By Gretchen Schuldt
Milwaukee police acted improperly when they questioned a driver they pulled over because his car had a broken tail light about whether he had a concealed carry permit and whether he had any weapons in his car, an appeals court has ruled.
While the traffic stop was justifiable, there was nothing in driver John Patrick Wright's demeanor that supported any suspicion of criminal wrongdoing, Appeals Judge Joan F. Kessler wrote in her decision.
Kessler affirmed a ruling by Milwaukee County Circuit Judge Hannah Dugan.
Wright, who is African-American, was stopped by two officers while driving on the city's north side in July 2016.
"Wright was asked whether he had a concealed carry permit and whether he had any weapons in the car," Kessler wrote. "Wright answered that he recently took a CCW permit course and admitted that he had a firearm in the car."
One of the officers, Jesus Gloria, found a handgun in the glove compartment. Wright was arrested and charged with misdemeanor carrying a concealed weapon.
Wright filed a motion to suppress the evidence, arguing that questioning him about the CCW permit and whether he had a gun violated his Fourth Amendment rights.
"The State misses the point." – Appeals Judge Joan F. Kessler
"Wright argued that police lacked reasonable suspicion to question him about a CCW permit and weapons in the car, the questions were unrelated to the purpose of the traffic stop, and the police conduct transformed an initially lawful stop into an unreasonable seizure," Kessler wrote.
The second officer involved in the stop, Kristopher Sardina, testified during a motion on the hearing that Wright pulled over immediately when police indicated he should do so and that Wright did not make any furtive gestures. Sardina also testified that officers are trained to ask about weapons during traffic stops.
Kessler rejected the state's argument that the officers had a legitimate safety interest and so did not unlawfully extend the traffic stop. Previous courts have ruled that questioning during traffic stops can be expanded beyond the reason for the stop only if their are additional legitimate "suspicious factors." Those factors were lacking in Wright's case, she said.
"Nonetheless, the State contends that Sardina’s questions were lawful because they were negligibly burdensome and did not add much time to the traffic stop," Kessler wrote. "The State misses the point. Authority for Sardina’s seizure ended when he reasonably could have issued a citation for Wright’s traffic violation. ...Wright was questioned and subsequently arrested with absolutely no articulated reason for Sardina to be concerned for officer safety."
"Sardina’s testimony confirms nothing about the circumstances of the traffic stop or about Wright which justified inquiry about a firearm," she concluded.
By Gretchen Schuldt
The Dane County Board will consider whether to hold a Nov. 6 advisory referendum on legalizing marijuana.
The resolution already has support from a majority of the County Board. Twenty of the county's 37 supervisors are sponsors.
The resolution that would authorize the referendum is very similar to the one approved by the Milwaukee County Board last month.
The referendum question would differ somewhat from the Milwaukee County question, which also will be on the Nov. 6 ballot. The Dane County question would ask: "Should marijuana be legalized, taxed and regulated in the same manner as alcohol for adults 21 years of age or older?"
The Milwaukee County question will ask, "Do you favor allowing adults 21 years of age and older to engage in the personal use of marijuana, while also regulating commercial marijuana-related activities, and imposing a tax on the sale of marijuana?"
Sponsors of the measure are Yogesh Chawla, Jeff Pertl, Tanya Buckingham, Kelly Danner, Patrick Danner, Analiese Eicher, Chuck Erickson, Richard Kilmer, Jason Knoll, Dorothy Krause, Patrick Miles, Paul Nelson, Steven Peters, Michele Ritt, Bob Salov, Andrew Schauer, Sheilia Stubbs, Matt Veldran, Heidi Wegleitner, and Hayley Young.
The resolution was referred to the Executive Committee.
By Margo Kirchner
President Trump's next U.S. Supreme Court appointment likely would make Chief Justice John Roberts the ideological middle of the court, according to the dean of the University of California, Berkeley, Law School.
Dean Erwin Chemerinsky noted that Justices Ruth Bader Ginsburg, Anthony Kennedy, and Stephen Breyer are all older than the average age at which past Supreme Court justices have retired.
Roberts becoming the "center" would show the Court's continued movement toward the conservative viewpoint, he said.
Chemerinsky, a well-known scholar on constitutional law, spoke as part of a panel hosted by the American Constitution Society. He discussed the progression of the median or swing justice from Justice Lewis Powell to Justice Sandra Day O’Connor to Justice Anthony Kennedy.
He said another Trump appointment would most likely have an effect on affirmative action laws, criminal penalties, and the exclusionary rule (which generally prohibits the admission of illegally obtained evidence).
In addition, he sees five votes to overrule Roe v. Wade should another Trump appointee make it to the Court.
He also expects, however, that if Democrats take the Senate in November 2018 they would sit on any Trump Supreme Court nominee until after the 2020 elections, as pushback after President Barack Obama’s failed Merrick Garland nomination. Senate Republicans refused to vote on Garland's nomination for 10 months, until Obama's term expired.
Law professors Melissa Murray and Pamela Karlan joined Chemerinsky on the panel, moderated by Caroline Frederickson, president of the American Constitution Society. Murray, a professor and faculty director of the Center on Reproductive Rights and Justice at Berkeley Law School, discussed a second Trump appointee’s potential effect on reproductive rights and the frequent chipping-away of Roe. Karlan, a professor at Stanford Law School, speculated on the status of LGBTQ rights if another Trump nominee joins the Court.
Karlan noted the importance of getting the public to understand how court decisions affect their lives.
There will be a Nov. 6 advisory referendum on marijuana legalization in Milwaukee County.
The County Board voted, 15-1, Thursday to approve the referendum. The lone vote against it came from Supervisor Patti Logsdon, who had voted in favor when the referendum was before the Judiciary, Legislation and General Services Committee. Logsdon said she decided to change her vote after hearing from constituents.
The referendum question will ask, "Do you favor allowing adults 21 years of age and older to engage in the personal use of marijuana, while also regulating commercial marijuana-related activities, and imposing a tax on the sale of marijuana?"
County Supervisor John Weishan, the original sponsor of the measure, said during Thursday's meeting that a referendum could prod the Legislature to take action on recreational and medical marijuana issues.
"We need to get them moving on those things today," he said.
Supervisory Anthony Staskunas said he was not totally sold on the idea of legal recreational marijuana, but said that "it's shameful" that a few state senators and representatives "have stood in the door and refused to allow medical marijuana to come to a vote in the State Legislature."
Staskunas said he has a friend with a serious disease who gets relief from cannabis. He said he resented "that a very small group of legislators are turning" his friend "into a criminal."
On the recreational cannabis issue, he said, he wanted to hear from employers, medical personnel and law enforcement before coming to a conclusion about it, although he called the state's felony second-offense marijuana possession law "a travesty."
"In the meantime...there's certainly nothing wrong with allowing the people of Milwaukee County to have their voice on this," he said.
Supervisor Supreme Moore Omokunde supported the referendum and predicted nationwide cannabis legalization within five years. Moore Omokunde said he will be bringing forth legislation to expunge old marijuana offenses from criminal records.
Without expungement, he said, "There will be rich white men make their millions" while Black men remain locked up for marijuana offenses.
Supervisors Moore Omokunde, Sequanna Taylor, Steven Shea, Marcelia Nicholson, Felesia Martin, Jason Haas, Dan Sebring, and Marina Dimitrijevic joined the resolution as co-sponsors.
By Margo Kirchner
The Wisconsin Supreme Court last week approved felony charges against an adult for conduct allegedly committed when he was eight or nine years old – too young to be accused of juvenile delinquency.
In likely one of his last opinions before his term ends, Justice Michael J. Gableman wrote that a defendant’s age at the time he is charged, not his age at the time of the underlying conduct, determines how charges can be brought.
Justice Ann Walsh Bradley, in a concurring opinion, disagreed with Gableman’s reasoning. She said it was “absurd to conclude the legislature intended that criminal liability can attach for acts engaged in by children ages zero-ten. The majority’s conclusion to the contrary defies the purpose and structure of our statutes, as well as the rationale of prior case law.”
As noted by the Court, misconduct of a child under 10 years old generally is treated as a case of a juvenile in need of protection or services (JIPS), misconduct of a child aged 10 through 16 generally is addressed as a matter of juvenile delinquency, and misconduct of someone 17 or older is charged in adult court. Prior case law allowed for the charging of some JIPS-age conduct as juvenile delinquency, and statutes delineate the process for moving cases between juvenile court and adult court.
But until Friday the law did not clearly provide that conduct committed when a person was of JIPS age could be prosecuted years later in adult criminal court.
The state charged Shaun Sanders in adult court with four counts of misconduct involving his younger sister; at the time of prosecution Sanders was 19 years old. Count one charged that during a period of time beginning when Sanders was eight or nine years old he had sexually assaulted his sister, then six or seven, by having her lift her shirt for what Sanders called a “peek.” The jury acquitted Sanders of that charge but convicted him of sexual assault, incest, and child enticement for misconduct with his sister that occurred when Sanders was between 14 and 18 years old.
Sanders believed that admission of the count one allegations and evidence impacted the jury’s verdict on the other counts. He argued to the Supreme Court that his attorney was ineffective for not seeking dismissal of count one based on his JIPS age at the time of the alleged conduct.
The court found that any motion to dismiss count one would have been meritless. “The defendant’s age at the time he was charged, not his age at the time he committed the underlying conduct, determines whether the circuit court has statutory competency to hear his case as a criminal, juvenile delinquency, or JIPS matter,” wrote Gableman.
According to the Court, the six-year statute of limitations for most felonies, the need for the state to prove intent for many crimes, and constitutional protections against intentional delays provide sufficient safeguards for defendants like Sanders.
Bradley, joined by Justice Shirley S. Abrahamson, agreed that Sanders’s attorney was not ineffective because the law regarding prosecution of JIPS-age conduct in adult court was previously unclear, but Bradley called the majority’s logic “out of step” with the law governing children’s liability. She noted that laws addressing child misconduct were designed to treat the child’s condition, not punish. Moreover, she said, by statute a child under age seven is “‘conclusively presumed’ to be incapable of negligence,” yet the Court ascribes criminal intent to the same-aged child.
Further, she said the majority misread prior case law in reaching its decision and noted the “safeguards” listed in Gableman’s opinion did not protect Sanders.
She urged the State Legislature to reexamine the law and rectify the majority’s decision.
The State Supreme Court this week gave court-appointed lawyers a raise to $100 per hour from $70 per hour, but left in place the lowest-in-the-nation $40-per-hour rate for lawyers appointed by the State Public Defender's Office (SPD).
It may be unlikely that those lawyers, who represent clients who can't afford their own attorneys, will get any relief from Gov. Walker, since he has done nothing to increase the $40 rate since he assumed office in 2011.
In outlining major budget policies for the upcoming 2019-21 budget, Walker's staff said agencies and departments should assume "zero growth in overall" general revenue. A list of potential exceptions did not include the State Public Defender's Office.
The move to increase pay for one set of lawyers but not others will likely encourage defense attorneys to refuse SPD appointments and wait until judges are forced to appoint lawyers to avoid denying defendants their Constitutional rights. The move may cost indigent defendants money they don't have, as counties are much more likely than the SPD's office to seek repayment.
A parade of defense lawyers this week asked the State Supreme Court to increase pay for SPD-appointed lawyers, saying the lack of attorneys willing to work for $40 per hour meant that defendants were being wrongly held in jail when they should be released. Lawyers willing to take the cases for $40 an hour too often are inexperienced or lacking in other areas, they said.
“We are happy that the court made the much-needed move in Supreme Court rate to $100 per hour," said attorney John Birdsall, one of the petitioners seeking a raise for SPD-appointed lawyers. "However, the public defender-appointed rate remains the nation’s lowest at $40 per hour and has been virtually unchanged for 40 years. "
Birdsall said he hoped the counties lobby the Legislature to raise the public defender rate to protect their own finances from new demands for funding for court-appointed lawyers.
"The court’s raising the rate for court-appointed counsel is obviously welcome and a step in the right direction," he said. "However, the lack of lawyers to handle the vast majority of the 58,000 cases that are farmed out from the SPD to private lawyers will soon overwhelm an already highly stressed system in the coming year or two.
"Waiting for the coming collapse of our public defense system before taking substantial and comprehensive action would be a serious mistake," he said. "Our state is doing very well economically and the cost of such a fix is literally a fraction of one percent of the state budget. The time to act is now.”
By Gretchen Schuldt
A Kenosha woman first was viciously attacked by a dog and then tased and shot by police trying to subdue the animal, according to Court of Appeals records.
And, because it was the second time the dog, named Tank, bit someone, the victim of the attack cannot collect from the dog owners' insurer.
The Integrity Mutual Insurance Company's policy "unambiguously excludes coverage for injuries caused by a dog that has previously injured a person," Appeals Judge Paul F. Reilly wrote in a decision handed down this week. The decision upheld a ruling by Kenosha County Circuit Judge Anthony G. Milisauskas.
The basic facts are not disputed, according to documents filed in the case.
Kathryn (Kit) Baumann-Mader was in her kitchen on Aug. 19, 2015 when she heard yelling from outside. She ran to the side door and saw another woman, Sara Hanson, holding her thigh and screaming "He bit me!"
Tank ran into a neighbor's yard, where he was tackled by "Junior," the son of Tank's owners, Shawn M. Lievense and Annette S. Salazar, according to a brief filed by attorneys for Kit Baumann-mader and her husband, David Mader; and Hanson and her husband, Cole Hanson.
"As Junior was trying to restrain Tank, he, too, began crying and yelling, 'They’re going to kill my dog,' 'they’re going to euthanize him,' ” the brief said.
Kit consoled Junior and helped him restrain Tank, then went into her house and got a tow strap to use as a leash for the dog. She help hold Tank down until police arrived. Then she turned the dog over an officer.
As the officer tried to get the dog into a squad car, Tank got loose, according to the brief.
"Tank 'lock[ed] eyes' on Kit and lunged at her, knocking her backwards to the ground," the brief said. "Tank bit her on the back/side of her thigh, the back of her thigh, her inner thigh, and her crotch area. As Kit describes it, 'He just started - - kind of like just started munching all around the thigh.' ”
'He just started - - kind of like just started munching all around the thigh.' ”
The brief continues:
"Then things went from bad to worse for Kit. As she was trying to push Tank off of her, she felt a 'sudden shock of electricity' in her left foot. A police officer apparently tried to shock Tank, but one of the prongs of the Taser shot into Kit’s left foot instead. Kit then remembers 'hear[ing] a bunch of sounds that sounded like firecrackers going off.' She realized that the officers were shooting at Tank. And then the next thing she recalls is her left foot “really hurting” and Tank laying on his side by her feet. '
"As emergency responders were treating her thigh wounds, she heard one responder whisper to another, 'Is that a dog bite?' The other responder answered, 'No, I think it’s a bullet hole.' At that moment, Kit realized she, too, had been shot."
Baumann-Mader was taken to the hospital where she had 29 staples put in her thigh and groin area.
Her foot was repaired with two plates and 14 screws. She was discharged after a week in the hospital, but required in-home care for a time. The scars remain.
Tank's history gave the insurance company a legitimate out, Reilly wrote for the District 2 appeals court panel that also included Appeals Judges Lisa S. Neubauer and Brian K. Hagedorn.
Tank, an English bulldog, bit someone in February 2015. The bite, which a police report said was unprovoked, required medical attention. It was not reported to the insurer.
The insurance policy makes clear, Reilly wrote, that damages caused by a second biting incident by the same dog are not covered.
"Integrity’s policy is not contrary to public policy; Kit and Sara’s injuries were caused by Tank, and the exclusion extends to injuries also allegedly caused by the police as the officer’s actions were not an independent cause," he wrote.
By Gretchen Schuldt
Seventy percent of the possession of marijuana cases filed in Milwaukee Municipal Court last year were against African Americans, records show.
Blacks account for just 40% of the city's population, but were defendants in 601 of the 860 marijuana possession cases.
In addition, 139 cases were filed against Hispanics, 30 more than the 109 cases filed against whites, according to Municipal Court statistics. Hispanics account for just 17 percent of the city's population; whites make up 45% of the city's residents.
The Municipal Court caseload reflect activities of the Police Department.
The Wisconsin Justice Initiative previously reported that African-Americans in Milwaukee County were far more likely to be charged with felony second offense possession of marijuana cases than are other races.
Simple possession of less than 25 grams of marijuana in the city can usually be charged as a municipal offense rather than as a state misdemeanor or felony. The municipal fine for possession is $50, though costs and fees will increase that to $124 for an adult and $94 for a juvenile. (Smoking marijuana in a public place is punishable by a fine of up to $250 plus fees and costs.)
Below is a map showing the Milwaukee or mostly Milwaukee zip codes where Municipal Court defendants charged with possession of marijuana resided and the number cases brought against those defendants.
Not all Municipal Court defendants live in Milwaukee and so not all cases are shown.
By Gretchen Schuldt
Turning a car around at a wayside late at night does not provide police with enough reasonable suspicion enough to justify a search of the vehicle, a Court of Appeals judge affirmed last week.
District 2 Appeals Judge Brian K. Hagedorn upheld Fond du Lac County Circuit Judge Robert J. Wirtz's ruling tossing a search that resulted in an arrest for possession of marijuana.
The county argued that Isaac A. Dahlke's actions when he entered a wayside about 12:30 a.m. and turned around near a boat launch "constituted reasonable suspicion that illegal activity was afoot," Hagedorn wrote in his decision.
Deputy Lucas Olson testified that the park was used for illicit activity, "especially during that timeframe." He did not, however, see any illegal activity.
But, wrote Hagedorn, "The county has no constitutional authority to stop someone simply for driving when and where bad things often happen. While this may cause a reasonable law enforcement officer to have an inkling something is up, it does not rise to the level of providing a reason to suspect that the individual has committed, was committing, or is about to commit a crime. While it might be a reasonable hunch, without more, it is still just a hunch."
The county also argued that Dahlke was on county park property when he entered the wayside. The park is closed after 10 p.m. by ordinance, the county argued, so the officer had a reasonable suspicion that Dahlke was violating the ordinance.
Hagedorn also rejected that argument. County ordinances do not clearly establish the boundaries of the park or whether the wayside is included. In addition, and the wayside, between Lake Winnebago and U.S. Highway 45, is marked for drivers approaching from either direction.
"An ordinary driver accepting the highway sign’s invitation to pull in to the wayside for an evening nap on a long journey would appear to have no idea they are breaking the law...." Hagedorn wrote.
News flash: A County Board committee on Thursday recommended, 5-0, that a marijuana legalization referendum be held in November. The referendum question would ask, "Do you favor allowing adults 21 years of age and older to engage in the personal use of marijuana, while also regulating commercial marijuana-related activities, and imposing a tax on the sale of marijuana?"
The issue will go to the full County Board on May 24. The question would be on the Nov. 6 general election ballot.
The resolution calling for the referendum was sponsored by County Supervisor John Weishan. Members of the Judiciary, Safety and General Services Committee voting in favor of it were Supervisors Anthony Staskunas, Sylvia Ortiz-Velez, Deanna Alexander, Patti Logsdon, and Steven Shea.
Alexander's motion to make the referendum part of the Aug. 14 primary election failed on a 4-1 vote.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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