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A Wisconsin appellate court tossed out the loitering conviction against a man who was cited during a stroll he took in 2013, which happened to be near a school while carrying an AR-15 on his shoulder and a gun on his hip.

“We are pleased the Court of Appeals recognized that merely carrying a firearm, with nothing more, cannot constitute an offense in Wisconsin,” said John Monroe, who represented Mark Hoffman.

Hoffman was questioned by Village of Somerset police officers after they received calls from people in the area who were alarmed by Hoffman’s choice to open carry. Police cited him for loitering and piled on an additional charge of obstructing an officer when Hoffman declined to identify himself or what he was doing. They also confiscated his gun; which Hoffman was forced to take separate court action to have returned, eventually getting it back months later.

Hoffman found representation through the gun rights group Wisconsin Carry, Inc.,

A municipal judge threw out the obstructing charge but found that police had reasonable suspicion to stop Hoffman and question him.

Hoffman appealed to circuit court. His motion to dismiss at the end of the state’s case was dismissed, and a jury found him guilty of loitering. He was fined $195.90 and appealed.

Although the village claimed Hoffman was not cited for carrying the gun, his own recording revealed the police chief saying Hoffman was “under arrest for being heavily armed.”

Prosecutors claimed Hoffman’s voice recorder proved he was expecting to draw police and argued this amounted to malicious intent, calling it “spiteful, vindictive and vengeful.”

Ultimately, after all evidence showed the reason Hoffman was stopped was over the guns he was legally carrying, the District 3 Court of Appeals agreed with the defense’s assertion that the case should have dismissed by the circuit judge.

“We recognize that citizens may be justifiably alarmed by the open carry of firearms under many circumstances including, as here, near a school and in the vicinity of children,” Judge Lisa Stark wrote for a three-judge panel. “However, we are bound to follow the dictates of the legislature in applying WIS. STAT. § 66.0409(6).”

Wisconsin Carry is pleased to announce that today the appeals court has overturned Mark’s conviction for loitering. The appellate court found the only reason Mark was cited was because he was engaged in the LAWFUL activity of open carrying a firearm and that Wisconsin’s preemption statute 66.0409(6) prohibits one from being convicted of loitering if the sole cause of alarm is carrying a firearm without evidence of criminal or malicious intent.

Wisconsin Carry would like to thank Attorney John Monroe AND our dues paying members whose annual membership dues provide the monies we use to fund these lawsuits.

The court reversed Hoffman’s conviction, ordering the loitering case be dismissed with prejudice.