On Point

COA issues 2nd Amendment decision on gun rights of foster parents

Brian Lafferty and Katie Lafferty v. Jeff Pertl and Julie Driscoll, 2025AP414, 7/31/26, District II (recommended for publication); case activity

In one of the first published Wisconsin cases to apply SCOTUS’s evolving precedent on firearm possession, COA holds that at least some regulations placed on foster parents to limit access to firearms went too far.

Brian and Katie Lafferty are foster parents licensed by DCF who have had several children placed with them. They are also gun owners, with Brian possessing a concealed carry permit. (¶8). DCF’s administrative rules have historically required firearms to be unloaded and kept safely inaccessible from children and the Laffertys initially agreed to those restrictions when they sought and obtained their license. (¶14). In 2020, County advised the Laffertys, via a form, that they would not be permitted to carry a concealed weapon in the presence of a foster child. (¶15). That form kicked off contentious litigation between DCF and the Laffertys which resulted in an appeal that was upended when SCOTUS changed the rules of the game via its Bruen decision in 2022. (¶27). After a remand for the circuit court to apply that standard to this case, COA encounters a complicated appeal presenting the following issues:

The County Form 

First, as to the use of the form appearing to restrict the concealed carry of a firearm, COA notes that almost all of the regulations challenged in this appeal have been modified, largely as a result of this litigation. (¶52). The form that triggered this litigation, for example, was based on a rule that was repealed in 2025. (¶55). The Laffertys claim, however, that the doctrine of “voluntary cessation” is an exception to mootness. (¶53). They argue that the County may resurrect the restrictions it has repealed in order to try and avoid an adverse litigation outcome. (Id.). COA disagrees, calling the Lafferty’s arguments speculative and stating that it is unwilling to “join the Laffertys’ speculative parade of horribles.” (¶58).  (COA returns to this issue later in the decision, asserting that the carry ban which is challenged here is no longer legally operative.)

Waiver

Of course, the Laffertys agreed to restrictions on firearm possession when they voluntarily chose to become foster parents. For that reason, the respondents argue that the Laffertys waived their right to now challenge these restrictions. COA is unsympathetic to this argument and states that these restrictions were provided on a “take-it-or-leave-it basis.” (¶62). In COA’s view, waiver requires “an affirmative signal of abandonment” and merely staying silent or choosing not to “pick a fight” is not equivalent to waiver. (¶64). However, while COA agrees that foster parents waive a number of constitutional rights–including their right to privacy within their own home–it holds that the Laffertys did not waive their Second Amendment rights here. (¶76).

New Storage Requirements 

While this appeal was pending, DCF revised its firearm storage requirements. (¶87). The rule reads as follows:

(3) SAFE STORAGE OF FIREARMS. A foster parent who is not actively using, transporting, or cleaning a firearm, or exercising their right to carry a concealed handgun under sub. (5), shall store the firearm as provided in par. (a) and either par. (b) or (c) as follows:
(a) Unloaded and locked in an area that is not readily accessible to a foster child.
(b) With one or more of the following secondary safety measures used:
1. Ammunition is locked in a container separate from the firearm.
2. Trigger lock is engaged on the firearm.
3. Cable lock is engaged on the firearm.
(c) In a gun safe made of steel with a secure functioning biometric, electronic, or combination locking mechanism that is designed to store firearms and ammunitions. Ammunition may be locked in the gun safe with the firearm.

(Id.).

For starters, the parties disagree on what this rule requires, with the Laffertys reading the text to require an onerous “two lock” restriction. (¶90). COA, however, concludes “that the most reasonable reading of the new rule requires only one locked area, that the steel gun safe restriction is not a 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.” (¶95). Only one lock, under COA’s reading, is required and the Laffertys have waived their Bruen challenge to that restriction, so this issue is left for another day. (Id.).

Unloaded Firearm Restriction

Finally, COA addresses that portion of the rule requiring that gun be stored unloaded. (¶98). It finds that DCF has failed to prove that this restriction is consistent with the historical tradition. (¶106). To get there, it first disposes with DCF’s historical expert, whose resume indicates a “preference” for gun-control, which proves his apparent bias and unreliability. (¶107). Early-American rules about gunpowder storage, meanwhile, are insufficiently analogous. (¶115). Next, DCF claims that “early American regulations restricting minors from accessing firearms or prohibiting students from keeping firearms on college campuses are sufficient historical analogues to justify requiring unloaded firearms in foster homes.” (¶116). It presented an expert, who opined about the tremendous trauma suffered by foster children and who therefore indicated that this militated in favor of ensuring a “safe and supportive” environment for such children. (¶117). While “sadly interesting and relevant to why the restriction may have been proposed” COA essentially holds that this is irrelevant to its historical analysis. (Id.). COA also references the statistics about harm to children caused by firearms in the home (including the many accidental shootings) but also holds those statistics carry “little persuasive weight.” (¶118).

DCF’s reliance on laws restricting firearm possession by minors also fails, as it “cites very few laws, and those laws it does cite do not mention foster children, and–most significantly–they do not mention unloaded firearms.” (¶120). COA also holds the “sensitive places” doctrine is not one that it needs to address in this appeal. (¶121). Ultimately, COA agrees with the Laffertys that this restriction imperils their effective right of self-defense and therefore finds that this portion of the administrative rule is unconstitutional. (¶125).

Judge Neubauer dissents, holding that the Laffertys waived their challenge when they agreed to this reasonable restriction on their firearm rights and explicitly discusses what she views as the very real risks of firearms in the home for children. (¶180). Judge Gundrum, meanwhile disagrees with the majority’s reading of the storage restrictions, and envisions a vivid and dramatic scenario in which the foster parent’s attempt to stealthily and effectively draw down on home invaders under cover of darkness will be frustrated by these requirements. (¶203). He does not discuss the risk to children posed by such firearms in the home.