If Transporting a Handgun in an Automobile, You Should Have a Concealed Carry Permit to Avoid Criminal Liability

By: Attorney Marcus J. Berghahn

Phone: (608) 257-0945

Email: mberghahn@hbslawfirm.com

We previously wrote about a case in the Wisconsin Supreme Court dealing with the conflict of two statutes that address the carrying of a firearm in an automobile. [https://hurleyburish.com/wisconsin-supreme-court-to-address-two-statutes-that-regulate-how-handguns-may-be-transported/] One statute allows the transport of a loaded handgun in an automobile. The other makes it a crime to carry a concealed weapon in an automobile. As to the latter, if the loaded handgun is within the passenger compartment, and thus within the reach of the driver, the law has been broken (placing the loaded handgun in the glovebox or in the luggage compartment may not make a difference legally as Court have found both of these areas to be within the reach of the driver). A person is guilty of carrying a concealed weapon if he or she “goes armed with” a concealed and dangerous weapon. Wis. Stat. § 941.23(1)(ag). But the safe transport statute expressly permits transporting a loaded handgun in an automobile. Wis. Stat. § 167.31(2)(b)1.

In a 6-1 decision the Wisconsin Supreme Court held that carrying a handgun in a car, even if permitted by one statute, could still expose the driver of the car to a criminal charge for carrying a concealed weapon. In State of Wisconsin v. Grandberry, 2018 WI 29, the defendant was convicted of carrying a concealed weapon, a handgun that was located in the glove compartment of his automobile. He argued that transporting the loaded handgun was lawful under the safe transport statute and that it was unconstitutional to apply the concealed weapon law to the facts of the case. The Wisconsin Supreme Court disagreed and affirmed his conviction.

The primary takeaway from the Court’s decision is that if you are operating a motor vehicle, and you are either carrying a handgun or you’ve placed the handgun in your automobile (while driving to the shooting range, for example), you need a concealed carry permit. Lacking a concealed carry permit, the transport of a handgun in an automobile is unlawful. And while police (and in particular, the DNR) are instructed to permit the transport of a long-gun (rifles and shotguns) in an automobile, their transport in an automobile remains unlawful.

In a decision authored by Justice Gableman, the Court determined that, notwithstanding a statute that permits the transporation of a loaded handgun in an automobile (Wis. Stat. § 167.31), if the handgun is concealed and out of sight from outside of the automobile and within the reach of the automobile’s occupant(s), it’s a concealed weapon. Only if the automobile occupant has been issued a concealed carry permit (under Wis. Stat. § 175.60), is the presence of the loaded handgun in the automobile lawful.

A point emphasized by Justice Daniel Kelly in his concurrence (a worthwhile read—though concurring in the Court’s mandate, his writing is more akin to a dissent), is the Court’s use of what “within reach” means. This leads to the lawyer’s practical take-away.

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.

Id., ¶50. As noted by the dissent, the decision may “necessitate[] a trial in every concealed carry “within reach” case, regardless of where the weapon is located in the car.” Id, ¶ 89 n.10.

The lone dissent, authored by Justice Rebecca Grassl Bradley noted a number of unresolved issues with the interplay between the statutes. Her dissent argues that “The interplay of these statutes does not provide clear notice or effective direction on how to comply with the law, and the lack of clarity allows for selective enforcement of Wis. Stat. § 941.23.” Justice Grassl Bradley notes that the decision “criminalizes hunters transporting long guns to hunting grounds, domestic violence victims transporting handguns to shooting ranges, and archers transporting crossbows to archeries.” In contrast to the majority decision, she seeks to “construe these statutes to enable citizens who lawfully own firearms, crossbows, and bows to safely transport their weapons without subjecting themselves to criminal liability.” As set forth in her dissent, Justice Grassl Bradley “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.” Id.

So while Grandberry puts to rest legal arguments between two statutes that treat the transportation of handguns differently, the decision highlights unresolved issues with the statutes and suggests that lawyers focus on whether a jury could decide whether the handgun was, in fact, within the defendant’s reach.