When Open Carry Turns Fatal: Kenosha Unrest Shooting Raises Questions About Wisconsin Gun Laws

Aug 27, 2020

Kyle Rittenhouse, 17, is facing charges for fatally shooting two people and injuring another during protests in Kenosha. Rittenhouse, who's from Illinois, was one of several people openly carrying a weapon as protests in Kenosha over the police shooting of Jacob Blake turned to unrest late Tuesday night.

While openly carrying firearms is legal in Wisconsin, doing so during a protest while a curfew's in effect brings up a lot of questions and legal concerns. Lake Effect spoke with Tony Cotton, an attorney in Waukesha and the former president of the Wisconsin Association of Criminal Defense Lawyers, to help break down what's legal when it comes to open carry laws in Wisconsin, when police can intervene, and how this issue intersects with people’s First Amendment right to protest: 

What is Wisconsin's open carry law?

Wisconsin is an open carry state, so anyone 18 or older can visibly carry weapons under state law. But a person cannot have any other prohibitions, such as being a felon or convicted of domestic abuse, to carry a weapon legally.

"Wisconsin also has what are called CCW, or concealed carry laws, which are separate and distinct from the open carry laws," notes Cotton. 

With a concealed carry permit, he says a person can carry a firearm in a concealed manner. 

Do declarations of state emergencies or curfews impact gun laws?

"They don't overrule the state open carry laws as they exist," says Cotton. "If people don't respect the curfew order and they're outside, that person may be violating the curfew order. But if that person has a open possession of a firearm, that person would not be running into any conflict with state law for possessing that firearm just because there's a curfew order in place." 

The alleged shooter from Tuesday night traveled from Illinois — what's the legal impact?

While Cotton clarifies he's not licensed to practice law in Illinois, he notes that traveling from another state does impact charges brought against the alleged shooter. 

"Simply being 17-years-old and walking the streets of Wisconsin with an open carry firearm — that in and of itself is illegal."

"One, of course, is simply being 17-years-old and walking the streets of Wisconsin with an open carry firearm, that in and of itself is illegal," says Cotton.

He notes that if the gun was transported in a concealed way, then the shooter would be violating the CCW laws in Wisconsin as soon as he arrived in the state.

"There may also, frankly, be federal laws that he's violated because he crossed state lines with a gun that definitely was manufactured in interstate commerce," Cotton says.

>>Timeline: Videos Show Events Leading To Fatal Kenosha Shooting

Can police intervene when someone is openly carrying a weapon during protests?

Cotton says that open carry laws have always been an "unresolved issue" in Wisconsin, particularly when the law first passed. To reduce arrests for disorderly conduct for openly carrying a weapon, the state passed an additional law in 2011, which states law enforcement must prove there is a criminal or malicious intent to arrest someone for openly carrying.

"The law basically became that if you possessed a firearm and were open carrying and not doing anything else it wasn't a problem," he explains. "It would be really hard for law enforcement to justify an arrest if somebody was simply walking around with a firearm." 

But in circumstances such as the violence in Kenosha, if people are affiliated with groups or individuals who are open carrying, "it wouldn't surprise me to see law enforcement arrest those people for disorderly conduct while armed," says Cotton.

It's a very low bar to arrest someone under Wisconsin law since officers only need probable cause to believe someone has committed a crime, according to Cotton. "But the practical consideration by law enforcement is if we do arrest people, whether the charge is strong or weak, might we be throwing more fuel to the fire so to speak," he notes.

"Clearly, the police were not enforcing that curfew order [in Kenosha], and it seems that one or more people were walking around with firearms and those individuals were not being arrested — either for disorderly conduct while armed or for violating a curfew order that was lawfully passed," notes Cotton.

Can the National Guard take action to apprehend or make arrests of armed protesters/anti-protesters?

"I don't believe the National Guard has arrest authority," says Cotton. "We don't really have citizen arrest concepts in Wisconsin ... and I don't think the National Guard really is going to play that role. I think they're going to be more of a defensive role protecting property."

If you're at a protest and see someone openly carrying a weapon, what should you do if you're uncomfortable?

The best thing to do is get away from them, says Cotton. Carrying a weapon during a protest is usually not a tactic that will reduce tension, and from a legal perspective, there are also the concerns of a party to a crime liability.

"If you are near somebody who's possessing a firearm and you're part of that group and you're a part of that protest, might an aggressive prosecutor or police officer, if they did choose to make mass arrests, might they argue that you're a party to that crime in some fashion?" Cotton says.

Can you brandish a weapon to defend property?

"That's such a multifaceted question," Cotton admits. "I think the best way to answer that is that Wisconsin law certainly permits a person to brandish a firearm to defend their property ... You can use a firearm if you are suffering risk of death or great bodily harm as a result of some aggresive action towards you, [but] defending property is a really tough call."

"While you might lawfully be able to display a firearm in order to repel an attack against your property, again that can escalate really quickly," he adds. 

In the current climate, Cotton says it would not surprise him if the Kenosha District Attorney's Office decides to prosecute anyone who discharges a firearm under these circumstances. 

"Honestly, the best advice from a criminal defense perspective, try to avoid criminal defense charges, is get out of there, lock yourself in your home," he says. "Property is property. Unfortunately, as awful as it is to see your business destroyed, you're better off being in your home. And if you want to possess a firearm, possess it in your home."

>>Rittenhouse Attorneys Say He Acted To Defend Himself

Can civilians with guns be deputized?

During a press conference on Wednesday afternoon, Kenosha County Sheriff David Beth addressed a request he received from civilians to deputize them so they could patrol the streets. Beth says, "The liability would be immense ... There's no way."

"He's right, the liability would be crazy," says Cotton. "If [the law] does permit that, it's probably a relic of the 1800s ... but that's not a modern-day concept that's going to be happening. People who are asking for that, they're watching too many movies."

How do First Amendment rights coincide with our Second Amendment rights?

"Those are two very distinct concepts," notes Cotton. "You have the right to protest, but clearly government also has the right to impose reasonable restrictions on time, place and circumstance to restrict people's First Amendment rights ... when circumstances warrant it."

When it comes to Second Amendment rights, it's a similar concept. While Americans do have an individual right to possess firearms, that right "is and has been tailored considerably over the years," says Cotton.

Charges such as domestic violence crime or committing a felony will take your gun rights away. 

"Government has and can restrict each of those Constitutional rights. The interplay between the two when you see the protests is really interesting because you do see people who are possessing firearms in the context of demonstrating peacefully," says Cotton.