so the police can come and check it out cause I didn't want to be that one person that saw guns and didn't call, and then have something terrible happen". In a follow-up interview with detectives, she further stated that she thought it was very odd that these individuals with guns would be at a family place. She noted she felt somewhat "rattled" and also "felt uneasy" about the subjects having the handguns at the family restaurant. She went on to say that they all appeared calm, but noted "people who shoot up restaurants also look calm before it happens." She did state that she was very concerned that if she didn't make the call and something did happen, she would feel horrible.

The MPD made contact Saturday night with the five men who were openly carrying handguns. Upon officers' requests, three of five produced identification so that officers could determine they were not convicted criminals. Two of five refused to produce identification and were issued Obstructing a Peace Officer citations. It was determined they were not felons and handguns were returned.

The officers were faced with an ambiguous situation. When responding to investigate suspicious - or potentially dangerous - circumstances, police must:

• Preserve or Restore Order and Public Safety.
• Investigate whether a crime had been committed, was being committed, or was about to be committed.
• Protect the Constitutional Rights of those involved.

The complainant's statement clearly reveals that she recognized the potential for violence from these armed men, and it was this fear that motivated her call to police. On the basis of this fact, the MPD will be rescinding the 2 obstructing citations. They were issued in error. Instead, citations for City Ordinance DC will be given to those who engaged in the behavior that led to the need for police to be called.

The DC statute does not require an actual disturbance take place, only that conduct in question is of a type that tends to cause or provoke a disturbance

Chief Wray wants to make clear: It is the department's wish that concerned citizens call 911 when they see armed subjects.

Following Saturday's incident, he sent an internal memo to all officers:

MPD officers regularly are dispatched to reports of individuals who are armed with firearms. When responding to these incidents, officers should:

• Approach the suspect using the proper tactical response. The individual should be contacted, controlled, and frisked for weapons if appropriate. Officers should separate the suspect from any weapons in his/her possession during the encounter.

• Officers should conduct a thorough investigation to determine whether any violations of state statute or city ordinance have occurred. Some of the relevant offenses to consider include:
• Carrying a Concealed Weapon (•941.23)
• Disorderly Conduct (•947.01)
• Carrying a Firearm in Public Building (•941.235)
• Carrying Handgun Where Alcohol Beverages May be Sold and Consumed (•941.237)
• Being a Felon in Possession of a Firearm (•941.29)
• Safe Use and Transportation of Firearms (•167.31)
• Possession of Short-Barreled Shotgun or Short-Barreled Rifle (•941.28)
• Gun-free School Zones (•948.605)
• Possession of a Dangerous Weapon by a Person Under 18 (•948.60)
• Endangering Safety by Use of Dangerous Weapon (•941.20)

• Officers should verify that the firearm is not stolen, and attempt to verify that the person possessing the firearm is not legally barred from doing so (as a felon, due to an injunction, etc.). However, someone who has been detained is not legally obligated to provide identification to officers if no criminal ordinance violations have occurred. A person who refuses to provide identification should not be arrested for obstructing; however, if probable cause for another offense exists the suspect should be arrested for that offense and can then be identified during the citation or booking process.

• When responding to incidents involving subjects openly carrying firearms in public places, officers should investigate to determine whether the suspect's actions caused or were likely to cause a disturbance. The primary factors to be considered include the location, time of day and witness/bystander perceptions. Remember that the disorderly conduct statute does not require that an actual disturbance take place, only that the conduct in question be of a type that tends to cause or provoke a disturbance.

• It is my expectation that MPD officers encountering individuals who are armed with firearms in public places will take a pro-enforcement approach. If the investigation shows probable cause for a violation, the suspect should be arrested or cited.

Contact:
  • Joel DeSpain, 266-4897