“Don’t move. Put your hands up.”

Those are the words Brad Krause of West Allis, Wisconsin, heard on an August afternoon in 2008, in his own completely fenced-in back and side yard while he was busy planting a tree, with a holstered handgun on his hip. Krause complied with the officers’ commands quietly and without incident, and was taken into custody on a disorderly conduct charge 45 minutes later. The police seized the gun, holster, and ammunition, giving Krause no receipt.

The whole affair began when a neighbor phoned the local police station and inquired whether it was legal and safe for a homeowner to have a holstered gun at his side. He said during the call: “I just don’t appreciate a guy walking around with a gun in his yard and this isn’t the first time I talked to him about it but he’s still doing it.”

When asked in court why he called the police, the neighbor repeated several times that he was not concerned for himself or about Krause shooting anyone. Instead, in court he said: “I was concerned about the thing going off. I couldn’t see why he was carrying it,” while doing yard work. When asked by prosecuting attorney Jenna Merten whether it was causing a disturbance in the neighborhood, neighbor Donald Dykstra responded emphatically, “no.”

This is an important case for gun rights in Wisconsin. Technically, Wisconsin is an open-carry state. Established law indicates that it is a legally protected right. Steven Cain, the attorney representing Krause notes, “The law in Wisconsin really only limits concealed carry,” as Wisconsin is only one of two states that has not formally granted to its citizens the ability to carry concealed weapons.

In the previous case of Wisconsin v. Hamdan, a case with some similarities to the Krause case, Wisconsin governor Jim Doyle, who was the state's attorney general at the time, wrote: “A person lawfully in possession of a firearm will always retain the ability to keep the firearm in the open - holding the weapon in the open, keeping the weapon in a visible holster, displaying the weapon on the wall, or otherwise placing the weapon in plain view.”

Chief Justice Shirley Abrahamson concurred that Wisconsin law, “Does not prevent anyone from carrying a firearm for a security, defense, hunting, recreation, or other lawful purposes. Rather it limits the manner of carrying weapons, by requiring that a weapon that is on a person or within a person’s reach not be concealed.”

So why was Brad Krause charged with disorderly conduct for carrying a gun in his own backyard? Why did law enforcement react the way they did? And why did officers who arrested Krause approach him with guns drawn?

On the witness stand during the trial, Police Officer Andrew Matter outlined his reasons for going in with guns drawn before even speaking to Krause in an interesting exchange between himself and attorney Merten during the initial hearing.

Merten: Why did you draw your gun?
Matter: Because he had a gun.
Merten: What is the basis for that, is that a particular procedure you follow?
Merten: Yeah.
Merten: And what did you place him under arrest for?
Matter: Well at that point we’re (pause), for our safety, we didn’t even really speak to him too much yet, we just wanted to get him handcuffed and have him restrained before we frisked him, and then we removed the weapon, started questioning him about why he was carrying a gun and so forth.

Under cross examination by the defense attorney Cain, Officer Matter admitted that Krause was not handling the gun, nor was he waving it about or threatening anyone; he was merely digging a hole with a shovel.

Cain: You didn’t arrest him for openly carrying, did you?
Matter: Well, at that point Officer Madden, whose a senior officer, advised me that there’s a complainant who fears for safety here so that that’s why he’s being, that’s why he’s causing a disturbance.
Cain: Did you arrest Mr. Krause?
Matter: Yeah.
Cain: Did you formulate a reason for arresting him before you handcuffed him?
Matter: Yeah. He had a gun on his hip and we wanted to restrain his hands for our safety.
Cain: Did you determine that his reason for carrying was in no way a threat to anyone?
Matter: No, because it was a threat, so...
Cain: Did he explain to you that his reason for carrying was not a threat to you, but for his own personal security?
Matter: He mentioned that his life had been threatened in the past -- he’s a landlord owner, but, well...
Cain: He was respectful and cooperative with you, correct?
Matter: Yes.
Cain: Did he yell or raise his voice or act in any profane manner?
Matter: No.
Cain: Then ultimately you arrested him for disorderly conduct, correct?
Matter: Correct.
Cain: Can you outline for the court here today what the disorder you arrested him for was?
Matter: Yeah. He had a firearm on his hip, non-concealed. However we had someone who called the police department and made a complaint, a gentleman who feared for his safety and the safety of the children and the other elderly people in the neighborhood, so he was causing a disturbance, therefore acting disorderly.

Judge Paul M. Murphy said that he didn’t “blame the officers one bit for being concerned when they see somebody with a handgun. They did exactly what I would expect them to do.” And initially he indicated that he didn’t believe that a person had the right to openly carry a firearm on private property in the state of Wisconsin, a worrisome attitude from a judge who is supposed to know and apply the state’s laws.

When Attorney Cain moved for a directed verdict on the basis of total lack evidence to support a disorderly conduct charge, prosecuting attorney Merten countered with:

Mr. Dkystra [the neighbor] was concerned enough as an ordinary citizen living in that neighborhood to call the police from what he observed was disturbing to him.That was something he considered, something he thought a long time about. And when the police were there I think the fact that it’s something that caused a disturbance is obvious because the officers had to pull out their weapons. It’s something in a residential neighborhood because someone is openly carrying a gun in their front yard, it’s something to cause a concern even to the officers so they’re not going to approach a house alone because of the fear of the weapons. They don’t know if it’s going to go off, or if the defendant is going to shoot them, or what the defendant is going to do with that gun. The fact that it was clearly visible to anyone walking to the public, the reason it’s clear that the defendant was well, the defendant was wearing it on his hip so people could see it, so it could have the effect on people to cause a disturbance and make them fear for their safety.

In less convoluted verbiage, in this case the prosectution alleged that a disorderly conduct charge could be based on the notion that the mere presence of a gun is enough to incite a disturbance.

That is a misdirection, and not a very good one, because the real issue at hand is one of constitutional rights. In the defendant's case his constitutionally protected rights to keep and bear arms, to be free from unreasonable searches and seizures without probable cause, and to be secure in his person and property were violated.

On Tuesday, February 17, Judge Paul M. Murphy, in a semi-lengthy oral decision, declared Brad Krause not guilty of disorderly conduct but refused to address the issue of the return of his .40 caliber Glock, holster, and ammunition.

The case is seen as a test case in Wisconsin and observers, such as gun-rights activists, predict that it is far from over and could expand into more areas than just the open-carry issue. The city of West Allis could appeal, taking it to the next level, and there’s always the chance that Brad Krause could attempt to have his property returned through the courts.

Judge Murphy’s comments, which rather weaved from side to side, also hinted that the case is probably not over and may move forward. Examining his commentary under a microscope — something that should be done — offers more insight into the mindset of those who sit on the bench and have the authority to rule, and are sometimes confused about Second Amendment and other rights, and their relationship to state law.

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danwhitehead1 said:

Limp wristed pansies and sob sister fools This Dykstra boob is obviously one of the millions of spineless, limp wristed pansies that are infecting the nation today. Wouldn't it be justice if a criminal broke into his home and robbed him at gunpoint!? As I said in an earlier posting, these spineless, limp wristed sob sisters and fools probably won't have to worry too much longer about having their idiotic sensibilities offended by the sight of an armed private citizen because the only armed people will be criminal scum and government agents (please to excuse the redundancy). If the government were truly interested in doing its proper job of protecting us, it would be sponsoring classes on how to use and maintain weapons; but I sure won't hold my breath on that one. Oh yeah, by the way, be a good Nazi and tip off a government agency about something your neighbor is doing that you don't like. There's certain to be some "law" against it.

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February 20, 2009
Votes: +16

MarkGlen said:

One more time The Second Amendment is clear: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” God, for one thing, established governments to punish crime, but what happens if governments are law-breakers also? For instance: Why should a state government, Texas, be allowed to require a permit for a person to carry a concealed weapon when the federal Constitution guarantees our right to keep armed? Should federal police arrest state governments for breaking the law of the land? Since we are dealing with a state government should we call out the U.S. Army? I think so, if need be. I'm thinking about sending this letter to our local paper. We only get one letter a month so I have plenty of time to edit it properly. For the past 35 years they have printed about everything I've sent them.

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February 21, 2009 | url
Votes: +8

Peter Steele said:

RE: My firearms as I keep them and Bob's Gun Shop I resent gun grabbers such as Ted Kennedy the author of the `968 Gun Control Act not telling people it was the same thing as the German Gun Control Act of 1928 which the Nazis exploited. Lenin used Gun Control measures after killing Tsar Nicholas II and his family in 1918 and institute his Marxist Dictatorship of the Proletariat as my brave father taught me. Chuck Schumer is Jewish but he is a gun grabber and an opposite of Aaron Spelman's Jews for the Preservation of Firearms Ownership. The 1787 Constitution provided for an armed and regulated militia and a citizen'a right to keep and bear arms as Dad knew the constitution very well teaching me. The Second Amendment is being violated and this must stop as I had given them some help. The owner of Bob's Gun Shop in Darien is a Birch member like my late father an me as he considered me a reliable NRA member and a fine retired Marine BGen.

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February 21, 2009
Votes: +8

Peter Steele said:

RE: My firearms as I keep them and Bob's Gun Shop I resent gun grabbers such as Ted Kennedy the author of the `968 Gun Control Act not telling people it was the same thing as the German Gun Control Act of 1928 which the Nazis exploited. Lenin used Gun Control measures after killing Tsar Nicholas II and his family in 1918 and institute his Marxist Dictatorship of the Proletariat as my brave father taught me. Chuck Schumer is Jewish but he is a gun grabber and an opposite of Aaron Spelman's Jews for the Preservation of Firearms Ownership. The 1787 Constitution provided for an armed and regulated militia and a citizen'a right to keep and bear arms as Dad knew the constitution very well teaching me. The Second Amendment is being violated and this must stop as I had given them some help. The owner of Bob's Gun Shop in Darien is a Birch member like my late father an me as he considered me a reliable NRA member and a fine retired Marine BGen.

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February 21, 2009
Votes: +1

beauman said:

Officer and Supervisor Discretion Called For (of course, you must have IT, to exercise it) Many of these idiotic arrests/cases could be avoided/solved by the application of a bit of common sense on the part of responding officers. Speaking as a former officer (and soldier) I believe from the facts presented in this article that the REAL criminal(s) in this case were the officers and supervisor, as well as the State of Wisconsin, whom they represent. This man's weapon not only needs to be returned forthwith with many apologies, but also with a check from the State for the loss of the use of his (personal) property, and further damages for potential death or injury he was exposed to during the time it was in State custody. If I had been the responding officer, I would have made a point to go to the original complainant and explain to him that Mr. Krause was not in violation of any criminal law, and that he had feared for his safety due to the death threats mentioned. If Mr. Dkystra had an issue with that, I would suggest he arm himself also when on his own property, so that there would be a 'parity' of potential force. The Government cannot (contrary to Tom Cruise movies) regulate POTENTIAL crime, only crime which has already been committed, and in this case it appears Mr. Krause was a threat to no one, and I think I would like to have such a neighbor.

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February 21, 2009 | url
Votes: +7

joeypinter said:

... this story is so typical. in 1995 i was arrested for defending myself in my home with a registered handgun, in fact i had a carry permit. this was 4 months after the Oklahoma city bombing. i asked for help from all the 2ed amendment originations and was told "the political climate is such now that we can't help you" at my trial there was no evidence that i broke any law, all the prosecutor talked about is "gun violence". after 18 months in state prison the charges were dropped. i never got my guns back.

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February 24, 2009
Votes: +5

joeypinter said:

	... i still would love to talk about the incident when MY constitutional rights were destroyed. the facts of the case speak for themselves. feel free to contact me.
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February 24, 2009
Votes: +4

Howard Reed said:

A clear case for litigation I would think that since all enforcement and judicial authorities went out of their way to personally deprive Mr. Krause of his constitutional rights by falsely arresting him for disorderly conduct and not returning his gun after he was cleared by same constitution . . . he should sue the pants off these same authorities for said clear violation of his rights. It is time that God fearing, Bible reading, legal gun carrying Americans stood up to this Bolshevik mind set, set on depriving us of our freedoms and rights. SUE THEM. The Turban Torpedo

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February 27, 2009
Votes: +3