Open Season for Open-Carry Tasers?

In Wisconsin, possessing an electric weapon is a felony offense carrying up to a 6-year sentence. Wis. Stat. § 941.295. Although the law was modified in 2015 to allow CCW permit holders to carry and possess Tasers and similar weapons, any non-permit holder is still subject to the felony charge. However, that may change as a result of the Supreme Court’s ruling in Caetano v. Massachusetts. 577 U.S. ___ (2016).

On March 21, 2016, the U.S. Supreme Court vacated a judgment of the Massachusetts Supreme Court that upheld the conviction of a woman under that state’s electric weapons ban.   The Court issued a very brief and technically narrow decision, holding that the Massachusetts court had misapplied the standards established in Heller for evaluating whether a weapon fell within the protections of the 2^nd Amendment.   However, in striking down the state court decision, the Court arguably found that Tasers and similar weapons are covered by the 2^nd Amendment. That holding would directly impact laws in several states, including Wisconsin.

Wisconsin’s stance on possession of electric weapons has long been out of step with the state’s general statutory scheme on self-defense . For instance, a person who carries a concealed firearm without a permit may be charged with a misdemeanor, but if the same person merely possesses a less-lethal Taser, he or she is guilty of a felony.

After Wisconsin enacted Concealed Carry, a number of statutes were altered to reflect the new status of CCW permit holders or “Licensees.” Specifically, Wis. Stat. sec. 941.295 was amended to allow permit holders to possess and carry electric weapons. However, as noted above, the general ban on Taser ownership in the Wisconsin remained. In light of the Caetano decision, “Possession of Electric Weapon” charges will face Constitutional challenges and maybe found to violate the 2^nd Amendment.

In Caetano, the Defendant obtained the weapon because she was scared of an abusive ex-boyfriend. In an unrelated police search, the weapon was recovered from her purse. She was charged under the Massachusetts law that prohibited all private citizens from possessing electric weapons. Factually, the situation is no different from a non-permit holder in Wisconsin who is found in possession of a Taser. Thus, Wisconsin courts should evaluate a citizen’s possession of electric weapon charge the same way the U.S. Supreme Court analyzed Ms. Caetano’s case and find that the wholesale ban (and resulting felony charge) violates the 2^nd Amendment. We anticipate bringing just such a motion in the near future and will update this post with the results.

It is important to note that in Caetano, there was no distinction or reference to any separate charge for carrying the concealed weapon in a purse. Even if the courts in Wisconsin find that the case renders the electric weapon ban unconstitutional, a non-permit holder could still be charged with Carrying a Concealed Weapon without a permit. However, open-carry Tasers would (and should) be perfectly legal for all Wisconsin citizens.