- Associated Press - Tuesday, May 17, 2016

MADISON, Wis. (AP) - A man who was walking near a school with a semi-automatic AR-15 rifle on his shoulder and a handgun in a holster had his loitering conviction overturned Tuesday by a Wisconsin appeals court, a victory for open carry advocates.

The 3rd District Court of Appeals ruled that the case against Mark Hoffman should have been dismissed because the evidence suggested the only reason he was stopped by police was because of the guns. While it may be alarming to see someone openly carrying firearms, Wisconsin state law allows it as long as there is no evidence of criminal or malicious intent, the appeals court said.

Hoffman, 26, was walking around the Village of Somerset in July 2013 with the guns and a hidden voice recorder. It was about noon and children were present at a school near there.

Police responded to calls from concerned village residents and questioned Hoffman. He refused to identify himself or say what he was doing. Police cited him for loitering and obstructing an officer.

A municipal judge tossed the obstructing charge, but said police had reasonable suspicion to stop and question Hoffman. He appealed to the circuit court, where a jury found him guilty of loitering and fined him $195.90.

One witness testified about his concern in seeing Hoffman with the guns.

“Well, I mean, you see everything in the news of … bad stuff happening, and you see something like that and it just causes red flags to go up,” the appeals court quoted him as saying.

None of the five witnesses, however, said they noticed Hoffman acting with malicious intent.

On appeal, prosecutors argued that Hoffman having a concealed tape recorder proved he was expecting police to confront him and that he had malicious intent.

The three-judge panel of the appeals court said in its unanimous ruling that it understood the concerns of people who contacted police. However, the panel said it was bound by state law that allows for people to openly carry weapons.

“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,” the court said. “However, we are bound to follow the dictates of the legislature in applying (the law).”

Hoffman was defended by Georgia attorney John Monroe, who handles cases for gun rights group Wisconsin Carry. Monroe said he hopes the case sends a message to municipalities around the state that just carrying a firearm isn’t reason to cite someone for a criminal offense.


Follow Scott Bauer on Twitter at https://twitter.com/sbauerAP and find more of his work at https://bigstory.ap.org/content/scott-bauer .

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