LRB-3215/1
CMH:wlj
2015 - 2016 LEGISLATURE
October 13, 2015 - Introduced by Representatives Barnes, Johnson, Sargent,
Young, Pope, Berceau, Goyke, Brostoff, C. Taylor, Sinicki, Subeck,
Ohnstad, Bowen and Zamarripa, cosponsored by Senators Harris Dodd and
L. Taylor. Referred to Committee on Judiciary.
AB395,1,5 1An Act to amend 165.63 (3), 165.63 (4) (d), 175.35 (1) (at), 175.60 (9g) (a) 2.,
2757.69 (1) (j), 801.50 (5s), 813.06, 813.126, 813.127, 813.128 (1) (a), 941.29 (1)
3(f) and 941.29 (2) (e); and to create 813.124 of the statutes; relating to: lethal
4violence protective temporary restraining orders and injunctions and providing
5a criminal penalty.
Analysis by the Legislative Reference Bureau
Under current law, a person is prohibited from possessing a firearm, and must
surrender any firearm he or she possesses, if he or she is subject to a domestic abuse
injunction, a child abuse injunction, or, in certain cases, a harassment or an
individuals-at-risk injunction. If a person surrenders a firearm because he or she
is subject to one of those injunctions, the firearm may not be returned to the person
until a court determines that the injunction has been vacated or has expired and that
the person is not otherwise prohibited from possessing a firearm. A person who is
prohibited from possessing a firearm under such an injunction is guilty of a Class G
felony if he or she violates the prohibition.
This bill creates a lethal violence protective temporary restraining order and
a lethal violence protective injunction. Upon receiving a petition filed by a law
enforcement officer or a family or household member of the respondent, a court shall
issue a temporary restraining order (TRO) prohibiting the respondent from
possessing a firearm and ordering the respondent to surrender all of his or her
firearms if the court finds reasonable grounds to believe that the respondent is

substantially likely to injure himself or herself or another person if the respondent
possesses a firearm. At the injunction hearing, the court may grant a lethal violence
protective injunction ordering the respondent to refrain from possessing a firearm
if the court finds reasonable grounds to believe that the respondent is substantially
likely to injure himself or herself or another person if the respondent possesses a
firearm. A lethal violence protective injunction is effective for one year and may be
renewed for additional one-year terms. Any person who is subject to a lethal violence
protective injunction may petition no more than once a year to vacate the injunction.
A person who possesses a firearm while subject to a lethal violence protective TRO
or injunction is guilty of a Class G felony. In addition, a person who files a petition
for a lethal violence protective TRO or injunction, knowing the information in the
petition to be false or with the intent to harass, is subject to a fine of up to $10,000
and imprisonment for up to nine months or both.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB395,1 1Section 1. 165.63 (3) of the statutes is amended to read:
AB395,2,52 165.63 (3) Requests for injunctions. In making a determination required
3under s. 813.124 (8) (a) or 813.1285 (7) (a), a judge or court commissioner shall
4request information under sub. (2) from the department or from a law enforcement
5agency or law enforcement officer as provided in sub. (4) (d).
AB395,2 6Section 2. 165.63 (4) (d) of the statutes is amended to read:
AB395,2,87 165.63 (4) (d) Aid the court in making a determination required under s.
8813.124 (8) (a) or 813.1285 (7) (a).
AB395,3 9Section 3. 175.35 (1) (at) of the statutes is amended to read:
AB395,3,1110 175.35 (1) (at) "Firearms restrictions record search" means a search of
11department of justice records to determine whether a person seeking to purchase a
12handgun is prohibited from possessing a firearm under s. 941.29. "Firearms
13restrictions record search" includes a criminal history record search, a search to
14determine whether a person is prohibited from possessing a firearm under s. 51.20

1(13) (cv) 1., 2007 stats., a search in the national instant criminal background check
2system to determine whether a person has been ordered not to possess a firearm
3under s. 51.20 (13) (cv) 1., 51.45 (13) (i) 1., 54.10 (3) (f) 1., or 55.12 (10) (a), a search
4to determine whether the person is subject to an injunction under s. 813.12 or
5813.122, or a tribal injunction, as defined in s. 813.12 (1) (e), issued by a court
6established by any federally recognized Wisconsin Indian tribe or band, except the
7Menominee Indian tribe of Wisconsin, that includes notice to the respondent that he
8or she is subject to the requirements and penalties under s. 941.29 and that has been
9filed with the circuit court under s. 806.247 (3), and a search to determine whether
10the person is prohibited from possessing a firearm under s. 813.123 (5m), 813.124 (3)
11or (4),
or 813.125 (4m).
AB395,4 12Section 4. 175.60 (9g) (a) 2. of the statutes is amended to read:
AB395,4,513 175.60 (9g) (a) 2. The department shall conduct a criminal history record
14search and shall search its records and conduct a search in the national instant
15criminal background check system to determine whether the applicant is prohibited
16from possessing a firearm under federal law; whether the applicant is prohibited
17from possessing a firearm under s. 941.29; whether the applicant is prohibited from
18possessing a firearm under s. 51.20 (13) (cv) 1., 2007 stats.; whether the applicant
19has been ordered not to possess a firearm under s. 51.20 (13) (cv) 1., 51.45 (13) (i) 1.,
2054.10 (3) (f) 1., or 55.12 (10) (a); whether the applicant is subject to an injunction
21under s. 813.12 or 813.122, or a tribal injunction, as defined in s. 813.12 (1) (e), issued
22by a court established by any federally recognized Wisconsin Indian tribe or band,
23except the Menominee Indian tribe of Wisconsin, that includes notice to the
24respondent that he or she is subject to the requirements and penalties under s.
25941.29 and that has been filed with the circuit court under s. 806.247 (3); and

1whether the applicant is prohibited from possessing a firearm under s. 813.123 (5m),
2813.124 (3) or (4),
or 813.125 (4m); and to determine if the court has prohibited the
3applicant from possessing a dangerous weapon under s. 969.02 (3) (c) or 969.03 (1)
4(c) and if the applicant is prohibited from possessing a dangerous weapon as a
5condition of release under s. 969.01.
AB395,5 6Section 5. 757.69 (1) (j) of the statutes is amended to read:
AB395,4,87 757.69 (1) (j) Hold hearings, make findings and issue temporary restraining
8orders under s. 813.122 or, 813.123, or 813.124.
AB395,6 9Section 6. 801.50 (5s) of the statutes is amended to read:
AB395,4,1210 801.50 (5s) Venue of an action under s. 813.122, 813.124, or 813.125 shall be
11in the county in which the cause of action arose or where the petitioner or the
12respondent resides.
AB395,7 13Section 7. 813.06 of the statutes is amended to read:
AB395,4,22 14813.06 Security for damages. In proceedings under s. 767.225 the court or
15judge may, and in all other proceedings except proceedings under ss. 813.12, 813.122,
16813.124, 813.125 and 823.113 the court or judge shall, require a bond of the party
17seeking an injunction, with sureties, to the effect that he or she will pay to the party
18enjoined such damages, not exceeding an amount to be specified, as he or she may
19sustain by reason of the injunction if the court finally decides that the party was not
20entitled thereto. Copies of such bond, affidavit or other pleading shall be served upon
21the party enjoined and the officer serving the same shall, within 8 days after such
22service, file his or her return in the office of the clerk of the court.
AB395,8 23Section 8. 813.124 of the statutes is created to read:
AB395,4,25 24813.124 Lethal violence protective orders and injunctions. (1)
25Definitions. In this section:
AB395,5,1
1(a) "Firearms dealer" has the meaning given in s. 175.35 (1) (ar).
AB395,5,32 (b) "Reasonable grounds" means more likely than not that a specific event will
3occur.
AB395,5,22 4(2) Commencement of action and response. (a) No action under this section
5may be commenced by complaint and summons. An action under this section may
6be commenced only by a petition described under sub. (5) (a). The action commences
7with the sheriff serving the petition on the respondent if a copy of the petition is filed
8before service or promptly after service. If the judge or a circuit court commissioner
9extends the time for a hearing under sub. (3) (c) and the petitioner files an affidavit
10with the court stating that personal service by the sheriff under s. 801.11 (1) (a) or
11(b) was unsuccessful because the respondent is avoiding service by concealment or
12otherwise, the judge or circuit court commissioner shall inform the petitioner that
13he or she may serve the respondent by publication of a summary of the petition as
14a class 1 notice, under ch. 985, and by mailing or sending a facsimile if the
15respondent's post-office address or facsimile number is known or can with due
16diligence be ascertained. The mailing or sending of a facsimile may be omitted if the
17post-office address or facsimile number cannot be ascertained with due diligence.
18A summary of the petition published as a class 1 notice shall include the name of the
19respondent and of the petitioner, notice of the temporary restraining order, and
20notice of the date, time, and place of the hearing regarding the injunction. The court
21shall inform the petitioner in writing that the petitioner should contact the sheriff
22to verify the proof of service of the petition.
AB395,5,2523 (b) Section 813.06 does not apply to an action under this section. The
24respondent may respond to the petition either in writing before or at the hearing on
25the issuance of the injunction or orally at that hearing.
AB395,6,3
1(c) When the respondent is served with the petition under this subsection, the
2respondent shall be provided notice of the requirements and penalties under s.
3941.29 (1) (f) and (2) (e).
AB395,6,10 4(2m) Two-part procedure. Procedure for an action under this section is in 2
5parts. First, if the petitioner requests a temporary restraining order, the court shall
6issue or refuse to issue that order. Second, the court shall hold a hearing under sub.
7(4) on whether to issue an injunction, which is the final relief. If the court issues a
8temporary restraining order, the order shall set forth the date for the hearing on an
9injunction. If the court does not issue a temporary restraining order, the date for the
10hearing shall be set upon motion by either party.
AB395,6,16 11(3) Temporary restraining order. (a) 1. A judge or circuit court commissioner
12shall issue a temporary restraining order prohibiting the respondent from
13possessing a firearm and ordering the respondent to surrender all of his or her
14firearms if the judge or circuit court commissioner finds reasonable grounds to
15believe that the respondent is substantially likely to injure himself or herself or
16another person if the respondent possesses a firearm.
AB395,6,1817 2. The judge or circuit court commissioner shall base the finding under subd.
181. on the following:
AB395,6,1919 a. Any testimony.
AB395,6,2020 b. The petition.
AB395,6,2221 c. Any recent threat of violence or act of violence by the respondent directed
22toward himself or herself or another person.
AB395,6,2523 d. Any pattern of violent acts or violent threats by the respondent within the
24past 12 months, including threats of violence or acts of violence directed toward
25himself or herself or another person.
AB395,7,2
13. The judge or circuit court commissioner may base the finding under subd.
21. on any factors in addition to those under subd. 2., including any of the following:
AB395,7,43 a. Any unlawful or reckless use, display, or brandishing of a firearm by the
4respondent.
AB395,7,65 b. The respondent's history of use, attempted use, or threatened use of physical
6force against another person.
AB395,7,77 c. A prior arrest of the respondent for a felony.
AB395,7,88 d. Evidence that the respondent has abused controlled substances or alcohol.
AB395,7,109 e. Evidence that the respondent has recently acquired firearms, ammunition,
10or other dangerous weapons.
AB395,7,1111 (am) The order issued under par. (a) requires one of the following:
AB395,7,1712 1. If the respondent is present at the hearing, the respondent to immediately
13surrender all firearms that he or she has in his or her possession to the sheriff of the
14county in which the action under this section was commenced or to the sheriff of the
15county in which the respondent resides. The sheriff to whom the firearms are
16surrendered may, at the request of the respondent, arrange for the sale of the
17firearms to a firearms dealer.
AB395,7,1818 2. One of the following:
AB395,7,2319 a. If the respondent is not present at the hearing and the sheriff personally
20serves the respondent with the order issued under par. (a), the sheriff to request the
21respondent to immediately surrender all firearms in his or her possession. The
22sheriff may, at the request of the respondent, arrange for the sale of the firearms to
23a firearms dealer.
AB395,8,524 b. If the respondent is not present at the hearing and the sheriff does not
25personally serve the respondent with the order issued under par. (a), the respondent

1to, within 24 hours of service, surrender all firearms in his or her possession to the
2sheriff or sell all firearms in his or her possession to a firearms dealer. Within 48
3hours of service, the respondent shall file with the court that issued the order under
4par. (a) a receipt from the sheriff or firearms dealer indicating that the respondent
5surrendered the firearms.
AB395,8,96 (an) If the respondent does not comply with par. (am) and a law enforcement
7officer has probable cause to believe that the respondent possesses a firearm, the law
8enforcement officer shall request a search warrant to seize the firearms and may use
9information contained in the petition to establish probable cause.
AB395,8,1210 (b) Notice need not be given to the respondent before issuing a temporary
11restraining order under this subsection. A temporary restraining order may be
12entered only against the respondent named in the petition.
AB395,8,2113 (c) A temporary restraining order issued under this subsection is in effect until
14a hearing is held on issuance of an injunction under sub. (4). A judge or circuit court
15commissioner shall hold a hearing on issuance of an injunction under sub. (4) within
1614 days after the temporary restraining order is issued, unless the time is extended
17once for up to 14 days upon the written consent of the parties or upon a finding that
18the respondent has not been served with a copy of the temporary restraining order
19although the petitioner has exercised due diligence. A judge or court commissioner
20may not extend the temporary restraining order in lieu of ruling on the issuance of
21an injunction.
AB395,9,222 (d) The judge or circuit court commissioner shall advise the petitioner of the
23right to serve the respondent the petition by published notice if with due diligence
24the respondent cannot be served as provided under s. 801.11 (1) (a) or (b). The clerk

1of the circuit court shall assist the petitioner with the preparation of the notice and
2filing of the affidavit of printing.
AB395,9,6 3(4) Injunction. (a) A judge may grant an injunction prohibiting the respondent
4from possessing a firearm and, if the respondent was not subject to a temporary
5restraining order under sub. (3), ordering the respondent to surrender his or her
6firearms if all of the following occur:
AB395,9,87 1. The petitioner files a petition alleging the elements set forth under sub. (5)
8(a).
AB395,9,129 2. The petitioner serves upon the respondent a copy or summary of the petition
10and notice of the time for hearing on the issuance of the injunction, or the respondent
11serves upon the petitioner notice of the time for hearing on the issuance of the
12injunction.
AB395,9,1513 3. The judge finds reasonable grounds to believe that the respondent is
14substantially likely to injure himself or herself or another person if the respondent
15possesses a firearm.
AB395,9,1716 4. The judge or circuit court commissioner shall base the finding under subd.
173. on the following:
AB395,9,1818 a. Any testimony.
AB395,9,1919 b. The petition.
AB395,9,2120 c. Any recent threat of violence or act of violence by the respondent directed
21toward himself or herself or another person.
AB395,9,2422 d. Any pattern of violent acts or violent threats by the respondent within the
23past 12 months, including threats of violence or acts of violence directed toward
24himself or herself or another person.
AB395,10,2
15. The judge or circuit court commissioner may base the finding under subd.
23. on any factors in addition to those under subd. 4., including any of the following:
AB395,10,43 a. Any unlawful or reckless use, display, or brandishing of a firearm by the
4respondent.
AB395,10,65 b. The respondent's history of use, attempted use, or threatened use of physical
6force against another person.
AB395,10,77 c. A prior arrest of the respondent for a felony.
AB395,10,88 d. Evidence that the respondent has abused controlled substances or alcohol.
AB395,10,109 e. Evidence that the respondent has recently acquired firearms, ammunition,
10or other dangerous weapons.
AB395,10,1211 (b) The judge may enter an injunction only against the respondent named in
12the petition.
AB395,10,1413 (c) 1. An injunction under this subsection is effective for one year unless a judge
14vacates the injunction under par. (d).
AB395,10,1915 2. When an injunction expires, the court shall extend the injunction, upon
16petition filed up to 3 months before the expiration of the injunction, for one year if
17the judge finds reasonable grounds to believe that the respondent is substantially
18likely to injure himself or herself or another person if the respondent possesses a
19firearm.
AB395,10,2520 (d) A respondent who is subject to an injunction under this subsection may
21request a judge to vacate the injunction one time during the initial injunction period
22and one time during each extended injunction period. The judge shall vacate the
23order if the judge does not find reasonable grounds to believe that the respondent is
24substantially likely to injure himself or herself or another person if the respondent
25possesses a firearm.
AB395,11,2
1(e) An injunction issued under this subsection shall inform the respondent
2named in the petition of the requirements and penalties under s. 941.29.
AB395,11,3 3(5) Petition. (a) The petition shall allege facts sufficient to show the following:
AB395,11,54 1. The name of the petitioner and, unless the petitioner is a law enforcement
5officer, his or her relationship to the respondent.
Loading...
Loading...