Earlier this month, Madison police cited two men (of a group of five) for obstruction of justice for failing to identify themselves to officers at a Culver’s restaurant. The men were openly carrying firearms, as Wisconsin law allows.
(One can’t openly carry a gun anywhere, but it’s lawful to carry one in a Culver’s, for example. Carrying a concealed weapon, by contrast, is not generally allowed in Wisconsin.) See, Obstruction charges to be dropped in gun case but all five men will be cited.
(Note: I certainly think it’s odd to want to carry openly a gun in a Culver’s restaurant. It’s not something I would ever do. Nonetheless, open carrying is, and should be, lawful apart from someone’s mere opinion on the matter.)
Madison’s Police Chief, Noble Wray, was right to instruct his office to withdraw the obstruction of justice charges — the refusal of the men to identify themselves in these circumstances was no crime under Wisconsin law. Unfortunately, he instead directed his office to charge all five men with disorderly conduct, on the (impossible) theory that
….Wray said that after further investigation all five men, who are members of the gun-rights group Wisconsin Carry, would be cited for disorderly conduct because the caller, a 62-year-old woman, along with a second patron interviewed this week told police they were disturbed by the armed men.
Predictably, the City of Madison is now being sued for violations of citizens’ federal constitutional rights. See, Gun rights group files federal lawsuit over Culver’s incident.
Wray has made the City of Madison’s position worse, not better — the city’s new theory leads to the conclusion that a citizen commits disorderly conduct anytime someone finds his lawful actions or lawful words unsettling. There’s a federal trial court case that seems to support the City of Madison’s position (concerning open-carrying of guns in a Walmart), but it’s not likely to survive appeal. (One can see that the City of Madison suspects its position is weak, as the city attorney will have no comment on the merits.)
Disorderly conduct requires more than the peaceful exercise of rights; citing the citizens at Culver’s on this basis will allow gun-rights advocates to contest these charges in federal court, and spur them further to seek appeal of any adverse trial-court ruling.
A charge of disorderly — allowed to stand — would implicate rights beyond Second Amendment gun rights. Is a person’s First Amendment right to speech, for example, subject to criminal prosecution when another person feels that the speech is unsettling, rude, disturbing, odd, etc.? One need not, after all, even speak audibly to exercise a first amendment right — a sign, banner, button, or bumper sticker carrying a political or message is speech under the First Amendment, too. Can government charge you with a crime because another person is, simply, offended because of your yard sign, button, or bumper sticker?
The answer’s no, and must be no, in a free society. I’d guess, soon enough, we’ll hear a similar answer concerning the disorderly conduct charges in the Culver’s open-carrying case.