In a 2004 memo, Attorney General Peg Lautenschlager laid out several questions the state would need to address before passing a concealed-carry law for former cops. The memo was in response to a federal law passed in 2004 that allows current and retired officers to carry concealed guns anywhere in the country.
Liability is among the main concerns raised in the memo. If a retired officer uses a gun in public, is the state or local government liable for their actions? If a retired officer is arrested for carrying a gun (there is no way to check a person's background), could the officer sue for the mistaken arrest? Here's how the memo puts it:
Questions have arisen regarding civil liability flowing from conduct by officials adhering to the provisions of the Act. Since the Act requires a certification of training and presumably assumes some assessment of capability of the individual to have a concealed weapon, the main question concerning liability is whether state or local government officials or entities could be exposed to potential legal liability for actions they might perform in the course of implementing the Act.Lautenschlager's concerns may be overstated. Illinois, which, like Wisconsin, has a ban on concealed carry, has been quietly licensing retired officers to carry handguns for years.
Additionally, there is currently no database or other means by which local police in
Wisconsin could validate the concealed-carry credentials presented by an individual claiming to be an active or retired officer from another state. As a result, Wisconsin police might have occasion to arrest such an individual for carrying a concealed weapon in violation of state local law. If such an arrest turned out to be mistaken, the arresting authority could be exposed liability.
Third, there is the concern for liability for either the active duty or retired officer who
chooses to carry a concealed weapon. The Act does not speak to a broadened police authority. The Act simply provides the ability to carry a concealed weapon when the proper credentials obtained. As such, if an active duty officer chooses to use a weapon outside his or her jurisdiction, or if a retired officer who has no police authority whatsoever uses his or her weapon, such conduct could expose the person using the weapon to civil or criminal charges.
Racine's ordinance tries to address liability by saying the retired officer is responsible for their actions, but it's hard to know if that would hold up in court. If the city is licensing ex-officers to carry guns, wouldn't they be at least partly responsible for the ex-officers' actions?
But it's unusual for a local government to pass gun legislation. Just like Racine cannot pass a law banning handguns in the city, it seems unusual that a city can legally expand concealed carry rights within its borders. In general, issues like this are handled at the state level. Legislation has been introduced to the Wisconsin Legislature, but has yet to pass.
City Attorney Rob Weber addressed the concern at a recent city meeting. He said the city's police chief has the right to allow ex-officers to carry concealed weapons, according to federal law.
A city committee unanimously passed the proposal. The City Council is scheduled to vote on the ordinance May 6.
The Journal Times supported the proposal.
We asked former alderman and gun control activist Pete Karas for comment on this story. Here's the argument against the ordinance:
Considering the probable and extreme liability risks to the City of Racine, it is irresponsible for the City to allow retired officers to carry concealed weapons until the State of Wisconsin enacts a law clarifying how the process will be handled in Wisconsin.
The City Council approving this puts not only the City, but also the retired officers at risk. Although they may be given local authority to carry a concealed weapon, any authority to use it is vague at best.
There are just too many unanswered questions at this point in time. Is there a liability risk? What if the permit holder travels to Mount Pleasant where this has not been enacted? Will there be recertification? What type of firearm standards and continuing qualification system will be created and used? Does the $100 fee cover the administrative and certification costs? Do any administrative restrictions violate the State's firearm preemption clause?
The list of questions could go on and on. This uncertainty is the reason that most states and municipalities, even those generally considered "pro-gun," have not yet acted on this federal law in the several years since it was enacted.
It is imprudent for Racine to be a pioneer in this instance. The City Council should do the prudent thing and table this resolution until such time when the State acts on this item, presumably in the next legislative session.