Gonzalez v. Village of West Milwaukee

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2356

JESUS G ONZALEZ,

Plaintiff-Appellant,

v.

V ILLAGE OF W EST M ILWAUKEE, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 09CV384—Lynn Adelman, Judge.

A RGUED N OVEMBER 29, 2010—D ECIDED F EBRUARY 2, 2012

Before B AUER, W OOD , and S YKES, Circuit Judges.

S YKES, Circuit Judge. Jesus Gonzalez was active in Wis-

consin’s “open carry” movement, which advocates for

the right to carry unconcealed firearms in public. On

two occasions in 2008 and 2009, he openly carried a

holstered handgun into retail stores in the Village of

West Milwaukee and the City of Chilton, Wisconsin.

On each occasion he was arrested for disorderly

conduct and his gun was confiscated. He was not prose-

2 No. 10-2356

cuted for either incident, however, and his handguns

were eventually returned.

Gonzalez sued the arresting officers and the two munici-

palities under 42 U.S.C. § 1983, asserting several

claims for relief. First, he alleged that the officers falsely

arrested him in violation of the Fourth Amendment

because his open carrying was not disorderly conduct

and was protected under the state and federal constitu-

tions. On this claim he sought damages and prospective

declaratory relief. He also claimed the municipalities

retained his handguns for too long after each arrest,

amounting to an unconstitutional seizure of his prop-

erty. Finally, he alleged that West Milwaukee and its

officers violated § 7(a) and § 7(b) of the Privacy Act

of 1974 when they obtained his Social Security number

during the booking process.

The district court granted summary judgment for the

defendants on all claims. The judge held that the

officers had probable cause to arrest Gonzalez for disor-

derly conduct, or alternatively, were entitled to qualified

immunity. The property-seizure claim was dismissed

as both underdeveloped and meritless. Finally, the judge

rejected the Privacy Act claims for two reasons: The § 7(a)

claim was factually insufficient, and § 7(b) grants

no private right of action enforceable under § 1983.

Gonzalez appealed. In the meantime several devel-

opments changed the contours of the case. Effective

November 2011, Wisconsin adopted a concealed-carry

permitting regime and in connection with that legisla-

tion, amended its statutes to clarify that openly carrying

No. 10-2356 3

a firearm is not disorderly conduct absent “circumstances

that indicate a criminal or malicious intent.” W IS. S TAT.

§ 947.01(2); see Wis. Act 35, 2011-2012 Wis. Legis. Serv.

825, 849 (West). Also in November 2011, Gonzalez was

convicted of homicide and may no longer lawfully

possess firearms. These events moot his claim for pros-

pective declaratory relief; his various claims for

damages remain.

On the remaining claims, we affirm. Although the

district court’s probable-cause analysis did not suf-

ficiently account for the right to bear arms under the

state and federal constitutions, we agree that the officers

are entitled to qualified immunity. At the time of the

arrests, the state constitutional right to bear arms

was relatively new, and Wisconsin law was unclear

about the effect of the right on the scope of the

disorderly conduct statute. Moreover, the Supreme

Court had not yet decided McDonald v. City of Chicago,

Ill., 130 S. Ct. 3020, 3050 (2010), applying the Second

Amendment to the States. Given this legal uncertainty,

it was reasonable for the officers to believe that the cir-

cumstances of Gonzalez’s open carrying gave them prob-

able cause to arrest him for disorderly conduct. The

delayed return of Gonzalez’s handguns was not a “sei-

zure” under the Fourth Amendment. Finally, Gonzalez’s

various Privacy Act claims fail for several reasons. As-

suming the Act confers a private right of action, the

officers did not violate § 7(a); they are entitled to

qualified immunity for the alleged § 7(b) violation;

and there is insufficient evidence that West Milwaukee

4 No. 10-2356

had a policy, custom, or practice that would give rise

to municipal liability for the alleged § 7(b) violation.

I. Background

Because we are reviewing a grant of summary judg-

ment in favor of the defendants, the following account

describes the facts in the light most favorable to Gonzalez.

A. Gonzalez’s Arrest in West Milwaukee

On May 14, 2008, Gonzalez entered a Menards home-

improvement store in West Milwaukee, a suburb im-

mediately adjacent to the City of Milwaukee. The store

was “fairly busy,” and there were about 75 employees

in the building. Gonzalez wore a black leather trench coat

and visibly carried a handgun in a black thigh holster.

An employee saw the gun and was “startled”; he also

thought the heavy trench coat was “out of place” for

the season. He alerted assistant manager Kristopher

McCloy and manager Jeffrey Jensen. McCloy regarded

the alert as a “serious situation,” and Jensen was

“shocked, surprised,” and concerned for the safety of

his employees and customers.

McCloy, Jensen, and several other employees went

to look for Gonzalez and found him near the

children’s play area. After debating the legality of having

a firearm in the store, McCloy asked Gonzalez to secure

the gun in his car before he continued shopping.

Gonzalez refused. Some employees expressed concern

No. 10-2356 5

about the children nearby and told Gonzalez that they

would call the police if he refused to leave. Gonzalez

eventually complied with McCloy’s request that he put

his gun in his car before continuing his shopping.

In the meantime Jensen called the West Milwaukee

Police Department, where he reached Officer Patrick

Krafcheck. Jensen told Krafcheck there was a man with

a gun in the store who was argumentative and was

“creep[ing] people out” and generally making them

uncomfortable and nervous. Krafcheck later described

the gist of the call this way: There was a “man in the

store with a gun” who was making people “nervous,

wigged out, freaked out, geeked out, something to that

effect.” Krafcheck and Officer Charles Donovan went to

Menards, where they found Gonzalez in the parking lot

loading items into his pickup truck. Gonzalez was no

longer carrying his gun but still wore the holster. Donovan

asked Gonzalez where his gun was; Gonzalez refused to

answer. Donovan then arrested Gonzalez for disorderly

conduct. Krafcheck seized Gonzalez’s gun, magazines,

ammunition, and a gun case from the truck.

During the booking process at the West Milwaukee

police station, Donovan and Krafcheck asked Gonzalez

for his Social Security number, in addition to other

basic identifying information. Neither officer informed

Gonzalez whether disclosure of this information was

mandatory, by what statutory authority they requested

it, or what uses they would make of it. When Gonzalez

resisted giving his identifying information, Krafcheck

said “something to the effect of, [i]f we can’t get the

6 No. 10-2356

information, you’re going to be here longer than you

need to be.” The officers eventually obtained Gonzalez’s

Social Security card from his wallet. Gonzalez was

released after booking with an order to attend a

charging conference at the Milwaukee District Attorney’s

office. His gun and other property were held for several

months until the district attorney decided not to press

charges.

B. Gonzalez’s Arrest in Chilton

Sometime after 11 p.m. on April 10, 2009, Gonzalez

visited a Wal-Mart store in Chilton, a small town about

40 miles south of Green Bay. Gonzalez again openly

carried a handgun at his side. Because of the late hour,

only about four customers and ten employees were

in the store at the time. Gonzalez headed toward the

sporting-goods department to buy ammunition. An

employee saw the gun and alerted assistant manager

Jennifer Fairchild. Fairchild felt “uneasy” because it was

“late in the evening, and the gentleman was asking to

purchase ammunition,” which she found “very odd,”

especially for “such a little town.” She was also

alarmed because some employees were collecting money

from the store’s cash registers at the time, and she “did

not know what [kind of] situation was truly going on.”

Fairchild called the Chilton Police Department, and

Officer Michael Young responded to the scene. When

Young arrived and spoke to Fairchild, she “seemed like

she was anxious and nervous” or “upset.” Young found

Gonzalez completing his ammunition purchase. Young

No. 10-2356 7

drew his gun, pointed it at Gonzalez, and told him to

“freeze.” Young arrested Gonzalez for disorderly

conduct, took him to the police station, and tried to

contact the Calumet County District Attorney for

guidance about how to proceed. Unable to reach either

the district attorney or the assistant district attorney,

Young decided to release Gonzalez but retained his

gun. About two weeks later, the district attorney

notified Gonzalez that he would not be pressing charges

and Gonzalez could retrieve his gun.

C. The District Court’s Decision

Gonzalez sued Officers Krafcheck, Donovan, and

Young, alleging that they falsely arrested him in viola-

tion of the Fourth Amendment. He also claimed the

West Milwaukee and Chilton Police Departments

retained his handguns too long in violation of the

Fourth Amendment. Finally, he claimed that the request

for his Social Security number in connection with

his booking in West Milwaukee violated his rights

under the Privacy Act.

The district court granted summary judgment for the

defendants and dismissed all claims. The court held

that the West Milwaukee and Chilton officers had

probable cause to arrest Gonzalez for disorderly conduct

because “[n]o reasonable person would dispute that

walking into a retail store openly carrying a firearm is

highly disruptive conduct which is virtually certain to

create a disturbance.” The court added that even if the

officers lacked probable cause, they were entitled to

8 No. 10-2356

qualified immunity. The court dismissed the property-

seizure claim, finding it insufficiently developed and

deficient on the merits; the court held that the munic-

ipalities did not violate the Fourth Amendment by re-

taining Gonzalez’s firearms until after prosecutors

decided not to file charges. Finally, the court rejected

the Privacy Act claims against West Milwaukee and

its officers, reasoning that (1) the officers did not violate

§ 7(a); (2) § 7(b) does not confer an individual right; and

(3) even if § 7(b) did confer an actionable individual

right, Gonzalez had not established that West Milwaukee

had a policy or practice giving rise to municipal liability.

II. Discussion

We review the district court’s order granting sum-

mary judgment de novo, construing the facts and

drawing reasonable inferences in the light most favorable

to Gonzalez. Castronovo v. Nat’l Union Fire Ins. Co.,

571 F.3d 667, 671 (7th Cir. 2009).

A. Fourth Amendment False-Arrest Claims

Gonzalez argues that the district court was wrong to

reject his Fourth Amendment false-arrest claims against

Officers Krafcheck, Donovan, and Young because the

officers lacked probable cause to arrest him. Openly

carrying a firearm, he contends, does not amount to

disorderly conduct and is protected as an exercise of the

right to bear arms for self-defense guaranteed by the

Wisconsin Constitution and the Second Amendment.

No. 10-2356 9

Before addressing the merits, we note that one form

of relief Gonzalez requests is now moot. After we heard

argument and took this case under advisement,

Wisconsin clarified its law on whether openly carrying

a firearm can constitute disorderly conduct. Effective

November 2011, the state legislature amended Wis-

consin’s longstanding ban on carrying concealed

firearms and adopted a licensing regime in its place.

See Wis. Act 35, 2011-2012 Wis. Legis. Serv. 825 (West).

In that same legislation, lawmakers added the following

language to the disorderly conduct statute:

Unless other facts and circumstances that indicate

a criminal or malicious intent on the part of the

person apply, a person is not in violation of, and

may not be charged with a violation of, this section

for loading, carrying, or going armed with a firearm,

without regard to whether the firearm is loaded or

is concealed or openly carried.

W IS. S TAT. § 947.01(2); see Wis. Act 35, 2011-2012 Wis.

Legis. Serv. 825, 849 (West). The legislature also adopted

a new statute similarly providing that openly carrying

a firearm cannot constitute disorderly conduct under

any local ordinance, subject to the same proviso

regarding criminal or malicious intent. See W IS. S TAT.

§ 66.0409(6); Wis. Act 35, 2011-2012 Wis. Legis. Serv. 825,

828 (West). Also in November 2011, Gonzalez was con-

victed of first-degree reckless homicide and sentenced

to 20 years in prison. Accordingly, he cannot lawfully

possess a firearm. See W IS. S TAT. § 941.29(2)(a); 18 U.S.C.

§ 922(g)(1). These events moot Gonzalez’s claim for

10 No. 10-2356

prospective declaratory relief but not his claim for

damages against the individual officers.

“False arrest” is shorthand for an unreasonable seizure

prohibited by the Fourth Amendment. Ienco v. Angarone,

429 F.3d 680, 683 (7th Cir. 2005). To prevail on this claim,

a plaintiff must show that the arresting officer lacked

probable cause to make the arrest. Jackson v. Parker, 627

F.3d 634, 638 (7th Cir. 2010). An officer has probable

cause to arrest if he has reason to believe, in light of the

facts known at the time, that the suspect has committed

or is about to commit a crime. Wheeler v. Lawson,

539 F.3d 629, 634 (7th Cir. 2008); Purtell v. Mason, 527 F.3d

615, 626 (7th Cir. 2008).

The district court held that the West Milwaukee and

Chilton officers had probable cause to arrest Gonzalez

for disorderly conduct because “[n]o reasonable person

would dispute” that openly carrying a firearm in a retail

store “is highly disruptive conduct” and “virtually

certain to create a disturbance.” This is so, the court held,

because store personnel and shoppers would “likely . . .

be frightened and possibly even panicky,” and would

“likely . . . think that the person with the gun is either

deranged or about to commit a felony or both.” Someone

would surely call the police, and “when police respond

to a ‘man with a gun’ call, they have no idea what the

armed individual’s intentions are.” This “inherently

volatile situation,” the court held, “could easily lead

to someone being seriously injured or killed.” The judge

thought the facts of Gonzalez’s two arrests confirmed

these general observations. The judge summarily re-

No. 10-2356 11

jected Gonzalez’s argument that the Second Amend-

ment and the state constitutional right to bear arms

affected the probable-cause analysis. In the alternative

the court held that the officers are entitled to qualified

immunity.

For reasons that will be apparent in a moment, the

district court’s probable-cause holding did not ade-

quately account for the effect of the state constitutional

right to bear arms on the crime of disorderly conduct

in Wisconsin. At the time of Gonzalez’s arrests, it was

unclear whether a person who openly carries a firearm

could be arrested for disorderly conduct in light of the

state and federal constitutional guarantees. To hold,

as the district court apparently did, that openly

carrying a firearm in a retail store is disorderly conduct

as a categorical matter goes too far. As we will see, at the

relevant time, the question was far from settled.

Before proceeding, however, we note that without

the constitutional right to bear arms in the mix, this

would be a fairly straightforward case. Wisconsin’s

disorderly conduct statute provides: “Whoever, in a

public or private place, engages in violent, abusive,

indecent, profane, boisterous, unreasonably loud or

otherwise disorderly conduct under circumstances in

which the conduct tends to cause or provoke a

disturbance is guilty of a Class B misdemeanor.” W IS.

S TAT. § 947.01(1). Only the catch-all “otherwise disor-

derly” clause is implicated here, and the Wisconsin Su-

preme Court reads it quite broadly. The “otherwise

disorderly” clause requires only that the defendant’s

12 No. 10-2356

conduct be similar in kind to the conduct enumerated

in the statute and that it have a tendency to cause or pro-

voke a disturbance, either public or private; it need not

actually cause a disturbance. See State v. Schwebke, 644

N.W.2d 666, 674-75 (Wis. 2002); In re Douglas D.,

626 N.W.2d 725, 737-38 (Wis. 2001); In re A.S., 626

N.W.2d 712, 722-23 (Wis. 2001).

The Menards employee who first spotted Gonzalez

with his holstered gun was “startled” and concerned

enough about his own safety and the safety of others in

the store that he alerted his manager and assistant man-

ager. Gonzalez’s attire also fueled suspicion; he was

wearing a black leather trench coat, which was “out

of place” for a day in mid-May. Jensen, the Menards

manager, was “shocked” and said he felt “some sense

of urgency” when he heard there was a man with a gun

in the store. He was immediately concerned about the

safety of shoppers and employees, and said there was

“a lot of adrenaline pumping” during his encounter

with Gonzalez. When he called the police and reached

Officer Krafcheck, he reported that “everyone is like, oh,

my God, this guy’s got a gun in the store,” and said

Gonzalez was “creep[ing] people out.” McCloy, the

assistant manager, testified that he “didn’t want a bunch

of parents with their kids seeing a guy walk around

with a gun on him. . . . [T]hat would have caused a little

bit of panic, I believe.” When he first approached

Gonzalez, McCloy felt “a little bit afraid, but after

talking to him, that feeling calmed down.”

Fairchild, the Wal-Mart assistant manager, called the

police because the company’s policy manual instructed

No. 10-2356 13

her to do so whenever she felt that a “person would be

of any harm to any of the associates or customers that

were within the building.” She felt “[v]ery nervous”

about Gonzalez and his gun. It was late in the evening,

employees were collecting money from the registers,

and she was concerned for her own safety and the safety

of her employees and customers.

Creating this kind of public unease and agitation is

ordinarily sufficient to establish probable cause to

arrest for disorderly conduct under Wisconsin law. See

State v. Givens, 135 N.W.2d 780, 784 (Wis. 1965) (“The

crime of disorderly conduct is based upon the

principle that in an organized society one should so

conduct himself as not to unreasonably offend the senses

or sensibilities of others in the community.” (quotation

marks omitted)). Although the statute does not apply to

conduct that offends the hypersensitive, Douglas D., 626

N.W.2d at 737, the circumstances of Gonzalez’s openly

carrying a firearm were on the whole enough to give

the officers reason to believe that persons of ordinary

and reasonable sensibility would be disturbed.

Matters are not so straightforward, however, when

the constitutional right to bear arms is factored in. At the

time of Gonzalez’s arrest, the legality of open carrying

was debatable and had in fact been debated in

two cases in the state supreme court testing the scope

of Wisconsin’s recently adopted constitutional provision

guaranteeing an individual right to bear arms. See State

v. Cole, 665 N.W.2d 328, 335-36 (Wis. 2003); State v.

Hamdan, 665 N.W.2d 785 (Wis. 2003). (More about Cole

14 No. 10-2356

and Hamdan in a moment.) Accordingly, although we

think the district court’s probable-cause finding was too

categorical, its alternative holding—that the officers were

entitled to qualified immunity—was on much firmer

ground.

“[Q]ualified immunity protects government officials

from liability for civil damages when their conduct does

not violate clearly established statutory or constitu-

tional rights of which a reasonable person would have

known.” McAllister v. Price, 615 F.3d 877, 881 (7th Cir.

2010). Claims of qualified immunity involve two

inquiries: (1) whether the official violated a constitu-

tional or statutory right, and (2) whether the right was

clearly established at the time of the alleged misconduct.

Whitlock v. Brown, 596 F.3d 406, 410 (7th Cir. 2010). A

negative answer to either question entitles the official to

the defense. Hanes v. Zurick, 578 F.3d 491, 493 (7th Cir.

2009). We may, in our discretion, take the second inquiry

first. Pearson v. Callahan, 555 U.S. 223, 236 (2009); Whitlock,

596 F.3d at 410. It makes good sense to do so here.

Gonzalez argues that openly carrying a firearm cannot

be disorderly conduct because the people of Wisconsin

have reserved to themselves a fundamental right to bear

arms, secured by a recent amendment to the state con-

stitution. Article I, § 25 of the Wisconsin Constitution

provides: “The people have the right to keep and bear

arms for security, defense, hunting, recreation or any

other lawful purpose.” W IS. C ONST. art. I, § 25. Adopted

in 1998, Article I, § 25 appears in the state constitu-

tion’s declaration of rights and has the status of a funda-

mental individual right. Cole, 665 N.W.2d at 335-36.

No. 10-2356 15

When the right-to-bear-arms provision was ratified,

however, Wisconsin broadly prohibited the carrying of

concealed weapons. See W IS. S TAT. § 941.23 (“Any

person except a peace officer who goes armed with a

concealed and dangerous weapon is guilty of a Class A

misdemeanor.”), amended by Wis. Act 35, 2011-2012 Wis.

Legis. Serv. 825, 843 (West) (effective Nov. 1, 2011). The

crime of carrying a concealed weapon had been on the

books in one form or another since 1872. See Cole, 665

N.W.2d at 331-32. Before its sweeping modification in

2011, the concealed-weapon statute was in significant

tension with the newly adopted constitutional right.

Gonzalez argues that because section 941.23 prohibited

him from carrying his handgun concealed, carrying it

openly was the only way he could meaningfully exercise

his state constitutional right to bear arms; his acts of open

carrying therefore could not be punished as disorderly

conduct. He is not alone in this view. In a pair of cases

in the state supreme court in 2003, the Wisconsin De-

partment of Justice (“DOJ”) advanced the open-carry

option in defending the concealed-weapon statute

against facial and as-applied challenges under the newly

ratified state constitutional right to bear arms. See Cole,

665 N.W.2d 328; Hamdan, 665 N.W.2d 785. The Attorney

General argued that although carrying a concealed

firearm was a crime, “a person lawfully in possession of

a firearm will always retain the ability to keep the firearm

in the open—holding the weapon in the open, keeping

the weapon in a visible holster, displaying the weapon

on the wall, or otherwise placing the weapon in plain

view.” Hamdan, 665 N.W.2d at 808-09. Because firearms

16 No. 10-2356

could be kept or carried in the open, banning concealed

carry did not violate the Article I, § 25 right to bear arms.

Id. Or so the Attorney General argued.

The Wisconsin Supreme Court was skeptical of this

aspect of the Attorney General’s case, casting doubt on

the view that open carrying was always a viable option.

In Hamdan the court noted that openly carrying or dis-

playing a firearm would often be “impractical, unsettling,

and possibly dangerous,” and “could expose a gun

owner to other liability, both criminal and civil.” Id. at

809. Indeed, the court cited the disorderly conduct

statute to illustrate the kind of criminal liability that

might arise from openly carrying a firearm. Id. (citing

W IS. S TAT. § 947.01). In the end, resolving questions

about open-carry rights was unnecessary to decide

Cole and Hamdan. In Cole the court rejected the facial

challenge to the concealed-weapon statute but held it

was subject to individual as-applied challenges. 665

N.W.2d at 340-45. In Hamdan the court crafted a frame-

work for adjudicating as-applied constitutional chal-

lenges to individual prosecutions under section 941.23.

665 N.W.2d at 809-11. The dispute about open carrying

was left for another day.

The open-carry issue was still unsettled when Gonzalez

was arrested in West Milwaukee in May 2008 and in

Chilton in April 2009. Soon after the Chilton arrest, how-

ever, the Attorney General issued an informal Advisory

Memorandum titled “The Interplay Between Article I, § 25

Of The Wisconsin Constitution, The Open Carry of Fire-

arms And Wisconsin’s Disorderly Conduct Statute, Wis.

No. 10-2356 17

Stat. § 947.01.” Though not a formal Attorney General’s

opinion, the Advisory was directed to Wisconsin’s district

attorneys and intended for the education of front-line

prosecutors and law-enforcement officers within their

jurisdictions. Issued on April 20, 2009, the Advisory

begins by noting that the DOJ had received “multiple

inquires” asking whether openly carrying a firearm

could be prosecuted as disorderly conduct. The Attor-

ney General’s response: “The Wisconsin Department of

Justice . . . believes that the mere open carrying of a

firearm by a person, absent additional facts and circum-

stances, should not result in a disorderly conduct charge

from a prosecutor.”

The Advisory emphasized that any decision to charge

an act of open carrying as disorderly conduct “necessarily

depends on the totality of the circumstances,” but “must

take into account the constitutional protection afforded

by Article I, § 25 of the Wisconsin Constitution.” To

illustrate, the Advisory gave two examples at opposite

extremes: “[A] hunter openly carrying a rifle or shotgun

on his property during hunting season while quietly

tracking game should not face a disorderly conduct

charge,” but “if the same hunter carries the same rifle

or shotgun through a crowded street while barking at a

passerby, the conduct may lose its constitutional pro-

tection.”

To the extent the DOJ’s advice helped to guide the

discretion of Wisconsin prosecutors and police officers

before the concealed-weapon and disorderly conduct

statutes were amended in 2011, it could be of no use to

18 No. 10-2356

the officers here, who were faced with a decision

whether to arrest Gonzalez for disorderly conduct before

the Advisory was issued.1 Officers Krafcheck, Donovan,

and Young were acting at a time of significant legal

uncertainty about how to draw a difficult constitutional

line; as such, qualified immunity applies. See Purtell,

527 F.3d at 625-26. Although Gonzalez vigorously argues

to the contrary, the right to openly carry a firearm

was hardly well established under the state constitution

at the time of his arrests. Until the 2011 amendment

to section 947.01, the legal landscape was uncharted.

Gonzalez also relies on the Second Amendment, but

this argument is not well developed. Invoking District of

Columbia v. Heller, 554 U.S. 570, 595 (2008), he argues

that the core Second Amendment right to bear arms for

self-defense must include the right to openly carry a

holstered handgun. But Heller was decided after

Gonzalez’s arrest in West Milwaukee. And McDonald,

130 S. Ct. at 3050, which applied the Second Amendment

to the States, was decided after both arrests. Whatever

the Supreme Court’s decisions in Heller and McDonald

might mean for future questions about open-carry rights,

for now this is unsettled territory. See Eugene Volokh,

Implementing the Right to Keep and Bear Arms for Self-Defense:

An Analytical Framework and a Research Agenda, 56 UCLA

1

Gonzalez filed this lawsuit four days after his arrest in

Chilton, six days before the DOJ issued the Advisory. Indeed,

the Advisory specifically notes the recent filing of Gonzalez’s

suit.

No. 10-2356 19

L. R EV. 1443, 1520 (2009) (open-carry rights under the

Second Amendment may be “a major area of debate in

courts in the coming years”); see also Nelson Lund, Two

Faces of Judicial Restraint (Or Are There More?) in

McDonald v. City of Chicago, 63 F LA. L. R EV. 487, 505

(2011) (“We do not yet know how the courts will rule on

laws that forbid both open and concealed carry of fire-

arms.”).2

The “clearly established” inquiry in qualified-immunity

analysis asks whether the unlawfulness of the officer’s

conduct would have been apparent to a reasonable

officer in light of pre-existing law. See Purtell, 527 F.3d at

621. Here, the most that can be said is that the officers

failed to make a sensitive judgment about the effect of

the state constitutional right to bear arms on the disorderly

conduct statute and failed to predict Heller and McDon-

ald. To the extent that any mistakes about probable

cause were made, they were entirely understandable;

2

For further discussion of the tension between the Second

Amendment and concealed-carry bans, and the practical and

legal difficulties of open carrying, see, e.g., Nelson Lund, The

Second Amendment, Heller, and Originalist Jurisprudence,

56 UCLA L. R EV . 1343, 1359-62 (2009); Eugene Volokh, Imple-

menting the Right to Keep and Bear Arms for Self-Defense: An

Analytical Framework and a Research Agenda, 56 UCLA L. R EV .

1443, 1521-24 (2009); Michael P. O’Shea, The Right to Defensive

Arms After District of Columbia v. Heller, 111 W. V A . L. R EV . 349,

377-79 (2009); see also Minutes from a Convention of The Federalist

Society: Civil Rights: The Heller Case, 4 N.Y.U. J. L. & L IBERTY

293, 321-23 (2009).

20 No. 10-2356

state law was in flux, and the meaning and application

of the Second Amendment was then under consideration

by the Supreme Court. 3 “Qualified immunity tolerates

reasonable mistakes regarding probable cause.” Whitlock,

596 F.3d at 413. Because open-carry rights were not

3

An additional complexity arises where, as here, the open

carrying occurred on private property. As we have noted,

section 947.01 punishes disorderly conduct “in a public

or private place.” W IS . S TAT . § 947.01(1) (emphasis added).

Gonzalez was arrested for disorderly conduct for openly

carrying his handguns on private property, albeit property

held open to the public; though the Menards and Wal-Mart

stores had some obligations to invitees as places of public

accommodation, the property retained its character as private

property. See Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972) (“Nor

does property lose its private character merely because the

public is generally invited to use it for designated purposes);

Jacobs v. Major, 407 N.W.2d 832, 835, 838-40 (Wis. 1987). It’s not

clear how the disorderly conduct statute applies in cases

involving conflicts between an individual’s right to bear arms

and a private-property owner’s right to set the terms of ad-

mittance. There might be a distinction between the “disorder-

liness” of openly carrying a gun in a public place and

the “disorderliness” of openly carrying a gun on private

property over the objection of the owner. The recent amend-

ments to section 947.01 do not specifically address the matter;

as we have noted, under the amended statute, carrying

a firearm—whether openly or concealed—does not con-

stitute disorderly conduct “[u]nless other facts and circum-

stances . . . indicate a criminal or malicious intent.” W IS . S TAT .

§ 947.01(2); see Wis. Act 35, 2011-2012 Wis. Legis. Serv. 825, 849

(West).

No. 10-2356 21

clearly established under the state or federal constitu-

tions at the time of Gonzalez’s arrests, the officers are

entitled to qualified immunity.

B. Illegal-Seizure Claim Against the Municipalities

Gonzalez also argues that the Village of West Milwaukee

and the City of Chilton violated his rights under the

Fourth Amendment by retaining his handguns too long

after the initial seizure. As in the district court, Gonzalez

does not meaningfully develop this argument on appeal,

and we agree with the district court that Lee v. City of

Chicago, 330 F.3d 456 (7th Cir. 2003), forecloses the claim.

In Lee we held that “[o]nce an individual has been mean-

ingfully dispossessed, the seizure of the property is

complete.” Id. at 466. In other words, a “seizure” of prop-

erty occurs when property is taken from its owner; nor-

mally—and here, given the short duration of the depriva-

tion—the government’s continued possession is not sepa-

rately actionable as a Fourth Amendment violation. Id.

at 460. But see Segura v. United States, 468 U.S. 796, 812

(1984) (“[A] seizure reasonable at its inception because

based upon probable cause may become unreasonable

as a result of its duration . . . .”).

Gonzalez argues, however, that in Lee the initial seizure

of property was lawful, whereas here his gun “was not

lawfully seized in the first place.” Even if Gonzalez were

correct, the distinction is immaterial. Lee’s holding that

a seizure occurs upon the initial act of dispossession

does not depend on the legality of the seizure. Stated

22 No. 10-2356

differently, continued retention of unlawfully seized

property is not a separate Fourth Amendment wrong. The

district court properly granted summary judgment for

the municipalities on Gonzalez’s illegal-seizure claim.

C. Privacy Act Claims Against West Milwaukee and Its

Officers

The Privacy Act of 1974 aims to safeguard personal

identifying information by regulating how governmental

agencies collect, maintain, use, and disseminate it. See

Privacy Act of 1974, § 2(b)(1), 5 U.S.C. § 552a (2011).

Gonzalez maintains that West Milwaukee and Officers

Krafcheck and Donovan violated two provisions of § 7 of

the Act when they obtained his Social Security number

during the booking process. More specifically, he claims

West Milwaukee and its officers violated § 7(a), which

makes it unlawful for a governmental agency to deny

“any right, benefit, or privilege” based on a person’s

“refusal to disclose his social security account number,”

and § 7(b), which requires governmental agencies to

provide certain explanatory information when they ask

for a person’s Social Security number.

1. Applicability of § 7 to Municipal Agencies

Before addressing the merits, there is a threshold

dispute about whether § 7 even applies to municipalities.

By its terms § 7 applies to “[a]ny Federal, State or local

government agency.” However, based on the unusual

way in which the Privacy Act is codified in the U.S.

No. 10-2356 23

Code, the Sixth Circuit has concluded that the Privacy

Act “applies solely to federal agencies.” See Schmitt v.

City of Detroit, 395 F.3d 327, 328 (6th Cir. 2005).

When Congress passed the Privacy Act and published

it in the Statutes at Large as Public Law 93-579, the

statute contained §§ 2 through 9, and of these, only § 3

was codified in the main text of the Code, at 5 U.S.C.

§ 552a, pursuant to the directives of § 4. There were no

instructions pertaining to the codification of the other

sections, so the revisor of the Code placed them in the

“Historical and Statutory Notes” accompanying 5 U.S.C.

§ 552a, instead of as a separate section in the main text.

See Schwier v. Cox, 340 F.3d 1284, 1288 (11th Cir. 2003).

Section 3(a)(1) states that “[f]or purposes of this section,”

the term “agency” is defined by ultimate reference to

5 U.S.C. § 551(1),4 which provides that ” ‘agency’ means

each authority of the Government of the United States.”

In Schmitt the Sixth Circuit interpreted the phrase

“[f]or purposes of this section” in § 3(a)(1) to refer to all

of 5 U.S.C. § 552a, including its notes. The court found

§ 7 “inherently inconsistent” with § 3 because § 3(a)(1)’s

definition of “agency” “contains no language to indicate

that it does not apply to the Privacy Act as a whole,” while

4

Section 3(a)(1) defines “agency” by reference to 5 U.S.C.

§ 552(e), but that section was redesignated as § 552(f) by the

Freedom of Information Reform Act of 1986, Pub. L. No. 99-570,

100 Stat. 3207 (1986). Section 552(f), in turn, refers to the defini-

tion in 5 U.S.C. § 551(1). See Schmitt v. City of Detroit, 395

F.3d 327, 329 (6th Cir. 2005).

24 No. 10-2356

§ 7 “by its terms includes state and local agencies within

its ambit.” Schmitt, 395 F.3d at 330. The court could

not reconcile the inconsistency and looked to two

sources to decide which provision should prevail: (1) the

congressional findings and purposes expressed in § 2 of

the Act; and (2) a Senate report in the Act’s legislative

history. These sources led the court to conclude that

the Privacy Act applies exclusively to federal agencies.

Id. at 331.

The Eleventh Circuit, on the other hand, as well as some

district courts—including the district court here—have

adhered to § 7’s plain language. See Schwier, 340 F.3d at

1288-89; Ingerman v. Del. River Port Auth., 630 F. Supp. 2d

426, 437-38 (D.N.J. 2009). 5 Schwier and Ingerman rely on

United States v. Welden, 377 U.S. 95 (1964), a case that

exposes the flaws in the Sixth Circuit’s reasoning. In

Welden the Supreme Court explained that when a

Statute at Large takes on a rearranged form in the U.S.

Code, the rearrangement carries no significance. See id.

at 98 n.4. Even for those titles of the Code that

Congress has enacted into positive law, including Title 5,

the Court said any change of arrangement “cannot be

regarded as altering the scope and purpose of the enact-

ment. For it will not be inferred that Congress, in

5

In Dittman v. California, 191 F.3d 1020, 1029 (9th Cir. 1999),

the Ninth Circuit held that “the prohibitions of § 7(a)(1) apply

to all governmental entities, including state and local gov-

ernments,” although it went on to find that § 7 cannot be

enforced through 42 U.S.C. § 1983. The defendants incorrectly

cite Dittman for a contrary proposition.

No. 10-2356 25

revising and consolidating the laws, intended to change

their effect, unless such intention is clearly expressed.”

Id. (quotation marks omitted).6

Following Welden and the Eleventh Circuit’s reasoning

in Schwier, we see no conflict between §§ 3 and 7. As

published in the Statutes at Large, the Privacy Act

6

To appreciate these statements in Welden, some background on

the mechanics of the legislative process may be helpful. After

laws are passed by Congress and signed by the President, they

are published in chronological order in the Statutes at Large,

which serve as “legal evidence” of the law. See 1 U.S.C. § 112;

Mary Whisner, The United States Code, Prima Facie Evidence, and

Positive Law, 101 L AW L IBR . J. 545, 546 (2009) (hereinafter

“Whisner”). But “[b]ecause that chronological arrangement

isn’t efficient for researchers,” the statutes are arranged by

subject matter for publication in the U.S. Code. See Whisner,

at 546; see also 2 U.S.C. § 285b. The Code is generally considered

“prima facie” evidence of the laws, yielding to the Statutes

at Large in cases of conflict. See 1 U.S.C. § 204(a); Whisner,

at 546-47.

In an ongoing process, however, the Office of Law Revision

Counsel has prepared and continues to prepare titles of the

Code for reenactment as positive law by Congress. The positive-

law-codification process is meant to “remove ambiguities,

contradictions, and other imperfections both of substance and

of form,” while “conform[ing] to the understood policy, intent,

and purpose of the Congress in the original enactments.”

2 U.S.C. § 285b(1); see also Whisner, at 553-56. With respect to

those titles that Congress has enacted into positive law, the

Code constitutes “legal evidence” of the law. See 1 U.S.C.

§ 204(a). For a list of these titles, see id. at § 204 note.

26 No. 10-2356

contains eight separately numbered sections, and it

seems clear that when § 3(a)(1) defines agencies as federal

agencies “[f]or purposes of this section,” it refers only to § 3.

(Emphasis added.) Section 3’s subsequent codification at

5 U.S.C. § 552a and § 7’s relegation to the “Historical

and Statutory Notes” in the same section of the Code

cannot change the statute’s meaning. Accordingly, there

is no need to look beyond the unambiguous text of § 7

to determine its applicability. By its express terms, § 7

applies to federal, state, and local agencies.7

2. Enforceability of § 7 Through 42 U.S.C. § 1983

The defendants argue that even if § 7 applies to munici-

pal agencies, Gonzalez cannot use § 1983 to remedy a § 7

violation. As the Supreme Court has explained,

§ 1983 does not provide an avenue for relief every time

a state actor violates a federal law. . . . [T]o sustain a

§ 1983 action, the plaintiff must demonstrate that

the federal statute creates an individually enforceable

right in the class of beneficiaries to which he belongs.

Even after this showing, “there is only a rebuttable

presumption that the right is enforceable under

7

On a similar analysis, we reject the defendants’ attempt to

claim protection under the exemption provided in § 3(j)(2) of

the Privacy Act. That provision states that certain records

“pertaining to the enforcement of criminal laws” may be

“exempt . . . from any part of this section.” (Emphasis added.)

We read the exemption to apply only to the requirements of § 3.

No. 10-2356 27

§ 1983.” The defendant may defeat this presumption

by demonstrating that Congress did not intend that

remedy for a newly created right. Our cases have

explained that evidence of such congressional intent

may be found directly in the statute creating the

right, or inferred from the statute’s creation of a

“comprehensive enforcement scheme that is incom-

patible with individual enforcement under § 1983.”

“The crucial consideration is what Congress intended.”

City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113,

119-20 (2005) (citations omitted). Two questions thus

arise: Does § 7 create individual rights? And even if so,

have the defendants rebutted the presumption that the

individual rights are enforceable under § 1983?

Based on its reading of the statutory text, the district

court concluded that § 7(a)(1) creates an individual

right enforceable through § 1983, while § 7(b)(1) does not.

See Jogi v. Voges, 480 F.3d 822, 828 (7th Cir. 2007) (stating

that there are “two relevant inquiries” for determining

whether a statute confers an individual right: “(1) whether

the statute by its terms grants private rights to any iden-

tifiable class; and (2) whether the text of the statute

is phrased in terms of the persons benefitted”). However,

other courts have disagreed about which parts of § 7,

if any, are enforceable through § 1983. See, e.g., Schwier,

340 F.3d at 1291-92 (holding that all of § 7 can be enforced

through § 1983 but examining only the language of § 7(a));

Dittman v. California, 191 F.3d 1020, 1029 (9th Cir. 1999)

28 No. 10-2356

(holding that § 7(a) is not enforceable through § 1983).8

At a minimum this disagreement suggests that the issue

is not easy. We need not wrestle with it here. The

Privacy Act claims fail for far more straightforward

reasons.

3. Section 7(a) Claim

With exceptions not applicable here, § 7(a)(1) of the

Privacy Act makes it unlawful for an agency to “deny to

any individual any right, benefit, or privilege provided

by law because of such individual’s refusal to disclose

his social security account number.” Gonzalez argues

that the West Milwaukee officers violated § 7(a) when

they asked for his Social Security number and told him

“that he would be incarcerated over the weekend if he

did not disclose the number.”

The factual record simply does not support this claim.

The officers asked Gonzalez for a variety of identifying

information, including his name, date of birth, address,

and Social Security number. Krafcheck testified in deposi-

tion that “[a]ll these things became hard to get from

8

The defendants also cite Polchowski v. Gorris, 714 F.2d 749

(7th Cir. 1983), to support their argument that § 1983 cannot be

used to enforce § 7. Polchowski states that the “comprehensive

private remedies” available under the Privacy Act “appl[y]

only to agencies of the United States Government,” but it is

clearly referring to only § 3, not § 7. See id. at 752. To the

extent Dittman relies on Polchowski, see 191 F.3d at 1028-29,

Dittman is unpersuasive.

No. 10-2356 29

[Gonzalez], and we needed to get that information before

we could . . . let him go.” So Krafcheck told Gonzalez

“something to the effect of, [i]f we can’t get the informa-

tion, you’re going to be here longer than you need to

be.” The officers eventually found Gonzalez’s Social

Security card in his wallet. Gonzalez neither disputes

Krafcheck’s account nor adds additional detail.

Krafcheck’s sparse testimony does not support a § 7(a)

violation. First, there is no evidence that the officers

denied Gonzalez any “right, benefit, or privilege,” or even

threatened to do so “because of” his refusal to disclose

his Social Security number. The officers sought a variety

of basic identifying information from Gonzalez, all of

which proved difficult to obtain. Perhaps they would

have been satisfied had Gonzalez willingly provided his

name, birthdate, and address. Regardless, because the

officers eventually obtained Gonzalez’s Social Security

number from his wallet and promptly released him,

there was no actual “denial” of any right, benefit, or

privilege. The claimed § 7(a) violation is factually unsup-

ported.

4. Section 7(b) Claim

Section 7(b) of the Privacy Act provides that an

agency that “requests an individual to disclose his social

security account number shall inform that individual

whether that disclosure is mandatory or voluntary, by

what statutory or other authority such number is solic-

ited, and what uses will be made of it.” It is undisputed

that when the West Milwaukee officers asked Gonzalez

30 No. 10-2356

for his Social Security number, they did not give him

the information listed in § 7(b).

The omission, however, is covered by qualified immu-

nity. At the time of Gonzalez’s arrest, the officers’ obliga-

tion to make the disclosures specified in § 7(b) was not

clearly established. Our holding that § 7 applies to munici-

palities resolves a question of first impression in this

circuit; the Sixth Circuit has held otherwise. Under

these circumstances it would not have been ” ‘clear to a

reasonable officer that his conduct was unlawful in the

situation he confronted.’ ” Purtell, 527 F.3d at 621 (quoting

Saucier v. Katz, 533 U.S. 194, 202 (2001)). At most

Krafcheck and Donovan made a reasonable mistake;

qualified immunity shields officers from liability for

precisely this kind of error.

Gonzalez also asserted a Monell claim against West

Milwaukee for the alleged § 7(b) violation. See Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). A municipality

can be liable under § 1983 only if its officers acted

pursuant to: (1) an official policy; (2) a practice or custom

that although not officially authorized, was widespread

and well settled; or (3) instructions from a city official

with final policy-making authority. Thomas v. Cook Cnty.

Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2010) (citing

Monell, 436 U.S. at 690). Gonzalez’s claim against West

Milwaukee rests entirely on the officers’ testimony that

they asked for his Social Security number as “part of

the booking process,” and they were “[g]oing down [a]

checklist.” Without more, this snippet of testimony

is not enough for a reasonable jury to find that West

No. 10-2356 31

Milwaukee had an official policy, that the officers were

acting under instructions from a policy-making superior,

or that asking for Social Security numbers without

making the § 7(b) disclosures was a widespread practice

in the West Milwaukee Police Department. The district

court properly granted summary judgment for West

Milwaukee and its officers on the Privacy Act claims.

A FFIRMED.

2-2-12