LRB-0049/1
CMH:kjf:ph&jf
2009 - 2010 LEGISLATURE
February 17, 2009 - Introduced by Representatives Gunderson, Richards,
Murtha, Fields, Ballweg, Bies, Kaufert, Kerkman, LeMahieu, Lothian,
Nygren, Petersen, Stone, Townsend, Van Roy, Vos, Spanbauer and
Kleefisch, cosponsored by Senators Darling, Sullivan, Harsdorf, Olsen and
Schultz. Referred to Committee on Criminal Justice.
AB70,1,9
1An Act to renumber and amend 51.20 (13) (cv) 1., 941.29 (9) and 968.20 (1r);
2to amend 51.20 (13) (cv) 2., 51.20 (13) (cv) 3., 51.20 (13) (cv) 4., 51.20 (16) (gm),
3175.35 (1) (at), 941.29 (1) (e) and 941.29 (2) (d); and
to create 51.20 (13) (cv) 1.
4a. and b., 51.20 (13) (cv) 1m., 51.30 (4) (b) 28., 51.45 (13) (i), 54.10 (3) (f), 55.12
5(10), 175.35 (2g) (d), 941.29 (1) (em), 941.29 (9) (b), 968.20 (1r) (b), 968.20 (1r)
6(c), 968.20 (1r) (d) and 968.20 (1r) (e) of the statutes;
relating to: adjudications
7for involuntary 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 bill requires DOJ, when conducting a background check on a prospective
handgun purchaser, to check whether the person has been the subject of a court order
or finding that is based on a determination that the person's mental health would
render the person ineligible under federal law to possess a firearm.
This bill 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.
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:
AB70, s. 1
1Section
1. 51.20 (13) (cv) 1. of the statutes is renumbered 51.20 (13) (cv) 1.
2(intro.) and amended to read:
AB70,3,103
51.20
(13) (cv) 1. (intro.) If the court makes the disposition under par. (a) 3., 4.,
44m.
, or 5.
and the court determines, based on evidence presented on the issue of the
5subject individual's dangerousness, that there is a substantial probability that the
6individual may use a firearm to cause physical harm to himself or herself or endanger
7public safety, the court shall
prohibit the individual from possessing order the
8individual not to possess a firearm, order the seizure of any firearm owned by the
9individual
, and inform the individual of the requirements and penalties under s.
10941.29
. if the court determines any of the following:
AB70, s. 2
11Section
2. 51.20 (13) (cv) 1. a. and b. of the statutes are created to read:
AB70,3,1412
51.20
(13) (cv) 1. a. Based on evidence presented on the issue of the individual's
13dangerousness, there is a substantial probability that the individual may use a
14firearm to cause physical harm to himself or herself or endanger public safety.
AB70,3,1615b. Under
18 USC 922 (g) (4), the individual is prohibited from possessing a
16firearm.
AB70, s. 3
17Section
3. 51.20 (13) (cv) 1m. of the statutes is created to read:
AB70,3,2118
51.20
(13) (cv) 1m. a. If a court orders an individual under subd. 1. not to
19possess a firearm based on a determination under subd. 1. b., the individual may
20petition that court or the court in the county where the individual resides to cancel
21the order.
AB70,4,5
1b. The court considering the petition under subd. 1m. a. shall grant the petition
2if the court determines that the circumstances regarding the disposition under par.
3(a) 3., 4., 4m., or 5. and the individual's record and reputation indicate that the
4individual is not likely to act in a manner dangerous to public safety and that the
5granting of the petition would not be contrary to public interest.
AB70,4,86
c. If the court grants the petition under subd. 1m. b., the court shall cancel the
7order under subd. 1. and order the return of any firearm ordered seized under subd.
81. on the basis of a determination under subd. 1. b.
AB70, s. 4
9Section
4. 51.20 (13) (cv) 2. of the statutes is amended to read:
AB70,4,1810
51.20
(13) (cv) 2.
A prohibition on
An order prohibiting the possession of a
11firearm under subd. 1.
based on a determination under subd. 1. a. shall remain in
12effect until the commitment order and any subsequent consecutive commitment
13orders expire and the court determines, based on evidence presented on the issue of
14the subject individual's dangerousness, that there is no longer a substantial
15probability that the individual may use a firearm to cause physical harm to himself
16or herself or endanger public safety. If the court makes this determination, it shall
17cancel the
prohibition order and order the return of any firearm ordered seized under
18subd. 1.
on the basis of a determination under subd. 1. a.
AB70, s. 5
19Section
5. 51.20 (13) (cv) 3. of the statutes is amended to read:
AB70,4,2420
51.20
(13) (cv) 3. In lieu of ordering the seizure under subd. 1., the court may
21designate a person to store the firearm until the
prohibition order under subd. 1.
22based on the determination under subd. 1. a. has been canceled under
subd. 2. or sub.
23(16) (gm)
or until the order under subd. 1. based on the determination under subd.
241. b. has been canceled under subd. 1m. c.
AB70, s. 6
25Section
6. 51.20 (13) (cv) 4. of the statutes is amended to read:
AB70,5,14
151.20
(13) (cv) 4. If the court
prohibits orders a subject individual
from
2possessing not to possess a firearm under subd. 1.
or based on a determination under
3subd. 1. a. or b., cancels
a prohibition under subd. 2. or sub. (16) (gm) an order issued 4under subd.
2. 1. based on a determination under subd. 1. a., or cancels under subd.
51m. c. an order issued under subd. 1. based on a determination under subd. 1. b., the
6court clerk shall notify the department of justice of that fact and provide any
7information identifying the subject individual that is necessary to permit an
8accurate involuntary commitment history record search
, or an accurate firearms
9restrictions record search, under s. 175.35 (2g) (c). No other information from the
10subject individual's court records may be disclosed to the department of justice
11except by order of the court. The department of justice may disclose information
12provided under this subdivision only as part of an involuntary commitment history
13record search
, or a firearms restrictions record search, under s. 175.35 (2g) (c)
or
14under rules the department of justice promulgates under s. 175.35 (2g) (d).
AB70, s. 7
15Section
7. 51.20 (16) (gm) of the statutes is amended to read:
AB70,6,316
51.20
(16) (gm) Upon a request under par. (a), a court may cancel the
17prohibition order not to possess a firearm issued under sub. (13) (cv) 1.
based on a
18determination under sub. (13) (cv) 1. a. if the court determines, based on evidence
19presented on the issue of the subject individual's dangerousness, that there no longer
20is a substantial probability that the individual may use a firearm to cause physical
21harm to himself or herself or endanger public safety. If a court cancels
a prohibition 22an order issued under sub. (13) (cv) 1.
based on a determination under sub. (13) (cv)
231. a. under this paragraph, the court clerk shall notify the department of justice of
24that fact and provide any information identifying the subject individual that is
25necessary to permit an accurate involuntary commitment record search
, or a
1firearms restrictions record search, under s. 175.35 (2g) (c). No other information
2from the subject individual's court records may be disclosed to the department of
3justice except by order of the court.
AB70, s. 8
4Section
8. 51.30 (4) (b) 28. of the statutes is created to read:
AB70,6,65
51.30
(4) (b) 28. To the department of justice, under the requirements of ss.
651.20 (13) (cv) 4. and 51.45 (13) (i) 4.
AB70, s. 9
7Section
9. 51.45 (13) (i) of the statutes is created to read:
AB70,6,128
51.45
(13) (i) 1. If a court orders commitment of a person under this subsection,
9the court shall determine if, under
18 USC 922 (g) (4), the person is prohibited from
10possessing a firearm. If the person is prohibited, the court shall order the person not
11to possess a firearm, order the seizure of any firearm owned by the person, and
12inform the person of the requirements and penalties under s. 941.29.
AB70,6,1513
2. a. If a court orders a person under subd. 1. not to possess a firearm, the person
14may petition that court or the court in the county where the person resides to cancel
15the order.
AB70,6,2016
b. The court considering the petition under subd. 2. a. shall grant the petition
17if the court determines that the circumstances regarding the commitment under this
18subsection and the person's record and reputation indicate that the person is not
19likely to act in a manner dangerous to public safety and that the granting of the
20petition would not be contrary to public interest.
AB70,6,2321
c. If the court grants the petition under subd. 2. b., the court shall cancel the
22order under subd. 1. and order the return of any firearm ordered seized under subd.
231.
AB70,7,3
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.
AB70,7,124
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).
AB70, s. 10
13Section
10. 54.10 (3) (f) of the statutes is created to read:
AB70,7,1914
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.
AB70,7,2220
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.
AB70,8,223
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.
AB70,8,53
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.
AB70,8,86
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.
AB70,8,189
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).
AB70, s. 11
19Section
11. 55.12 (10) of the statutes is created to read:
AB70,9,220
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.
AB70,9,53
(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.
AB70,9,116
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.
AB70,9,1312
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).
AB70,9,1614
(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.
AB70,9,2417
(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).
AB70, s. 12
3Section
12. 175.35 (1) (at) of the statutes is amended to read:
AB70,10,204
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 has been ordered not to
9possess a firearm under s. 51.20 (13) (cv)
1. based on a determination under s. 51.20
10(13) (cv) 1. a., a search in the national instant criminal background check system to
11determine whether a person has been ordered not to possess a firearm under s. 51.20
12(3) (cv) 1., based on a determination under s. 51.20 (13) (cv) 1. b., 51.45 (13) (i) 1., 54.10
13(3) (f) 1., or 55.12 (10) (a), a search to determine whether the person is subject to an
14injunction under s. 813.12 or 813.122, or a tribal injunction, as defined in s. 813.12
15(1) (e), issued by a court established by any federally recognized Wisconsin Indian
16tribe or band, except the Menominee Indian tribe of Wisconsin, that includes notice
17to the respondent that he or she is subject to the requirements and penalties under
18s. 941.29 and that has been filed with the circuit court under s. 806.247 (3), and a
19search to determine whether the person is prohibited from possessing a firearm
20under s. 813.125 (4m).
AB70, s. 13
21Section
13. 175.35 (2g) (d) of the statutes is created to read:
AB70,11,222
175.35
(2g) (d) 1. The department of justice shall promulgate rules to convey
23information in a timely manner to the national instant criminal background check
24system regarding individuals ordered not to possess a firearm under s. 51.20 (13) (cv)
11., based on a determination under s. 51.20 (13) (cv) 1. b., or ordered not to possess
2a firearm under s. 51.45 (13) (i) 1., 54.10 (3) (f) 1., or 55.12 (10) (a).
AB70,11,63
2. The department of justice shall promulgate rules to convey information in
4a timely manner to the national instant criminal background check system
5regarding the cancellation under s. 51.20 (13) (cv) 1m. c., 51.45 (13) (i) 2. c., 54.10 (3)
6(f) 2. c., or 55.12 (10) (b) 3. of an order not to possess a firearm.
AB70, s. 14
7Section
14. 941.29 (1) (e) of the statutes is amended to read:
AB70,11,108
941.29
(1) (e) Committed for treatment under s. 51.20 (13) (a) and ordered not
9to possess a firearm under s. 51.20 (13) (cv)
1. based on a determination under s. 51.20
10(13) (cv) 1. a.