LRB-0211/1
CMH:wlj:ph
2009 - 2010 LEGISLATURE
October 6, 2009 - Introduced by Representatives Hraychuck, Friske, Hubler,
Jorgensen, Bies, Suder, Nygren, Danou, Montgomery, Kerkman, Sherman,
Nerison, Kestell, Turner, Rhoades, Ripp, LeMahieu, Vos, Clark, Pridemore,
Vruwink, Mursau, Meyer, Kaufert, Zepnick, Strachota, Townsend, Van Roy,
Honadel, Roth, Smith, Spanbauer, Brooks, Nass, Knodl, Petrowski, Kramer
and Ballweg, cosponsored by Senators Holperin, Hansen, Harsdorf, Taylor,
Darling, Hopper, Schultz, Sullivan, Carpenter, Wirch, Kedzie, Lazich, A.
Lasee, Grothman, Kapanke and S. Fitzgerald. Referred to Committee on
Criminal Justice.
AB474,1,5
1An Act to renumber and amend 23.33 (3) (e) and 941.23; and
to create 23.33
2(3) (e) 1., 2., 3. and 4., . 167.31 (4) (ar), 175.48, 941.23 (1), 941.23 (2) (b), (c), (d)
3and (e), 941.237 (3) (cr), (L), (m) and (n) and 941.29 (10) (c), (d), (e) and (f) of the
4statutes;
relating to: carrying concealed weapons by law enforcement officers
5and by retired law enforcement officers.
Analysis by the Legislative Reference Bureau
This bill 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.
Current state and federal law regarding concealed weapons
Wisconsin law specifies that, in general, no person may go armed with a
concealed firearm or any other concealed, dangerous weapon. 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.
In addition, 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 has 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 another
drug; 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 the person retired due to
a service-connected disability after completing any applicable probationary period
of service; 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 another drug;
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 the 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 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, has a silencer attached to it, 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.
The bill regarding concealed weapons
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 as 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 concealed 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 arise 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.)
The bill also permits the Department of Justice (DOJ) and other state and local
law enforcement agencies in Wisconsin to enable retired law enforcement officers to
carry concealed firearms in the manner provided under federal law. These agencies
may issue and renew certification cards. If these agencies issue and renew
certification cards, the cards must include personal information about the
certification card holder such as the person's name, address, date of birth, a
description of the person, and a photograph. The cards must also include the type
of firearm the person is certified to carry (which cannot be a machine gun or a
destructive device such as a bomb), a statement that the retired officer has met
certain standards for training and qualification, and an expiration date of 12 months
after the certification card is issued or renewed.
The requirement to issue or renew a certification card to a retired officer applies
only if the retired officer satisfies the following criteria: 1) the officer retired from
service in law enforcement in good standing for reasons other than mental
instability; 2) the retired officer was employed as a law enforcement officer for an
aggregate of at least 15 years or retired from law enforcement due to a
service-connected disability after completing any probationary period; 3) the retired
officer has a nonforfeitable right to benefits under the law enforcement agency's
retired plan; and 4) federal law does not prohibit the retired officer from possessing
a firearm. For a law enforcement officer who was employed in Wisconsin, the law
enforcement agency that employed the officer will verify the criteria before issuing
or renewing the certification card. For a retired federal law enforcement officer who
was employed by a law enforcement agency that is not in Wisconsin but who now
resides in Wisconsin, DOJ will verify the criteria before issuing or renewing the
certification card.
If a retired officer is carrying his or her valid certification card, he or she is
exempt from the prohibitions against carrying a concealed weapon described above
only if the following apply: 1) the retired officer is not carrying a firearm that is not
designated on the card or identification, if the card or identification includes such a
designation, and the firearm is not a machine gun or a destructive device and does
not have a firearm silencer attached; 2) the retired officer is not under the influence
of an intoxicant; and 3) federal law does not prohibit the retired officer from
possessing a firearm.
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:
AB474, s. 1
1Section
1. 23.33 (3) (e) of the statutes is renumbered 23.33 (3) (e) (intro.) and
2amended to read:
AB474,4,63
23.33
(3) (e) (intro.) With any firearm in his or her possession unless it is
4unloaded and enclosed in a carrying case, or any bow unless it is unstrung or enclosed
5in a carrying case.
The prohibition against a firearm does not apply to any of the
6following:
AB474, s. 2
7Section
2. 23.33 (3) (e) 1., 2., 3. and 4. of the statutes are created to read:
AB474,4,98
23.33
(3) (e) 1. A law enforcement officer, as defined in s. 175.48 (1) (c), to whom
9s. 941.23 (2) (b) applies.
AB474,4,1210
2. A retired officer, as defined in s. 175.48 (1) (e), who is carrying a current
11certification card issued under s. 175.48 (2) (a) or renewed under s. 175.48 (5) and
12to whom s. 941.23 (2) (c) applies.
AB474,5,3
13. A retired federal officer, as defined in s. 175.48 (1) (d), who is carrying a
2current certification card issued under s. 175.48 (3) (a) or renewed under s. 175.48
3(5) and to whom s. 941.23 (2) (d) applies.
AB474,5,54
4. A retired nonresident law enforcement officer, as defined in s. 941.23 (1) (h),
5to whom s. 941.23 (2) (e) applies.
AB474, s. 3
6Section
3.
167.31 (4) (ar) of the statutes is created to read:
AB474,5,87
167.31
(4) (ar) Subsections (2) (a) and (b) and (3) (a) and (b) do not apply to the
8placement, possession, or transportation of a firearm by any of the following:
AB474,5,109
1. A law enforcement officer, as defined in s. 175.48 (1) (c), to whom s. 941.23
10(2) (b) applies.
AB474,5,1311
2. A retired officer, as defined in s. 175.48 (1) (e), who is carrying a current
12certification card issued under s. 175.48 (2) (a) or renewed under s. 175.48 (5) and
13to whom s. 941.23 (2) (c) applies.
AB474,5,1614
3. A retired federal officer, as defined in s. 175.48 (1) (d), who is carrying a
15current certification card issued under s. 175.48 (3) (a) or renewed under s. 175.48
16(5) and to whom s. 941.23 (2) (d) applies.
AB474,5,1817
4. A retired nonresident law enforcement officer, as defined in s. 941.23 (1) (h),
18to whom s. 941.23 (2) (e) applies.
AB474, s. 4
19Section
4. 175.48 of the statutes is created to read:
AB474,5,21
20175.48 Carrying of concealed weapons by retired law enforcement
21officers. (1) Definitions. In this section:
AB474,5,2222
(a) "Department" means the department of justice.
AB474,6,223
(b) "Law enforcement agency" means an agency that consists of one or more
24persons employed by the federal government, a state, or a political subdivision of a
25state, the U.S. armed forces, or the national guard that has as its purposes the
1prevention and detection of crime and the enforcement of laws or ordinances, and
2that is authorized to make arrests for crimes.
AB474,6,63
(c) "Law enforcement officer" means a person who is employed by a law
4enforcement agency for the purpose of engaging in, or supervising others engaging
5in, the prevention, detection, investigation, or prosecution of, or the incarceration of
6any person for, any violation of law and who has statutory powers of arrest.
AB474,6,97
(d) "Retired federal officer" means a retired law enforcement officer who was
8a law enforcement officer employed by a federal law enforcement agency and who
9resides in Wisconsin.
AB474,6,1110
(e) "Retired officer" means a law enforcement officer who retired from a state
11or local law enforcement agency in Wisconsin.
AB474,6,15
12(2) Certification of retired officers. (a) Upon the request of a retired officer,
13a law enforcement agency that employed the retired officer may, prior to his or her
14retirement, except as provided in par. (b), issue the retired officer a certification card
15as described in sub. (4) stating all of the following:
AB474,6,1716
1. The type of firearm the retired officer is certified to carry, but no retired
17officer may be certified to carry a prohibited firearm, as defined in s. 941.23 (1) (f).
AB474,6,2118
2. The retired officer has met either the state's standards for training and
19qualification for law enforcement officers to carry firearms, or, if no state standards
20exist, the law enforcement agency's standards for training and qualification for law
21enforcement officers to carry a firearm of the type under subd. 1.
AB474,6,2322
3. The date on which the finding under subd. 2. was made and an expiration
23date that is 12 months later than that date.
AB474,6,2524
4. That, due to the finding under subd. 2., the retired officer is qualified to carry
25a concealed firearm of the type under subd. 1.
AB474,7,3
1(b) The law enforcement agency may not issue the retired officer a certification
2card under par. (a) unless the law enforcement agency first verifies all of the
3following:
AB474,7,54
1. At the time he or she retired from the law enforcement agency, the retired
5officer was employed as a law enforcement officer.
AB474,7,76
2. The retired officer retired in good standing from service as a law enforcement
7officer for reasons other than mental instability.
AB474,7,128
3. The retired officer was regularly employed as a law enforcement officer for
9at least the number of years of service specified in
18 USC 926C (c) (3) (A) or the
10retired officer retired from law enforcement service due to a service-connected
11disability, as determined by the retired officer's employer, after completing any
12applicable probationary period.
AB474,7,1413
4. The retired officer has a nonforfeitable right to benefits under the retirement
14plan of the law enforcement agency from which he or she retired.
AB474,7,1715
5. The retired officer is not prohibited under federal law from possessing a
16firearm as indicated by a search of the transaction information for management of
17enforcement system and the national crime information center system.
AB474,7,2218
6. The retired officer has, during the previous 12 months, met, at his or her own
19expense, either the state's standards for training and qualification for law
20enforcement officers to carry firearms or, if no state standards exist, the law
21enforcement agency's standards for training and qualification for law enforcement
22officers to carry the firearm of the type under par. (a) 1.
AB474,7,25
23(3) Certification of retired federal officers. (a) Upon the request of a retired
24federal officer, the department may, except as provided in par. (b), issue the retired
25federal officer a certification card as described in sub. (4) stating all of the following:
AB474,8,3
11. The type of firearm the retired federal officer is certified to carry, but no
2retired federal officer may be certified to carry a prohibited firearm, as defined in s.
3941.23 (1) (f).
AB474,8,84
2. The retired federal officer has met either the state's standards for training
5and qualification for law enforcement officers to carry firearms or, if no state
6standards exist, the standards of the department's division of criminal investigation
7for training and qualification for law enforcement officers to carry a firearm of the
8type under subd. 1.
AB474,8,109
3. The date on which the finding under subd. 2. was made and an expiration
10date that is 12 months later than that date.
AB474,8,1211
4. That, due to the finding under subd. 2., the retired federal officer is qualified
12to carry a concealed firearm of the type under subd. 1.
AB474,8,1413
(b) The department may not issue the retired federal officer a certification card
14under par. (a) unless the department first verifies all of the following:
AB474,8,1615
1. At the time he or she retired from the federal law enforcement agency, the
16retired federal officer was employed as a law enforcement officer.
AB474,8,1817
2. The retired federal officer retired in good standing from service as a law
18enforcement officer for reasons other than mental instability.
AB474,8,2319
3. The retired federal officer was regularly employed as a law enforcement
20officer for at least the number of years specified in
18 USC 926C (c) (3) (A) or the
21retired federal officer retired from law enforcement service due to a
22service-connected disability, as determined by the retired federal officer's employer,
23after completing any applicable probationary period.
AB474,8,2524
4. The retired federal officer has a nonforfeitable right to benefits under the
25retirement plan of the law enforcement agency from which he or she retired.
AB474,9,4
15. The retired federal officer is not prohibited under federal law from
2possessing a firearm as indicated by a search of the transaction information for
3management of enforcement system and the national crime information center
4system.
AB474,9,95
6. The retired federal officer has, during the previous 12 months, met, at his
6or her own expense, either the state's standards for training and qualification for law
7enforcement officers to carry firearms or, if no state standards exist, the standards
8of the department's division of criminal investigation for training and qualification
9for law enforcement officers to carry the firearm of the type under par. (a) 1.
AB474,9,12
10(4) Certification cards. (a) 1. Subject to pars. (b), (c), and (d) and sub. (3) (a),
11the department shall design a certification card to be issued by the department under
12sub. (3) (a).
AB474,9,1513
2. Subject to pars. (b), (c), and (d) and sub. (2) (a), upon a request under sub.
14(2), each law enforcement agency shall design a certification card to be issued by the
15law enforcement agency under sub. (2) (a).
AB474,9,1616
(b) A certification card shall contain on one side all of the following:
AB474,9,1817
1. The full name, date of birth, and residence address of the person who holds
18the certification card.
AB474,9,2019
2. A photograph of the certification card holder and a physical description that
20includes sex, height, weight, and hair and eye color.
AB474,9,2121
3. The name of this state.
AB474,9,2522
(c) A certification card shall include a statement that the certification card does
23not confer any law enforcement authority on the certification card holder and does
24not make the certification card holder an employee or agent of the certifying agency
25or department.
AB474,10,2
1(d) A certification card may not contain the certification card holder's social
2security number.
AB474,10,12
3(5) Renewal of certification cards. A person who holds a current certification
4card issued under sub. (2) or (3) may renew the certification card by requesting the
5department or the law enforcement agency, whichever issued the current
6certification card, to renew the certification card, if, before the date the certification
7card expires, the law enforcement agency verifies sub. (2) (b) 5. and 6., if the
8certification card holder is a retired officer, or the department verifies sub. (3) (b) 5.
9and 6., if the certification card holder is a retired federal officer, and the certification
10card holder provides any information necessary for the verification. The renewal
11shall state the date on which verification was made and an expiration date that is
1212 months later than that date.
AB474,10,15
13(6) Immunity. (a) When acting in good faith under this section, the department
14and its employees and a law enforcement agency and its employees are immune from
15civil and criminal liability arising from any act or omission under this section.
AB474,10,1916
(b) When acting in good faith under this section, an entity providing firearms
17training to comply with the requirements under sub. (2) (a) 2., (3) (a) 2., or (5) and
18its employees are immune from civil and criminal liability arising from any act or
19omission that is related to that training.
AB474, s. 5
20Section
5. 941.23 of the statutes is renumbered 941.23 (2) (intro.) and
21amended to read:
AB474,10,2422
941.23
(2) (intro.) Any person
except a peace officer other than one of the
23following who goes armed with a concealed and dangerous weapon is guilty of a Class
24A misdemeanor
. Notwithstanding:
AB474,11,3
1(a) A peace officer, but notwithstanding s. 939.22 (22), for purposes of this
2section paragraph,
"peace officer
" does not include a commission warden who is not
3a state-certified commission warden.