Friday, October 26, 2012



Nowadays, it is hardly a secret that many internet users spend time looking at “adult content” websites, including lawful, legal adult imagery – in other words, they look at online pornography, or “internet porn”. Well, guess what? Many of these sites use pages and pages of alluring “thumbnails” that, at times, also contain illegal images of child pornography or “kiddie porn,” for short. Other such sites quickly link you to pop-up pages that do the same. Concerning? You bet. That means that if you (“Me? Why, never, of course”) or anyone you know (the “I have a friend…” call) ever takes a quick look at human nakedness on line, at work or at home, there is a risk that an illegal child porn image will have been displayed on your computer. Yep. That can happen. And anything, including each and every such thumbnail image, that is displayed on your PC (or iPad or tablet or iTouch or smart phone) screen is ALSO then stored in the temp or the cache files on that gadget’s hard drive. “X-ing out” of it, or deleting it, or closing the page, or navigating away from it, though, does NOT mean that this possibly unseen but potentially illegal imagery is also no longer “there”. It often is. And it remains even after a cache file or temp file “clean up”, at least if that gadget’s hard drive is ever inspected by a forensic computer expert. 

Scared yet? After all, Halloween and Freakfest are almost here. Read on… because it gets more frightening than that. Well, friends, that is not your only concern. (Or “your friend’s”.) 

You see, last April, the law in Wisconsin changed to require – that’s right, “REQUIRE” – that anyone who knowingly possesses, or in other words, is caught with even one such illegal image on their whatever gizmo, must, repeat MUST, spend three years in prison. Waupun. Dodge. For “kiddie porn.” JUST ONE.

Why should you care? Well, maybe you shouldn't, because maybe you are a member of that population group that is able to avoid simple temptation and therefore does not, never will, and just couldn't look at adult porn. 

But if you are not so disciplined, or in other words, if you are a mere mortal, then you should keep this in mind. You see, there could come a day when an officer calls you, or knocks on your door – or knocks DOWN your door (armed with a search warrant for your PC or other gizmos, and they take them all) – and then manages to find or recover or uncover evidence that your gizmo has illegal child porn imagery on it. This may seem an unlikely scenario, and it may be. But others may also use your PC or other web access device, and what if they do so? Or what if they use your wireless router signal to log on to such sites or worse, real kiddie porn sites? And leave the IP address (your internet access “address”, practically speaking) that is yours and yours alone?? 

There is no simple answer. But there are some basic pieces of advice to heed. 

First, if you think your PC is infected, for goodness sake, don’t take it right down to the police or the local repair shop; they WILL find it and they WON’T believe you when you say you had no idea. Turn off the machine. Call a lawyer who knows what to do. Not a prosecuting attorney, mind you, but a skilled, knowledgeable criminal defense attorney. 

Second, if you actually face possible investigation or, worse, child porn charges, well, then, immediately consult with an experienced criminal defense attorney – one who has handled this situation and these cases in the past. 

Third, do not make any, any, or ANY statements to the police (or to your employer or your ex or your not-so-best friend, if that is who is asking) unless and until you have consulted with an attorney with clear experience in defending these types of cases. Silence is golden here, until you have real legal advice. And it is allowed, too. 

Oh, well, actually, there is one easier, simpler, if less desirable solution. DON’T LOOK AT PORN ON THE WEB. ANY! Yep. That is it. that is your “easy” button. Hmmm…

  • Chris Van Wagner, at Van Wagner & Wood, S.C., Madison, WI (an attorney with vast experience sagely advising folks who have “a friend” who looks at questionable web “stuff” and with even more experience successfully representing folks who are sometimes their own worst enemy, but at other times, wrongly accused.)

Friday, November 4, 2011

When can you pull the gun?

Caller: What is the definition of the word threatened? What does it mean? When can you pull the gun?

If a person is carrying concealed, they will be more likely to use a gun to protect themselves.

There are two elements to self defense. The first is that you sincerely believe that you are in a situation in which you will be killed, nearly killed or very seriously injured. The second is that your belief that you were at great risk was reasonable under the circumstances.

The type of situation then that might give rise to that type of situation for pulling the gun is one in which there is eminent danger such that you believe you will be killed or gravely injured. It means that your life, or the life of someone else in your presence, is in immediate deadly danger.

Every person in possession of a concealed weapon should have a number handy of a criminal defense lawyer who is experienced in both defending people against criminal charges and with Wisconsin's various gun laws so that you can call them if ever you should use your gun to protect yourself.

Carrying Concealed Weapon Law & Protecting Family, Home & Property

Caller: Can I use a gun to protect my family in my home and my property with the new CCW law?

Let’s break that down into two questions. First, does the new concealed carry law allow you to protect your family in your home?

You have always had a right to protect your loved ones in your home. If you are in your home, and someone puts you into a situation in which you believe your life or the life or lives of your family are in peril, in very immediate danger of death or very serious bodily injury, and your beliefs are reasonable under the circumstances, you have a right to defend yourself or another.

Under Wisconsin law, your right to defend yourself by use of up to blunt force is extended to those people in your presence whom are in the same danger. Be careful in how you read this, and know that it is not legal advice. If you are in a situation in which your wife's life, for example, who is lying in bed next to you, or your daughter's life who is in bed in the room across the hall, and a person has placed their lives in immediate danger by pointing a weapon at them with an apparent intent to take their life, your right to defend yourself extends to your right to defend them.

If you are in your home and your home is surrounded by a dozen people even if they are carrying guns, you wouldn't open fire on them; you would call 911. Twelve to one odds are just not good odds to hope to protect yourself against them.

And second, does the new law allow you to protect your property?

Your property includes your home and the land surrounding it, as well as any real or personal items on it. So, your question is if the new law allows you protect personal and real property?

Clearly, the new law isn’t meant to encourage people to patrol their property and shoot anyone that crosses the line, and it isn’t meant to encourage folks to take up weapons to resolve conflicts. The best way to resolve conflicts is to talk through them. It also isn’t wise to brandish a handgun without cause.

The intent of the new law is to allow people to carry a weapon on their person or in their proximity to protect themselves if the situation arises, and we all hope it won’t arise for anyone.

Helpful information:
Self defense
Criminal property damage

Self defense is an affirmative defense, which means that it is an omission to having committed murder which you claim to be a justifiable homicide.

Permits For Prior Law Enforcement Officers

Caller: Will I have an advantage in getting a concealed weapons permit because I have prior law enforcement training?

According to the State of Wisconsin Department of Justice website, prior law enforcement training is one of the criteria for proving that a person has had prior gun safety training.

Notably, there may be instances in which a person with previous law enforcement training might not be able to obtain a concealed carry permit.

Accidental Death with Concealed Weapon Usage

Caller: What happens if you miss and do property damage or kill or injure another person?

If you are going to use a deadly weapon, you must be prepared to defend your actions after the fact.

This BLOG does not provide legal advice, so think of this as fatherly or brotherly advice: if you are ever in any type of situation in which you may be charged for a criminal offense, the first and best act you can take is to contact a criminal defense lawyer and demand to have that lawyer present during all questioning.

Helpful information:
Criminal property damage
Prevention of a felony
Self defense
Intentional vs. unintentional homicide
Negligent homicide

Is an empty gun in a case concealed?

Caller: I have a question about concealed carry. If you have an empty gun in a case, is it still considered to be a concealed weapon if I am in a car with it or walking around with it? Is a fully encased and unloaded weapon still a concealed weapon?

Regardless of whether your handgun is loaded or unloaded, it is still a weapon. If you carrying it concealed, it is a concealed weapon. A weapon in a car's glove box, trunk or under a seat is a concealed weapon. A weapon lying on the seat isn't concealed, but it is a weapon and you are 'carrying a weapon' if it is within your proximity. Even fully disassembled weapon has been considered to be a weapon by the Supreme Court.

Notably, you might not want to cruise around with a gun on your front seat.

Carrying Concealed in a Vehicle

Caller: Can I carry concealed in a vehicle?

If you have a license to carry a concealed weapon, it applies to carrying a concealed weapon in your vehicle.

Under Wisconsin laws, you can be charged with carrying a concealed weapon if you do not have a license to carry a concealed weapon and the weapon is concealed in your vehicle, in the glove box, under the seat, in the truck or on your person.

Wisconsin's Carrying a Concealed Weapon law does not apply to long guns or sawed off guns; it only applies to handguns and the right to carry a handgun in a concealed manner.

Using Your Carrying Concealed Weapon License

Caller: If you have a CCW license, do you have to use the license when carrying?

If you are walking down the street and someone sticks you up, and you realize that you need to pull out and use your gun or be killed, if you reasonably fear serious bodily injury or death, you are then entitled to use blunt force to protect yourself including mortal force. There is no duty to retreat in Wisconsin.

You don't have to talk to anyone, including police, without your lawyer present. Having your attorney present is your Constitutional Right; assert it in all instances in which any law enforcement agent wants to question you. You can say, "I will be happy to answer your questions, but I need to get my lawyer here for that." If you use your weapon - even justifiably, you should have your lawyer present in answering questions.

If police ask to search you, you need not consent to the search. You may not want to consent to the search for various reasons such as if there might be contraband in a pocket that you aren't aware was placed there.

If you have used your weapon even in self defense, you should immediately contact your lawyer before notifying police.

The simple act of pointing a gun has been charged as reckless endangerment in the state of Wisconsin and most notably in Madison. You should not speak with law enforcement without your attorney present.
If you plan to apply for a concealed weapons permit and carry a concealed weapon, you should also carry the name and number of your criminal defense lawyer for situations that might arise.

Van Wagner & Wood can be contacted 24 x 7 x 365 by calling the main telephone number (608-284-1200 or 1-866-262-4599). If you call after regular hours, please clearly state your name, number and message.

Carrying Concealed Weapon: Use & Judges

Who decides who will judge you? The caller states, "If I use my concealed weapon, who will judge whether it was reasonable?"

If you are charged with a crime - a homicide in the context of the caller's question - you have a right to face your accusers and to have a decision made about the reasonableness of your actions (which ultimately determines whether you are found guilty or not guilty of the criminal charge or charges), and you have a right to a trial by a jury.

The term 'a jury of your peers' often leads people to believe that the jurors will be people of like interests and concerns. But the reality is that the jury of your peers in Madison, Wisconsin, for example, aren't going to be 12 members of the NRA, like you; they'll be a mix of men and women, old and young, some tied to the University and the vast majority from within the confines of the belt line.

Helpful information:
National Rifle Association
Wisconsin Criminal Defense Lawyers

Carry Concealed with Florida permit?

Can I carry concealed in the state of Wisconsin if I have a concealed carry permit from Florida?

No. According to the State of Wisconsin Department of Justice website, Wisconsin does not recognize permits from any other state. Any person who wishes to carry concealed within the state of Wisconsin must apply for, be granted and carry a permit issued by the state of Wisconsin before they carry concealed.