AB293: Bill Text

LRB-1939/2

JEO:skg:jlb

1995 - 1996 LEGISLATURE

1995 Assembly BILL 293

April 4, 1995 - Introduced by Representatives Travis, Baldwin, Lehman, Harsdorf, Ryba, Krug, Kaufert, Owens, Plache, Black, F. Lasee, Urban, R. Young, Robson, Bell and Riley, cosponsored by Senators Rosenzweig, Wineke, Burke and Chvala, by request of Wisconsin Coalition Against Domestic Violence. Referred to Committee on Criminal Justice and Corrections.

AB293,1,8 An Act to repeal 175.35 (1) (bg); to renumber and amend 941.29 (2); to amend 48.396 (8), 175.35 (2) (c), 175.35 (2) (d), 175.35 (2f), 175.35 (2g) (b), 175.35 (2g) (c) (intro.), 175.35 (2g) (c) 3., 175.35 (2g) (c) 4., 175.35 (2i), 175.35 (2j), 175.35 (2k) (a) 2., 175.35 (2k) (b) 2. a. and 175.35 (2L); and to create 175.35 (1) (at), 813.12 (4m), 813.12 (6) (am), 813.12 (9) (a) 4., 813.122 (5m), 813.122 (9) (am), 813.125 (4m), 813.125 (5r), 941.29 (1) (f), 941.29 (2) (d) and 941.29 (2) (e) of the statutes; relating to: the possession of firearms by persons who are subject to certain injunctions and providing a penalty.

Analysis by the Legislative Reference Bureau

Under current law, a person may not possess a firearm if he or she has been found guilty of a felony, has been adjudicated delinquent as a juvenile for an act that would have been a felony if it had been committed by an adult, or has been found not guilty of a felony by reason of mental disease, defect or illness. Also, under current law a person who is involuntarily committed for treatment in a civil commitment proceeding may be prohibited from possessing a firearm. If a person who is prohibited from possessing a firearm thereafter possesses a firearm, he or she may be fined not more than $10,000 or imprisoned for not more than 2 years or both. Current law also provides procedures by which a person may regain the right to possess a firearm.

This bill prohibits the possession of a firearm by a person against whom an abuse or harassment injunction has been issued. The bill also expands the current handgun purchaser background check to include a check for records of abuse or harassment injunctions. The bill makes the following specific changes to current law:

Firearm prohibition for persons subject to abuse and harassment injunction proceedings

Under current law, a court may issue an injunction against a person who engages in domestic abuse (abuse of an adult member of the family or household, an adult former spouse or an adult with whom the person has a child in common), abuse of a child or harassment of another person. The bill prohibits firearm possession by a person against whom an abuse or harassment injunction has been issued as long as the injunction is in effect. The bill also requires the person to surrender firearms that he or she owns or has in his or her possession. A firearm surrendered by a person against whom an abuse or harassment injunction has been issued may not be returned to the person until a court determines that the injunction is no longer in effect and that the person is not prohibited from possessing a firearm by any other order or by state or federal law. Finally, the court that issues an abuse or harassment injunction against a person must inform the person of the penalties for violating the prohibition. If the person possesses a firearm while the prohibition is in effect, he or she may be fined not more than $10,000 or imprisoned for not more than 2 years or both.

Background check for abuse and harassment injunctions

Under current law, the department of justice (DOJ) is responsible for conducting a criminal history record search and an involuntary commitment record search to determine whether a prospective purchaser of a handgun is prohibited from possessing a firearm because of: 1) a felony conviction; 2) a delinquency adjudication for an act that would have been a felony if committed by an adult; 3) a finding of not guilty by reason of mental disease or defect in a felony case; or 4) a firearm prohibition order issued in an involuntary civil commitment proceeding. The prospective purchaser of a handgun must provide identifying information, such as name, date of birth and social security number, so that DOJ can conduct a criminal history record search and an involuntary commitment record search.

This bill requires DOJ to conduct, in addition to a criminal history record search and an involuntary commitment record search, a record search to determine whether a prospective purchaser of a handgun is prohibited from purchasing a firearm because an abuse or harassment injunction has been issued against the person. The bill requires the clerk of the circuit court in which an abuse or harassment injunction is issued to inform DOJ about the period of time for which the injunction is in effect and to provide DOJ with information identifying the person against whom the injunction is issued so that DOJ may conduct an accurate record search. Finally, if a prospective purchaser of a handgun provides false identifying information for use in conducting a record search for abuse or harassment injunctions, he or she must be fined not less than $500 nor more than $10,000 and may be imprisoned for not more than 9 months.

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:

AB293, s. 1 Section 1. 48.396 (8) of the statutes is amended to read:

AB293,3,8 48.396 (8) Notwithstanding sub. (2), if a child is adjudged delinquent for an act that would be a felony if committed by an adult, the court clerk shall notify the department of justice of that fact. No other information from the child's court records may be disclosed to the department of justice except by order of the court. The department of justice may disclose any information provided under this subsection only as part of a criminal history firearms restrictions record search under s. 175.35 (2g) (c).

AB293, s. 2 Section 2. 175.35 (1) (at) of the statutes is created to read:

AB293,3,17 175.35 (1) (at) "Firearms restrictions record search" means a search of department of justice records to determine whether a person seeking to purchase a handgun is prohibited from possessing a firearm under s. 941.29. "Firearms restriction record search" includes a criminal history record search, a search to determine whether a person is prohibited from possessing a firearm under s. 51.20 (13) (cv) and a search to determine whether the person is subject to an injunction under s. 813.12, 813.122 or 813.125 or a tribal injunction filed with the circuit court under s. 813.12 (9) (a).

AB293, s. 3 Section 3. 175.35 (1) (bg) of the statutes is repealed.

AB293, s. 4 Section 4. 175.35 (2) (c) of the statutes is amended to read:

AB293,4,2 175.35 (2) (c) The firearms dealer has conveyed the information from the completed notification form to the department of justice as required by rule under sub. (2g) (b) and requested a criminal history record search and involuntary commitment firearms restrictions record search.

AB293, s. 5 Section 5. 175.35 (2) (d) of the statutes is amended to read:

AB293,4,9 175.35 (2) (d) Forty-eight hours, subject to extension under sub. (2g) (c) 4. c., have elapsed from the time that the firearms dealer has received a confirmation number regarding the criminal history record search and involuntary commitment firearms restrictions record search under sub. (2g) (c) from the department of justice and the firearms dealer has not been notified that the transfer would be in violation of s. 941.29.

AB293, s. 6 Section 6. 175.35 (2f) of the statutes is amended to read:

AB293,4,18 175.35 (2f) When a firearms dealer requests that the department of justice provide a criminal history record search and involuntary commitment firearms restrictions record search under sub. (2g), he or she shall provide truthful information about his or her status as a firearms dealer and shall provide an accurate firearms dealer identification number obtained under sub. (2h). A person may request that the department provide a criminal history record search and involuntary commitment firearms restrictions record search under sub. (2g) only if he or she is a firearms dealer.

AB293, s. 7 Section 7. 175.35 (2g) (b) of the statutes is amended to read:

AB293,5,2 175.35 (2g) (b) The department of justice shall promulgate rules prescribing a notification form for use under sub. (2) requiring the transferee to provide his or her name, date of birth, gender, race and social security number and other identification necessary to permit an accurate criminal history record search and involuntary commitment firearms restrictions record search under par. (c) 3. and the required notification under par. (c) 4. The department of justice shall make the forms available at locations throughout the state.

AB293, s. 8 Section 8. 175.35 (2g) (c) (intro.) of the statutes is amended to read:

AB293,5,7 175.35 (2g) (c) (intro.) The department of justice shall promulgate rules for criminal history record searches and involuntary commitment firearms restrictions record searches regarding transferees under sub. (2), including procedures for all of the following:

AB293, s. 9 Section 9. 175.35 (2g) (c) 3. of the statutes is amended to read:

AB293,5,13 175.35 (2g) (c) 3. The department to conduct the criminal history record search and involuntary commitment firearms restrictions record search regarding the transferee. The rules shall include, but not be limited to, a requirement that the department use the transaction information for management of enforcement system and the national crime information center system.

AB293, s. 10 Section 10. 175.35 (2g) (c) 4. of the statutes is amended to read:

AB293,5,18 175.35 (2g) (c) 4. The department to notify the dealer, either during the initial telephone call or as soon thereafter as practicable, of the results of the criminal history record search and involuntary commitment firearms restrictions record search as follows:

AB293,5,23 a. If the searches indicate search indicates that the transferee is prohibited from possessing a firearm under s. 941.29, the department shall provide the firearms dealer with a unique nonapproval number. The department may not disclose to the firearms dealer the reason the transferee is prohibited from possessing a firearm under s. 941.29.

AB293,6,3 b. If the searches indicate search indicates that the transferee is not prohibited from possessing a firearm under s. 941.29, the department shall provide the firearms dealer with a unique approval number.

AB293,6,10 c. If the criminal history record search indicates a felony charge without a recorded disposition, the deadline under sub. (2) (d) is extended to the end of the 3rd complete working day commencing after the day on which the finding is made. The department shall notify the firearms dealer of the extension as soon as practicable. During the extended period, the department shall make every reasonable effort to determine the disposition of the charge and notify the firearms dealer of the results as soon as practicable.

AB293, s. 11 Section 11. 175.35 (2i) of the statutes is amended to read:

AB293,6,18 175.35 (2i) The department shall charge a firearms dealer an $8 fee for each combined criminal history record search and involuntary commitment firearms restrictions record search that the firearms dealer requests under sub. (2) (c). The firearms dealer may collect the fee from the transferee. The department may refuse to conduct criminal history record searches and involuntary commitment firearms restrictions record searches for any firearms dealer who fails to pay any fee under this subsection within 30 days after billing by the department.

AB293, s. 12 Section 12. 175.35 (2j) of the statutes is amended to read:

AB293,6,25 175.35 (2j) A firearms dealer shall maintain the original record of all completed notification forms and a record of all confirmation numbers and corresponding approval or nonapproval numbers that he or she receives regarding criminal history record searches and involuntary commitment firearms restrictions record searches under sub. (2g). The firearms dealer shall mail the duplicate copy of each completed notification form to the department of justice.

AB293, s. 13 Section 13. 175.35 (2k) (a) 2. of the statutes is amended to read:

AB293,7,10 175.35 (2k) (a) 2. Check each duplicate notification form received under sub. (2j) against the information recorded by the department regarding the corresponding request for a criminal history record search and involuntary commitment firearms restrictions record search under sub. (2g). If the department previously provided a unique approval number regarding the request and nothing in the duplicate completed notification form indicates that the transferee is prohibited from possessing a firearm under s. 941.29, the department shall destroy all records regarding that criminal history record search and involuntary commitment firearms restrictions record search within 30 days after receiving the duplicate form.

AB293, s. 14 Section 14. 175.35 (2k) (b) 2. a. of the statutes is amended to read:

AB293,7,16 175.35 (2k) (b) 2. a. Except as provided in subd. 2. b., a log of dates of requests for criminal history record searches and involuntary commitment firearms restrictions record searches under sub. (2g) together with confirmation numbers, unique approval and nonapproval numbers and firearms dealer identification numbers corresponding to those dates.

AB293, s. 15 Section 15. 175.35 (2L) of the statutes is amended to read:

AB293,7,24 175.35 (2L) The department of justice shall promulgate rules providing for the review of nonapprovals under sub. (2g) (c) 4. a. Any person who is denied the right to purchase a handgun because the firearms dealer received a nonapproval number under sub. (2g) (c) 4. a. may request a criminal history record search and involuntary commitment firearms restrictions record search review under those rules. If the person disagrees with the results of that review, the person may file an appeal under rules promulgated by the department.

AB293, s. 16 Section 16. 813.12 (4m) of the statutes is created to read:

AB293,8,2 813.12 (4m) Notice of restriction on firearm possession; surrender of firearms. (a) An injunction issued under sub. (4) shall do all of the following:

AB293,8,4 1. Inform the respondent named in the petition of the requirements and penalties under s. 941.29.

AB293,8,12 2. Require the respondent to surrender any firearms that he or she owns or has in his or her possession to the sheriff of the county in which the action under this section was commenced, to the sheriff of the county in which the respondent resides or to another person designated by the respondent and approved by the judge or family court commissioner. If a firearm is surrendered to a person designated by the respondent and approved by the judge or family court commissioner, the judge or family court commissioner shall inform the person to whom the firearm is surrendered of the requirements and penalties under s. 941.29 (4).

AB293,8,15 (b) A firearm surrendered under par. (a) 2. may not be returned to the respondent until a judge or family court commissioner determines all of the following:

AB293,8,17 1. That the injunction issued under sub. (4) has been vacated or has expired and not been extended.

AB293,8,20 2. That the person is not prohibited from possessing a firearm under any state or federal law or by the order of any federal court or state court, other than an order from which the judge or family court commissioner is competent to grant relief.

AB293,9,5 (c) If a respondent surrenders a firearm under par. (a) 2. that is owned by a person other than the respondent, the person who owns the firearm may apply for its return to the circuit court for the county in which the person to whom the firearm was surrendered is located. The court shall order such notice as it considers adequate to be given to all persons who have or may have an interest in the firearm and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court's satisfaction, it shall order the firearm returned. If the court returns a firearm under this paragraph, the court shall inform the person to whom the firearm is returned of the requirements and penalties under s. 941.29 (4).

AB293, s. 17 Section 17. 813.12 (6) (am) of the statutes is created to read:

AB293,9,12 813.12 (6) (am) If an injunction is issued or extended under sub. (4) or if a tribal injunction is filed under sub. (9) (a), the clerk of the circuit court shall notify the department of justice of the injunction and shall provide the department of justice with information concerning the period during which the injunction is in effect and information necessary to identify the respondent for purposes of a firearms restrictions record search under s. 175.35 (2g) (c).

AB293, s. 18 Section 18. 813.12 (9) (a) 4. of the statutes is created to read:

AB293,9,15 813.12 (9) (a) 4. The tribal injunction includes notice to the respondent that he or she is subject to the requirements and penalties under s. 941.29.

AB293, s. 19 Section 19. 813.122 (5m) of the statutes is created to read:

AB293,9,18 813.122 (5m) Notice of restriction on firearm possession; surrender of firearms. (a) An injunction issued under sub. (5) shall do all of the following:

AB293,9,20 1. Inform the respondent named in the petition of the requirements and penalties under s. 941.29.

AB293,9,25 2. Require the respondent to surrender any firearms that he or she owns or has in his or her possession to the sheriff of the county in which the action under this section was commenced, to the sheriff of the county in which the respondent resides or to another person designated by the respondent and approved by the judge or court commissioner. If a firearm is surrendered to a person designated by the respondent and approved by the judge or court commissioner, the judge or court commissioner shall inform the person to whom the firearm is surrendered of the requirements and penalties under s. 941.29 (4).

AB293,10,5 (b) A firearm surrendered under par. (a) 2. may not be returned to the respondent until a judge or court commissioner determines all of the following:

AB293,10,7 1. That the injunction issued under sub. (5) has been vacated or has expired and not been extended.

AB293,10,10 2. That the person is not prohibited from possessing a firearm under any state or federal law or by the order of any federal court or state court, other than an order from which the judge or court commissioner is competent to grant relief.

AB293,10,20 (c) If a respondent surrenders a firearm under par. (a) 2. that is owned by a person other than the respondent, the person who owns the firearm may apply for its return to the circuit court for the county in which the person to whom the firearm was surrendered is located. The court shall order such notice as it considers adequate to be given to all persons who have or may have an interest in the firearm and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court's satisfaction, it shall order the firearm returned. If the court returns a firearm under this paragraph, the court shall inform the person to whom the firearm is returned of the requirements and penalties under s. 941.29 (4).

AB293, s. 20 Section 20. 813.122 (9) (am) of the statutes is created to read:

AB293,11,2 813.122 (9) (am) If an injunction is issued or extended under sub. (5), the clerk of the circuit court shall notify the department of justice of the injunction and shall provide the department of justice with information concerning the period during which the injunction is in effect and information necessary to identify the respondent for purposes of a firearms restrictions record search under s. 175.35 (2g) (c).

AB293, s. 21 Section 21. 813.125 (4m) of the statutes is created to read:

AB293,11,5 813.125 (4m) Notice of restriction on firearm possession; surrender of firearms. (a) An injunction issued under sub. (4) shall do all of the following:

AB293,11,7 1. Inform the respondent named in the petition of the requirements and penalties under s. 941.29.

AB293,11,15 2. Require the respondent to surrender any firearms that he or she owns or has in his or her possession to the sheriff of the county in which the action under this section was commenced, to the sheriff of the county in which the respondent resides or to another person designated by the respondent and approved by the judge or court commissioner. If a firearm is surrendered to a person designated by the respondent and approved by the judge or court commissioner, the judge or court commissioner shall inform the person to whom the firearm is surrendered of the requirements and penalties under s. 941.29 (4).

AB293,11,17 (b) A firearm surrendered under par. (a) 2. may not be returned to the respondent until a judge or court commissioner determines all of the following:

AB293,11,19 1. That the injunction issued under sub. (4) has been vacated or has expired and not been extended.

AB293,11,22 2. That the person is not prohibited from possessing a firearm under any state or federal law or by the order of any federal court or state court, other than an order from which the judge or court commissioner is competent to grant relief.