Court upholds town ban on ‘scare guns’

Yet another court case has ended in a decision against two Trempealeau farmers who have for years attempted to establish a right to use bird “scare guns” on their farm.

The Wisconsin Court of Appeals last Tuesday said that Trempealeau Circuit Court Judge Rian Radtke ruled correctly in 2019 that Wendell and Carlton Klein must abide by a town ordinance banning the devices.

It was the second time the state appeals court ruled against the brothers. In 2014, the court upheld a then-township ordinance attempting to regulate the propane-powered cannons. It was not immediately clear what last week’s ruling might mean for the 69 violations of the ordinance filed by the town in 2017 against Carlton Klein for ignoring the ban.

The appeals court noted that the most recent case is the “third civil lawsuit between the parties regarding an ordinance banning the use of scare guns” yet the “Kleins argue they never received their proverbial day in court.”

In their arguments to the appeals court, a three-judge panel said “the Kleins fail to appreciate the circuit court’s lengthy decision in the (2014) matter.

“The court determined that the scare gun ordinance did not constitute a regulatory taking because the Kleins were still able to use their property for numerous purposes,” the court said. “(The 2014 decision) also concluded the ordinance was not arbitrary and capricious because the Town had validly set forth its purpose, authority and findings that scare guns are harmful to the public’s health, safety, and welfare.”

Besides the civil cases, Carlton Klein was found guilty of misdemeanor disorderly conduct in 2017 after he threatened sheriff’s deputies and township board members who were attempting to serve notice of a violation on the scare gun ban.

The Kleins have argued that they need to use the guns, as they have since 1964, to protect their crop from birds that gather in a nearby preserve. As housing developments grew around the Kleins’ farm, the residents began objecting to the loud guns. The conflict between the Kleins and residents grew tense as residents claimed the brothers threatened and harassed them. The town board in 2017 voted to bar the guns outright, setting off the latest round of conflicts and suits.