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Craig Mastantuono Nov. 30, 2012

Tow Operator Won’t Be Charged: He was arrested after robbery suspects shotBy Gitte Laasby, Journal SentinelApril 19, 2011

A tow truck driver who shot two men suspected of robbing him will not face charges for carrying a concealed weapon, the Milwaukee County district attorney’s office announced Tuesday.

“We look at the fact that this was a citizen placed in great danger by the conduct of others and he was forced to make a choice to use self-defense,” said Kent Lovern, a spokesman for the district attorney’s office. “Those facts really predominated our decision-making.”

The 28-year-old tow truck driver was called to the 9300 block of W. Silver Spring Drive on the city’s northwest side to tow a car around 12:30 p.m. Friday when two men robbed him at knife point, police said. After handing over money, the driver struggled with the assailants, who cut him with a knife. The driver then took out a gun and shot both of the men, 18 and 22. The shooting victims suffered non-life-threatening injuries, police said.

Lovern said the district attorney expects to issue charges against the robbery suspects Wednesday.

But the driver will not be charged with a misdemeanor because he acted “lawfully in self-defense,” Lovern said. That’s although Wisconsin, Illinois and the District of Columbia are the only places in the nation where it’s illegal to carry a concealed weapon, according to the National Rifle Association.

“It’s certainly a violation of the law. You end up balancing the conduct of the victim, mere possession of the weapon, with the reason why the weapon was ultimately used,” Lovern said. “The statute itself does not contain language that would contain a right of self-defense. But in a case like this, you have to look at the totality of facts and make an equitable consideration of, what is someone allowed to do in order to prevent use of force against them?”

To attorneys and activists, the case raises a problem of inconsistency in state law when it comes to gun rights.

About five years ago, Milwaukee criminal defense lawyer Craig Mastantuono was faced with a similar situation when he represented pizza deliverer Andres Vegas, who shot two would-be robbers in a seven-month period. Mastantuono successfully had Vegas’ confiscated guns returned to him. But the Wisconsin Supreme Court wouldn’t review the state’s age-old general ban on concealed weapons, which Mastantuono said is unconstitutional because it conflicts with Wisconsin’s 1998 constitutional amendment affirming the right to bear arms for self-defense and security.

“You can’t have a general ban saying under no circumstance can anyone carry in concealed fashion, and then have a constitutional right to carry arms for security and defense. It creates confusion for people and it gives prosecutors all the power. So it’s real murky waters,” especially for people who work dangerous jobs and want to carry guns for protection, he said.

“They put themselves at risk and carry an arm for purposes of security. The only reason this guy isn’t prosecuted is because he was being robbed. If he’d just been pulled over (by police) he would have been prosecuted.”

Mastantuono argues that complicates the decision as to who gets charged with a crime and who doesn’t and leaves citizens confused about what is and is not allowed.

The state Legislature passed concealed-carry bills in 2003 and 2006, but Gov. Jim Doyle vetoed them, said Nik Clark, president of the pro-concealed-carry group Wisconsin Carry Inc.

He said solving the issue would require repealing the concealed carry ban and the vehicle-carry statute. Clark said his group is working with tea party members and Republican legislators to get another concealed carry law passed.

Other states either authorize a permit to carry concealed weapons, or have enacted carry-concealed statutes with explicit exceptions for specific locations or circumstances, Mastantuono said.

“This issue is going to keep arising,” he said. “I don’t know that changing the law and allowing for concealed carry will deter robbery attempts, but it will clarify the law for those who put themselves in risky employment situations.”