LRB-3249/1
CMH:bjk:ph
2009 - 2010 LEGISLATURE
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
1An Act to repeal 813.122 (5m) (am), 813.122 (5m) (aw), 813.122 (5m) (b) and (c),
2813.125 (4m) (cm), 813.125 (4m) (cw) and 813.125 (4m) (d) and (e);
to renumber
3813.122 (2);
to renumber and amend 813.12 (4m) (am), 813.12 (4m) (aw),
4813.12 (4m) (b) and 813.12 (4m) (c);
to amend 48.25 (6), 813.12 (2m), 813.12
5(4m) (a) 1., 813.12 (4m) (a) 2., 813.122 (3) (a), 813.122 (5m) (a) 1., 813.122 (5m)
6(a) 2., 813.125 (4) (a) 2., 813.125 (4m) (a), 813.125 (4m) (c) 1., 813.125 (4m) (c)
72., 813.125 (6) (c) and 938.25 (6); and
to create 813.12 (2) (c), 813.122 (2) (b),
8813.125 (4) (a) 2m. a., b. and c. and 813.129 of the statutes;
relating to: notice
9of firearm prohibition when served with notice of an injunction hearing and
10process 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
1Section
1. 48.25 (6) of the statutes is amended to read:
SB381,3,72
48.25
(6) If a proceeding is brought under s. 48.13, any party to or any
3governmental or social agency involved in the proceeding may petition the court to
1issue a temporary restraining order and injunction as provided in s. 813.122 or
2813.125. The court exercising jurisdiction under this chapter shall follow the
3procedure under s. 813.122 or 813.125 except that the court may combine hearings
4authorized under s. 813.122 or 813.125 and this chapter, the petitioner for the
5temporary restraining order and injunction is not subject to the limitations under s.
6813.122 (2)
(a) or 813.125 (2) and no fee is required regarding the filing of the petition
7under s. 813.122 or 813.125.
SB381, s. 2
8Section
2. 813.12 (2) (c) of the statutes is created to read:
SB381,3,109
813.12
(2) (c) When the respondent is served under this subsection, the petition
10shall include all of the following:
SB381,3,1211
1. Notice of the requirements and penalties under s. 941.29 (1) (f) and (2) (e)
12and notice of any similar applicable federal laws and penalties.
SB381,3,1413
2. If the court has scheduled a hearing to surrender firearms under sub. (2m),
14notice of the hearing.
SB381,3,1715
3. An explanation of s. 813.129, including the procedures for surrendering a
16firearm and the circumstances listed under s. 813.129 (4) (a) under which a
17respondent must appear at a hearing to surrender firearms.
SB381,3,1918
4. A firearm possession form developed under s. 813.129 (5), with instructions
19for completing and returning the form.
SB381, s. 3
20Section
3. 813.12 (2m) of the statutes is amended to read:
SB381,4,621
813.12
(2m) Two-part procedure. Procedure for an action under this section
22is in 2 parts. First, if the petitioner requests a temporary restraining order the court
23shall issue or refuse to issue that order. Second, the court shall hold a hearing under
24sub. (4) on whether to issue an injunction, which is the final relief. If the court issues
25a temporary restraining order, the order shall set forth the date for the hearing on
1an injunction
and may set forth the date for a hearing to surrender firearms which
2must occur within one week of the injunction hearing. If the court does not issue a
3temporary restraining order, the date for the hearing
on an injunction shall be set
4upon motion by either party
and the court may set forth a date for a hearing to
5surrender firearms which must occur within one week of the hearing on the
6injunction.
SB381, s. 4
7Section
4. 813.12 (4m) (a) 1. of the statutes is amended to read:
SB381,4,108
813.12
(4m) (a) 1. Inform the respondent named in the petition of the
9requirements and penalties under s. 941.29
and any similar applicable federal laws
10and penalties.
SB381, s. 5
11Section
5. 813.12 (4m) (a) 2. of the statutes is amended to read:
SB381,4,2312
813.12
(4m) (a) 2. Except as provided in par. (ag), require
in writing the
13respondent to surrender any firearms
that he or she owns or has in his or her
14possession to the sheriff of the county in which the action under this section was
15commenced, to the sheriff of the county in which the respondent resides or to another
16person designated by the respondent and approved by the judge or circuit court
17commissioner. The judge or circuit court commissioner shall approve the person
18designated by the respondent unless the judge or circuit court commissioner finds
19that the person is inappropriate and places the reasons for the finding on the record.
20If a firearm is surrendered to a person designated by the respondent and approved
21by the judge or circuit court commissioner, the judge or circuit court commissioner
22shall inform the person to whom the firearm is surrendered of the requirements and
23penalties under s. 941.29 (4) in accordance with s. 813.129.
SB381, s. 6
24Section
6. 813.12 (4m) (am) of the statutes is renumbered 813.129 (6) and
25amended to read:
SB381,5,6
1813.129
(6) (a) When a respondent surrenders a firearm under
par. (a) 2. sub.
2(3) (c) or (4) (c) 2. to a sheriff, the sheriff who is receiving the firearm shall prepare
3a receipt for each firearm surrendered to him or her. The receipt shall include the
4date on which the firearm was surrendered and the manufacturer, model
, and serial
5number of the firearm surrendered to the sheriff and shall be signed by the
6respondent and by the sheriff to whom the firearm is surrendered.
SB381,5,127
(b) The sheriff shall keep the original of a receipt prepared under
subd. 1. par.
8(a) and shall provide an exact copy of the receipt to the respondent
and a certified
9copy of the receipt to the court that issued the injunction that required the surrender.
10When the firearm covered by the receipt is returned to the respondent under
par. (b) 11sub. (7), the sheriff shall surrender to the respondent the original receipt and all of
12his or her copies of the receipt.
SB381,5,1513
(c) A receipt prepared under
subd. 1. par. (a) is conclusive proof that the
14respondent owns the firearm for purposes of returning the firearm covered by the
15receipt to the respondent under
par. (b) sub. (7).
SB381,5,1916
(d) The sheriff may not enter any information contained on a receipt prepared
17under
subd. 1. par. (a) into any computerized or direct electronic data transfer system
18in order to store the information or
, except as provided in par. (b), disseminate or
19provide access to the information.
SB381, s. 7
20Section
7. 813.12 (4m) (aw) of the statutes is renumbered 813.129 (6) (e) 1. and
21amended to read:
SB381,6,222
813.129
(6) (e) 1. A sheriff may store a firearm surrendered to him or her under
23par. (a) 2. sub. (3) (c) or (4) (c) 2. in a warehouse that is operated by a public warehouse
24keeper licensed under ch. 99. If a sheriff stores a firearm at a warehouse under this
1paragraph subdivision, the respondent shall pay the costs charged by the warehouse
2for storing that firearm.
SB381, s. 8
3Section
8. 813.12 (4m) (b) of the statutes is renumbered 813.129 (7) (a), and
4813.129 (7) (a) (intro.) and 1., as renumbered, are amended to read:
SB381,6,75
813.129
(7) (a) A firearm surrendered under
par. (a) 2. this section may not be
6returned to the respondent until a judge or circuit court commissioner determines
7all of the following:
SB381,6,108
1. That the injunction issued under
sub. (4) s. 813.12 (4), 813.122 (5), or 813.125
9(4), whichever required the surrender of the firearm, has been vacated or has expired
10and not been extended.
SB381, s. 9
11Section
9. 813.12 (4m) (c) of the statutes is renumbered 813.129 (7) (b) and
12amended to read:
SB381,6,2213
813.129
(7) (b) If a respondent surrenders a firearm under
par. (a) 2. this
14section that is owned by a person other than the respondent, the person who owns
15the firearm may apply for its return to the circuit court for the county in which the
16person to whom the firearm was surrendered is located. The court shall order such
17notice as it considers adequate to be given to all persons who have or may have an
18interest in the firearm and shall hold a hearing to hear all claims to its true
19ownership. If the right to possession is proved to the court's satisfaction, it shall
20order the firearm returned. If the court returns a firearm under this paragraph, the
21court shall inform the person to whom the firearm is returned of the requirements
22and penalties under s. 941.29 (4).
SB381, s. 10
23Section
10. 813.122 (2) of the statutes is renumbered 813.122 (2) (a).
SB381, s. 11
24Section
11. 813.122 (2) (b) of the statutes is created to read:
SB381,7,2
1813.122
(2) (b) When the respondent is served under this subsection, the
2petition shall include all of the following:
SB381,7,43
1. Notice of the requirements and penalties under s. 941.29 (1) (f) and (2) (e)
4and notice of any similar applicable federal laws and penalties.
SB381,7,65
2. If the court has scheduled a hearing to surrender firearms under sub. (3) (a),
6notice of the hearing.
SB381,7,97
3. An explanation of s. 813.129, including the procedures for surrendering a
8firearm and the circumstances listed under s. 813.129 (4) (a) under which a
9respondent must appear at a hearing to surrender firearms.
SB381,7,1110
4. A firearm possession form developed under s. 813.129 (5), with instructions
11for completing and returning the form.
SB381, s. 12
12Section
12. 813.122 (3) (a) of the statutes is amended to read:
SB381,7,2413
813.122
(3) (a) Procedure for an action under this section is in 2 parts. First,
14if the petitioner requests a temporary restraining order, the court or circuit court
15commissioner shall issue or refuse to issue that order. Second, the court shall hold
16a hearing under sub. (5) on whether to issue an injunction, which is the final relief.
17If the court or circuit court commissioner issues a temporary restraining order, the
18order shall set forth the date for the hearing on an injunction
and may set forth the
19date for a hearing to surrender firearms which must occur within one week of the
20injunction hearing. If the court or circuit court commissioner does not issue a
21temporary restraining order, the date for the hearing
on an injunction shall be set
22upon motion by either party
and the court may set forth a date for a hearing to
23surrender firearms which must occur within one week of the hearing on the
24injunction.
SB381, s. 13
25Section
13. 813.122 (5m) (a) 1. of the statutes is amended to read:
SB381,8,3
1813.122
(5m) (a) 1. Inform the respondent named in the petition of the
2requirements and penalties under s. 941.29
and any similar applicable federal laws
3and penalties.
SB381, s. 14
4Section
14. 813.122 (5m) (a) 2. of the statutes is amended to read:
SB381,8,165
813.122
(5m) (a) 2. Except as provided in par. (ag), require
in writing the
6respondent to surrender any firearms
that he or she owns or has in his or her
7possession to the sheriff of the county in which the action under this section was
8commenced, to the sheriff of the county in which the respondent resides or to another
9person designated by the respondent and approved by the judge or circuit court
10commissioner. The judge or circuit court commissioner shall approve the person
11designated by the respondent unless the judge or circuit court commissioner finds
12that the person is inappropriate and places the reasons for the finding on the record.
13If a firearm is surrendered to a person designated by the respondent and approved
14by the judge or circuit court commissioner, the judge or circuit court commissioner
15shall inform the person to whom the firearm is surrendered of the requirements and
16penalties under s. 941.29 (4) in accordance with s. 813.129.
SB381, s. 15
17Section
15. 813.122 (5m) (am) of the statutes is repealed.
SB381, s. 16
18Section
16. 813.122 (5m) (aw) of the statutes is repealed.