State v. Hamdan, 01-0056-CR.

Decision Date15 July 2003
Docket NumberNo. 01-0056-CR.,01-0056-CR.
Citation264 Wis.2d 433,2003 WI 113,665 N.W.2d 785
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Munir A. HAMDAN, Defendant-Appellant.
CourtWisconsin Supreme Court

For the defendant-appellant there were briefs by Gordon P. Giampietro, Eric M. McLeod, Amy V. Kossoris and Michael Best & Friedrich LLP, Milwaukee, and oral argument by Chris J. Trebatoski.

For the plaintiff-respondent the cause was argued by Jeffrey J. Kassel, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. DAVID T. PROSSER, J.

This case involves an incident that occurred in the city of Milwaukee on the evening of November 26, 1999. The defendant, Munir Hamdan (Hamdan), owned and operated a grocery store on West Capitol Drive. As time came to close the store, Hamdan removed a handgun that he kept under the counter near the cash register and carried it into a back room for storage. At some point he wrapped the gun in a plastic bag.

¶ 2. While Hamdan was in the back room, two plain clothes Milwaukee police officers entered the store. Hamdan's son pressed a buzzer, summoning his father, and Hamdan shoved the wrapped gun into his trouser pocket and went out to meet the visitors.

¶ 3. The officers explained that they were conducting a license check. Hamdan led one of the officers to a glass-enclosed area where he kept the cash register and showed him the licenses. During the ensuing conversation, the officer asked Hamdan if he kept a gun in the store and, if so, where it was located. Hamdan answered affirmatively and then pulled the wrapped gun from the front pocket of his trousers. The officers confiscated the gun but did not arrest Hamdan or charge him with an offense.

¶ 4. Hamdan was subsequently charged with carrying a concealed weapon, in violation of Wis. Stat. § 941.23 (1999-2000),1 and convicted at a jury trial. He appealed his conviction and his case is before this court on bypass of the court of appeals pursuant to Wis. Stat. § (Rule) 809.60.

¶ 5. We are asked to determine what effect, if any, a new amendment to the Wisconsin Constitution has on the State's ability to prosecute and punish the carrying of concealed weapons. The new amendment, Article I, Section 25, declares that the people have the right to keep and bear arms for lawful purposes.2 While Wis. Stat. § 941.23 (the CCW statute) withstands a facial challenge to its constitutionality under the amendment, see State v. Cole, 2003 WI 112, ¶ 27, 264 Wis. 2d 520, 665 N.W.2d 328, we recognize that there are now circumstances in which a strict application of the CCW statute may result in an unreasonable limitation of the new constitutional right. In Hamdan's case, we must determine whether the constitutional right to keep and bear arms for security or defense permitted Hamdan to carry a concealed weapon in his store under the circumstances of this case, notwithstanding the CCW statute.

¶ 6. We conclude that it was unreasonable and unconstitutional to apply the CCW statute to punish Hamdan on the facts as we understand them. Strict application of the CCW statute effectively disallowed the reasonable exercise of Hamdan's constitutional right to keep and bear arms for the lawful purpose of security. Considering the diminished public interest in applying the CCW statute in the context of Hamdan's conduct, we hold that the State's police power must yield in this case to Hamdan's reasonable exercise of the constitutional right to keep and bear arms for security. This right, when exercised within one's own business and supported by a factual determination that no unlawful purpose motivated concealment of the weapon, will usually provide a constitutional defense to a person who is charged with violating the CCW statute. Because Hamdan was not permitted to assert this defense, his challenge to the CCW statute was not fully addressed by the circuit court and his conviction under Wis. Stat. § 941.23 was not proper.

I. BACKGROUND FACTS

¶ 7. Munir Hamdan had owned and operated the Capitol Foods grocery and liquor store since 1987. The store was a family-run business, open 365 days a year and operated from 9:00 a.m. until 8:00 or 9:00 p.m., depending on the time of year. Hamdan's wife and 15-year-old son were present in the store on the evening of November 26, 1999. The family had just completed a meal in a back room that functions as a kitchen and dining quarters for family members who congregate and work at the store. It was after 8:00 p.m., the night after Thanksgiving, when the officers came in. The front door of the store was not locked, but Hamdan insisted that he had begun the process of closing up.

¶ 8. This is the contextual information the jury was permitted to hear. Most of Hamdan's proffered evidence was not admitted. See infra ¶ 14. For instance, the jury was not told that Hamdan's store is located in a high-crime neighborhood. According to Milwaukee police data, there had been at least three homicides, 24 robberies, and 28 aggravated batteries reported that year in the small census tract that included Hamdan's store.3 There had been violent criminal episodes both inside and immediately outside Hamdan's store. Between 1993 and 1999, the store was the target of four armed robberies—three of which were successful—and the site of two fatal shootings. Hamdan claims that on one occasion an armed assailant held a gun to his head and actually pulled the trigger. The weapon misfired and Hamdan survived. In February 1997 Hamdan engaged in a struggle with an armed assailant who was attempting to rob the store. In the course of this attack, Hamdan shot and killed the robber in self-defense. The other homicide at the store occurred in April 1998. Incidents of violent crime continued in and around the store after Hamdan's prosecution, including shootings that resulted in bullets striking the store.

¶ 9. As a result of these general and specific concerns for the safety of himself, his family, and his customers, and for the security of his property, Hamdan kept a handgun under the store's front counter next to the cash register during store hours. The jury was not told the basis of Hamdan's motivation for possessing this weapon or that the handgun seized was the same handgun Hamdan used to defend himself from the February 1997 attacker. The jury was told that Hamdan kept the handgun in a locked area closed off from the public and that local law enforcement knew that Hamdan kept a gun for protection.

¶ 10. The jury also learned from the State's only witness, Officer Bodo Gajevic, that "the majority of the store owners [in the area] have some type of weapon on the premises based on my experience." In fact, Officer Gajevic explained that he often checked these weapons to see if they were operating properly.

II. LITIGATION HISTORY

¶ 11. Six days after being visited by the officers, Hamdan met with an assistant district attorney for Milwaukee County to discuss the incident. After this conference, he was charged with carrying a concealed weapon. Hamdan filed a motion to dismiss the charge, challenging the enforcement of the CCW statute on constitutional grounds. He contended that prior court decisions broadly construing the phrase "goes armed" are no longer valid given the right to keep and bear arms conferred by Article I, Section 25 of the Wisconsin Constitution. Hamdan argued that his prosecution under the CCW statute would impermissibly infringe upon his rights under the newly enacted amendment. Hamdan also contended that no presumption of constitutionality should be accorded the CCW statute because it significantly predated the constitutional amendment.4

¶ 12. After the parties had briefed this issue, the circuit court denied Hamdan's motion. Milwaukee County Circuit Judge Robert Crawford concluded that Wisconsin's ban against carrying concealed weapons is not an overly broad infringement of Hamdan's state constitutional right to keep and bear arms. The court reasoned that, as part of the legislature's inherent police power, it could reasonably require that a storeowner openly display a handgun—for instance, by placing it in a holster—if the storeowner kept a handgun for security at his or her place of business.

¶ 13. In preparation for trial, Hamdan and the State submitted competing motions in limine regarding the admission of evidence to support a defense of privilege. The State contended that Hamdan should be prohibited from introducing evidence of crime statistics and prior robberies at the store, as well as Article I, Section 25, arguing that there is no privilege, as a matter of law, under the privilege statute (Wis. Stat. § 939.45) in these circumstances. Hamdan argued to allow such evidence. He theorized that a privilege to carry a concealed weapon—a privilege relating to the defense of property and protection against retail theft or to necessity—was grounded in the new amendment. Hamdan also submitted a proposed modified jury instruction for jury consideration of these matters.

¶ 14. The circuit court denied Hamdan's motion to admit this evidence. The court determined that there is no statutory privilege under § 939.45 allowing a person to go armed with a concealed weapon no matter what the threats to that person might be. In reaching this conclusion, the court denied that the Wisconsin Constitution supports any common law privilege to carry concealed weapons in certain circumstances. As a result, the evidence was excluded and the final jury instructions contained no mention of Article I, Section 25, the history of crimes in and around Hamdan's store, or any defense of privilege.

¶ 15. After a jury trial on July 11, 2000, Hamdan was found guilty of carrying a concealed weapon. At sentencing, the court noted a need to clarify the reach of state gun laws and also remarked upon the jury's consternation in finding Hamdan guilty for violating the statute in this case....

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