SB381: Bill Text

November 3, 2009 - Introduced by Senators Taylor, Robson, Lassa, Jauch, Risser and Coggs, cosponsored by Representatives Bernard Schaber, Staskunas, Parisi, Berceau, Roys, Turner, Fields, Pasch, Milroy, A. Ott, Hraychuck, Richards, Sinicki, Kestell, Hebl, Zepnick, Seidel, Grigsby, Toles, LeMahieu and Newcomer. Referred to Committee on Judiciary, Corrections, Insurance, Campaign Finance Reform, and Housing.

SB381,1,10 An Act to repeal 813.122 (5m) (am), 813.122 (5m) (aw), 813.122 (5m) (b) and (c), 813.125 (4m) (cm), 813.125 (4m) (cw) and 813.125 (4m) (d) and (e); to renumber 813.122 (2); to renumber and amend 813.12 (4m) (am), 813.12 (4m) (aw), 813.12 (4m) (b) and 813.12 (4m) (c); to amend 48.25 (6), 813.12 (2m), 813.12 (4m) (a) 1., 813.12 (4m) (a) 2., 813.122 (3) (a), 813.122 (5m) (a) 1., 813.122 (5m) (a) 2., 813.125 (4) (a) 2., 813.125 (4m) (a), 813.125 (4m) (c) 1., 813.125 (4m) (c) 2., 813.125 (6) (c) and 938.25 (6); and to create 813.12 (2) (c), 813.122 (2) (b), 813.125 (4) (a) 2m. a., b. and c. and 813.129 of the statutes; relating to: notice of firearm prohibition when served with notice of an injunction hearing and process for surrendering firearms following the granting of certain injunctions.

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 currently possesses if he or she is subject to a domestic abuse injunction, a child abuse injunction, or, if the court determines that he or she may use a firearm to harm another or endanger public safety, a harassment injunction (injunction). A person who is subject to an injunction may surrender his or her firearm to a sheriff or to a third party approved by the court and is guilty of a Class G felony if convicted of possessing a firearm while subject to the injunction.

This bill creates a procedure for notifying a person of the prohibition against possessing a firearm and of the requirement to surrender any firearm when the person is served with a petition for an injunction hearing.

The bill also creates a procedure for surrendering firearms if the court grants an injunction. If the person who is subject to the injunction (respondent) is present at the injunction hearing, he or she may provide the court with a completed firearm possession form, which is a form that requests information such as the quantity and the make and model of any firearms he or she owns or possesses or has owned or possessed in the previous six months. If the respondent is not present at the injunctive hearing, the court must provide the petitioner with the opportunity to state if the respondent possesses a firearm and, if so, the quantity and make and model of any firearm. If the court is not satisfied that the respondent does not possess a firearm, a firearm surrender hearing must take place within one week of the injunction hearing. If, subject to certain conditions, the respondent surrenders all firearms to the sheriff or to a third party within 48 hours, the court must dismiss the firearm surrender hearing unless the court has a reason related to the surrender of firearms not to dismiss the hearing.

If the court does not dismiss the hearing, a respondent must attend a firearm surrender hearing if the respondent did not appear at the injunction hearing and the court is not satisfied that the respondent does not possess a firearm or the respondent wants to surrender a firearm to a third party that did not appear at the injunction hearing. If a respondent is required to attend the hearing but does not, the court must issue an arrest warrant for the respondent.

At a firearm surrender hearing, if the respondent wants to surrender a firearm to a third party who attends the firearm surrender hearing, the court shall, subject to certain conditions, permit the surrender. If the third party is not at the firearm surrender hearing or the conditions are not met, or the respondent does not want to surrender a firearm to a third party, the court must order the respondent to surrender his or her firearm to the sheriff within 48 hours of the order. If the respondent fails to comply with the order, the court must issue an arrest warrant for the respondent.

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:

SB381, s. 1 Section 1. 48.25 (6) of the statutes is amended to read:

SB381,3,7 48.25 (6) If a proceeding is brought under s. 48.13, any party to or any governmental or social agency involved in the proceeding may petition the court to issue a temporary restraining order and injunction as provided in s. 813.122 or 813.125. The court exercising jurisdiction under this chapter shall follow the procedure under s. 813.122 or 813.125 except that the court may combine hearings authorized under s. 813.122 or 813.125 and this chapter, the petitioner for the temporary restraining order and injunction is not subject to the limitations under s. 813.122 (2) (a) or 813.125 (2) and no fee is required regarding the filing of the petition under s. 813.122 or 813.125.

SB381, s. 2 Section 2. 813.12 (2) (c) of the statutes is created to read:

SB381,3,10 813.12 (2) (c) When the respondent is served under this subsection, the petition shall include all of the following:

SB381,3,12 1. Notice of the requirements and penalties under s. 941.29 (1) (f) and (2) (e) and notice of any similar applicable federal laws and penalties.

SB381,3,14 2. If the court has scheduled a hearing to surrender firearms under sub. (2m), notice of the hearing.

SB381,3,17 3. An explanation of s. 813.129, including the procedures for surrendering a firearm and the circumstances listed under s. 813.129 (4) (a) under which a respondent must appear at a hearing to surrender firearms.

SB381,3,19 4. A firearm possession form developed under s. 813.129 (5), with instructions for completing and returning the form.

SB381, s. 3 Section 3. 813.12 (2m) of the statutes is amended to read:

SB381,4,6 813.12 (2m) Two-part procedure. Procedure for an action under this section is in 2 parts. First, if the petitioner requests a temporary restraining order the court shall issue or refuse to issue that order. Second, the court shall hold a hearing under sub. (4) on whether to issue an injunction, which is the final relief. If the court issues a temporary restraining order, the order shall set forth the date for the hearing on an injunction and may set forth the date for a hearing to surrender firearms which must occur within one week of the injunction hearing. If the court does not issue a temporary restraining order, the date for the hearing on an injunction shall be set upon motion by either party and the court may set forth a date for a hearing to surrender firearms which must occur within one week of the hearing on the injunction.

SB381, s. 4 Section 4. 813.12 (4m) (a) 1. of the statutes is amended to read:

SB381,4,10 813.12 (4m) (a) 1. Inform the respondent named in the petition of the requirements and penalties under s. 941.29 and any similar applicable federal laws and penalties.

SB381, s. 5 Section 5. 813.12 (4m) (a) 2. of the statutes is amended to read:

SB381,4,23 813.12 (4m) (a) 2. Except as provided in par. (ag), require in writing 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 circuit court commissioner. The judge or circuit court commissioner shall approve the person designated by the respondent unless the judge or circuit court commissioner finds that the person is inappropriate and places the reasons for the finding on the record. If a firearm is surrendered to a person designated by the respondent and approved by the judge or circuit court commissioner, the judge or circuit court commissioner shall inform the person to whom the firearm is surrendered of the requirements and penalties under s. 941.29 (4) in accordance with s. 813.129.

SB381, s. 6 Section 6. 813.12 (4m) (am) of the statutes is renumbered 813.129 (6) and amended to read:

SB381,5,6 813.129 (6) (a) When a respondent surrenders a firearm under par. (a) 2. sub. (3) (c) or (4) (c) 2. to a sheriff, the sheriff who is receiving the firearm shall prepare a receipt for each firearm surrendered to him or her. The receipt shall include the date on which the firearm was surrendered and the manufacturer, model, and serial number of the firearm surrendered to the sheriff and shall be signed by the respondent and by the sheriff to whom the firearm is surrendered.

SB381,5,12 (b) The sheriff shall keep the original of a receipt prepared under subd. 1. par. (a) and shall provide an exact copy of the receipt to the respondent and a certified copy of the receipt to the court that issued the injunction that required the surrender. When the firearm covered by the receipt is returned to the respondent under par. (b) sub. (7), the sheriff shall surrender to the respondent the original receipt and all of his or her copies of the receipt.

SB381,5,15 (c) A receipt prepared under subd. 1. par. (a) is conclusive proof that the respondent owns the firearm for purposes of returning the firearm covered by the receipt to the respondent under par. (b) sub. (7).

SB381,5,19 (d) The sheriff may not enter any information contained on a receipt prepared under subd. 1. par. (a) into any computerized or direct electronic data transfer system in order to store the information or, except as provided in par. (b), disseminate or provide access to the information.

SB381, s. 7 Section 7. 813.12 (4m) (aw) of the statutes is renumbered 813.129 (6) (e) 1. and amended to read:

SB381,6,2 813.129 (6) (e) 1. A sheriff may store a firearm surrendered to him or her under par. (a) 2. sub. (3) (c) or (4) (c) 2. in a warehouse that is operated by a public warehouse keeper licensed under ch. 99. If a sheriff stores a firearm at a warehouse under this paragraph subdivision, the respondent shall pay the costs charged by the warehouse for storing that firearm.

SB381, s. 8 Section 8. 813.12 (4m) (b) of the statutes is renumbered 813.129 (7) (a), and 813.129 (7) (a) (intro.) and 1., as renumbered, are amended to read:

SB381,6,7 813.129 (7) (a) A firearm surrendered under par. (a) 2. this section may not be returned to the respondent until a judge or circuit court commissioner determines all of the following:

SB381,6,10 1. That the injunction issued under sub. (4) s. 813.12 (4), 813.122 (5), or 813.125 (4), whichever required the surrender of the firearm, has been vacated or has expired and not been extended.

SB381, s. 9 Section 9. 813.12 (4m) (c) of the statutes is renumbered 813.129 (7) (b) and amended to read:

SB381,6,22 813.129 (7) (b) If a respondent surrenders a firearm under par. (a) 2. this section 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).

SB381, s. 10 Section 10. 813.122 (2) of the statutes is renumbered 813.122 (2) (a).

SB381, s. 11 Section 11. 813.122 (2) (b) of the statutes is created to read:

SB381,7,2 813.122 (2) (b) When the respondent is served under this subsection, the petition shall include all of the following:

SB381,7,4 1. Notice of the requirements and penalties under s. 941.29 (1) (f) and (2) (e) and notice of any similar applicable federal laws and penalties.

SB381,7,6 2. If the court has scheduled a hearing to surrender firearms under sub. (3) (a), notice of the hearing.

SB381,7,9 3. An explanation of s. 813.129, including the procedures for surrendering a firearm and the circumstances listed under s. 813.129 (4) (a) under which a respondent must appear at a hearing to surrender firearms.

SB381,7,11 4. A firearm possession form developed under s. 813.129 (5), with instructions for completing and returning the form.

SB381, s. 12 Section 12. 813.122 (3) (a) of the statutes is amended to read:

SB381,7,24 813.122 (3) (a) Procedure for an action under this section is in 2 parts. First, if the petitioner requests a temporary restraining order, the court or circuit court commissioner shall issue or refuse to issue that order. Second, the court shall hold a hearing under sub. (5) on whether to issue an injunction, which is the final relief. If the court or circuit court commissioner issues a temporary restraining order, the order shall set forth the date for the hearing on an injunction and may set forth the date for a hearing to surrender firearms which must occur within one week of the injunction hearing. If the court or circuit court commissioner does not issue a temporary restraining order, the date for the hearing on an injunction shall be set upon motion by either party and the court may set forth a date for a hearing to surrender firearms which must occur within one week of the hearing on the injunction.

SB381, s. 13 Section 13. 813.122 (5m) (a) 1. of the statutes is amended to read:

SB381,8,3 813.122 (5m) (a) 1. Inform the respondent named in the petition of the requirements and penalties under s. 941.29 and any similar applicable federal laws and penalties.

SB381, s. 14 Section 14. 813.122 (5m) (a) 2. of the statutes is amended to read:

SB381,8,16 813.122 (5m) (a) 2. Except as provided in par. (ag), require in writing 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 circuit court commissioner. The judge or circuit court commissioner shall approve the person designated by the respondent unless the judge or circuit court commissioner finds that the person is inappropriate and places the reasons for the finding on the record. If a firearm is surrendered to a person designated by the respondent and approved by the judge or circuit court commissioner, the judge or circuit court commissioner shall inform the person to whom the firearm is surrendered of the requirements and penalties under s. 941.29 (4) in accordance with s. 813.129.

SB381, s. 15 Section 15. 813.122 (5m) (am) of the statutes is repealed.

SB381, s. 16 Section 16. 813.122 (5m) (aw) of the statutes is repealed.

SB381, s. 17 Section 17. 813.122 (5m) (b) and (c) of the statutes are repealed.

SB381, s. 18 Section 18. 813.125 (4) (a) 2. of the statutes is amended to read:

SB381,9,2 813.125 (4) (a) 2. The petitioner serves upon the respondent a copy of a restraining order obtained under sub. (3) and notice of the time for the hearing on the issuance of the injunction under sub. (3) (c). The court may set forth a date for a hearing to surrender firearms which must occur within one week of the hearing on the injunction. If the court sets a date under this subdivision, the notice of the hearing to surrender firearms shall be served upon the respondent with the copy of the restraining order.

SB381,9,7 2m. The restraining order or notice of hearing served under this subdivision subd. 2. shall inform the respondent that, if the judge or circuit court commissioner issues an injunction, the judge or circuit court commissioner may also order the respondent not to possess a firearm while the injunction is in effect. The order or notice shall include all of the following:

SB381, s. 19 Section 19. 813.125 (4) (a) 2m. a., b. and c. of the statutes are created to read:

SB381,9,10 813.125 (4) (a) 2m. a. Notice of the requirements and penalties under s. 941.29 (1) (g) and (2) (d) and notice of any similar applicable federal laws and penalties.

SB381,9,13 b. An explanation of s. 813.129, including the procedures for surrendering a firearm and the circumstances listed under s. 813.129 (4) (a) under which a respondent must appear at a hearing to surrender firearms.

SB381,9,15 c. A firearm possession form developed under s. 813.129 (5), with instructions for completing and returning the form.

SB381, s. 20 Section 20. 813.125 (4m) (a) of the statutes is amended to read:

SB381,9,24 813.125 (4m) (a) If a judge or circuit court commissioner issues an injunction under sub. (4) and the judge or circuit court commissioner determines, based on clear and convincing evidence presented at the hearing on the issuance of the injunction, that the respondent may use a firearm to cause physical harm to another or to endanger public safety, the judge or circuit court commissioner may prohibit the respondent from possessing a firearm. If the respondent is not prohibited from possessing a firearm and the court had scheduled under sub. (4) (a) 2. a hearing to surrender firearms, the court shall dismiss the hearing to surrender firearms.

SB381, s. 21 Section 21. 813.125 (4m) (c) 1. of the statutes is amended to read:

SB381,10,3 813.125 (4m) (c) 1. Inform the respondent named in the petition of the requirements and penalties under s. 941.29 and any similar applicable federal laws and penalties.

SB381, s. 22 Section 22. 813.125 (4m) (c) 2. of the statutes is amended to read:

SB381,10,16 813.125 (4m) (c) 2. Except as provided in par. (cg), require in writing 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 circuit court commissioner. The judge or circuit court commissioner shall approve the person designated by the respondent unless the judge or circuit court commissioner finds that the person is inappropriate and places the reasons for the finding on the record. If a firearm is surrendered to a person designated by the respondent and approved by the judge or circuit court commissioner, the judge or circuit court commissioner shall inform the person to whom the firearm is surrendered of the requirements and penalties under s. 941.29 (4) in accordance with s. 813.129.

SB381, s. 23 Section 23. 813.125 (4m) (cm) of the statutes is repealed.

SB381, s. 24 Section 24. 813.125 (4m) (cw) of the statutes is repealed.

SB381, s. 25 Section 25. 813.125 (4m) (d) and (e) of the statutes are repealed.

SB381, s. 26 Section 26. 813.125 (6) (c) of the statutes is amended to read:

SB381,11,2 813.125 (6) (c) A respondent who does not appear at a hearing at which the court orders an injunction under sub. (4) but who has been served with a copy of the petition and notice of the time for hearing under sub. (4) (a) 2. that includes the information required under sub. (4) (a) 2m. has constructive knowledge of the existence of the injunction and shall be arrested for violation of the injunction regardless of whether he or she has been served with a copy of the injunction.

SB381, s. 27 Section 27. 813.129 of the statutes is created to read:

SB381,11,5 813.129 Notice and process for firearm surrender. (1) Definitions. In this section:

SB381,11,6 (a) "Firearm possession form" means the form developed under sub. (5).

SB381,11,8 (b) "Petitioner" means an individual who is applying for, or for whom a court has granted, an injunction under s. 813.12 (4), 813.122 (5), or 813.125 (4).

SB381,11,11 (c) "Respondent" means the individual who is the subject of an injunction issued under s. 813.12 (4), 813.122 (5), or 813.125 (4), which requires the individual under s. 813.12 (4m), 813.122 (5m), or 813.125 (4m) to surrender his or her firearms.

SB381,11,16 (2) Firearm possession determination. (a) If the respondent is present at the injunction hearing, the respondent shall provide the court a completed firearm possession form. The court shall verify the information on the firearm possession form and shall make an inquiry on the record as to the contents of the firearm possession form.

SB381,11,22 (b) If the respondent is not present at the injunction hearing, the court shall provide the petitioner with an opportunity to state whether he or she believes that the respondent possesses a firearm. If the petitioner states that the respondent possesses a firearm, the court shall ask the petitioner how many firearms he or she believes the respondent possesses and the make and model of any firearm he or she believes the respondent possesses.

SB381,12,2 (c) 1. If the firearm possession form submitted to the court under par. (a) indicates the respondent does not possess a firearm and the court, after an inquiry, is satisfied that the respondent does not possess a firearm, the court shall file the firearm possession form and, if a hearing to surrender firearms was scheduled under s. 813.12 (2m), 813.122 (3) (a), or 813.125 (4) (a) 2., dismiss the hearing.

SB381,12,8 2. If the firearm possession form submitted to the court under par. (a) or the petitioner's statement under par. (b) indicates that the respondent possesses a firearm or if the court is not satisfied that the respondent does not possess a firearm, the court shall schedule a hearing to surrender firearms to occur within one week of the injunction hearing unless the hearing to surrender firearms was scheduled under s. 813.12 (2m), 813.122 (3) (a), or 813.125 (4) (a) 2.

SB381,12,13 (3) Surrender of firearms. (a) If the respondent surrenders his or her firearm in a manner consistent with par. (b) or (c), the court shall dismiss the hearing to surrender firearms scheduled under sub. (2) (c) 2. or under s. 813.12 (2m), 813.122 (3) (a), or 813.125 (4) (a) 2. unless the court has noted another reason that is relevant to the surrender of firearms that would require the hearing to occur.

SB381,12,16 (b) A respondent for whom a hearing to surrender firearms has been scheduled under sub. (2) (c) 2. or under s. 813.12 (2m), 813.122 (3) (a), or 813.125 (4) (a) 2. may surrender his or her firearm to another person if all of the following apply:

SB381,12,19 1. The respondent and the person to whom the respondent is surrendering his or her firearm appear at the injunction hearing under s. 813.12 (4), 813.122 (5), or 813.125 (4), whichever is appropriate.

SB381,12,21 2. At the injunction hearing, the person submits an affidavit confirming receipt of the firearms listed on the respondent's firearm possession form.

SB381,12,23 3. At the injunction hearing, the court is satisfied that the person is not prohibited from possessing a firearm.

SB381,12,25 4. The court informs the person to whom the firearm is surrendered of the requirements and penalties under s. 941.29 (4).

SB381,13,1 5. The court approves the surrender of the firearm.