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Man sues West Allis over gun open-carry arrest

A judge acquitted Brad Krause of disorderly conduct after his arrest for carrying gun in his yard

Aug. 23, 2010

Cited for carrying a holstered gun on his property in 2008, Brad Krause fought back and won acquittal in one of the first cases about so-called open carry in Wisconsin.

Now Krause is back in court, but this time he's the plaintiff in a civil case against the City of West Allis, whose employees violated his constitutional rights, according to his lawsuit in federal court in Milwaukee.

The complaint, which Krause filed without an attorney, seeks monetary damages for a long list of alleged violations, including reckless endangerment, wrongful arrest, malicious prosecution and violation of privacy. Krause also seeks an order that West Allis police expunge certain information about him from their records.

"I don't want to be perceived as a threat to anyone," Krause said Monday. "I just want to be safe, like everyone else."

The lawsuit names the city, its Police Department and three individual officers as defendants. City Attorney Scott Post said Monday the city had not yet been served with the complaint and had no comment.

Krause was planting a tree in his yard in August 2008 when a neighbor called police to ask if it was legal for Krause to wear a holstered gun. Two officers arrived, drew weapons, ordered Krause to put up his hands, came into his yard, took Krause's gun and handcuffed him, according to his lawsuit.

A supervisor arrived, and despite what Krause portrays as his attempt to explain Wisconsin law regarding gun possession, he was taken to the Police Department, booked and released five hours later on $300 bail.

The lawsuit contends that Krause never posed any threat or danger, never got aggressive with the officers and never exhibited any intent to flee, and that the officers never had even reasonable suspicion, much less probable cause, to arrest him.

In February 2009, Municipal Judge Paul Murphy found Krause not guilty of disorderly conduct, and in April of that year state Attorney General J.B. Van Hollen issued a memo advising law enforcement agencies that mere fact of wearing a gun, by itself, would not support a charge of disorderly conduct.

But after his acquittal, and even after the Van Hollen memo, Krause contends, he was warned by West Allis police that if he wore a gun in the city he would be arrested again.

In fact, when TV reporters were interviewing Krause in West Allis about the Van Hollen memo on April 21, 2009, two squad cars pulled up with their emergency lights on, and officers began to question Krause, according to his lawsuit.

"During the questioning, one officer stated that had television camera not been filming, Plaintiff would have been taken to the ground at gunpoint, disarmed, and possibly arrested," the suit reads.

Krause's lawsuit is at least the third in Milwaukee federal court to challenge enforcement against people openly carrying weapons.

A group called Wisconsin Carry Inc. and several individuals are trying to have the state's ban on carrying guns within 1,000 feet of school property declared unconstitutional.

A Milwaukee man who had been detained by police in West Milwaukee and Chilton after wearing his gun into a Menards and a Wal-Mart was not formally charged in either case. In the spring of 2009, he filed a civil rights claim against both cities. That case was dismissed just days before the plaintiff, Jesus Gonzalez, 23, was charged with killing one man and wounding another during a confrontation May 9.

That criminal case is set for trial in November.

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