State v. Brian Grandberry, 2016AP173-CR, petition for review granted 3/13/2017

Review of an unpublished court of appeals decision; affirmed 4/10/18, case activity (including briefs)

Issues (composed by On Point)

1. Whether the safe transport statute, which permits transporting a handgun in a vehicle, forecloses convicting a non-permit-holder under the concealed carry law for having a handgun in his vehicle.
2. Whether the safe transport statute’s apparent contradiction of the concealed carry statute renders the law unconstitutionally vague.

As noted in our prior post, Grandberry was charged with carrying a concealed weapon after police stopped the car he was driving and found a loaded pistol in the glove compartment. He argues that the state cannot prove one element of the crime–that he was “going armed” with the gun. See Wis. Stat. §§ 941.23(1)(ag), 175.60(1)(ag). He relies on State v. Walls, 190 Wis. 2d 65, 526 N.W.2d 765 (Ct. App. 1994), in which the court of appeals upheld a conviction for carrying a concealed weapon (the gun was also in a car) but noted that the safe transport statute essentially carved out an exception to the CCW prohibition:

We are mindful that there is a long tradition of widespread lawful gun ownership by private individuals in this country. 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 vehicle as permitted by § 167.31(2)(b), STATS., which provides in part:

(b) Except as provided in sub. (4), no person may place, possess or transport a firearm, bow or crossbow in or on a vehicle, unless the firearm is unloaded and encased or unless the bow or crossbow is unstrung or is enclosed in a carrying case.

Id. at 69 n.2 (citation omitted). Since Walls, § 167.31 (the “safe transport” statute) has been amended to exempt handguns altogether. Thus, Grandberry argues, the legislature has expanded the category of “lawful placement … in a vehicle” to include handguns like the one he had in his glove box. The court of appeals’s decision noted Walls but did not convincingly distinguish it.  Relying on legislative history, it went on to hold that this exemption applies only to permit holders.

Grandberry also argues that, assuming the CCW statute does outlaw his conduct, its coexistence with the safe transport law (which appears to permit his conduct) renders the scheme unconstitutionally vague. The court of appeals disagreed on the ground that Grandberry’s false claim, to the arresting officers, that he had CCW permit shows that he knew what he was doing was illegal. The court made no response at all to Grandberry’s argument that because vagueness is an objective standard, his own beliefs were irrelevant.

Two meaty issues, in a case with the potential to defy the usual alignments among the justices. Stay tuned.