Foster Parents Largely Win Wisconsin Second Amendment Case

From the 36K-word decision in Laffery v. Pertl, by Wisconsin Court of Appeals Judge Maria Lazar, joined in part by Judges Lisa Neubauer and Mark Gundrum:

Appellants and foster parents, Brian and Katie Lafferty appeal the circuit court’s order on cross-motions for summary judgment executed in favor of respondents Jeff Pertl and Julie Driscoll as well as the court’s decision and order denying the Laffertys’ motion for a protective order. The Laffertys have been seeking to exercise their state and federal constitutional rights for five years while the Wisconsin Department of Children and Families (DCF) and Washington County Human Services Department (the County) have dithered, moved the goal posts, and changed the rules of the game every step along the way.

The Laffertys’ current appeal challenges several regulations … regarding the renewal of their foster home license, which they contend are facially unconstitutional. In 2020, Washington County began to require compliance with additional restrictions before a license could be renewed, including: (1) a storage requirement that mandated firearms be stored, in a location not readily accessible to children, locked and unloaded in the home and in a separate location from ammunition; (2) a carry ban that prohibited a foster parent with a conceal carry license from carrying a weapon in the presence of foster children; and (3) a disclosure requirement that mandated foster parents must list all firearms currently (and some formerly) owned, and to identify their locations and the separate location of ammunition. The Laffertys assert that the circuit court erroneously granted summary judgment against them on procedural grounds, and that the various rules and regulations imposed upon them by the County and/or the DCF violate their federal and state constitutional Second Amendment rights.

The DCF disputes all of the Laffertys’ arguments and further asserts the Laffertys waived their Second Amendment challenges when they sought to become foster parents. Due to the complexity of the issues presented, in mid-December 2025, we set the matter for an oral argument to be held in February 2026. Seven days before that argument, DCF’s counsel wrote to advise this court that the administrative rule at issue had been amended three months earlier, effective December 1, 2025. The DCF asserted the appeal was now moot.

We immediately cancelled the oral argument and ordered supplemental briefing to determine what issues, if any, remained for this court to resolve. The Laffertys assert the rule amendment does not render this appeal moot and that their rights were and are still being violated. The DCF asserts that there is at least one issue that requires our resolution. We agree that viable issues remain before this court; therefore, this appeal is not moot.

As to the merits presently before us, we conclude the Laffertys did not waive their constitutional rights by volunteering to serve as foster parents. We further conclude the disclosure requirement and discovery demands were overly broad and impermissible. However, we also conclude the most recent rule change eliminates some of the Laffertys’ complaints, especially with respect to concealed carry and storage requirements. We also conclude the requirement that foster parents’ firearms be stored unloaded as a condition of obtaining a foster parent license violates both the federal and state constitutions and must be struck from the administrative rule.

Finally, we conclude the DCF’s belated notice to this court of the administrative rule change, mid-stream and mere days before the oral argument date, raises serious concerns that we address below….

A few very brief excerpts from the very long opinion:

While we acknowledge that foster parents do knowingly and voluntarily waive some aspects of their constitutional rights, most especially the right to the privacy of their hearth and home by which they allow the State to determine that the premises are appropriate for the State’s wards (the prospective foster children), we do not agree that the circuit court was correct when it determined the Laffertys had waived significant parts of their Second Amendment rights when they agreed to serve the community and State as foster parents. To the contrary, they signed under protest and “picked a fight.” The waiver of that benefit is not reasonably related to any benefit received. The harm to the Laffertys, and all foster parents, outweighs the DCF’s interest in enforcing an overarching waiver of the Second Amendment right in these circumstances….

There is still some confusion as to what precisely is now required to store a firearm in a foster home. A review of the rule sets out the basic requirements. First, it must be unloaded. It must be locked in an area that is not readily accessible to foster children. Then, the foster parent has two options: (1) store ammunition in a separate, locked container or store ammunition in the same container as the unloaded firearm but with an engaged trigger lock or engaged cable lock on the unloaded firearm …; or (2) store both the ammunition and the unloaded firearm in a locked, steel gun safe “with a secure functioning biometric, electronic, or combination locking mechanism” ….

The option that would, apparently, lead to the quickest time to retrieve and load the firearm when needed appears to be under [a provision that] allows for an unloaded firearm and ammunition to be stored together, but in an appropriate gun safe. Such a gun safe is clearly an area that is not readily accessible to children….

[W]e conclude that the most reasonable reading of the new rule requires only one locked area, that the steel gun safe restriction is not a [required] secondary safety measure, and that the steel gun safe restriction fulfills the requirement for storage where the firearm is locked and inaccessible to foster children even if the safe is not located in some other locked “area.” And, because the Laffertys have waived their arguments against having only one lock, we need not apply the Bruen-Wolford test, and we need not consider whether historical analogues allow for this restriction. That is left for another day, for another lawsuit….

[But] the current administrative rule’s restriction that firearms must be stored unloaded in a foster home is unconstitutional …. [Many details on this, as on other matters, omitted. -EV]

The majority also disapproved of the trial court’s having enforced DCF’s discovery request that, “[f]or every firearm You have owned since You were first licensed as a foster home, state the make and model, caliber, year purchased, and whether you still own that firearm.”

Judge Neubauer concurred in part and dissented in part:

The majority concludes that foster parents cannot waive the rule that they may keep their firearms together with ammunition, but unloaded. The Laffertys contend that even when foster parents obtain a license to share the state’s responsibility to care for and protect foster children, they cannot be required, as a condition, to delay loading their firearm for a few seconds. It is undisputed that an adjacent preloaded magazine can be combined with a handgun and prepared for firing in three to four seconds.

The limited, narrow, and common-sense condition is directly related to the granting of a foster care license, which imposes many safety requirements on foster parents because of the state’s legitimate interest in placing foster children in safe homes. {A Foster care license is a contract that requires adherence to various safety conditions to protect the children who are in the state’s custody and care.} The rule is reasonable as it seeks to protect our most traumatized and vulnerable children from accessing firearms and injuring themselves and others. The circuit court did not err in addressing the cross-motions by granting the Respondents’ motion for summary judgment, and I would not reverse the judgment….

Judge Gundrum concurred in part and dissented in part, as to the interpretation of the locked storage container requirement.