Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

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GONZALEZ v. VILLAGE OF WEST MILWAUKEE (February 2, 2012)

 Jesus Gonzalez, a Wisconsin gun rights activist, openly carried a handgun into retail stores near Milwaukee on two occasions in 2008 and 2009. One was a home improvement store, which was fairly busy at the time, and in which he shocked and startled a number of shoppers and employees. The other was a large retail store. He entered it late at night when the employees were emptying cash registers and begin shopping for ammunition. On both occasions, local police arrested Gonzalez for disorderly conduct. In the 2008 incident, West Milwaukee police asked him for his Social Security number and other identifying information. One officer commented that he might have to stay longer if he did not provide it. In both incidents, local authorities retained Gonzalez' gun for several weeks. Gonzalez was not prosecuted in either incident. Gonzalez brought suit against the officers and police departments for false arrest, for keeping his guns too long, and for violating the Privacy Act by asking for his Social Security number and not making required disclosures. Judge Adelman (E.D. Wis.) granted summary judgment to the defendants. Gonzalez appeals.

In their opinion, Seventh Circuit Judges Bauer, Wood, and Sykes affirmed. The Court first addressed the false arrest claim. It noted that his request for prospective declaratory relief was moot -- both because of a 2011 Wisconsin statute that specifically provides that openly carrying a firearm is not disorderly conduct and because Gonzalez has since been convicted of first-degree reckless homicide and can no longer lawfully possess a firearm. Nevertheless, his damage claims remain viable. In order to prevail on his false arrest claims, however, he must show that the officers lacked probable cause. But for the state and federal constitutions, the Court considered the case fairly straightforward. Gonzales created a disturbance during both incidents and frightened employees and shoppers. That is normally enough for probable cause for arrest for disorderly conduct. But Wisconsin adopted a constitutional provision in 1998 guaranteeing a right to bear arms. The Court therefore thought it more prudent to address qualified immunity, the district court's alternative holding, rather than probable cause. Qualified immunity would protect the officers if there was no constitutional violation or if the right they allegedly violated was not clearly established at the time. Even though Wisconsin adopted the constitutional amendment, Wisconsin law also prohibited carrying concealed weapons. The tension between these two provisions was still unsettled at the time of Gonzalez' arrests, notwithstanding two Wisconsin Supreme Court decisions. The federal constitutional right to bear arms was also unsettled at the time. Heller was not decided until after the first arrest and McDonald was not decided until after both. The Court concluded that right allegedly violated was not clearly established and the officers were entitled to qualified immunity. Next, the Court rejected Gonzales' unlawful seizure claim. A seizure takes place when property is taken. Continued retention of property, even if illegal, is not actionable under the Fourth Amendment. Finally, the Court turned to Gonzalez' Privacy Act of 1974 claim. That Act makes it illegal to deny any right to a person because of the person's refusal to disclose his Social Security number and also contains disclosure requirements. The Court first addressed whether the Act even applies to non-federal agencies. Although the plain language of the Act states that Section 7 applies to federal, state, and local agencies, the Sixth Circuit has concluded that it only applies to federal agencies, relying on an internal inconsistency created by a codification mistake. The Court joined the Eleventh Circuit in concluding that Section 7 applies to local agencies. On the merits, the Court concluded that the record did not support Gonzales' claim that the West Milwaukee officers denied him any right or benefit. With respect to the Section 7(b) claim, it found that the officers did violate the disclosure requirements but that they are protected by qualified immunity since it was not clear that the section applied to local agencies.