LRBs0271/1
CMH:kjf:md
2009 - 2010 LEGISLATURE
SENATE SUBSTITUTE AMENDMENT 1,
TO 2009 SENATE BILL 44
February 5, 2010 - Offered by Senator Darling.
SB44-SSA1,1,9
1An Act to repeal 51.20 (13) (cv) 2. and 51.20 (16) (gm);
to renumber and amend
2941.29 (9) and 968.20 (1r);
to amend 51.20 (13) (cv) 1., 51.20 (13) (cv) 3., 51.20
3(13) (cv) 4., 51.30 (3) (c), 175.35 (1) (at), 941.29 (1) (e) and 941.29 (2) (d); and
to
4create 51.20 (13) (cv) 1m., 51.30 (4) (b) 28., 51.45 (13) (i), 54.10 (3) (f), 55.12 (10),
5175.35 (2g) (d), 941.29 (1) (em), 941.29 (9) (b), 968.20 (1r) (b), 968.20 (1r) (c),
6968.20 (1r) (d) and 968.20 (1r) (e) of the statutes;
relating to: adjudications for
7involuntary commitment, appointment of a guardian of the person, and
8protective placement or protective services, background checks for the
9purchase of handguns, and requiring the exercise of rule-making authority.
Analysis by the Legislative Reference Bureau
Under current law, if a person seeks to purchase a handgun from a licensed
handgun dealer, the dealer must ask the Department of Justice (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 state law does not explicitly require DOJ to determine whether federal
law bars the person from possessing a firearm based on criteria not covered by state
law. This substitute amendment requires DOJ, when conducting a background
check on a prospective handgun purchaser, to check whether a court has ordered the
person not to possess a firearm due to a determination that the person's mental
health would render the person ineligible under federal law to possess a firearm.
This substitute amendment requires courts to determine whether a person
would be ineligible under federal law to possess a firearm during proceedings for
involuntary commitment for persons found by the court to be mentally ill, drug
dependent, or developmentally disabled and to be dangerous, during proceedings for
appointment of a guardian of the person for an individual found by the court to be
incompetent, and, if not previously determined, during proceedings under which a
court orders protective placement or protective services (mental health proceeding).
If the court determines that federal law prohibits the person from possessing a
firearm, the court must order the person not to possess a firearm, order the seizure
of any firearm the person owns, and inform the person that he or she would be
committing a felony if he or she possessed a firearm. The court must then convey the
disqualified status to DOJ which may use that information only during background
checks conducted when the person seeks to purchase a handgun or under rules that
DOJ promulgates in order to provide information to the national instant criminal
background check system.
Specifically, to determine ineligibility under federal law at a mental health
proceeding, a court must determine if the person has been "adjudicated as a mental
defective" or "committed to a mental institution," as defined in federal law. Under
federal law, "adjudicated as a mental defective" means a determination by a court,
board, commission, or other lawful authority that a person, as a result of a marked
subnormal intelligence, or a mental illness, incompetency, condition, or disease
either is a danger to himself or herself or to others or lacks the mental capacity to
contract or manage his or her own affairs. This determination includes a finding of
insanity by a court in a criminal case and persons found incompetent to stand trial
or found not guilty by reason of lack of mental responsibility pursuant to the Uniform
Code of Military Justice. Federal law defines "committed to a mental institution" as
a formal commitment of a person to a mental institution by a court, board,
commission, or other lawful authority. The term includes a commitment to a mental
institution involuntarily, commitment for mental defectiveness or mental illness,
and commitments for other reasons such as for drug use. The term does not include
a person in an institution for observation or a voluntary admission to a mental
institution.
If, at a mental health proceeding, the court finds a person ineligible under
federal law to possess a firearm, the person may petition a court to cancel the order.
A court must grant the petition if the court determines that the person is not likely
to act in a manner dangerous to public safety and that the granting of the petition
would not be contrary to public interest. The court must then convey the change in
status to DOJ so that DOJ may update the information provided during background
checks for handgun purchases and the information provided to the national instant
criminal background check system.
This substitute amendment also eliminates obsolete references to "involuntary
commitment history record search." It also deletes determinations at mental health
proceedings of ineligibility under state law to possess a firearm as the
determinations would be redundant to those under federal law.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB44-SSA1, s. 1
1Section
1. 51.20 (13) (cv) 1. of the statutes is amended to read:
SB44-SSA1,3,102
51.20
(13) (cv) 1. If the court makes the disposition under par. (a) 3., 4., 4m.
, 3or 5.
and the court determines, based on evidence presented on the issue of the
4subject individual's dangerousness, that there is a substantial probability that the
5individual may use a firearm to cause physical harm to himself or herself or endanger
6public safety, the court shall
prohibit the individual from possessing order the
7individual not to possess a firearm, order the seizure of any firearm owned by the
8individual, and inform the individual of the requirements and penalties under s.
9941.29
if the court determines that the individual is prohibited, under 18 USC 922
10(g) (4), from possessing a firearm.
SB44-SSA1, s. 2
11Section
2. 51.20 (13) (cv) 1m. of the statutes is created to read:
SB44-SSA1,3,1512
51.20
(13) (cv) 1m. a. If a court orders an individual under subd. 1., or ordered
13an individual under s. 51.20 (13) (cv) 1., 2007 stats., not to possess a firearm, the
14individual may petition that court or the court in the county where the individual
15resides to cancel the order.
SB44-SSA1,3,2016
b. The court considering the petition under subd. 1m. a. shall grant the petition
17if the court determines that the circumstances regarding the disposition under par.
18(a) 3., 4., 4m., or 5. and the individual's record and reputation indicate that the
19individual is not likely to act in a manner dangerous to public safety and that the
20granting of the petition would not be contrary to public interest.
SB44-SSA1,4,4
1c. If the court grants the petition under subd. 1m. b., the court shall cancel the
2order under subd. 1., or the order under s. 51.20 (13) (cv) 1., 2007 stats., whichever
3is appropriate, and order the return of any firearm ordered seized under subd. 1. or
4s. 51.20 (13) (cv) 1., 2007 stats.
SB44-SSA1, s. 3
5Section
3. 51.20 (13) (cv) 2. of the statutes is repealed.
SB44-SSA1, s. 4
6Section
4. 51.20 (13) (cv) 3. of the statutes is amended to read:
SB44-SSA1,4,97
51.20
(13) (cv) 3. In lieu of ordering the seizure under subd. 1., the court may
8designate a person to store the firearm until the
prohibition order has been canceled
9under
sub. (16) (gm) subd. 1m. c.
SB44-SSA1, s. 5
10Section
5. 51.20 (13) (cv) 4. of the statutes is amended to read:
SB44-SSA1,4,2211
51.20
(13) (cv) 4. If the court
prohibits orders a subject individual
from
12possessing not to possess a firearm under subd. 1. or cancels
a prohibition under
13subd.
2. 1m. c. an order issued under subd. 1. or under s. 51.20 (13) (cv) 1., 2007 stats.,
14the court clerk shall notify the department of justice of that fact and provide any
15information identifying the subject individual that is necessary to permit an
16accurate
involuntary commitment history firearms restrictions record search under
17s. 175.35 (2g) (c). No other information from the subject individual's court records
18may be disclosed to the department of justice except by order of the court. The
19department of justice may disclose information provided under this subdivision only
20as part of
an involuntary commitment history a firearms restrictions record search
21under s. 175.35 (2g) (c)
or under rules the department of justice promulgates under
22s. 175.35 (2g) (d).
SB44-SSA1, s. 7
24Section
7. 51.30 (3) (c) of the statutes is amended to read:
SB44-SSA1,5,4
151.30
(3) (c) The files and records of court proceedings under this chapter may
2be released to other persons with the informed written consent of the individual,
3pursuant to lawful order of the court which maintains the records or under s. 51.20
4(13) (cv) 4.
or (16) (gm).
SB44-SSA1, s. 8
5Section
8. 51.30 (4) (b) 28. of the statutes is created to read:
SB44-SSA1,5,76
51.30
(4) (b) 28. To the department of justice, under the requirements of ss.
751.20 (13) (cv) 4. and 51.45 (13) (i) 4.
SB44-SSA1, s. 9
8Section
9. 51.45 (13) (i) of the statutes is created to read:
SB44-SSA1,5,139
51.45
(13) (i) 1. If a court orders commitment of a person under this subsection,
10the court shall determine if, under
18 USC 922 (g) (4), the person is prohibited from
11possessing a firearm. If the person is prohibited, the court shall order the person not
12to possess a firearm, order the seizure of any firearm owned by the person, and
13inform the person of the requirements and penalties under s. 941.29.
SB44-SSA1,5,1614
2. a. If a court orders a person under subd. 1. not to possess a firearm, the person
15may petition that court or the court in the county where the person resides to cancel
16the order.
SB44-SSA1,5,2117
b. The court considering the petition under subd. 2. a. shall grant the petition
18if the court determines that the circumstances regarding the commitment under this
19subsection and the person's record and reputation indicate that the person is not
20likely to act in a manner dangerous to public safety and that the granting of the
21petition would not be contrary to public interest.
SB44-SSA1,5,2422
c. If the court grants the petition under subd. 2. b., the court shall cancel the
23order under subd. 1. and order the return of any firearm ordered seized under subd.
241.
SB44-SSA1,6,3
13. In lieu of ordering the seizure under subd. 1., the court may designate a
2person to store the firearm until the order under subd. 1. is canceled under subd. 2.
3c.
SB44-SSA1,6,124
4. If the court orders under subd. 1. a person not to possess a firearm or cancels
5under subd. 2. c. an order issued under subd. 1., the court clerk shall notify the
6department of justice of the order or cancellation and provide any information
7identifying the person that is necessary to permit an accurate firearms restrictions
8record search under s. 175.35 (2g) (c). No other information from the person's court
9records may be disclosed to the department of justice except by order of the court.
10The department of justice may disclose information provided under this subdivision
11only as part of a firearms restrictions record search under s. 175.35 (2g) (c) or under
12rules the department of justice promulgates under s. 175.35 (2g) (d).
SB44-SSA1, s. 10
13Section
10. 54.10 (3) (f) of the statutes is created to read:
SB44-SSA1,6,1914
54.10
(3) (f) 1. If the court appoints a guardian of the person under this
15subsection, the court shall determine if, under
18 USC 922 (g) (4), the individual is
16prohibited from possessing a firearm. If the individual is prohibited, the court shall
17order the individual not to possess a firearm, order the seizure of any firearm owned
18by the individual, and inform the individual of the requirements and penalties under
19s. 941.29.
SB44-SSA1,6,2220
2. a. If a court orders under subd. 1. an individual not to possess a firearm, the
21individual may petition that court or the court in the county where the individual
22resides to cancel the order.
SB44-SSA1,7,223
b. The court considering the petition under subd. 2. a. shall grant the petition
24if the court determines that the circumstances regarding the appointment of a
25guardian under this subsection and the individual's record and reputation indicate
1that the individual is not likely to act in a manner dangerous to public safety and that
2the granting of the petition would not be contrary to public interest.
SB44-SSA1,7,53
c. If the court grants the petition under subd. 2. b., the court shall cancel the
4order under subd. 1. and order the return of any firearm ordered seized under subd.
51.
SB44-SSA1,7,86
3. In lieu of ordering the seizure under subd. 1., the court may designate a
7person to store the firearm until the order under subd. 1. is canceled under subd. 2.
8c.
SB44-SSA1,7,189
4. If the court orders under subd. 1. an individual not to possess a firearm or
10cancels under subd. 2. c. an order issued under subd. 1., the court clerk shall notify
11the department of justice of the order or cancellation and provide any information
12identifying the individual that is necessary to permit an accurate firearms
13restrictions record search under s. 175.35 (2g) (c). No other information from the
14individual's court records may be disclosed to the department of justice except by
15order of the court. The department of justice may disclose information provided
16under this subdivision only as part of a firearms restrictions record search under s.
17175.35 (2g) (c) or under rules the department of justice promulgates under s. 175.35
18(2g) (d).
SB44-SSA1,8,220
55.12
(10) (a) If a court orders protective services or protective placement of an
21individual under this section and if an order has not been made under s. 54.10 (3) (f)
22for the individual, the court shall determine if, under
18 USC 922 (g) (4), the
23individual is prohibited from possessing a firearm. If the individual is prohibited,
24the court shall order the individual not to possess a firearm, order the seizure of any
1firearm owned by the individual, and inform the individual of the requirements and
2penalties under s. 941.29.
SB44-SSA1,8,53
(b) 1. If a court orders under par. (a) an individual not to possess a firearm, the
4individual may petition that court or the court in the county where the individual
5resides to cancel the order.
SB44-SSA1,8,116
2. The court considering the petition under subd. 1. shall grant the petition if
7the court determines that the circumstances regarding the protective services or
8protective placement order under this section and the individual's record and
9reputation indicate that the individual is not likely to act in a manner dangerous to
10public safety and that the granting of the petition would not be contrary to public
11interest.
SB44-SSA1,8,1312
3. If the court grants the petition under subd. 2., the court shall cancel the order
13under par. (a) and order the return of any firearm ordered seized under par. (a).
SB44-SSA1,8,1614
(c) In lieu of ordering the seizure under par. (a), the court may designate a
15person to store the firearm until the order under par. (a) is canceled under par. (b)
163.
SB44-SSA1,9,217
(d) If the court orders under par. (a) an individual not to possess a firearm or
18cancels under par. (b) 3. an order issued under par. (a), the court clerk shall notify
19the department of justice of the order or cancellation and provide any information
20identifying the individual that is necessary to permit an accurate firearms
21restriction record search under s. 175.35 (2g) (c). No other information from the
22individual's court records may be disclosed to the department of justice except by
23order of the court. The department of justice may disclose information provided
24under this paragraph only as part of a firearms restriction record search under s.
1175.35 (2g) (c) or under rules the department of justice promulgates under s. 175.35
2(2g) (d).
SB44-SSA1, s. 12
3Section
12. 175.35 (1) (at) of the statutes is amended to read:
SB44-SSA1,9,184
175.35
(1) (at) "Firearms restrictions record search" means a search of
5department of justice records to determine whether a person seeking to purchase a
6handgun is prohibited from possessing a firearm under s. 941.29. "Firearms
7restriction record search" includes a criminal history record search, a search to
8determine whether a person is prohibited from possessing a firearm under s. 51.20
9(13) (cv)
1., 2007 stats., a search in the national instant criminal background check
10system to determine whether a person has been ordered not to possess a firearm
11under s. 51.20 (13) (cv) 1., 51.45 (13) (i) 1., 54.10 (3) (f) 1., or 55.12 (10) (a), a search
12to determine whether the person is subject to an injunction under s. 813.12 or
13813.122, or a tribal injunction, as defined in s. 813.12 (1) (e), issued by a court
14established by any federally recognized Wisconsin Indian tribe or band, except the
15Menominee Indian tribe of Wisconsin, that includes notice to the respondent that he
16or she is subject to the requirements and penalties under s. 941.29 and that has been
17filed with the circuit court under s. 806.247 (3), and a search to determine whether
18the person is prohibited from possessing a firearm under s. 813.125 (4m).
SB44-SSA1, s. 13
19Section
13. 175.35 (2g) (d) of the statutes is created to read:
SB44-SSA1,9,2320
175.35
(2g) (d) 1. The department of justice shall promulgate rules to convey
21information in a timely manner to the national instant criminal background check
22system regarding individuals ordered not to possess a firearm under s. 51.20 (13) (cv)
231., 51.45 (13) (i) 1., 54.10 (3) (f) 1., or 55.12 (10) (a).
SB44-SSA1,9,2624
2. The department of justice shall promulgate rules to convey information in
25a timely manner to the national instant criminal background check system
1regarding the cancellation under s. 51.20 (13) (cv) 1m. c., 51.45 (13) (i) 2. c., 54.10 (3)
2(f) 2. c., or 55.12 (10) (b) 3. of an order not to possess a firearm.
SB44-SSA1, s. 14
3Section
14. 941.29 (1) (e) of the statutes is amended to read:
SB44-SSA1,10,54
941.29
(1) (e) Committed for treatment under s. 51.20 (13) (a) and ordered not
5to possess a firearm under s. 51.20 (13) (cv)
1., 2007 stats.