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By LeAnn R. Ralph
COLFAX — It all depends on the rewrite.
If the group asking that the Colfax Village Board adopt a resolution making Colfax a second amendment sanctuary submits a rewritten resolution addressing the concerns of the village board and the concerns of the village’s attorney, the village board’s public safety committee agreed at a meeting October 4 to review the resolution again.
Members of the committee said if the rewritten resolution addressed the concerns, then they would also recommend the village board submit the rewritten resolution to the village’s attorney for further review.
At the heart of the second amendment sanctuary resolution is that gun laws deemed unconstitutional by village board members or the Colfax Police Department would not be enforced in Colfax.
Elected officials or law enforcement officers deciding what is unconstitutional is a departure from the rule of law in the United States in which a court, such as a state supreme court or the United States Supreme Court, decides a law is unconstitutional, at which point it is no longer a law.
Ten village residents attended the meeting to show their support for the resolution.
At times, members of the audience raised their voices and talked over each other to express their frustration and disbelief that the village board had not adopted the resolution — as is — when it was first submitted several months ago.
Some of the audience members appeared disgruntled by the idea that committee members wanted to ensure the wording would not create legal problems for the village.
Members of the committee include Colfax Village President Jody Albricht and Village Trustees Margaret Burcham and Jeff Prince.
Albricht was absent from the meeting.
Burcham is chair of the public safety committee.
At the June 14 meeting of the Colfax Village Board, village board members discussed the resolution after receiving a memorandum from the village’s attorney and a memorandum written by Dunn County’s corporation counsel outlining their concerns.
The memorandums from Anders Helquist, the village’s attorney with Weld Riley, and from Nick Lange, Dunn County corporation counsel, are available on the village’s website under the link to the June 14 village board meeting agenda and packet.
During the June 14 meeting, Lynn Niggemann, village administrator-clerk-treasurer, 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 Colfax Messenger also extensively quoted both memorandums in the story about the meeting.
Albricht told those attending the June 14 meeting that they should rewrite the resolution to address the attorneys’ concerns and then submit the rewrite to the public safety committee.
Although those who are insisting that the village board adopt the resolution have had nearly four months to rewrite it, a new version of the resolution was not submitted to the public safety committee for the October 4 meeting.
The second amendment sanctuary resolution has been circulating in various states for several years and was originally written by gun lobbyists, according to the county’s attorney.
The memorandum from Helquist points out a number of problems 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 points out, too, that “Second Amendment Sanctuary Village” is not defined.
“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,” the memorandum states.
According to Lange’s memorandum, 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.”
“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 to 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.
“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.
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 the county to liability if 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.
So far, 15 out of Wisconsin’s 72 counties have adopted a similar resolution declaring the counties to be second amendment sanctuaries, said Colfax resident Logan Michels at the October 4 public safety meeting.
Six additional counties brought the issue to a vote but did not pass the resolution, he said.
In Dunn County, which has 22 townships, seven villages and one city, five townships have adopted a second amendment sanctuary resolution, including the Towns of Hay River, Tiffany, Elk Mound, Grant and Colfax, according to information Michels submitted to the village that was included in the packet for the public safety committee meeting.
At least some of the townships in Dunn County that approved the resolution passed it with a “popular vote” of the residents, said Colfax resident Rich Jenson.
Jenson said asking residents to vote on the resolution was a better way to address the situation rather than only board members voting.
Duties and rights
Village board members and law enforcement officers have the right and the duty to decide if a gun law is unconstitutional, Jenson said, adding that the village board must decide what is unconstitutional to defend against tyranny.
Jenson noted he was not saying the village should exclude current laws and that the village could not, for example, change the law that says a convicted felon cannot own or carry firearms.
The rights bestowed by the United States Constitution are inalienable, which means they cannot be taken or given away, he said.
If the village board wants to keep people living in Colfax, this would be “low hanging fruit,” Michels said.
If Colfax was a second amendment sanctuary, that could be a deciding factor for people to move to Colfax, he said.
The state legislature and the United States Congress frequently pass non-binding resolutions, and the second amendment sanctuary resolution would be a non-binding resolution, said Colfax resident Brian Popple.
Popple expressed frustration that the committee members and the village board were cautious about the resolution’s wording and said he could not understand why the village board had not approved it when the resolution was first presented.
The resolution has many parts to it, and the Colfax Village Board represents all village residents, Niggemann said.
The resolution is not in a final form that the village board is comfortable with, she said.
Jenson said he was concerned, too, about “red flag laws.”
“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.
Family members, a neighbor or an ex-wife could make a telephone call to the sheriff and say someone is a threat, and the sheriff would come and take the guns, which is a violation of due process, Jenson said.
A person who owns guns should not have to go before a judge to prove he is not a threat to himself or others, he said.
A red flag law is like writing a ticket for something that someone has not done yet, he said.
“They are eating away at the second amendment every single day,” Jenson said.
The village board is being asked to defend the right to keep and bear arms and to say the village would not uphold an unconstitutional law, he said.
The second amendment could be “hollowed out” unless boards decide what is unconstitutional, Michels said.
The Wisconsin Assembly and the Senate approved making Wisconsin a second amendment sanctuary state, but Governor Tony Evers vetoed the law, Jenson said.
The Assembly and the Senate approved the legislation in June, and the governor vetoed the legislation in July.
The Assembly and the Senate can override the governor’s veto with a two-thirds vote, although in this case, they have not overridden the governor’s veto.
The counties that have approved the resolution have included information stating the resolution has no financial impact, Michels said.
The village has already put money toward the resolution to have the attorney review it and will spend more money to make sure it’s worded correctly and “doing the right thing for all,” Burcham said.
Has the village’s attorney looked at the new draft? Prince asked.
There were no changes to the resolution that would address the attorneys’ concerns, Niggemann said.
One part of the resolution goes against the village’s ordinances, which do not allow hunting within the village limits or the discharge of a firearm within village limits, she said.
The only change to the resolution was that several words were crossed out to address the issue with the ordinance about hunting and discharging firearms, Niggemann said.
Colfax Police Chief Bill Anderson also attended the meeting, and Jenson asked if Police Chief Anderson ever used his own judgement on which laws to enforce.
Some statutes allow discretion, but there are other statutes that say “shall,” such as the statute dealing with domestic violence situations, Police Chief Anderson said.
The constitution says the right to keep and bear arms “shall not be infringed,” Jenson said.
Personal feelings are irrelevant, Prince said, adding that even if he personally was against people owning AR15s, he would still fight for someone else’s right to own one under the current laws.
All village board members and police officers take an oath to uphold the constitution, he noted.
If a state or federal law restricted the right to keep and bear arms, the village board would have to decide if it’s constitutional and whether to enforce the law, Jenson said.
The village board should have the village’s attorney review the rewritten resolution “to make sure it is right,” Prince said.
The Colfax Village Board had a problem with the wording, and the attorneys have a problem, Burcham said.
The public safety committee agreed to meet October 13 at 7 p.m. to review any additional changes that had been made to the resolution.