SB403: Bill Text

LRB-3685/2

CMH&MGD:wj&cs:rs

2005 - 2006 LEGISLATURE

2005 Senate BILL 403

October 24, 2005 - Introduced by Senators Zien, S. Fitzgerald, Breske, Brown, Grothman, Kanavas, Kedzie, A. Lasee, Leibham, Reynolds, Roessler, Schultz and Stepp, cosponsored by Representatives Gunderson, Suder, Pettis, Albers, J. Fitzgerald, Freese, Gundrum, Hahn, Hines, Hundertmark, Kestell, Kleefisch, Krawczyk, F. Lasee, LeMahieu, Loeffelholz, Lothian, McCormick, Mursau, Musser, Nass, Nischke, Owens, Petrowski, Pridemore, Schneider, Strachota, Towns, Van Roy, Vos, Vrakas and Jensen. Referred to Committee on Judiciary, Corrections and Privacy.

SB403,2,7 An Act to renumber and amend 23.33 (3) (e), 29.089 (2), 29.091, 29.621 (4), 440.26 (3m), 941.23, 941.235 (2) and 943.13 (2); to amend 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., 813.12 (6) (am) 1., 813.122 (9) (am) 1., 813.125 (5r) (a), 885.235 (1g) (intro.), 938.396 (8), 941.295 (2) (d), 943.13 (1m) (b) and 943.13 (3); and to create 23.33 (3) (e) 1., 23.33 (3) (e) 2., 23.33 (3) (e) 3., 23.33 (3) (e) 4., 23.33 (3) (em), 29.089 (2) (a), 29.089 (2) (b), 29.089 (2) (c), 29.089 (2) (d), 29.091 (2), 29.091 (2) (d), 29.621 (4) (a), 29.621 (4) (b), 29.621 (4) (c), 29.621 (4) (d), 29.621 (6), 55.06 (17) (d), 59.25 (3) (u), 165.25 (11), 167.31 (4) (ar), 175.35 (1) (am), 175.48, 175.49, 175.50, 440.26 (3m) (a), 440.26 (3m) (b), 440.26 (3m) (c), 440.26 (3m) (d), 885.235 (1g) (e), 938.396 (8m), 941.23 (1), 941.23 (2) (a), 941.23 (2) (b), 941.23 (2) (c), 941.23 (2) (d), 941.23 (2) (e), 941.23 (3), 941.235 (2) (c), 941.235 (2) (d), 941.235 (2) (e), 941.237 (3) (cr), 941.237 (3) (ct), 941.237 (3) (cx), 941.29 (11), 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 a concealed weapon, possessing or transporting a firearm under certain circumstances, background checks for handgun purchases, photographic identification cards for retired law enforcement officers, requiring the exercise of rule-making authority, providing an exemption from rule-making authority, and providing penalties.

Analysis by the Legislative Reference Bureau

This bill creates a licensing system under which an individual is permitted to carry a concealed weapon under certain circumstances. The bill also makes certain changes in Wisconsin law to account for a federal law that requires the state to permit an individual who works as or who has retired from working as a federal, state, tribal, or local law enforcement officer in Wisconsin or in any other state to carry a concealed firearm under certain circumstances. In addition, the bill changes the law relating to background checks for handgun purchases to require the Department of Justice (DOJ) to determine whether a person seeking to purchase a handgun has been subject to an order or finding regarding his or her mental health that makes the purchase unlawful.

Current law regarding the possession of weapons

Wisconsin law

In general, under current Wisconsin law, no person 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. This prohibition, however, does not apply to peace officers, such as local, state, tribal, or federal law enforcement officers. In addition, under State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 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.

Beyond the concealed weapons statute, current Wisconsin law contains a number of other prohibitions relating to the use and possession of firearms. For example, current Wisconsin 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 Wisconsin 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.

Federal law

Federal law prohibits the state from barring certain active duty or retired law enforcement officers from carrying concealed firearms. Under federal law, qualified law enforcement officers and qualified retired law enforcement officers who meet certain specified requirements may carry concealed firearms that have been shipped or transported in interstate or foreign commerce, regardless of any prohibition imposed under state law.

Federal law specifies the criteria that a person must meet to be a qualified law enforcement officer or a qualified retired law enforcement officer. To be the former, a person must: 1) be employed by a government agency; 2) be a law enforcement officer (defined under federal law as a person authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law and having statutory powers of arrest); 3) be authorized by the agency to carry a firearm; 4) not be the subject of any disciplinary action by the agency; 5) not be under the influence of alcohol or other drugs; 6) not be prohibited under federal law from possessing a firearm; and 7) meet all standards, if any, established by the agency to qualify the person on a regular basis to use a firearm. For a person to be a qualified retired law enforcement officer, all of the following must apply: 1) the person retired in good standing from service with a government agency as a law enforcement officer, other than for reasons of mental instability; 2) before retirement, the person was regularly employed as a law enforcement officer for an aggregate of 15 years or more or retired after completing any applicable probationary period of service due to a service-connected disability; 3) the person has a nonforfeitable right to benefits under the agency's retirement plan; 4) the person is not under the influence of alcohol or other drugs; 5) the person is not prohibited under federal law from possessing a firearm; and 6) during the most recent 12-month period, the person has met his or her home state's standards for training and qualification for active duty law enforcement officers to carry firearms. (Wisconsin law does not currently set or impose any state standards for ongoing training and qualification for active duty law enforcement officers to remain eligible to carry firearms.)

Under federal law, if a person is a qualified law enforcement officer, the prohibition contained in Wisconsin law regarding going armed with a concealed and dangerous weapon does not apply to his or her going armed with a concealed firearm if the person carries a photo ID issued by the agency for which he or she works. If the person is a qualified retired law enforcement officer, the prohibition does not apply to his or her going armed with a concealed firearm if the person carries either: 1) a photo ID issued by the agency from which the person retired as a law enforcement officer that indicates that, within the preceding 12 months, the agency has tested the person or otherwise found that he or she meets its standards for training and qualification for active duty law enforcement officers to carry the type of firearm that the qualified retired law enforcement officer is carrying concealed; or 2) both of the following: a) a photo ID issued by the agency from which the person retired as a law enforcement officer; and b) a certification issued by the state in which the person resides that indicates that, within the preceding 12 months, the state has tested the person or otherwise found that he or she meets its standards for training and qualification for active duty law enforcement officers to carry the type of firearm that the qualified retired law enforcement officer is carrying concealed. Federal law, however, specifies that the exemption for qualified law enforcement officers and qualified retired law enforcement officers does not apply if the firearm involved is a machine gun, bears a silencer, or is a destructive device (such as a bomb). Federal law also specifies that a state may: 1) permit private persons or entities to bar the possession of concealed firearms on their own property; and 2) prohibit or restrict the possession of firearms on any state or local government property, installation, base, building, or park.

How the bill changes Wisconsin's concealed weapons law

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 DOJ for a license to carry a concealed weapon in most places. Specifically, 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, an electronic weapon, a knife other than a switchblade, or a billy club) anywhere in this state except in particular places specified in the bill. Accordingly, the bill amends other prohibitions relating to the use and possession of firearms that are discussed above (see Current law regarding the possession of weapons, Wisconsin law) to specify that, with the exception of the gun-free school zone law, they do not apply to licensees. The gun-free school zone law is amended in a different way. 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. These changes, however, relate only to the carrying of a concealed firearm at or within 1,000 feet of a private school and within 1,000 feet of the grounds of a public school. The bill does not affect the provisions of the gun-free school zone law that prohibit a person from possessing a firearm in a public school itself or on the grounds of a public school.

As noted in the preceding paragraph, a person licensed under the bill is permitted to carry a concealed weapon anywhere other than certain specified places. These 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 at the tavern or restaurant accounts for not more than 50 percent of the proprietor's annual gross receipts from that tavern or restaurant); a school administration building; beyond the security checkpoint at an airport; 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. Moreover, 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. Similarly, 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.

Licensing requirements and procedure

Under the bill, DOJ must issue a license to carry a concealed weapon to an applicant who meets the qualifications established in the bill for the license.

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 severe 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) with some exceptions, he or she must have successfully completed a firearms training or safety course or class that was taught by an instructor who is certified by DOJ and that covered certain topics specified in the bill; 9) he or she must not have been subject to a finding of incompetency, been 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 be 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 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 DOJ determines that an applicant for a license is ineligible under one of these requirements, DOJ must deny the person's application. Otherwise, DOJ must issue the person a license within 21 days of receiving the completed application.

Furthermore, the bill does all of the following:

1. Allows DOJ to issue an emergency license to an individual if DOJ 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, with the exception that a license held by a member of the U.S. armed forces, a reserve unit of the armed forces, or the national guard who is deployed overseas while on active duty may not expire until at least 90 days after the end of his or her overseas deployment.

3. Establishes a renewal procedure that includes a background check of the person renewing the license.

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

5. Requires DOJ 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.

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

7. 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.

8. 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.

9. 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.

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

11. Requires a person who applies for a license to carry a concealed weapon to pay the following: (a) a $52 application fee to be deposited into the general fund of the state; (b) a $15 shooting range improvement fee, to be deposited with the county in which the applicant resides, to be used for shooting range improvement grants awarded by the county; and (c) an $8 background check fee (unless, in the case of a person applying for an emergency license, DOJ waives the fee) to be deposited into the general fund of the state. A person who applies to renew his or her license must pay the same fees except the application fee; instead, he or she must pay a $27 renewal fee.

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

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

New and revised penalties for certain weapons offenses

The bill establishes new penalties and changes certain others for offenses relating to concealed weapons or committed by licensees. First, a licensee who fails to carry his or her license document or photo identification or who fails to display either 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 while carrying a concealed weapon, the person may be fined not more than $10,000 or imprisoned for not more than 9 months or both. The same penalties apply if, after a person is arrested for carrying a concealed weapon while having a prohibited alcohol concentration, he or she refuses to submit to a breath, blood, or urine test. 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 (generally for three years but permanently for a repeat offender). This bill exempts licensees from these penalties. Instead, licensees who unlawfully carry handguns in a school zone or who carry electric weapons, 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, may be imprisoned for not more than nine months, and becomes permanently ineligible for a license: 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 DOJ after the license has been revoked.

Active duty and retired law enforcement officers

This bill codifies in the state concealed weapons statute the provisions of federal law that make the statute inapplicable to active duty and retired law enforcement officers under the circumstances specified in federal law (and described above). To implement federal law, the bill also makes certain other state law prohibitions regarding the carrying of firearms inapplicable to an active duty or retired law enforcement officer if he or she is carrying a firearm under those same circumstances. These include the prohibition on going armed with a handgun in a tavern, the prohibition regarding the possession, transportation, or loading of a handgun in vehicles, motorboats, and aircraft, and the prohibition on possessing a firearm that may be imposed through an injunction entered in certain domestic abuse cases. (Depending on the facts, however, a person who is subject to such an injunction may, as a result of that case, also be prohibited under federal law from possessing a firearm, which means that the federal law regarding the carrying of a concealed firearm would not apply.) Similarly, the bill modifies the state's prohibition on possessing a firearm in a school zone to create an exemption for active duty and retired law enforcement officers who are carrying firearms. But as is the case with a person who is issued a license to carry a concealed weapon, these changes do not affect the provisions of the gun-free school zone law that, in general, prohibits a person, including an off-duty or retired law enforcement officer, from possessing a firearm in a public school itself or on the grounds of a public school.

In addition, under the bill, DOJ must provide a qualified retired law enforcement officer, upon his or her request, an ID card that, in combination with a photo ID issued by the retired officer's former employer, permits the retired officer to carry a concealed firearm. The ID card that DOJ issues must indicate all of the following: 1) that DOJ has found that the officer has met the state's standards for training and qualification for active duty law enforcement officers to carry firearms; 2) the date on which DOJ made that finding; and 3) that, as a result of the finding, the officer is qualified to carry any firearm other than a machine gun or a firearm bearing a silencer. DOJ, however, must issue the ID card only if: 1) the retired officer satisfies the first three criteria listed above for being a "qualified retired law enforcement officer" under federal law (see Current law regarding the possession of weapons, Federal law); 2) DOJ determines that its records do not indicate that the retired officer is prohibited from possessing a firearm under federal law or (with the exception of the prohibition based on a domestic abuse injunction) state law; and 3) the retired officer is a Wisconsin resident. DOJ may charge a retired officer a fee to cover the costs of issuing an ID card and determining the person's eligibility.

The bill requires an active duty or retired law enforcement officer who is carrying a concealed firearm to also carry the documentation that, under federal law, qualifies him or her to do so. A person who violates this requirement is subject to a forfeiture of not more than $25. (In contrast to the requirements of federal law, the exemption that the bill creates in the state's concealed weapons statute for an active duty or retired law enforcement officer is not dependent on the person carrying his or her credentials. The person only needs to have been issued the credentials, for the exemption to apply.)

Identification cards issued to Wisconsin law enforcement officers

Under the bill, if a Wisconsin law enforcement agency issues photo ID cards to its officers, it may not require an officer to relinquish his or her ID card upon retirement unless the person is not a qualified retired law enforcement officer (for example, if the retired officer is not eligible for benefits under the agency's retirement plan).