State of Wisconsin, Plaintiff-Respondent, v. Brian Grandberry, Defendant-Appellant-Petitioner.
CASE NO.: 2016AP173-CR
SUPREME COURT OF WISCONSIN
April 10, 2018
2018 WI 29; 372 Wis. 2d 834; 890 N.W.2d 49
Janet C. Protasiewicz
ORAL ARGUMENT: September 20, 2017. SOURCE OF APPEAL: COURT: Circuit, COUNTY: Milwaukee. JUSTICES: CONCURRED: KELLY, J. concurs (opinion filed). DISSENTED: R.G. BRADLEY, J. dissents (opinion filed).
REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 372 Wis. 2d 834, 890 N.W.2d 49 (2016 - Unpublished)
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs and an oral argument by Leon W. Todd, assistant state public defender.
For the plaintiff-respondent, there was a brief and oral argument by Jeffrey J. Kassel, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.
Amici curiae briefs were filed on behalf of Wisconsin Carry, Inc. by John R. Monroe and John Monroe Law, P.C., Roswell, Georgia.
NOTICE
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶2 Grandberry was convicted of carrying a concealed and dangerous weapon contrary to
¶3 Grandberry raises two issues. First, he argues that there is insufficient evidence to support his conviction. He reaches this conclusion by asserting that a conflict exists between the two statutes that can be resolved only by holding that persons in compliance with the Safe Transport Statute do not violate the first element of the crime of carrying a concealed and dangerous weapon contrary to the Concealed Carry Statute. We hold that the Concealed Carry Statute and Safe Transport Statute are not in conflict because Grandberry could have complied with both by either obtaining a license to carry a concealed weapon pursuant to
¶4 Second, Grandberry argues that the Concealed Carry Statute is unconstitutionally vague because a person of ordinary intelligence would reasonably believe that complying with the Safe Transport Statute is sufficient to lawfully place a loaded, uncased handgun in the glove compartment of a motor vehicle. We hold that the Concealed Carry Statute is not unconstitutionally vague because a person of ordinary intelligence has sufficient notice that carrying a concealed and dangerous weapon is unlawful unless one of the enumerated exceptions in the Concealed Carry Statute applies.
¶5 Accordingly, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶6 Grandberry was charged with one count of carrying a concealed and dangerous weapon, contrary to
On November 9, 2014, [two] City of Milwaukee Police Officer[s] . . . conducted a [traffic] stop of a vehicle . . . driven by the defendant [on] N. 60th St. Upon stopping the vehicle, the defendant identified himself by name but stated he did not have his wallet [or] identification. [One officer] then asked the defendant if he had any firearms in the car[,] and the defendant stated he did[,] in the glove compartment. [The officer] then asked the defendant if he had a valid [concealed carry license] and the defendant stated he did, but did not have it with him. Officers then conducted a search of the [license] database and discovered that the defendant did not, in fact, have a valid [concealed carry license]. Officers then went to the glove compartment and discovered a loaded, Hi-Point, .45 [caliber], semi-automatic pistol.
Upon arresting the defendant and conveying him to the station, the defendant made unprovoked statements to the effect of[:] “The gun in the glove compartment is mine, I took the [concealed carry license] class but never actually got a [license].” Additionally, the defendant is not a peace officer.
Based upon these facts, the circuit court entered a judgment of conviction against Grandberry. Grandberry then appealed his conviction.
¶7 The court of appeals affirmed, holding that the Safe Transport Statute did not apply to Grandberry.4 Grandberry, unpublished slip op., ¶9. The court of appeals then applied the stipulated facts to the elements of
¶8 As to the second issue, the court of appeals held that the Concealed Carry Statute is not unconstitutionally vague because Grandberry had actual knowledge that he needed a concealed carry license to lawfully carry a concealed handgun in the glove compartment of his motor vehicle. Grandberry, unpublished slip op., ¶19.
¶9 Grandberry petitioned this court for review, which we granted on March 13, 2017.
II. STANDARD OF REVIEW
¶10 Grandberry challenges the sufficiency of the State‘s evidence to support his conviction. “We . . . independently review whether the evidence was sufficient to sustain a jury verdict, but in so doing, we view the evidence most favorably to sustaining the conviction.” State v. Hanson, 2012 WI 4, ¶15, 338 Wis. 2d 243, 808 N.W.2d 390.
¶11 The proper interpretation of
¶12 This case also requires us to determine whether
III. ANALYSIS
¶13 We begin our analysis by first setting out the relevant portions of both the Concealed Carry and Safe Transport Statutes. We then address Grandberry‘s argument that a person in compliance with the Safe Transport Statute cannot, as a matter of law, violate the first element of the Concealed Carry Statute, which he frames as a sufficiency-of-the-evidence challenge. Finally, we address Grandberry‘s argument that the Concealed Carry Statute is unconstitutionally vague.
A. Statutory Background
1. The Concealed Carry Statute
¶14 The Concealed Carry Statute, with certain exceptions, criminalizes the carrying of concealed and dangerous weapons. The Concealed Carry Statute states, in relevant part:
(2) Any person, other than one of the following, who carries a concealed and dangerous weapon is guilty of a class A misdemeanor:
(a) A peace officer . . . .
(b) A qualified out-of-state law enforcement officer . . . .
(c) A former officer . . . .
(d) A licensee, as defined in
s. 175.60(1)(d) .5(e) An individual who carries a concealed and dangerous weapon, as defined in
s. 175.60(1)(j) ,6 in his or her own dwelling or place of business . . . .
¶15 We read the Concealed Carry Statute as having two parts. First, we refer to the part that creates the crime of carrying a concealed and dangerous weapon as the “general prohibition:” “Any person . . . who carries a concealed and dangerous weapon7 is guilty of a Class A misdemeanor.”
- The defendant carried a dangerous weapon. “Carried” means went armed with.
- The defendant was aware of the presence of the weapon.
- The weapon was concealed.
Wis JI—Criminal 1335 (2016).
¶16 Almost 90 years ago, we first used the term “within reach” to describe when a person “goes armed” with a concealed and dangerous weapon for purposes of the Concealed Carry Statute. Mularkey v. State, 201 Wis. 429, 432, 230 N.W. 76 (1930) (“[T]he driver of an automobile goes armed, within the meaning of [the Concealed Carry Statute], when he has a dangerous weapon within reach on a shelf in back of his seat.“). Nearly 50 years later, the definition was subsequently clarified so that “‘going armed’ [with a concealed and dangerous weapon] meant that the weapon was on the defendant‘s person or that the weapon [was] within the defendant‘s reach . . . .” State v. Asfoor, 75 Wis. 2d 411, 433-34, 249 N.W.2d 529 (1977). We articulated the current definition of “went armed with” in State v. Fry, 131 Wis. 2d 153, 182, 388 N.W.2d 565 (1986) (emphasis added) (“The elements of the crime of carrying a concealed weapon are: (1) the defendant had a dangerous weapon on his person or within his reach . . . .“), overruled on other grounds by State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97.
¶17 The statute‘s second part sets forth enumerated exceptions to the general prohibition.
2. The Safe Transport Statute
¶18 The Safe Transport Statute states in relevant part:
(b) [N]o person may place, possess, or transport a firearm8 . . . in or on a vehicle, unless one of the following applies:
1. The firearm is unloaded or is a handgun.9
B. Grandberry‘s Conviction is Supported by Sufficient Evidence.
1. The nature of Grandberry‘s argument
¶19 Grandberry frames his first issue as a sufficiency-of-the-evidence challenge; however, Grandberry does not raise the challenge in the traditional sense such that he asks us to review the evidence and apply it to the elements of the Concealed Carry Statute in order to determine whether there is “sufficient evidence” to support his conviction. See State v. Smith, 2012 WI 91, ¶41, 342 Wis. 2d 710, 817 N.W.2d 410. Rather, Grandberry uses his sufficiency of the evidence argument as the means by which he argues that the relevant statutes are in conflict.
¶20 Grandberry‘s argument consists of three components: two premises and a conclusion. His first premise is that the two statutes are in conflict because the same conduct—placing a loaded handgun in a motor vehicle—can comply with the Safe Transport Statute yet violate the Concealed Carry Statute. His second premise is that this purported conflict between the statutes must be resolved by a holding from this court that a person in compliance with the Safe Transport Statute does not “carry” for purposes of the Concealed Carry Statute.12 Grandberry‘s conclusion is that he complied with the Safe Transport Statute, and so, as a matter of law, his conduct could not violate the first element (“carry“) of the offense of carrying a concealed and dangerous weapon contrary to the Concealed Carry Statute.
2. The Safe Transport Statute and Concealed Carry Statute are not in conflict.
¶21 Grandberry‘s first premise is false because the two statutes are not in conflict. In order for two statutes to be in conflict, it must be impossible to comply
¶22 Grandberry argues that it is impossible to comply with the Safe Transport Statute without violating the Concealed Carry Statute. Grandberry asserts that “Wisconsin courts have . . . generally considered firearms located anywhere inside the interior portion of a vehicle to be within a defendant‘s reach and thus ‘carried’ for purposes of the [Concealed Carry Statute].” According to Grandberry, a person who transports a loaded handgun in a motor vehicle that lacks a trunk separate from the passenger area (e.g., a minivan, SUV, hatchback, or station wagon) complies with the Safe Transport Statute yet is always in violation of the Concealed Carry Statute. This is so, he says, because the loaded handgun would always, as a matter of law, be “within reach,” and thus “carried” for purposes of the Concealed Carry Statute.
¶23 This would be a compelling argument if it were true. As it is, however, his assertion is wholly unsupported by any statute, case law, or regulation.14
¶24 Grandberry, perhaps recognizing that no Wisconsin court has ever defined “within reach” as broadly as
¶25 Grandberry and the concurrence fail to recognize the important distinctions between these terms. Both Grandberry and the concurrence conflate judicial interpretations of the Fourth Amendment with a factfinder‘s application of laws to a given set of facts. The determination of whether police conduct comports with Fourth Amendment jurisprudence concerning searches incident to arrest is a question of law. State v. Harris, 206 Wis. 2d 243, 249-50, 557 N.W.2d 245 (1996). On the other hand, the question of whether a handgun is within reach is one of fact.17 See McNair v. Coffey, 279 F.3d 463, 476 (7th Cir. 2002) (Coffey, J., concurring in the judgment and dissenting in part) (“It is a basic premise of our legal system that juries are the triers of fact only; it is for the judge, not the jury to interpret the law and to draw the line in the sand separating conduct that is protected and unprotected under the constitution.“).
¶26 Accordingly, it would be improper for us to set forth an exhaustive list of nooks and crannies within the various and sundry configurations of motor vehicles wherein the armed, but unpermitted, motorist may place his dangerous weapon. Our inability is a matter of legal proscription and not lack of will. Put simply, we do not provide the certainty both Grandberry and the concurrence seek because our system of criminal justice assigns the task of defining statutory terms to this court (as we did when we defined “go armed with” to mean “within reach“), but assigns the task
¶27 Next, Grandberry and the concurrence fail to recognize that the two bodies of law developed independently. As discussed above, we first used the term “within reach” to define “go armed with” in 1930. Mularkey, 201 Wis. at 432; see also supra, ¶16. The concept of search incident to arrest originated in 1914. Chimel, 395 U.S. at 755 (citing Weeks v. United States, 232 U.S. 383 (1914)). However, no phrase that resembles “within reach” or “grab area” was used in the search incident to arrest context before 1969. Id. at 763 (“There is ample justification, therefore, for a search of the arrestee‘s person and the area ‘within his immediate control‘—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.“); see also id. at 755-762 (recounting development of search incident to arrest jurisprudence).
¶28 This independent development of the two distinct legal concepts is significant because we have never conflated the concepts of grab area and within reach when construing the Concealed Carry Statute. One example of this separateness is Fry. Most of our decision in that case centers on our consideration of Fourth Amendment jurisprudence concerning searches incident to arrest. See generally Fry, 131 Wis. 2d at 161-81. However, in a discreet part of the opinion, we separately considered whether the evidence adduced at trial was sufficient to uphold the defendant‘s conviction for carrying a concealed and dangerous weapon. The defendant argued that the handgun in his glove compartment could not, as a matter of law, be within reach because he testified at trial that his glove compartment would not open when the passenger seat was occupied. Id. at 182. We rejected his argument because the jury “was free to discount” his testimony in resolving the factual issue of whether his handgun was within reach. Id. (quoted source omitted).
¶29 In Fry, we properly treated the concepts of “grab area” and “within reach” as entirely separate concepts, as we have for decades and as we do here. Id. The two areas of law developed separately, and it is only by coincidence that they employ similar language. Confusion between the two contexts exists only because Grandberry threw it out like so much chum upon the waters and the concurrence took the bait hook, line, and sinker. To define “within reach” in the same way the United States Supreme Court defines “grab area” is to: (1) assign a definition to “within reach” that was not and could not have been intended when the term was first used;18 (2) confuse two entirely separate
3. Grandberry‘s argument fails because there is no conflict between the statutes.
¶30 We start by observing that no part of a motor vehicle is, as a matter of law, within reach. Rather, defining what areas of a motor vehicle are within reach has been, is now, and (absent legislative amendment) will continue to be a question to be resolved on a case-by-case basis by finders of fact and by courts reviewing the sufficiency of the evidence in particular cases. See generally Fry, 131 Wis. 2d at 182. Citizens who seek to comply with both statutes have at least two reasonable
means of doing so: (1) obtaining a concealed carry license;19 or, (2) placing their firearms out of reach.¶31 Grandberry and the amicus devote a considerable portion of their respective arguments within their briefs describing the parade of horribles they claim will result from our decision to affirm the court of appeals. They raise the specter of promiscuous prosecution of hunters and sport shooters who will be left struggling to comply with both statutes. The myriad of hypothetical circumstances that may arise in factual backgrounds in prosecutions for carrying a concealed and dangerous weapon render it impossible for this court to establish a bright-line rule setting forth which parts of a vehicle are and are not within reach. Nor is it, absent legislative directive, our place to do so. See Kittias Cty. v. E. Wash. Groth Mgmt. Hearings Bd., 256 P.3d 1193, ¶23 (Wash. 2011) (rejecting proposed bright-line rule where inquiry is “a question of fact based on the specific circumstances of each case“). Nonetheless, citizens and factfinders can find guidance20 in our precedent and common sense, and should consider factors such as the location of the dangerous weapon in the motor vehicle relative to the location of its possessor, the motor vehicle‘s size, and the possessor‘s ability to reach the dangerous weapon while in the motor vehicle.
C. Grandberry Failed to Satisfy His Burden to Prove the Concealed Carry Statute is Unconstitutionally Vague.
¶32 We next consider whether the Concealed Carry Statute is unconstitutionally vague21 as applied to Grandberry. He admits
¶33 “[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Beckles v. United States, 137 S. Ct. 886, 892 (2017) (citing Kolender v. Lawson, 461 U.S. 352, 357 (1983)). See also State v. Cissell, 127 Wis. 2d 205, 224, 378 N.W.2d 691 (1985) (quoting Kolender for the definition of void-for-vagueness); Wayne R. LaFave, 1 Substantive Criminal Law § 2.3 (2d ed.), Westlaw (database updated Oct. 2017) (“The void-for-vagueness doctrine . . . require[s] that a criminal statute be declared void when it is so vague that men of common intelligence must necessarily guess at its meaning and differ to its application“).
¶34 Grandberry‘s constitutional challenge is as-applied. In an as-applied challenge, a court assesses the merits of the constitutional claim by considering the facts of the particular case, not hypothetical facts in other situations.22 State v. Hamdan, 2003 WI 113, ¶43, 264 Wis. 2d 433, 665 N.W.2d 785. Thus, in this case, we consider whether a person of ordinary intelligence in Grandberry‘s situation (i.e., placing a loaded handgun in the glove compartment of a motor vehicle) would have fair notice that his conduct violates the Concealed Carry Statute. State v. Hahn, 221 Wis. 2d 670, 679, 586 N.W.2d 5 (Ct. App. 1998).
¶35 Grandberry‘s argument boils down to a complaint that the statutes overlap such that placing his loaded handgun in his glove compartment constitutes both transporting under the Safe Transport Statute and carrying under the Concealed Carry Statute, and thus his conduct can comply with one statute while simultaneously violating the other. Grandberry asks how a person reading the Safe Transport Statute can possibly know that complying with the terms of that statute may, in some circumstances, also violate the Concealed Carry Statute. Unlike the bulk of Grandberry‘s arguments, the answer to his question is straightforward and elegant in its simplicity: read the Concealed Carry Statute. Due process does not demand that every regulation on a certain subject be in the same statute; such a requirement would be absurd. Rather, where multiple statutes govern a defendant‘s conduct, due process requires that the terms of the statute under which the defendant was charged be sufficiently clear. Cissell, 127 Wis. 2d at 216-17 (citing United States v. Batchelder, 442 U.S. 114, 123 (1979)).
¶36 The Concealed Carry Statute provides sufficient notice to a person of ordinary intelligence that carrying a concealed and dangerous weapon is prohibited
IV. CONCLUSION
¶37 We hold that the Concealed Carry Statute and Safe Transport Statute are not in conflict because Grandberry could have complied with both by either obtaining a concealed carry license pursuant to
By the Court.—The decision of the court of appeals is affirmed.
¶38 DANIEL KELLY, J. (concurring). Mr. Grandberry tells us he did not “carr[y] a concealed and dangerous weapon” when he placed a handgun in his vehicle‘s glove compartment. See
¶39 But in reaching that conclusion, we created unnecessary ambiguity about what it means to “carry” a weapon. Whereas that concept bore only one meaning before today, now it bears two—one for measuring the propriety of vehicle searches under the constitution, and another for espying a violation of
¶40 The Concealed Carry Statute‘s proscription is clear, and the process of determining whether Mr. Grandberry violated it covers well-travelled ground. The statute says “[a]ny person, other than one of the following, who carries a concealed and dangerous weapon is guilty of a Class A misdemeanor.”
¶41 We have a long history with the phrase “to go armed with” as it relates to the Concealed Carry Statute. Nearly a century ago we decided, as a matter of law, that a person is armed when he has a firearm “within reach.” Mularkey v. State, 201 Wis. 429, 432, 230 N.W. 76 (1930) (“[T]he driver of an automobile goes armed, within the meaning of section 340.69, Stats.,1 when he has a dangerous weapon within reach on a shelf in back of his seat.” (citations omitted)). We said essentially the same thing in State v. Asfoor, 75 Wis. 2d 411, 433-34, 249 N.W.2d 529 (1977), stating that “‘going armed’ meant that the weapon was on the defendant‘s person or that the weapon must have been within the defendant‘s reach.” We confirmed this understanding of the phrase in State v. Fry, another case involving a handgun in a vehicle‘s glove compartment. 131 Wis. 2d 153, 182, 388 N.W.2d 565 (1986) (“The elements of the crime of carrying a concealed weapon are: (1) the defendant had a dangerous weapon on his person or within his reach . . . .” (citation omitted)), overruled on other grounds by State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97.
¶42 We now arrive at the end of the definitional chain in which “carry” means “go armed with,” and “go armed with” means to have a weapon “within reach.” A weapon is “within reach” if it is in a vehicle‘s passenger compartment. We know this on no less an authority than the United States Supreme Court. In describing the permissible scope of a warrantless search incident to arrest, the Court said: “Our reading of the cases suggests the generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m].‘” New York v. Belton, 453 U.S. 454, 460 (1981) (quoting Chimel v. California, 395 U.S. 752, 763 (1969)), abrogated on other grounds by Arizona v. Gant, 556 U.S. 332, 343 (2009). Some courts include “the hatchback or rear hatch area of a vehicle” within the meaning of “passenger compartment,” so long as “an occupant could have reached [that] area while inside the vehicle.” United States v. Stegall, 850 F.3d 981, 985 (8th Cir. 2017) (quoted source omitted). The rear cargo area of an SUV may also fall in that category. See United States v. Olguin-Rivera, 168 F.3d 1203, 1205 (10th Cir. 1999); see also United States v. Henning, 906 F.2d 1392, 1396 (10th Cir. 1990) (“Where, . . . the vehicle contains no trunk, the entire inside of the vehicle constitutes the passenger compartment and may be lawfully searched.“).
¶43 This last definitional step is where we created ambiguity. We said that what is “within reach” for Fourth Amendment purposes is something different from what is “within reach” for purposes of the Concealed Carry Statute. The court offers two reasons for its belief that these are “entirely separate concepts.” See majority op., ¶29. First, it says they are substantively
¶44 “Within reach,” the court said, is a question of law in the Fourth Amendment context, while in the context of the Concealed Carry Statute it is a question of fact. Id., ¶25. Therefore, the court concluded they mean different things because the court decides the former and juries decide the latter. See id. Get it? I don‘t. And I don‘t think the court does either. Whether it is a question of law or a question of fact, both questions address precisely the same consideration: Can a person reach the firearm? The length of a person‘s arm doesn‘t change because a jury measures it instead of a judge. The only real significance presented by the different contexts is that one deals with a potentiality and the other with the resolution of the potentiality. Here is what I mean.
¶45 The lawful scope of a warrantless search incident to an arrest is defined by a potentiality, to wit, the space into which a person could conceivably reach to retrieve a weapon. The purpose of such searches is “‘to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape’ and the need to prevent the concealment or destruction of evidence.” Belton, 453 U.S. at 457 (quoting Chimel, 395 U.S. at 763). It is the danger created by an arrestee‘s potential access to a weapon that justifies the search. The Supreme Court emphasized this justification in Arizona v. Gant, in which it rejected a reading of Belton that allowed vehicle searches even when there was no reasonable chance the arrestee could access the passenger compartment: “Accordingly, we reject this reading of Belton and hold that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant‘s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Arizona v. Gant, 556 U.S. 332, 343 (2009); accord State v. Dearborn, 2010 WI 84, ¶29, 327 Wis. 2d 252, 786 N.W.2d 97.
¶46 The Supreme Court‘s concern is entirely functional, and is focused on the physical reality that a quick movement within the passenger compartment could put a weapon in the suspect‘s hand. The Court has decided, as a matter of law, that the entirety of a vehicle‘s passenger compartment can be reached by such a movement. Presumably, it had a good basis for making that determination. If it did not, we would have to conclude that the Court‘s understanding of the Fourth Amendment in this context has its roots in a factual fallacy. Nothing suggests we ought to entertain that possibility, so I must conclude that the Court truly meant that a firearm in a vehicle‘s passenger compartment is within an occupant‘s reach.
¶47 Now for the court‘s rhetorical distinction between “within reach” and “within reach.” The court says the federal judiciary “describe[s] the area subject to a warrantless search incident to arrest as the arrestee‘s ‘grab area,‘” majority op., ¶24 (quoting United States v. Gandia, 424 F.3d 255, 261 (2d Cir. 2005)), whereas our court uses “within reach” to describe the area subject to the Concealed Carry Statute. And then the court says “Grandberry and the concurrence fail to recognize the important distinctions between these terms.” Id., ¶25. Well, that much is certainly true. But I take comfort in the fact that the Belton court—upon which the
¶48 The problem with the court‘s discovery is twofold. First, there is not even a theoretical difference between “grab area” and an area that is “within reach.” To conclude otherwise would be to say that one may grab something beyond one‘s reach, or that one may reach something one cannot grab. The second problem is grammatical. The court reads Belton as using “grab” to define an area. That‘s not what Belton was doing. It was describing what a suspect might do in an already defined area— to wit, “grab a weapon or evidentiary ite[m].” Belton, 453 U.S. at 460 (quoted source omitted). How did the Belton court define where that might be done? It said a weapon might be grabbed from “within the area into which an arrestee might reach.” Id. Or, with the judicious use of one‘s editing pencil, this definition can be shortened—without losing a jot or tittle of meaning—to “within . . . reach.” So the court‘s discovery of a substantive difference between “within reach” and “within reach” is both illogical and ungrammatical. I am confident the Belton court would find no “important distinctions between these terms.” See majority op., ¶25.
¶49 The court also faults me (and Mr. Grandberry) for not substantively distinguishing “within reach” (Fourth Amendment) from “within reach” (Concealed Carry Statute) based on the separate lines of cases in which the concept has been used. See id., ¶27. I acknowledge that I find this to be a distinction without a difference, but I don‘t think it‘s a fault. The Concealed Carry Statute concerns itself with the same physical reality addressed by Belton and Gant. In the Fourth Amendment context, the concern is whether there could be a weapon within reach. In the Concealed Carry Statute context, the concern is whether there actually was a weapon within reach.
¶50 This just means that the jury resolves as a factual matter the potentiality described by our Fourth Amendment jurisprudence. The Fourth Amendment defines the outer parameters of what could be lawfully within a defendant‘s reach; the jury decides whether a specific defendant could actually reach that location under the circumstances of a specific case. If he could, then the weapon was “within reach” within the meaning of the Concealed Carry Statute. However, if circumstances arise that make it impossible for a defendant to obtain a weapon from the area described by Belton and Gant, the jury may acquit. The defendant attempted this very gambit in State v. Fry. He argued that the glove compartment in which he placed his gun would not open when the passenger seat was occupied, so the gun was not within reach. See Fry, 131 Wis. 2d at 176. The jury convicted him anyway, and we found no error. Id. at 156. Nor did we address the concealed-carry question as anything other than a particularized inquiry into the relationship between the weapon and the area described by Belton and Gant.
¶51 Mr. Grandberry‘s concerns have a good foundation, and we shouldn‘t have dismissed them as abruptly as we did. The court said that “[a]ccording to Grandberry, a person who transports a loaded handgun in a motor vehicle that lacks a trunk separate
¶52 Ultimately, the court doesn‘t finish the job it set out for itself. It proposed that the concept of “within reach” could describe one area for purposes of the Fourth Amendment, and a different area for purposes of the Concealed Carry Statute. But the court went no further than opining on why it believes the concept should describe different areas. That is to say, the opinion doesn‘t describe what the difference actually is. In fact, we affirmatively refused to say what it might be. Instead, we chillingly advised the people of Wisconsin to risk criminal liability on multi-factor tests and common sense: “[C]itizens and factfinders can find guidance in our precedent and common sense, and should consider factors such as the location of the dangerous weapon in the motor vehicle relative to the location of its possessor, the motor vehicle‘s size, and the possessor‘s ability to reach the dangerous weapon while in the motor vehicle.” Id., ¶31 (footnote omitted). Anent the last clause of this formulation: How does “ability to reach the dangerous weapon while in the motor vehicle” differ from “within the area into which an arrestee might reach“? Common sense will utterly exhaust itself trying to find any room between the two, and we aren‘t saying what the difference might be. And yet, a person placing a firearm in a vehicle hazards criminal prosecution if he can‘t figure out a distinction that we refuse to describe.
¶53 The Concealed Carry Statute is not unconstitutionally vague, but only because its proscription reaches the entirety of the passenger compartment. This is a readily-ascertainable prohibition. But if criminality depends on a non-exclusive list of variables like the size of a vehicle, the placement of a weapon, and “common sense,” then we have denied the people of Wisconsin the ability to identify with any certainty what the statute prohibits with respect to vehicles. So, ironically, in the process of explaining why the statute is not unconstitutionally vague, we have made it so. See Kolender v. Lawson, 461 U.S. 352, 357 (1983) (“[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” (citations omitted)).
*
¶54 I agree with the court‘s mandate because Mr. Grandberry could comply with both the Concealed Carry Statute and
¶55 And now, a postscript of sorts: Given Wisconsin‘s proud hunting heritage, it‘s worth noting the Concealed Carry Statute‘s shockingly broad proscriptions. In amending our statutes to offer the opportunity to carry concealed handguns, the legislature simultaneously made it unlawful to carry a concealed rifle or other long gun. This may have been inadvertent, but we give effect only to what the legislature does, not what it tried to do.2 The Concealed Carry Statute prohibits an individual from carrying a “dangerous weapon.”
¶56 Finally, a post postscript. The Concealed Carry Statute also puts at risk all those who do not have concealed carry permits who nonetheless bring their handguns to shooting ranges. To comply with the statute, one would have to keep the handgun uncased at all times, and if placed in the passenger compartment of a vehicle, it would have to be situated so that it is readily observable.
¶57 Neither of these postscripts, however, affect Mr. Grandberry, so his conviction remains sound. Therefore, I concur and join the court‘s mandate.
¶58 REBECCA GRASSL BRADLEY, J. (dissenting). The majority‘s interpretation of the carrying concealed weapons statute,
¶59 In a 1930 case, Mularkey v. State, 201 Wis. 429, 432, 230 N.W. 76 (1930), this court adopted a definition of “go armed” to mean “on the defendant‘s person” or “within the defendant‘s reach.” See State v. Asfoor, 75 Wis. 2d 411, 433-34, 249 N.W.2d 529 (1977) (reciting Mularkey‘s holding). Mularkey pulled this definition from Texas cases interpreting Texas’ “unlawfully carrying arms” statute, 1911 Tex. Crim. Stat. 475, which proscribed carrying a weapon “on or about his person, saddle or in his saddle bags.” See Wagner v. State, 188 S.W. 1001, 1002 (1916).2 The Mularkey court‘s reliance on Texas case law to import “within reach” into Wisconsin‘s definition of “go armed” should be overruled for three reasons. First, Wisconsin‘s concealed carry statute never had language similar to the Texas statute. Compare
I. VOID FOR VAGUENESS
¶60 Grandberry argues the interplay of
A. Standard of Review & Applicable Principles of Law
¶61 Whether a statute is constitutional presents an issue of law reviewed de novo. State v. Pittman, 174 Wis. 2d 255, 276, 498 N.W.2d 74 (1993). Although statutes are generally presumed constitutional, when the challenge is not to the statute itself, but to how it is applied, no presumption exists. Soc‘y Ins. v. LIRC, 2010 WI 68, ¶27, 326 Wis. 2d 444, 786 N.W.2d 385 (“While we presume a statute is constitutional, we do not presume that the State applies statutes in a constitutional manner.“). “As such, neither the challenger nor the enforcer of the statute face a presumption in an as-applied challenge.” Id.
¶62 The void for vagueness doctrine protects individuals from unreasonable prosecution. The
¶63 This court set forth a two-part test in applying the void-for-vagueness doctrine: (1) is the statute “sufficiently definite to give persons of ordinary intelligence who seek to avoid its penalties fair notice of the conduct required or prohibited“? and (2) does the statute “provide standards for those who enforce the laws and adjudicate guilt” so the statute can be applied consistently? State v. McManus, 152 Wis. 2d 113, 135, 447 N.W.2d 654 (1989). “If the statute is so obscure that people of common intelligence must necessarily guess at its meaning and differ as to its applicability, it is unconstitutional.” City of Oak Creek v. King, 148 Wis. 2d 532, 546, 436 N.W.2d 285 (1989). Of particular relevance here, if a statute lacks adequate notice of what is prohibited, causing “basic policy matters [being left] to policemen, judges, and juries for resolution on an ad hoc and subjective basis,” it is unconstitutional. Dog Fed‘n of Wis., Inc. v. City of So. Milwaukee, 178 Wis. 2d 353, 359-60, 504 N.W.2d 375 (1993) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)).
¶64 In assessing the clarity of a statute, normally only “a reasonable degree of clarity” is required for it to be constitutional; however, when the statute infringes on a constitutionally protected right, the law requires more exacting precision, and “a more stringent vagueness test should apply.” Id. (first quoting Roberts v. United States Jaycees, 468 U.S. 609, 629 (1984); then citing Grayned, 408 U.S. at 110; Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982)).3
B. Application
¶65 The Concealed Carry Statute makes it a crime to carry “a concealed and dangerous weapon” unless an exception applies.
¶66 The question is whether these statutes give fair notice that a person who wants to transport a weapon in his vehicle must either have a concealed carry license or put the weapon out of reach. And, does the State‘s admission that law enforcement looks the other way when a hunter has a long gun concealed in his vehicle demonstrate that
1. Fair Notice
¶67 This court reviews whether fair notice exists from the perspective of a person of ordinary intelligence. McManus, 152 Wis. 2d at 135. Would a person of ordinary intelligence know from reading the statutes that in order to transport a firearm in his vehicle he must get a license or put it out of reach? Not likely. Instead,
¶68
¶70 Although, generally speaking, every person is presumed to know the law, see Putnam v. Time Warner Cable of Se. Wis., Ltd. P‘ship, 2002 WI 108, ¶13 n.4, 255 Wis. 2d 447, 649 N.W.2d 626, this case turns on whether the statutory language gives fair notice to a person of ordinary intelligence, not whether this court‘s decisions interpreting the statutory language do.
¶71 In addressing “fair notice” this court observed:
Actual notice of the statute may be irrelevant in applying the concept of fair notice. Courts require the law be clear so that those who consult the law are not confused or misled. Justice Holmes observed that “[a]lthough it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. [To make the warning fair, so far as possible the line should be clear.]”
State v. Neumann, 2013 WI 58, ¶50 n.29, 348 Wis. 2d 455, 832 N.W.2d 560 (quoting McBoyle v. United States, 283 U.S. 25, 27 (1931)). The line is far from clear in the matter before this court, except perhaps to a lawyer so well-versed in the laws governing weapons as to be aware of this court‘s reach into
¶72 A person of ordinary intelligence who is trying to learn the legal ways to transport a firearm (or bow or crossbow) would logically turn to the Safe Transport Statute because it addresses transportation of these weapons in vehicles. The text of the Safe Transport Statute allows a person to “place, possess, or transport a firearm, bow, or crossbow in or on a vehicle” if the firearm is unloaded or is a handgun, if a bow does not have an arrow nocked, and if a crossbow is either not cocked or is unloaded and encased. The Safe Transport Statute says nothing about where any weapon must be placed in the vehicle, and specifically requires concealment of one type of weapon as one method of compliance. The Safe Transport Statute plainly gives fair notice that: (1) a loaded handgun can be placed, possessed or transported in a vehicle; (2) any other unloaded firearm can be placed, possessed or transported in a vehicle; (3) a bow without an arrow nocked can be placed, possessed or transported in a vehicle; and (4) a crossbow can be placed, possessed or transported in a vehicle if it is either not cocked or is unloaded and in a carrying case. The Safe Transport Statute‘s text does not say that only a concealed carry licensee can place, possess or transport a handgun in a vehicle. Further, it gives no instruction on specifically where in the vehicle these weapons must be placed.
¶73 The majority concludes that these statutes are not void for vagueness because Grandberry could have complied
¶74 The majority‘s conclusion absolves the legislature from enacting laws that give fair notice to Wisconsin citizens who exercise their
¶75 Even if a person of ordinary intelligence was able to find and read every applicable Wisconsin case and to understand that a gun placed “within reach” in a vehicle violates
We are mindful “that there is a long tradition of widespread lawful gun ownership by private individuals in this country.” Staples v. United States, 511 U.S. 600 (1994). Thus, our conclusion in this case in no way limits the lawful placement, possession, or transportation of, unloaded (or unstrung) and encased, firearms, bows, or crossbows in vehicles as permitted by § 167.31(2)(b) . . . .
¶76 After reading this footnote, a person of ordinary intelligence would turn to the current Safe Transport Statute, which allows transportation of a handgun in a vehicle. Walls, in essence, says transportation of a gun in a vehicle does not violate
¶77 The text of these statutes leads to uncertainty and lacks “sufficient definiteness [such] that ordinary people can understand what conduct is prohibited.” Kolender, 461 U.S. at 357. The statutes here do not even give a reasonable degree of clarity, let alone meet the heightened standard required for statutes that infringe upon constitutionally protected rights. Grayned, 408 U.S. at 110; Vill. of Hoffman Estates, 455 U.S. at 499. These statutes do not give fair notice to the person of ordinary intelligence who needs to transport her firearm or bow or crossbow from her home to another destination of how to lawfully accomplish this routine activity; therefore, the first part of the void for vagueness test is satisfied.
2. Standards for Enforcement
¶78 The second part of the void for vagueness test requires this court to analyze whether the text of the statutes give clear guidance to those who enforce and adjudicate the laws. Our statutes must be capable of being enforced objectively and should not result in ad hoc, discriminatory, or subjective enforcement. Grayned, 408 U.S. at 108-09; Kolender, 461 U.S. at 357-58. Here, the State conceded that law enforcement looks the other way when hunters carry their long guns concealed in violation of
¶79 The text of these statutes unavoidably encourages selective enforcement and prosecution, thereby satisfying the second part of the void for vagueness test because the statutes currently permit “a standardless sweep allow[ing] policemen, prosecutors and juries to pursue their personal predilections.” Kolender, 461 U.S. at 358 (quoting Smith v. Goguen, 415 U.S. 566, 575 (1974)).
II. “GO ARMED WITH” DEFINITION
¶80 I also write separately because our continued adherence to Mularkey‘s importation
¶81 As noted, our case law holds that to “go armed” means to have the weapon “on the defendant‘s person or that the weapon must have been within the defendant‘s reach and that the defendant was aware of the presence of the weapon.” Asfoor, 75 Wis. 2d at 433-34 (citing Mularkey, 201 Wis. at 432).
¶82 This judicial expansion of the “go armed” definition to encompass having a firearm “within reach” has no basis in Wisconsin law and contradicts the definition of “bear arms” recognized by the United States Supreme Court in Heller. We should take this opportunity to discard the judicially-invented “within reach” part of this definition and align our definition of “go armed” with Heller‘s definition of “bear arms.” The Court in Heller explained that “bear” means “carry,” and adopted the “most familiar meaning” of “carries a firearm” as: to “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.” 554 U.S. at 584 (quoting Muscarello v. United States, 524 U.S. 125, 130, 143 (1998)) (interpreting the meaning of “carries a firearm” in a federal criminal statute)).
¶83 Wisconsin should adopt Heller‘s definition of “carry” to mean the weapon is “upon the person or in the clothing or in a pocket.” Both the
¶84 When the Mularkey court injected “within reach” into our definition of “go armed” in 1930, it did so based on a Texas case interpreting Texas’ unlawfully carrying arms statute, which contains language Wisconsin‘s statute never used. Specifically, the Texas statute provided:
Unlawfully carrying arms.—If any person in this state shall carry on or about his person, saddle, or in his saddle bags, any pistol, dirk, dagger, slung shot, sword cane, spear, or knuckles made of any metal or any hard substance, bowie knife, or any other knife manufactured or sold for purpose of offense or defense, he shall be punished by fine of not less than one hundred dollars nor more than two hundred dollars, or by confinement in the county jail not less than thirty days nor more than twelve months, or by both such fine and imprisonment.
¶85 Some states apply these statutes only “where the weapon is worn on the person of the defendant.” W.M. Moldoff, Annotation, Offense of carrying concealed weapon as affected by manner of carrying or place of concealment, 43 A.L.R.2d 492, § 4(d); see State v. Weston, 94 S.E. 871 (S.C. 1918) (holding that pistol placed in a satchel or suitcase does not constitute “carrying an unlawful weapon“); Watson v. Stone, 4 So. 2d 700 (Fla. 1941) (holding that pistol in the glove pocket attached to the inside of the dash of his vehicle did not violate statute). The Florida Supreme Court in Watson distinguished cases from those states that specifically use the “on or about the person” language in their statutes, concluding that because the Florida statute does not include the “on or about” language, the pistol placement in the glove pocket did not violate Florida‘s law prohibiting carrying or having a pistol in one‘s manual possession. 4 So. 2d at 702. The Florida Supreme Court specifically distinguished Florida‘s statutory language of “carrying” or “having a pistol in his manual possession” from foreign statutes “making it unlawful for the weapon of the defendant to be on, under or behind the seat, cushion, door, side floor or pockets of an automobile.” Id. This same reasoning should have been applied when Mularkey was decided—the Wisconsin statute does not use the “on or about” language and instead prohibits concealed “carrying“; therefore, this court misguidedly added the “within reach” language to the definition of “go armed.”
¶86 While adhering to precedent is an important doctrine for lending stability to the law, not every decision deserves stare decisis effect. After all, the purpose of stare decisis “is to make us say that what is false under proper analysis must nonetheless be held to be true, all in the interest of stability.” Antonin Scalia, A Matter of Interpretation: Federal Courts and the
¶87 “Stare decisis is neither a straightjacket nor an immutable rule.” Johnson Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108, ¶100, 264 Wis. 2d 60, 665 N.W.2d 257 (quoting Carpenters Local Union No. 26 v. United States Fid. & Guar. Co., 215 F.3d 136, 141 (1st Cir. 2000)). There are circumstances in which a court may overturn “outdated or erroneous holdings.” Johnson Controls, Inc., 264 Wis. 2d 60, 196 (quoted source omitted). Among other factors, in deciding “whether to depart from stare decisis” this court considers “whether the prior decision is unsound in principle” and “whether it is unworkable in practice . . . .” Id., ¶99 (citations omitted). This case vividly exemplifies both factors. The foundation of Mularkey‘s adoption of “within reach” rests not on the text of Wisconsin‘s statute but on Texas’ markedly different statutory language. This court‘s interpretation of “go armed with” as encompassing having a firearm “within reach” clouds a plain reading of the statutes, thereby impairing the ability of any person of ordinary intelligence to comply with the law.
¶88 In this case, “[i]t is well to keep in mind just how thoroughly [the Mularkey court‘s opinion] rewrote the statute it purported to construe.” Johnson v. Transp. Agency, 480 U.S. 616, 670 (1987) (Scalia, J., dissenting). Because Mularkey‘s interpretation of the statute‘s “go armed with” language reaches well beyond the statutory text, I decline to perpetuate this court‘s error on the altar of stare decisis, particularly when the error creates a trap for the well-intentioned but unwary citizen.
¶89 Correcting the error that originated in Mularkey and survived for nearly 90 years would quite appropriately eliminate “within reach” from concealed carry cases, confining the “within reach” concept to
reach,” I cannot join it. I would align Wisconsin law with the constitutions of both this state and the United States and apply the original meaning of “go armed with” as defined in Heller. Because the majority renders many of Wisconsin‘s law-abiding gun owners criminals, but for the benevolence of law enforcement and the discretion of prosecutors, I respectfully dissent.
Notes
Id., 153 S.W. at 882.“[O]n or about his person,” as used in our statutes in connection with the carrying a pistol, is meant that the pistol that is alleged to have been carried must have been within easy access of the person carrying it; that the pistol could have been secured with practically no effort on the part of the person charged.
We pause briefly to expressly note our disagreement with this analysis, as it lacks any support in the language of either of the relevant statutes. Furthermore, merely defining a term by reference to another statute does not expand or limit the scope of the original statute. The United States Court of Appeals for the D.C. Circuit aptly stated this concept when it said “[w]hen one statute . . . incorporates a definition from another . . . it imports only the specified definition and not the broader purpose of the statute from which it comes.” Owens v. Republic of Sudan, 864 F.3d 751, 776 (D.C. Cir. 2017).
Grandberry bases his “safe harbor” argument on a footnote in a court of appeals decision in which the court clarified that its holding, which concerned whether a firearm was concealed for purposes of the Concealed Carry Statute, “in no way limits the lawful placement, possession, or transportation of [] unloaded . . . and encased[] firearms . . . in vehicles as permitted by [the Safe Transport Statute].” State v. Walls, 190 Wis. 2d 65, 69 n.2, 526 N.W.2d 765 (Ct. App. 1994) (emphasis in original). The “safe harbor” argument is relevant only if the statutes are in conflict. Thus, we decline to further consider the merits of Grandberry‘s reading of Walls because we conclude the statutes are not in conflict.
[T]his court does not issue advisory opinions on how a statute could be interpreted to different factual scenarios in future cases. See Grotenrath v. Grotenrath, 215 Wis. 381, 384, 254 N.W. 631 (1934) (“[C]ourts will not ordinarily render advisory opinions where the questions propounded have not arisen and may never arise.“). Rather, it is our job to adjudicate the dispute in front of us. It is thus not necessary for us to resolve the hypotheticals laid out by [the Defendant].