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By LeAnn R. Ralph
COLFAX — The Colfax Village Board has sent the proposed resolution declaring the Village of Colfax a second amendment sanctuary to the public safety committee for review.
The attorney for the village with the law firm of Weld Riley and Dunn County’s attorney have both expressed concerns about the proposed resolution, and the attorneys’ concerns should be addressed, said Lynn Niggemann, village administrator-clerk-treasurer, at the Colfax Village Board’s June 14 meeting.
The proposed resolution opposes any legislation that would restrict gun ownership and gun laws that are unconstitutional.
The resolution also specifically names the Wisconsin State Legislature and states that any legislation on the state level pertaining to guns would be a violation of the second amendment to the United States Constitution.
Six village residents attended the meeting in support of the resolution.
The strategy stated at a village board meeting in May is to convince all of the townships, villages and the City of Menomonie to adopt the resolution to put pressure on the Dunn County Board to adopt the resolution, and then to put pressure on all 72 counties in the state to adopt the resolution so there is pressure on the state of Wisconsin to adopt legislation.
The Wisconsin Assembly has passed legislation declaring Wisconsin a second amendment sanctuary state, said village resident Rich Jenson.
The bill that passed the Assembly on June 9 would prohibit the enforcement of federal gun restrictions on gun owners in Wisconsin.
Since the Wisconsin Assembly has subverted the plan to convince townships, villages, cities and counties to adopt the resolution to put pressure on the state by already introducing legislation, Jenson did not explain why it would still be relevant for individual municipalities to adopt the resolution.
Before the proposed bill could become state law, it would have to be approved by the state Senate, with the same wording, and would then have to be signed into law by the governor.
The resolution presented to the Colfax Village Board also allows the Colfax Police Department to decide which laws are unconstitutional, and the police officers can then decide not to enforce those laws.
All law enforcement officers take an oath to uphold the law as well as uphold the state constitution and the United States Constitution, Jenson said.
The oath “opens the door” to not enforcing laws that officers believe are unconstitutional, he said, noting at one point in his comments that he is not a lawyer.
“Red flag” laws, for example, ignore due process prior to punishment, Jenson said.
“Red flag” laws refer to laws that allow family members or law enforcement officials to ask a judge for a court order that temporarily bars someone suffering a mental health crisis from possessing a firearm if they present a danger to themselves or others.
The memorandum from the village’s attorney, Anders Helquist of Weld Riley, makes it clear Weld Riley has no opinion on whether the village board should adopt the resolution.
The memorandum does, however, point out a number of problem areas with the resolution, such as terminology that is “unclear and over-broad.”
The resolution, for example, includes a long list of “potential legislative infringements” that would violate the United States Constitution and the constitution of Wisconsin.
“If the village is essentially going to declare a broad categorial list of things to be a constitutional violation, we advise the village carefully define what it is defining as unconstitutional,” the memorandum states.
The resolution says legislation banning “‘the possession and/or use of any weapons including firearms, magazines, ammunition or body armor now employed by individual citizens of the Village of Colfax for their defense … is declared unconstitutional.’ The use of ‘any’ is very broad,” according to the memorandum.
The memorandum from Weld Riley goes on to point out that state law prohibits convicted felons from possessing firearms.
If the village declares it is unconstitutional to keep a convicted felon from possessing firearms, then is the village board “prohibited under its resolution from allocating funds to the police department to arrest a violent felon in possession of a firearm?” the memorandum asks.
The memorandum also points out that state law prohibits convicted felons from possessing body armor and possessing or operating weaponized drones.
The resolution also “seeks to declare as unconstitutional the confiscation of said weapons and ammunition within the village,” the memorandum notes.
“We believe this part of the resolution is likely intended to prohibit law enforcement from entering into a house with a warrant and confiscating a lawfully-possessed firearm, but as written, the resolution has the effect of declaring as unconstitutional the confiscation of a firearm possessed by a convicted felon that was found during a lawfully-issued search warrant on his/her home. Some clarity in the language may be useful if the village is going to pass this resolution,” according to the memorandum.
The memorandum points out, too, that “Second Amendment Sanctuary Village” is not defined.
In addition, the memorandum points out that the resolution states the village will not allocate money to enforce unconstitutional laws.
“As noted above, it is unclear what the resolution intends to have the village declare as ‘unconstitutional’ law. If a law is passed and there is a question regarding its constitutionality, that law will be challenged in court and the court will make a decision whether or not the law is unconstitutional. If the law is deemed unconstitutional, then the village naturally will not allocate money to enforce a law deemed unconstitutional, whether or not it is contained in a resolution,” the memorandum states.
The memorandum points out, too, that the resolution is not binding, that there is no penalty for not following the resolution and that the resolution can be repealed, amended or modified by a subsequent village board.
Nick Lange, Dunn County corporation counsel, wrote a memorandum about the second amendment sanctuary resolution from a county perspective that is addressed to David Bartlett, chair of the Dunn County Board.
Niggemann said she had asked for, and had received, permission to share Lange’s memorandum with the Colfax Village Board.
In the introduction, Lange points out the second amendment sanctuary resolution is a template originally prepared by firearms lobbyists and has been circulating around the United States for several years.
Dunn County has administrative home rule authority under Wisconsin State Statute 59.03(1) to “exercise an organizational or administrative power, subject only to the constitution or to any enactment of the legislature which is of statewide concern and uniformly affects every county,” Lange wrote.
“Regulation of the sale, purchase, ownership and possession of firearms is entirely a matter that falls under control of state and federal laws, with the exception of a local government’s ability to prohibit the possession of firearms in/on certain facilities/properties. In other words, Dunn County’s authority on any other type of state or federal law will necessarily be subordinate to that law. A declaration that a county resolution controls the effectiveness or enforceability of a state or federal law is therefore meaningless,” according to Lange’s memorandum.
“All elected officials, county officers and county employees are required to follow the law. All county elected officials and many appointed officers must take an oath of office support the constitution and state law and to faithfully discharge their duties under them. Interestingly, these resolutions are often characterized as ‘symbolic’ by proponents, which actually is a confirmation that they have no legal force or efficacy,” Lange wrote.
Lange also points out that the resolution supports the county sheriff in exercising sound discretion not to enforce any unconstitutional firearms law and that the Dunn County Board will not appropriate any money to enforce unconstitutional laws.
“Local governments cannot decide that if they don’t agree with a particular state or federal law, they just won’t enforce it or follow it. This includes the sheriff, who takes an oath to enforce the law. No county official, officer or employee has any authority to disregard a law they believe is unconstitutional. All statutes are legally presumed to be constitutional, and only the courts have authority to declare a law unconstitutional,” according to Lange’s memorandum.
The memorandum from Lange goes on to say, “It is bad public policy for any local government to declare that it will ignore laws that its elected officials don’t like or don’t agree with, even if it is done as a symbolic gesture. How would/could such a policy statement actually be applied to a law that doesn’t even exist, without knowing what that law requires or prohibits?”
Lange points out that the kinds of legislation the resolution is concerned about — red flag laws, uniform background checks, restrictions on assault weapons and large capacity magazines — have existed in the United States for years, are widely popular, and have withstood past legal challenges.
In addition, the memorandum states, having a policy that authorizes county officials, officers and employees to disregard a law they do not like or do not agree with could expose to the county to liability if local officials refuse to follow a law and someone is injured or killed as a result of ignoring the law.
The last section of Lange’s memorandum points out there are democratic mechanisms for changing laws.
The way to challenge existing laws is through the courts and/or to not vote for the legislators who sponsored the legislation, and “if citizens are concerned about legislation that may be passed in the future, then the engagement should be with those who will be voting on the legislation,” Lange wrote.
Village Trustee Jeff Prince said he was concerned the resolution would interfere with village ordinances, such as the ordinance that prohibits hunting within the village limits.
“I think it can be worked out … I’m concerned with the wording,” he said.
Jody Albricht, village president, asked for a motion to refer the proposed resolution to the public safety committee for consideration and a recommendation to the village board.
The village board unanimously approved the motion to send the resolution to the public safety committee.
During the meeting, Niggemann made photocopies of the memorandums from the village attorney and the county attorney and handed them out to those who attended the meeting in support of the resolution.
The memorandums from the village and county attorney also are available on the village’s website in the village board packet for the June 14 meeting.
The people supporting the resolution can rewrite it to address the concerns and then submit it to the public safety committee, Albricht said.
Village Trustee Margaret Burcham is chair of the public safety committee.