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Drop your weapon

6/23/2009
A state game hunter reloads a shotgun in front of his truck. AP Photo/Steve Yeater

What should a hunter do when a game warden asks him for his gun?

One would think every hunter in the U.S. would know the answer to that question.

State agencies and the NRA say: "Do whatever the officer tells you."

But it's apparently not that simple, as some citizens and Wisconsin officials are finding out.

Citizens have a right to bear arms. Game wardens have the right to disarm. But what if no crime is evident?

Most hunters in the field offer their guns to wardens who ask, "Would you like me to hold your gun while you get your license?" or other questions that end up with you giving your consent.

Mark Palan, a former hunter educator in Wisconsin, isn't one of them. In fact, he said hunters across the U.S. "lack get up and go" to defend their gun rights.

"Many hunters and gun owners have lost sight of the Bill of Rights because of complicated state laws," said Palan, who taught hundreds of new hunters for more than 14 years. "We've been treated as if we are guilty until proven innocent, and it's getting worse."

Wisconsin Department of Natural Resources officials didn't like what went on in Palan's classroom. The DNR fired the volunteer in 2008 because they said he was not following "agency standards."

What's the law?

To find out the rules and regulations concerning firearm posession in your state, you can call your state attorney's office. Ask for specific state laws that govern law enforcement's ability to temporarily detain your gun.

Alabama (334) 242-7300
Alaska (907) 465-3600
Arizona (602) 542-4266
Arkansas (800) 482-8982
California (916) 445-9555
Colorado (303) 866-4500
Connecticut (860) 808-5318
Delaware (302) 577-8338
District of Columbia (202) 724-1305
Florida (850) 414-3300
Georgia (404) 656-3300
Hawaii (808) 586-1500
Idaho (208) 334-2400
Illinois (312) 814-3000
Indiana (317) 232-6201
Iowa (515) 281-5164
Kansas (785) 296-2215
Kentucky (502) 696-5300
Louisiana 225-326-6000
Maine (207) 626-8800
Maryland (410) 576-6300
Massachusetts (617) 727-2200
Michigan (517) 373-1110
Minnesota (651) 296-3353
Mississippi (601) 359-3680
Missouri (573) 751-3321
Montana (406) 444-2026
Nebraska (402) 471-2682
Nevada (775) 684-1100
New Hampshire (603) 271-3658

New Jersey (609) 292-8740
New Mexico (505) 827-6000
New York (518) 474-7330
North Carolina (919) 716-6400
North Dakota (701) 328-2210
Ohio (614) 466-4320
Oklahoma (405) 521-3921
Oregon (503) 378-4732
Pennsylvania (717) 787-3391
Puerto Rico (787) 721-2900
Rhode Island (401) 274-4400
South Carolina (803) 734-3970
South Dakota (605) 773-3215
Tennessee (615) 741-5860
Texas (512) 463-2100
Utah (801) 538-9600
Vermont (802) 828-3173
Virginia (804) 786-2071
Washington (360) 753-6200
West Virginia (304) 558-2021
Wisconsin (608) 266-1221
Wyoming (307) 777-7841

Yet the debate continues in the Badger State as newspapers rail against the state, and hunters sign petitions demanding certain wardens are fired.

The controversy began in a public way when Palan invited conservation officer Joseph Frost to speak to a hunter education class, which met at Palan's Highland, Wisc., sporting goods store.

When a question about handing a firearm to a game warden came up, a 13-year-old student disagreed with Frost.

"That's not what our instructor taught us," the boy said.

Sparks flew between the instructor and the officer as a heated debate ensued over probable cause, illegal seizures and officer safety.

Palan demanded the officer leave his store.

Soon after, Timothy Lawhern, the DNR's hunter education administrator, canned Palan.

Law enforcement officers expect to always be obeyed always, Lawhern said.

Some states, such as Colorado, have a history of case law, and there is no question about when to hand over a gun. Hand it over "on demand" to any law enforcement officer, according to their state law.

Wisconsin does not have an explicit law demanding citizens hand over guns, admits Lawhern, the hunter education administrator.

"Consent search" is the way Wisconsin officers deal with hunters in the field. The officer asks to check a weapon to confirm it complies with state and federal law, and the hunter complies.

If he doesn't comply? If there is no probable cause, and no compelling reason to check the weapon, such as a suspicion that a shotgun isn't plugged, Lawhern said he would not push the issue. He would not demand the hunter hand over his weapon.

Lawhern has no regrets. Palan's firing was not about law, he said, but about what the DNR wants educators to teach future hunters.

"We asked him to comply with our standards. He did not."

Wisconsin's attorney general seemed to back up Palan's view in a recent statement about gun seizures.

Wisconsin is one of 44 U.S. states that are "open carry" states, meaning citizens can carry a firearm as long as it is not concealed. There has been debate about how law enforcement officers should react to someone carrying a gun in public, so the state's attorney general tried to clear things up for officers and prosecutors.

Attorney General J.B. Van Hollen cited the 1991 Supreme Court case of Florida v. Bostick as guidance for Wisconsin officers on the street or in the fields today.

"An officer may approach and question someone as long as the questions, the circumstances and the officer's behavior do not convey to the subject that he must comply with the requests," said Hollen's memo. "The person approached need not answer any question. As long as he or she remains free to walk away, there has been no intrusion on liberty requiring a particularized and objective Fourth Amendment justification."

As Wisconsin hunter and lawyer Michael F. Hupy put it, if a person says "no," then the issue is whether the warden had probable cause.

Otherwise later charges wouldn't hold up in many courts, including Wisconsin's.

"Probable cause cannot be based on refusal to consent to a search," Hupy told ESPNOutsdoors.com. "There can be no penalty for asserting one's rights."

It has been established in federal courts that conservation officers do have the authority to check weapons for compliance with state and federal laws.

For example, a warden can field-check your shotgun during waterfowl season to confirm it holds no more than three shells, said Stephen P. Halbrook, who wrote a Friend-of-the-Court brief in last year's landmark Heller v. District of Columbia.

"The courts of most or all states have upheld special inspection over hunters, such as checking bags for limits, examining firearms for magazine capacity, and other search activities for compliance with hunting regulations," he said.

But without more evidence that something is wrong, officials look to state law to justify taking a weapon, even temporarily.

However, if there is probable cause or if the gun would be evidence — for example, the hunter was carrying a center fire rifle during muzzleloader season — then there's no question that a hunter must hand over a gun for inspection or even impoundment.

Much is riding on this conflict.

Hunters feel compelled to defend their rights against any zealous state or federal agent who seeks power over law-abiding citizens.

Conservation officers deserve to control field checks in order to ensure their own safety.

Further misinformation could lead to confusion in the fields. And that could mean escalation of simple gun checks into a tragic event for a gun holders and conservation officer alike.

In his 20 years as a conservation officer, Lawhern said only one person declined to give him a gun during a field inspection.

"He pointed the gun at me and said he was going to shoot me," Lawhern said.

After his first request, the officer then told the man to give him the gun.

Lawhern didn't ask a third time, and disarmed him.