State v. Thomas

2004 WI App 115, 683 N.W.2d 497, 274 Wis. 2d 513, 2004 Wisc. App. LEXIS 415
CourtCourt of Appeals of Wisconsin
DecidedMay 18, 2004
Docket03-1369-CR
StatusPublished
Cited by10 cases

This text of 2004 WI App 115 (State v. Thomas) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Thomas, 2004 WI App 115, 683 N.W.2d 497, 274 Wis. 2d 513, 2004 Wisc. App. LEXIS 415 (Wis. Ct. App. 2004).

Opinions

WEDEMEYER, PJ.

¶ 1. Louis D. Thomas appeals from a judgment of conviction entered after a jury found him guilty of felon in possession of a gun, but not guilty of carrying a concealed weapon. He claims: (1) article I, section 25 of the Wisconsin Constitution effectively repealed Wis. Stat. § 941.29 (2001-02);1 (2) section 941.29 is unconstitutionally vague, overbroad, and violates the equal protection clause of the United States and Wisconsin Constitutions; and (3) he is entitled to a new trial in the interest of justice because the verdicts were inconsistent. Because there was no constitutional infirmity in the presentation of this case and [519]*519because there is no entitlement to a new trial in the interest of justice, we affirm.

I. BACKGROUND

¶ 2. On November 19, 2001, at approximately 9:25 p.m., Police Officer Ryan Heidemann, while on patrol in an unmarked squad car, received a "shots fired" dispatch to North 8th Street and West Concordia Avenue in Milwaukee, Wisconsin. The dispatcher informed him that a brown four-door vehicle was involved in the reported incident and that its occupants might be armed. While en route to the scene, he observed a brown wood-grained station wagon with two occupants and he began to follow the vehicle. The station wagon pulled over to the curb at approximately 831 West Ring Street. Heidemann stopped his squad car approximately two car lengths behind the station wagon. The station wagon's driver immediately exited the vehicle and walked away. Heidemann turned on his squad car's bright lights and activated the squad's spotlight. He also called for backup.

¶ 3. In short order, the passenger, later identified as Thomas, exited on the passenger side of the station wagon. While still seated in the squad car, Heidemann observed Thomas walk towards the back of the station wagon on the curb side, reach into the front waistband of his pants, and pull out a black handgun. Heidemann exited the squad with his service gun drawn. He observed Thomas throw the handgun under the station wagon. Thomas was arrested and charged with being a felon in possession of a gun and carrying a concealed weapon. Thomas stipulated that he had previously been convicted of fleeing, which is a felony. After a jury trial, Thomas was convicted of the former charge, but acquitted of the latter charge. Before sentencing, Thomas [520]*520filed a series of motions challenging the constitutionality of Wis. Stat. § 941.29. The trial court denied all of his motions. Thomas now appeals.

II. ANALYSIS

¶ 4. Thomas raises several claims of error: (1) the felon-in-possession statute, Wis. Stat. § 941.29, is unconstitutional under Wisconsin's right-to-bear-arms amendment, Wis. Const, art. I, § 25; (2) the statute is unconstitutionally vague and overbroad; (3) the statute violates the equal protection clause; and (4) he is entitled to a new trial because the verdicts convicting him of felon-in-possession of a firearm and acquitting him of the carrying a concealed weapon count are inconsistent. For reasons that follow, we reject each of his claims of error.

A. Constitutionality of the Statute

¶ 5. Wisconsin Stat. § 941.29(l)(a) and (2) became effective on March 31, 1982.2 In 1998, the Wisconsin Constitution was amended to provide that, "[t]he people [521]*521have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose." Wis. Const, art. I, § 25.

¶ 6. Thomas contends legislative history clearly demonstrates that with the passage of this constitutional amendment, Wis. Stat. § 941.29 has been knowingly and effectively repealed. Legislative history, however, demonstrates his conclusion is fatally flawed.

¶ 7. Thomas asserts that article I, section 25: "establishes a broad and fundamental right to bear arms, including firearms. The lawful purposes expressly delineated in this amendment include security, defense, hunting, recreation and other lawful purposes." He then argues that "[t]here is nothing in the amendment that indicates that any of those enumerated purposes are [sic] reserved for non-felons only. . . ." He continues, "the constitutional right, as written, is altogether unqualified by any language preserving preexisting legislation." Thus, he concludes, "were Art. I, Sec. 25 . . . meant to have preserved preexisting restrictions against possession of a firearm by a felon, the legislature would have so drafted it."3

[522]*522¶ 8. There are three reasons to reject Thomas's interpretation of article I, section 25. The first is based upon Thomas's inaccurate historical methodology. Thomas bases his unrestricted reading of article I, section 25 on the presumption that the following language appeared in a draft version of the constitutional amendment:

Every individual, except an individual restricted in accordance with state and federal law, has the right to keep and bear arms for any lawful purpose including for security or defense, for hunting for recreation use, except that the manner of bearing arms may be regulated in accordance with state law.

(Underlining in original; emphasis added.) Thomas claims that this was the original text of the Bear Arms Amendment as introduced on September 1, 1995, as Assembly Joint Resolution 53 (AJR 53). Unfortunately for the persuasive weight of Thomas's argument, his source — Christopher R. Mcfadden, The Wisconsin Bear Arms Amendment and the Case Against an Absolute Prohibition on Carrying Concealed Weapons, 19 N. III. U. L. Rev. 709, 716 (1999) — misquoted AJR 53. The phrase "state law" never appeared in any version of AJR 53. Thus, Thomas's argument that the later deletion of the phrase "state law" demonstrated the legislative intent to repeal state law restrictions is incorrect.

¶ 9. Second, on November 29,1995, the Assembly Committee on Elections and Constitutional Law amended the proposed constitutional amendment to delete reference to "Federal Law." At that stage in the legislative process the proposed constitutional amend[523]*523ment read, "Every individual has the right to keep and bear arms for any lawful purposes including for security or defense, for hunting and for recreational use." The purpose of deleting the federal exception was to prevent the implied interpretation that "the only valid restrictions on the possession [of] firearms in Wisconsin would be those restrictions imposed by federal law." Amendments to AJR 53. As urged by Representative Scott Jensen, the language should be deleted because "Wisconsin should not surrender its authority to regulate firearms to the federal government." Wisconsin Legislative Council Staff Memorandum, Explanation of 1997 Assembly Joint Resolution 11, Relating to the Right to Keep and Bear Arms (Second Consideration) 3 (Jan. 22, 1997) ("1997 Legislative Council memo"). This deletion and explanation therefore suggest that the legislature did not intend to repeal Wis. Stat.

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Bluebook (online)
2004 WI App 115, 683 N.W.2d 497, 274 Wis. 2d 513, 2004 Wisc. App. LEXIS 415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-thomas-wisctapp-2004.