Section 941.23. Carrying concealed weapon.

 

(1)  In this section:

(ag) “Carry" has the meaning given in s. 175.60 (1) (ag) .

(ap) Notwithstanding s. 939.22 (10) , “dangerous weapon" does not include a knife.

(ar) “Destructive device" has the meaning given in 18 USC 921 (a) (4).

(b) “Firearm silencer" has the meaning given in s. 941.298 (1) .

(c) “Former officer" means a person who served as a law enforcement officer with a law enforcement agency before separating from law enforcement service.

(d) “Law enforcement agency" has the meaning given in s. 175.49 (1) (f) .

(e) “Law enforcement officer" has the meaning given in s. 175.49 (1) (g) .

(f) “Machine gun" has the meaning given in s. 941.25 (1) .

(g) “Qualified out-of-state law enforcement officer" means a law enforcement officer to whom all of the following apply:

1. The person is employed by a state or local government agency in another state.

2. The agency has authorized the person to carry a firearm.

3. The person is not the subject of any disciplinary action by the agency that could result in the suspension or loss of the person's law enforcement authority.

4. The person meets all standards established by the agency to qualify the person on a regular basis to use a firearm.

5. The person is not prohibited under federal law from possessing a firearm.

(2)  Any person, other than one of the following, who carries a concealed and dangerous weapon is guilty of a Class A misdemeanor:

(a) A peace officer, but notwithstanding s. 939.22 , for purposes of this paragraph, peace officer does not include a commission warden who is not a state-certified commission warden.

(b) A qualified out-of-state law enforcement officer. This paragraph applies only if all of the following apply:

1. The weapon is a firearm but is not a machine gun or a destructive device.

2. The officer is not carrying a firearm silencer.

3. The officer is not under the influence of an intoxicant.

(c) A former officer. This paragraph applies only if all of the following apply:

1. The former officer has been issued a photographic identification document described in sub. (3) (b) 1. or both of the following:

a. A photographic identification document described in sub. (3) (b) 2. (intro.) .

b. An identification card described in sub. (3) (b) 2. a. , if the former officer resides in this state, or a certification described in sub. (3) (b) 2. b. , if the former officer resides in another state.

2. The weapon is a firearm that is of the type described in a photographic identification document described in subd. 1. (intro.) or a card or certification described in subd. 1. b.

3. Within the preceding 12 months, the former officer met the standards of the state in which he or she resides for training and qualification for active law enforcement officers to carry firearms.

4. The weapon is not a machine gun or a destructive device.

5. The former officer is not carrying a firearm silencer.

6. The former officer is not under the influence of an intoxicant.

7. The former officer is not prohibited under federal law from possessing a firearm.

(d) A licensee, as defined in s. 175.60 (1) (d) , or an out-of-state licensee, as defined in s. 175.60 (1) (g) , if the dangerous weapon is a weapon, as defined under s. 175.60 (1) (j) . An individual formerly licensed under s. 175.60 whose license has been suspended or revoked under s. 175.60 (14) may not assert his or her refusal to accept a notice of revocation or suspension mailed under s. 175.60 (14) (b) 1. as a defense to prosecution under this subsection, regardless of whether the person has complied with s. 175.60 (11) (b) 1.

(e) An individual who carries a concealed and dangerous weapon, as defined in s. 175.60 (1) (j) , in his or her own dwelling or place of business or on land that he or she owns, leases, or legally occupies.

(3)  

(a) A qualified out-of-state law enforcement officer shall, while carrying a concealed firearm, also have with him or her an identification card that contains his or her photograph and that was issued by the law enforcement agency by which he or she is employed.

(b) A former officer shall, while carrying a concealed firearm, also have with him or her one of the following:

1. A photographic identification document issued by the law enforcement agency from which the former officer separated that indicates that, within the 12 months preceding the date on which the former officer is carrying the concealed firearm, he or she was tested or otherwise found by that law enforcement agency to meet the standards for qualification in firearms training that that law enforcement agency sets for active law enforcement officers to carry a firearm of the same type as the firearm that the former officer is carrying.

2. A photographic identification document issued by the law enforcement agency from which the former officer separated and one of the following:

a. A certification card issued under s. 175.49 (2) or (3) , if the former officer resides in this state.

b. A certification issued by the state in which the former officer resides, if the former officer resides in another state, that indicates that, within the 12 months preceding the date on which the former officer is carrying the concealed firearm, he or she has been found by the state in which he or she resides, or by a certified firearms instructor if such an instructor is qualified to conduct a firearms qualification test for active law enforcement officers in that state, to meet the standards for qualification in firearms training for active law enforcement officers to carry a firearm of the type he or she is carrying, that are established by his or her state of residence or, if that state does not establish standards, by any law enforcement agency in his or her state of residence.

(c) A person who violates this subsection may be required to forfeit not more than $25, except that the person shall be exempted from the forfeiture if the person presents, within 48 hours, his or her license document or out-of-state license and photographic identification to the law enforcement agency that employs the requesting law enforcement officer.

(d) This subsection does not apply to a licensee, as defined in s. 175.60 (1) (d) , or an out-of-state licensee, as defined in s. 175.60 (1) (g) .

1977 c. 173 ; 1979 c. 115 , 221 ; 2007 a. 27 ; 2011 a. 35 ; 2015 a. 68 , 149 , 197 . The burden is on the defendant to prove that he or she is a peace officer and within the exception. State v. Williamson, 58 Wis. 2d 514 , 206 N.W.2d 613 (1973). A defendant was properly convicted under this section for driving a vehicle with a gun locked in a glove compartment. State v. Fry, 131 Wis. 2d 153 , 388 N.W.2d 565 (1986). To “go armed" does not require going anywhere. The elements for a violation of s. 941.23 are: 1) a dangerous weapon is on the defendant's person or within reach; 2) the defendant is aware of the weapon's presence; and 3) the weapon is hidden. State v. Keith, 175 Wis. 2d 75 , 498 N.W.2d 865 (Ct. App. 1993). A handgun on the seat of a car that was indiscernible from ordinary observation by a person outside, and within the immediate vicinity, of the vehicle was hidden from view for purposes of determining whether the gun was a concealed weapon under this section. State v. Walls, 190 Wis. 2d 65 , 526 N.W.2d 765 (Ct. App. 1994). There is no statutory or common law privilege for the crime of carrying a concealed weapon under s. 941.23. State Dundon, 226 Wis. 2d 654 , 594 N.W.2d 780 (1999), 97-1423 . Under the facts of the case, the privilege of self-defense was inapplicable to a charge of carrying a concealed weapon. State v. Nollie, 2002 WI 4 , 249 Wis. 2d 538 , 638 N.W.2d 280 , 00-0744 . The concealed weapons statute is a restriction on the manner in which firearms are possessed and used. It is constitutional under Art. I, s. 25. Only if the public benefit in the exercise of the police power is substantially outweighed by an individual's need to conceal a weapon in the exercise of the right to bear arms will an otherwise valid restriction on that right be unconstitutional, as applied. The right to keep and bear arms for security, as a general matter, must permit a person to possess, carry, and sometimes conceal arms to maintain the security of a private residence or privately operated business, and to safely move and store weapons within those premises. State v. Hamdan, 2003 WI 113 , 264 Wis. 2d 433 , 665 N.W.2d 785 , 01-0056 . See also State v. Cole, 2003 WI 112 , 264 Wis. 2d 520 , 665 N.W.2d 328 , 01-0350 . A challenge on constitutional grounds of a prosecution for carrying a concealed weapon requires affirmative answers to the following before the defendant may raise the constitutional defense: 1) under the circumstances, did the defendant's interest in concealing the weapon to facilitate exercise of his or her right to keep and bear arms substantially outweigh the state's interest in enforcing the concealed weapons statute? and 2) did the defendant conceal his or her weapon because concealment was the only reasonable means under the circumstances to exercise his or her right to bear arms? State v. Hamdan, 2003 WI 113 , 264 Wis. 2d 433 , 665 N.W.2d 785 , 01-0056 . This section is constitutional as applied in this case. The defendant's interest in exercising his right to keep and bear arms for purposes of security by carrying a concealed weapon in his vehicle does not substantially outweigh the state's interest in prohibiting him from carrying a concealed weapon in his vehicle. State v. Fisher, 2006 WI 44 , 290 Wis. 2d 121 , 714 N.W.2d 495 , 04-2989 . Judges are not peace officers authorized to carry concealed weapons. 69 Atty. Gen. 66.