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Lying in Official Statements Likely to Become a Crime in Tosa

Ordinance matches state law and is intended to keep sellers of stolen goods from escaping the net of justice when a district attorney declines to prosecute.

What, you didn't know it was OK in Wauwatosa to lie outright in a sworn public statement?

Well, it isn't, really. There's a state law against it, and as part of the state, Tosa is covered.

The problem is, sometimes the state considers such "false swearing" to be potatoes too small to bother prosecuting or too difficult to prove in court.

So, the Wauwatosa Police Department wants the city to adopt a version of the state statute into its own Municipal Code, which will allow police to issue a municipal citation with fines, rather than having to request state charges that very possibly wouldn't be pursued.

The main target of the ordinance is those who sell goods to licensed secondhand dealers after signing a statement swearing the property is theirs, when they know or should have known it was stolen.

Tightening up on the secondhand circle

Wauwatosa and many other communities have in the past few years adopted stricter ordinances governing secondhand dealers, requiring an additional permit for the practice, filing online reports of property they take in, and, as noted, requiring sellers to sign statements, etc., all to try to recover stolen property and solve crimes of theft and burglary.

But the weakness in any ordinance governing the law-abiding dealer is that it cannot account for the mendacity of the seller. A perfectly honest dealer can follow every step of the law and still find him- or herself holding stolen property. All it takes is for the seller to sign his or her name to a bald-faced lie.

So, throw the book at 'em!

It often doesn't work that way.

In a recent incident – the one that prompted the police to ask for a local ordinance – the Oconomowoc Police contacted Wauwatosa to report that they had matched serial numbers of a stolen laptop computer to a laptop recently sold at a Wauwatosa secondhand game store.

The police determined that the seller had made a false statement when he completed required paperwork certifying that that the item belonged to him and was not stolen or believed to be stolen.

The seller, in this case, walks off

State law criminalizes that conduct and can be prosecuted only on behalf of the state by the Milwaukee County district attorney.

However, under certain circumstances the district attorney’s office will not prosecute false swearing violations. The police officer in this case found that the district attorney’s office would not prosecute it as a criminal matter, and he could not identify any Wauwatosa ordinance violations that would cover it.

Having a local ordinance against false swearing would also streamline strapped police operations. Every time the Wauwatosa Police Department wants to request state criminal charges, a police officer has to appear at the district attorney's office and make the case.

If the DA declines to issue charges, that time has been wasted. And if charges are filed, police officers may have to appear in court, sometimes repeatedly.

The Wauwatosa Police Department says that other municipalities routinely issue municipal citations for false swearing violations. Greenfield police, they say, often issue citations for false swearing violations because the city hosts a large number of secondhand dealers in gold, jewelry and coins.

A municiapal citiation is a ticket, issued at the police station, with a bail amount set against a promise to appear in Municipal Court and, if found guilty, pay a fine. Failure to appear will result in forteiture of bond and a warrant for arrest.

Language of the laws on lying

Secondhand dealers provide a form to a customer which requires the seller to certify that he or she is the legal owner and that the item was not found or stolen. The form states if the seller is providing a false statement, he or she can be charged under the false swearing statute, § 946.32(2), which provides:

"(2) Whoever under oath or affirmation or upon signing a statement pursuant to s. 887.015 makes or subscribes a false statement which the person does not believe is true is guilty of a Class A misdemeanor."

A Class A misdemeanor is a serious matter, the last stop short of a felony charge. It is punishable by up to nine months in jail and up to $10,000 in fines.

But in a place like beleaguered Milwaukee County, DA's often haven't the time or inclination to form the burden of proof necessary to persuade a judge or jury that someone selling a used laptop knew it was stolen and lied when he said so.

A Municipal Code violation will not punish so severely – we don't have a City Jail – but it will be like putting a mark on someone as a known fence, and repeated violations at the municipal level could make a stronger case for state criminal charges later.

Penalties for a violation of a Municipal Code ordinance against false swearing have not yet been set.

Here is the full, proposed language of the ordinance:

"Part I. Section 7.94 of the Wauwatosa Municipal Code is hereby created to read as follows:

"No person shall do any of the following:

"1.) Under oath, or affirmation, or upon signing a statement, make or subscribe a false statement which he or she does not believe is true when such oath, or affirmation, or statement is authorized or required by law, by a public office, or governmental agency as a prerequisite to such officer or agency taking some official action.

"2.) Make or subscribe two inconsistent statements under oath or affirmation, in regard to any matter respecting which an oath, affirmation, or statement is authorized or required by law or is required by any public officer or governmental agency as a perquisite to such officer or agency taking some official action, under circumstances which demonstrate the witness or subscriber knew at least one of the statements to be false when made.

"3.) Under oath, or affirmation, or upon signing a statement, make or subscribe a false statement which the person does not believe is true.

"Part II. This ordinance shall take effect on and after its date of publication."

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