SB214: Bill Text Engrossed

LRB-3596/1

MGD&CMH:all:ch

2003 - 2004 LEGISLATURE

Engrossed 2003 Senate BILL 214

October 31, 2003 - Printed by direction of Assembly Chief Clerk.

SB214-engrossed,2,2 An Act to renumber and amend 29.091, 29.621 (4), 941.23, 941.235 (2) and 943.13 (2); to amend 23.33 (3) (e), 29.089 (2), 51.20 (13) (cv) 4., 51.20 (16) (gm), 51.30 (3) (a), 165.82 (1) (intro.), 165.82 (2), 175.35 (1) (at), 175.35 (2) (d), 175.35 (2g) (c) 4. a. and b., 175.35 (2k) (ar) 2., 440.26 (3m), 813.12 (6) (am) 1., 813.12 (6) (am) 2., 813.122 (9) (am) 1., 813.122 (9) (am) 2., 813.125 (5r) (a), 813.125 (5r) (b), 885.235 (1g) (intro.), 938.396 (8), 941.20 (1) (a), 941.20 (1) (b), 941.295 (2) (d), 943.13 (1m) (b) and 943.13 (3); and to create 29.091 (2), 29.621 (4) (b), 55.06 (17) (d), 59.25 (3) (u), 165.25 (11), 167.31 (4) (ar), 175.35 (1) (am), 175.50, 885.235 (1g) (e), 938.396 (8m), 941.20 (1) (bm), 941.23 (1) (a), 941.23 (1) (b), 941.23 (1) (c), 941.23 (2), 941.235 (2) (c), 941.237 (3) (ct), 941.295 (2g), 941.295 (2r), 943.13 (1e) (bm), 943.13 (1e) (g), 943.13 (1m) (c), 943.13 (2) (bm), 946.32 (3), 948.605 (2) (c) and 948.61 (3m) of the statutes; relating to: carrying or going armed with a concealed weapon, background checks for handgun purchases, requiring the exercise of rule-making authority, providing an exemption from rule-making authority, and providing penalties.

Analysis by the Legislative Reference Bureau

Engrossment information:

The text of Engrossed 2003 Senate Bill 214, as passed by the senate on October 23, 2003, consists of the following documents adopted in the senate on that date: Senate Substitute Amendment 2, as affected by Senate Amendment 1 (as affected by chief clerk's corrections and Senate Amendment 1 to Senate Amendment 1), Senate Amendments 2, 4, and 22, and Senate Amendment 48 (as affected by chief clerk's correction).

Content of Engrossed 2003 Senate Bill 214:

Current Law

Under current law, no person other than a peace officer may go armed with a concealed and dangerous weapon. The "going armed with" language applies to, among others, cases in which a person is carrying a concealed weapon but has not gone and is not going anywhere with it and cases in which a weapon is readily accessible to — but not physically carried by — a person in a car. A person who violates the prohibition on going armed with a concealed and dangerous weapon may be fined not more than $10,000 or imprisoned for not more than nine months or both. But under State v. Hamdan, 2003 WI 113, __ Wis. 2d __, it is unconstitutional to apply this prohibition to a person carrying a concealed weapon at his or her own business when: 1) the person's interest in carrying a concealed weapon substantially outweighs the state's interest in enforcing the concealed weapons law; 2) the person has no other reasonable means to keep and handle the weapon; and 3) the person is not motivated by an unlawful purpose in concealing it. The Hamdan court also indicated that the constitutional right to keep and bear arms for security must permit a person to carry a concealed weapon under certain circumstances in his or her own home.

Current law prohibits, with certain exceptions, going armed with or possessing a firearm in a number of places, such as in a public building, tavern, state park, or wildlife refuge or within 1,000 feet of the grounds of a school. Current law also prohibits, with certain exceptions, carrying a loaded or unencased firearm in an automobile, motorboat, or airplane. Moreover, no person may operate or go armed with a firearm while under the influence of alcohol, a controlled substance, or any other intoxicant. A person who violates one of these prohibitions is subject to civil or criminal penalties.

Carrying a concealed weapon in your own home or business

This bill permits a person to go armed with a concealed and dangerous weapon in his or her own home or place of business or on land that he or she owns, leases, or legally occupies, unless the person is prohibited under federal or state law from possessing that weapon (prohibitions that apply to firearms if, among other things, the person has been convicted of a misdemeanor crime of domestic violence or a felony; the person unlawfully uses a controlled substance; the person has been involuntarily committed to a mental health facility; or the person is subject to a stalking, harassment, or domestic abuse restraining order or a harassment, domestic abuse, or child abuse injunction).

Licenses to carry a concealed weapon

This bill creates a procedure by which a person may apply to a county sheriff for a license to carry a concealed weapon more generally. The license authorizes a person to carry (defined in the bill to mean to go armed with) a concealed weapon (defined in the bill as a handgun, a stungun, a tear gas gun, a knife other than a switchblade, or a billy club) anywhere in this state except in particular places specified in the bill. These specified places include a police station, sheriff's office, or state patrol station; a prison or jail; a tavern or a restaurant with a liquor license (unless: 1) the person owns or manages the tavern or restaurant; 2) the person is otherwise authorized to possess a handgun at the tavern or restaurant; or 3) the sale of alcohol accounts for no more than 50% of the tavern's or restaurant's receipts); a school administration building; an airport; a building used for religious purposes, for child care, or by a domestic violence services program or a hospital (unless the owner or authorized representative permits a person to carry a concealed weapon there); a building located on a college or university campus; a kindergarten facility; a building owned by the state or a local government if the building provides electronic screening and locked storage for weapons; and any place in which federal law prohibits the carrying of a weapon.

In addition, the bill permits a business owner or person in his or her own home to prohibit a licensee from carrying a concealed weapon into the business or home. A business owner, however, may enforce this restriction against an individual only if he or she has posted a notice regarding the restriction in a prominent place and has personally and orally notified the individual of the restriction. Moreover, a private employer may prohibit an employee from carrying a concealed weapon in the course of the employee's employment unless the employee is in his or her own vehicle.

The bill also prohibits any person from carrying a concealed weapon while having a blood alcohol concentration that exceeds 0.08. A law enforcement officer who arrests a person for violating that prohibition or for carrying a concealed weapon while under the influence of an intoxicant may require the person to submit to a breath, blood, or urine test to detect the presence of alcohol, controlled substances, or any other intoxicant.

In addition to authorizing licensees to carry concealed weapons, the bill exempts licensees from the prohibition on possessing firearms in a school zone under certain circumstances. Specifically, the bill authorizes a licensee to carry a handgun in a school zone if: 1) the licensee is in a motor vehicle or on a snowmobile or bicycle; 2) the licensee has exited from a motor vehicle and is encasing the handgun or storing it in the motor vehicle; or 3) the licensee is traveling directly between any two of the following places: any person's private property, the licensee's place of employment or business, or a place outside of the school zone. This exemption does not apply if the licensee is on the school grounds.

Licensing requirements and procedure

Under the bill, a county sheriff must issue a license to carry a concealed weapon to a person who meets the qualifications established in the bill for the license unless a court (in a procedure described below) has authorized the sheriff not to issue the license or unless the county board of the sheriff's county decides by a two-thirds vote, taken before the fourth month after the bill becomes law, to authorize the sheriff not to issue concealed weapons licenses. The county board's vote does not prohibit the sheriff from issuing licenses; he or she may still choose to do so. The bill also allows two or more sheriffs to enter into cooperative agreements under which the sheriffs may jointly issue licenses to carry a concealed weapon or exercise their other responsibilities under the bill.

The bill specifies the requirements that a person must satisfy to qualify for a license to carry a concealed weapon. Included among the requirements are the following: 1) he or she must be at least 21 years old; 2) he or she must not have a physical disability that prevents him or her from safely handling a weapon; 3) he or she must be eligible to possess a firearm under federal law; 4) he or she must not be prohibited from possessing a firearm under state law due to a felony conviction, a juvenile delinquency adjudication, an order issued in a civil commitment case, or any other order prohibiting the person from possessing a firearm; 5) he or she must not have been committed for the treatment of drug dependency during the preceding three years; 6) he or she must not have been convicted of an offense relating to controlled substances during the preceding three years; 7) he or she must not chronically or habitually use alcohol or other substances to the extent that his or her normal faculties are impaired; 8) he or she must have successfully completed a firearms training or safety course or class covering certain topics specified in the bill (unless the sheriff determines that the person should be exempt from that requirement based on his or her military training or experience in shooting competitions); 9) he or she must not have been subject to a finding of incompetency, the subject of a protective placement as a minor based on a developmental disability, found not guilty of a crime by reason of mental disease or mental defect, or involuntarily committed for treatment of mental illness during the preceding five years; 10) he or she must not have been convicted of one of a set of specified misdemeanors or serving a sentence for committing such a misdemeanor within the preceding three years; and 11) he or she must be a Wisconsin resident.

In addition, the bill requires the Department of Justice (DOJ) to conduct a background check of a person who applies for a license to carry a concealed weapon to help determine the person's eligibility for a license. The background check requirement does not apply to a person applying for a license if the person is a law enforcement officer, a correctional officer, a probation and parole agent, or a person holding a current certification from the law enforcement standards board.

If the sheriff determines that an applicant for a license is ineligible under one of these requirements, the sheriff must deny the person's application. Otherwise, the sheriff must issue the person a license within 30 days of receiving the completed application, but with one exception. If an applicant committed a misdemeanor described in item 10) above that, because of the passage of time, no longer disqualifies him or her from obtaining a license, and the sheriff believes that the person would pose a substantial risk to others if he or she were granted a license, the sheriff may petition the circuit court to enter an order barring the person from receiving a license. The court may enter the order only if it determines, by clear and convincing evidence, that the person would pose a substantial risk to others if he or she were granted a license.

Furthermore, the bill does all of the following:

1. Allows a sheriff to issue an emergency license to an individual if the sheriff determines that immediate licensure is warranted to protect the individual from death or great bodily harm.

2. Provides that a license to carry a concealed weapon is valid for five years and establishes a renewal procedure that includes a background check of the person renewing the license.

3. Requires a sheriff to revoke a license to carry a concealed weapon if the licensee no longer meets all of the requirements for licensure.

4. Requires a sheriff to suspend a license to carry a concealed weapon if the licensee is the subject of a civil or criminal case that may ultimately lead to the revocation of the license or if the licensee, after being charged with a misdemeanor, is ordered by the court not to possess a firearm.

5. Provides that a person whose application for a license is denied or whose license is suspended or revoked by the sheriff may appeal the sheriff's action to circuit court for review by a judge.

6. Specifies the information that must be on a license to carry a concealed weapon and an application for such a license and requires DOJ to design the form of the license and the license application and renewal forms.

7. Requires DOJ to keep a computerized list of licensees but specifies that DOJ may provide information from that list regarding a specific licensee only to law enforcement agencies and only in certain specified circumstances.

8. Requires each circuit court, through its computer system, or the clerk of the court or the register in probate if the court's computer system cannot do so, to notify DOJ of court proceedings relating to licensees and nonlicensees (including juvenile delinquency and mental health commitment proceedings that are closed to the public) if those proceedings will require suspension or revocation of the person's license if he or she is a licensee.

9. Requires each licensee to notify the sheriff within ten days after being charged with a crime or a drunk driving offense under federal law or the law of another state.

10. Requires a person who applies for a license to carry a concealed weapon to pay an application fee, which may not exceed either the cost to the sheriff of issuing the license or $75, whichever is less; an $8 background check fee (unless, in the case of a person applying for an emergency license, the sheriff waives the fee); a $15 shooting range improvement fee, to be used by the sheriff to provide grants for the construction and improvement of shooting ranges; and a $15 law enforcement excellence fund fee, to be used by the sheriff to improve law enforcement services in his or her county.

11. Grants immunity from liability for conduct undertaken in good faith under the bill to DOJ and its employees; sheriffs and their employees; various other court and county employees; persons providing firearm training or safety classes; business or nonprofit organizations that permit persons to carry concealed weapons on their property; and employers that permit their employees to carry concealed weapons.

12. Treats a license or permit issued by another state in the same manner as a license issued under this bill if the state required the person to undergo training and submit to a background check as a condition of licensure.

New and revised penalties

The bill establishes new penalties and changes certain others for offenses relating to licenses to carry a concealed weapon. First, a licensee who fails to carry his or her license document or who fails to display it upon the request of a law enforcement officer while the person is carrying a concealed weapon may be required to forfeit $25. Second, a licensee who carries a concealed weapon in a place where the license does not authorize him or her to do so, other than a home or business where a resident or business owner has imposed his or her own restriction on carrying a concealed weapon, may be fined not more than $1,000 or imprisoned for not more than 90 days or both. Third, if a person has a blood alcohol concentration that exceeds 0.08 or is under the influence of an intoxicant while carrying a concealed weapon, the person may be fined not more than $1,000 or imprisoned for not more than 90 days or both. The same penalties apply if, after a person is arrested for carrying a concealed weapon under those circumstances, her or she refuses to submit to a breath, blood, or urine test. At the same time, the bill exempts a licensee who is carrying a concealed handgun from the prohibition in current law against going armed with a firearm while under the influence of an intoxicant, a conviction for which would otherwise result in: 1) the person being subject, as a Class A misdemeanant, to a maximum fine of $10,000 or a maximum term of imprisonment of nine months or both; and 2) the person being ineligible for a license. Fourth, under current law, possession of a firearm in a school zone is a Class I felony (punishable by a maximum fine of $10,000 or a maximum term of imprisonment of three and one-half years or both), while possessing other types of dangerous weapons on school grounds is a Class A misdemeanor or, for a repeat offender, a Class I felony. A conviction under either of these provisions would also make a person ineligible for a license. This bill exempts licensees from these penalties. Instead, licensees who carry handguns in a school zone in places or under circumstances in which he or she may not do so or who carry electric weapons, tear gas guns, knives, or billy clubs on school grounds are subject to a maximum fine of $1,000 or a maximum term of imprisonment of 90 days or both. Fifth, a person who does any of the following must be fined not less than $500 nor more than $10,000 and may be imprisoned for not more than nine months: 1) intentionally makes a false statement in an application for a license; 2) intentionally fails to report being charged under federal law or the law of another state with any crime or any drunk driving offense within ten days after being charged; or 3) intentionally fails to relinquish a license document to a sheriff after the license has been revoked.

Background checks for handgun purchasers

This bill makes certain changes in the law relating to background checks for handgun purchasers. Under current law, when a person seeks to purchase a handgun from a licensed handgun dealer, the dealer must ask DOJ to conduct a background check on the person. In conducting the background check, DOJ searches DOJ records to determine whether the person is ineligible to possess a firearm under state law, but it does not attempt to determine whether federal law bars the person from possessing a firearm based on criteria not covered by state law. This bill requires DOJ, when conducting a background check on a prospective handgun purchaser, to determine whether the person has been the subject of a court order or finding in a Wisconsin court based on the person's mental health that would render the person ineligible to possess a firearm under federal law. Specifically, DOJ must determine if: 1) the person was the subject of a court order committing the person for treatment in an inpatient mental health facility or a finding by a court that the person is a danger to himself or herself or others or lacks the mental capacity to contract or manage his or her own affairs; 2) the person did not commence the proceeding in which the order was entered or the finding was made; and 3) the order or finding was based on the person having markedly subnormal intelligence or the person's mental illness, incompetency, condition, or disease. If DOJ determines that the prospective purchaser was the subject of such an order or determination, the dealer may not sell the person a handgun.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB214-engrossed, s. 1 Section 1. 23.33 (3) (e) of the statutes is amended to read:

SB214-engrossed,7,6 23.33 (3) (e) With any firearm in his or her possession unless it is unloaded and enclosed in a carrying case, or. This paragraph does not apply to the possession of a handgun, as defined in s. 175.50 (1) (bm), by a person who holds a valid license to carry a concealed weapon issued under s. 175.50 or by an out-of-state licensee, as defined in s. 175.50 (1) (g).

SB214-engrossed,7,7 (em) With any bow unless it is unstrung or enclosed in a carrying case.

SB214-engrossed, s. 2 Section 2. 29.089 (2) of the statutes is amended to read:

SB214-engrossed,8,6 29.089 (2) Except as provided in sub. (3), no person may have in his or her possession or under his or her control a firearm on land located in state parks or state fish hatcheries unless the firearm is unloaded and enclosed within a carrying case. This subsection does not apply if the firearm is a handgun, as defined in s. 175.50 (1) (bm), and the person holds a valid license to carry a concealed weapon issued under s. 175.50 or an out-of-state licensee, as defined in s. 175.50 (1) (g).