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The right to bear arms or disorderly conduct?

Surely it would be utter foolishness to ignore a person walking up to a school with a rifle slung on her back and a handgun and other items on a gun belt. Here’s what a court had to say

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This article was featured in Lexipol’s Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!

Pierner-Lytge v. Hobbs, 2023 WL 2180962 (7th Cir. 2023)

Amanda Pierner-Lytge strapped on a rifle, fixed the bayonet on the end of the rifle, put pepper spray on her belt, added a handgun and pairs of handcuffs, and set out for a park near the local elementary school, full of young children and families.

She sat down, lit up a cigarette and focused her gaze on those recreating in the park. Pierner-Lytge was not unknown to the police; she’d assaulted officers, resisted arrest, and been the frequent subject of contacts and of mental health detention proceedings on six prior occasions.

Multiple callers reported concerns about Pierner-Lytge’s presence and conduct. When officers arrived and spoke with her, Pierner-Lytge explained she was at the park to play Pokémon Go. The officers arrested Pierner-Lytge for disorderly conduct. They instructed her to slowly place the rifle on the ground and she complied. The officers then confiscated her rifle, bayonet, baton, handgun and gun belt. Though the officers referred Pierner-Lytge for prosecution, no charges were filed. Her property was returned to her.

A week after her arrest, Pierner-Lytge sued the officers for allegedly arresting her without probable cause. The trial court granted qualified immunity to the officers and dismissed the case. She appealed. The appellate court affirmed summary judgment based on qualified immunity. But why they held the officers were entitled to qualified immunity is a critical point.

The judges held that a reasonable officer should have known at the time of the incident that simply carrying a firearm in public – even with a bayonet, gun belt, restraints, pepper spray and baton – did not amount to the crime of disorderly conduct. Say what? The Wisconsin legislature amended the disorderly conduct statute to exclude a person openly carrying “a firearm or a knife” from criminal liability “unless other facts and circumstances that indicate a criminal or malicious intent on the part of the person apply.” The court carefully noted, “We pass no judgment on whether the disorderly conduct statute actually justified Pierner-Lytge’s arrest.” However, the court held that to the extent the officers misjudged whether probable cause existed to arrest Pierner-Lytge, arresting her was a reasonable decision given the Wisconsin disorderly conduct statute at the time. Because the officers’ conduct did not violate clearly established law, they were entitled to the protection of qualified immunity.

So, what to do in the future with similar calls? Surely it would be utter foolishness to ignore a person walking up to a school with a rifle slung on her back and a handgun and other items on a gun belt. Consider a session with your local prosecutor about what local ordinances and state statutes might apply, whether it be disorderly conduct, disturbing the peace, trespassing, etc.

Read more Ken Wallentine case reviews here.

Ken Wallentine is the chief of the West Jordan (Utah) Police Department and former chief of law enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.
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