Gonzalez v. Village of West Milwaukee, 2012 U.S. App. LEXIS 1965

Gonzalez openly carried a handgun into a West Milwaukee Menards in May 2008 and was arrested for disorderly conduct; officers seized his gun and related materials.
In April 2009 Gonzalez openly carried in a Chilton Wal-Mart, was arrested for disorderly conduct, and his gun was retained after booking.
The district court granted summary judgment, finding probable cause or qualified immunity and dismissing other claims, including a property-seizure claim and Privacy Act claims.
Wisconsin amended its open-carry/disorderly conduct framework in 2011–2012, clarifying that open carrying generally does not violate disorderly conduct absent criminal/malicious intent, and Gonzalez was later convicted of homicide, affecting prospective relief.
The court affirmed on appeal, holding officers were entitled to qualified immunity given unsettled law at the time of arrest and that the seizure of Gonzalez’s firearms did not constitute an unlawful seizure; Privacy Act claims also failed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the open-carry arrests had probable cause for disorderly conduct	Gonzalez argues open carry cannot be disorderly conduct and is protected by arms rights	Officers reasonably believed open carry caused a disturbance and created safety concerns	Qualified immunity; probable cause was not clearly established given unsettled law
Whether continued retention of seized firearms after arrest constitutes illegal seizure	Retention of gun after disposition of arrest violates Fourth Amendment	Lee v. City of Chicago controls; retention during investigation is not a separate seizure	Seizure complete at initial dispossession; continued retention not actionable
Whether § 7 of the Privacy Act applies to municipalities and whether § 1983 provides relief	West Milwaukee violated § 7(a) by denying rights and § 7(b) by failure to disclose	§ 7 applies to municipalities; § 1983 viability disputed but not essential here	§ 7 applies to municipalities; § 1983 relief not available for § 7(a); § 7(b) claims barred by qualified immunity; no Monell liability shown
Whether the § 7(b) disclosures requirement was clearly established and liable for Monell liability	Officers failed to provide required § 7(b) disclosures	Disclosures were not clearly required at the time; qualified immunity applies	Qualified immunity; no clear violation; no robust Monell proof

State v. Cole, 665 N.W.2d 328 (Wis. 2003) (open carry and disorderly conduct framed in light of the constitutional right to bear arms)
Hamdan v. State, 665 N.W.2d 785 (Wis. 2003) (open-carry challenges under state constitutional right to bear arms)
State v. Schwebke, 644 N.W.2d 666 (Wis. 2002) (definition of disorderly conduct and its scope under Wisconsin law)