SB90: Bill Text

LRB-2027/2

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2011 - 2012 LEGISLATURE

2011 Senate BILL 90

May 10, 2011 - Introduced by Senators Galloway, Grothman, Harsdorf, Holperin, Kapanke, Lazich, Leibham, Moulton and Zipperer, cosponsored by Representatives Mursau, Williams, Bies, Kleefisch, Ballweg, Bernier, Brooks, Endsley, Honadel, Jacque, Kerkman, Kestell, Knilans, T. Larson, LeMahieu, Murtha, Nass, Nerison, Nygren, A. Ott, Petersen, Petryk, Rivard, Severson, Spanbauer, Steineke, Strachota, Tauchen and Van Roy. Referred to Committee on Judiciary, Utilities, Commerce, and Government Operations.

SB90,2,13 An Act to repeal 941.237 (4), 948.605 (1) (a) and (am) and 948.605 (2) (b) 1. to 5. and 7.; to renumber 167.30, 941.295 (1), 943.13 (1e) (a) and 947.01; to renumber and amend 23.33 (3) (e), 29.089 (2), 29.091, 29.314 (4) (b) 1., 29.621 (4), 440.26 (3m), 941.23, 941.235 (2), 941.295 (2) (d), 941.295 (4), 943.13 (2), 948.605 (2) (b) 6. and 948.605 (2) (b) 8.; to amend 48.685 (2) (bb), 50.065 (2) (bb), 59.54 (6), 66.0409 (3) (b), 165.60, 165.81 (2), 165.82 (1) (intro.), 165.82 (2), 167.31 (1) (b), 813.12 (6) (am) 1., 813.122 (9) (am) 1., 813.125 (5r) (a), 895.527 (5) (a), 938.396 (2g) (n), 939.22 (10), 941.295 (2) (intro.), 943.13 (1m) (b), 943.13 (3), 947.011 (2) (a) 1., 947.011 (2) (c) 1., 947.011 (2) (d), 948.60 (1), 948.605 (2) (b) (intro.), 968.255 (1) (a) 2., 971.37 (1m) (a) 2. and 973.055 (1) (a) 1.; to repeal and recreate 29.314 (3) (b) 1.; and to create 20.455 (2) (gs), 20.455 (2) (gu), 23.33 (3) (e) 1., 23.33 (3) (e) 2., 23.33 (3) (e) 3., 23.33 (3) (e) 4., 29.089 (2) (a), 29.089 (2) (b), 29.089 (2) (c), 29.089 (2) (d), 29.091 (2), 29.314 (4) (b) 1g., 29.621 (4) (a), 29.621 (4) (b), 29.621 (4) (c), 29.621 (4) (d), 29.621 (6), 66.0409 (6), 165.25 (12), 167.30 (2), 167.31 (4) (ar), 167.31 (4) (at), 175.48, 175.49, 175.60, 440.26 (3m) (a), 440.26 (3m) (b), 440.26 (3m) (c), 440.26 (3m) (d), 941.23 (1), 941.23 (2) (b), 941.23 (2) (c), 941.23 (2) (d), 941.23 (2) (e), 941.23 (3), 941.235 (2) (c), 941.235 (2) (d), 941.235 (2) (e), 941.237 (3) (cr), 941.237 (3) (ct), 941.237 (3) (cx), 941.295 (1c) (b) and (c), 941.295 (2) (d) 2., 941.295 (2g), 941.295 (2r), 943.13 (1e) (aL), 943.13 (1e) (bm), 943.13 (1e) (cm), 943.13 (1e) (g), 943.13 (1m) (c), 943.13 (1n), 943.13 (2) (bm), 946.71, 947.01 (2) and 948.605 (2) (b) 1m. and 1r. of the statutes; relating to: carrying a concealed weapon; licenses authorizing persons to carry concealed weapons; possessing or transporting a firearm, bow, or crossbow under certain circumstances; disorderly conduct limitations; photographic identification cards for former law enforcement officers; providing an exemption from emergency rule procedures; requiring the exercise of rule-making authority; making appropriations; and providing penalties.

Analysis by the Legislative Reference Bureau

This bill creates a licensing system under which an individual is permitted to carry a concealed weapon. The bill also makes changes in Wisconsin law to account for a federal law that requires the state to permit an individual who works as or who formerly worked as a federal, state, tribal, or local law enforcement officer in Wisconsin or in any other state to carry a concealed firearm. This bill also makes changes to laws regulating firearms and other weapons.

Current law regarding the possession of weapons

Wisconsin law

In general, under current Wisconsin law, no person may go armed with a concealed and dangerous weapon. The "going armed with" language includes cases in which a person is carrying a concealed weapon but has not gone and is not going anywhere with it and cases in which a weapon is readily accessible to a person in a car. A person who violates the prohibition may be fined not more than $10,000 or imprisoned for not more than nine months or both. This prohibition has many exceptions. First, Wisconsin law provides an exception for law enforcement officers. Second, under State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, this prohibition is unconstitutional if applied 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. In Hamdan, the court also indicated that the constitutional right to keep and bear arms for security allows a person to carry a concealed weapon under certain circumstances in his or her own home.

Current Wisconsin law also prohibits, with certain exceptions, going armed with or possessing a firearm in a public building, tavern, state park, or wildlife refuge or within 1,000 feet of the grounds of a school. In addition, current Wisconsin law prohibits, with certain exceptions, carrying a firearm, bow, or crossbow in most vehicles unless the firearm is unloaded and encased or the bow or crossbow is unstrung and encased. A person who violates one of these prohibitions is subject to civil or criminal penalties.

Federal law

Under federal law, qualified current law enforcement officers and qualified former law enforcement officers may carry concealed firearms that have been shipped or transported in interstate or foreign commerce, regardless of any state prohibition.

Federal law specifies the criteria that a person must meet to be a qualified current law enforcement officer or a qualified former law enforcement officer. To be the first, a person must: 1) be employed by a government agency; 2) be a law enforcement officer; 3) be authorized by the agency to carry a firearm; 4) not be the subject of any disciplinary action by the agency that could result in the loss or suspension of law enforcement authority; 5) not be under the influence of alcohol or other drugs; 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 former law enforcement officer, all of the following must apply: 1) the person separated from service with a government agency as a law enforcement officer in good standing; 2) before separating from service, the person served as a law enforcement officer for an aggregate of 10 years or more or separated due to a service-connected disability after completing any applicable probationary period; 3) the person has not been found by a medical professional to be unqualified to be a law enforcement officer for reasons related to his or her mental health and has not acknowledged in an agreement with the law enforcement agency that formerly employed him or her that he or she is not qualified to be a law enforcement officer for reasons related to his or her mental health; 4) the person is not under the influence of alcohol or other drugs; 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 his or her home state's standards for qualification for active duty law enforcement officers to carry a firearm.

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 photographic identification issued by the agency for which he or she works. If the person is a qualified former 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 photographic identification issued by the law enforcement agency from which the person separated from service as a law enforcement officer that indicates that, within the preceding 12 months, the person has met the standards set by the agency for qualification for active duty law enforcement officers to carry the type of firearm that the qualified former law enforcement officer is carrying concealed; or 2) both of the following: a) a photographic identification issued by the agency from which the person separated from service as a law enforcement officer; and b) a certification issued by the state in which the person resides or by a certified firearms instructor that is qualified to test active duty officers in that state that indicates that, within the preceding 12 months, the person has been found to meet either state standards or standards set by a law enforcement agency in the state for qualification for active duty law enforcement officers to carry the type of firearm that the qualified former law enforcement officer is carrying concealed.

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.

How the bill changes Wisconsin's concealed weapons law

Carrying a concealed weapon in your own home or business

This bill permits a person to go armed with a concealed and dangerous weapon in his or her own home or place of business or on land that he or she owns, leases, or legally occupies.

Licenses to carry a concealed weapon

This bill creates a procedure by which a person may apply to the Department of Justice (DOJ) for a license to carry a concealed weapon. Specifically, the license authorizes a person to carry a concealed weapon (a handgun, an electric weapon, a knife other than a switchblade, or a billy club) anywhere in this state except in particular places. Accordingly, the bill amends other prohibitions previously discussed that relate to the use and possession of firearms to specify that they generally do not apply to licensees.

A person licensed under the bill is generally prohibited from carrying a concealed weapon or a weapon that is not concealed in a police station, sheriff's office, or state patrol station; in a prison or jail; in a courthouse; beyond the security checkpoint at an airport; and on the grounds of a school. A business owner or person in his or her own home may prohibit a licensee from carrying a concealed weapon into the business or home, an employer generally may prohibit an employee from carrying a concealed weapon in the course of the employee's employment, and the state or a local governmental unit may prohibit a licensee from carrying a firearm into a building that is owned, occupied, or controlled by the state or the local governmental unit.

Licensing requirements and procedure

Under the bill, DOJ must issue or renew a license to carry a concealed weapon to an applicant who is a resident of Wisconsin unless the applicant is less than 21 years old or is prohibited from possessing a firearm under federal or state law. DOJ must conduct a background check of an applicant for a license or for a license renewal to determine if he or she is ineligible for a license.

Furthermore, the bill does all of the following:

1. Provides that, with certain exceptions, a license to carry a concealed weapon is valid for five years.

2. Requires each circuit court to notify DOJ of any court proceeding that would result in a suspension or revocation of a license if the subject of the proceeding had a license. DOJ must determine if the subject of such proceeding has a license and, if the subject does, DOJ must revoke the license if the subject is no longer eligible to have a license or suspend the license if the subject, after being charged with a misdemeanor, is ordered by the court not to possess a firearm.

3. Allows an individual who requires a license immediately to petition a court for such a license. A court may grant a license, which is valid for 30 days, if the court determines that immediate licensure is warranted to protect the individual from death or great bodily harm.

4. Provides an appeals process for a person whose application for a license is denied or whose license is suspended or revoked.

5. Requires DOJ to keep a list of licensees but specifies that DOJ may provide information from that list regarding a specific licensee only to law enforcement agencies and only in certain circumstances.

6. Requires a person who applies for a license to pay a $13 background check fee and an application fee of up to $52 to cover DOJ's costs in issuing the license. A person who applies to renew his or her license must pay the same background check fee and a renewal fee of up to $27 to cover DOJ's costs in renewing the license.

7. Grants immunity from liability for acts done under the bill to DOJ, the Department of Transportation, and the employees of both departments; various court employees; businesses, nonprofit organizations, or individuals that do not prohibit persons from carrying concealed weapons on their property; and employers that do not prohibit employees from carrying concealed weapons during the course of employment.

8. Treats a permit, license, approval, or other authorization issued by another state in the same manner as a license issued under this bill if the individual who possesses the authorization submitted to a background check to determine if the individual is prohibited from possessing a firearm.

Penalties for certain offenses related to weapons

The bill establishes penalties for offenses that relate to concealed weapons or that are committed by licensees. First, a licensee or out-of-state licensee who fails to carry his or her license document or photographic identification, or to display either upon the request of a law enforcement officer, while the person is carrying a concealed weapon, may be required to forfeit $25. Second, a licensee who, for a second or subsequent time, or an individual whose license is suspended or revoked who fails to notify DOJ of a change in address within 30 days of the change may be required to forfeit $50. Third, a licensee who carries a concealed weapon in a place where the bill prohibits him or her from doing so may be fined not more than $500 or imprisoned for not more than 30 days or both. Fourth, a person who intentionally fails to relinquish a license document to DOJ after the license has been revoked must be fined not more than $500 and may be imprisoned for not more than 30 days, or both. Fifth, a person who intentionally makes a false statement in an application for a license may be charged with false swearing, a Class H felony.

The bill also prohibits an individual from intentionally representing that an invalid license to carry a concealed weapon is valid; from selling, lending, or allowing another individual to use his or her license; from representing that a license belongs to the individual if it has not been issued to him or her; from permitting unlawful use of his or her license; from reproducing a license for unlawful purposes; or from altering a license. A person who violates one of these prohibitions is guilty of a misdemeanor and may be fined not more than $10,000 or imprisoned for not more than nine months, or both.

Active duty and former law enforcement officers

This bill codifies the provisions of federal law that make the state concealed weapons prohibition inapplicable to active duty and former 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 former law enforcement officer if he or she is carrying a concealed firearm under those same circumstances.

This bill also requires state and local law enforcement agencies to issue and renew certification cards to qualified former law enforcement officers who separated from service with those agencies and requires DOJ to issue and renew certification cards to qualified former federal law enforcement officers who reside in Wisconsin. The qualifications mirror those listed in federal law, including: the former officer was in good standing when he or she separated from service; the former officer served for a period of ten years, unless he or she separated earlier due to service-connected disability after completing any probationary period; the former officer has met certain standards for qualification for active duty law enforcement officers to carry certain types of firearms; and the former officer was not disqualified from law enforcement for reasons related to his or her mental health. The cards enable the former officers to carry concealed firearms in the manner provided under federal law. The law enforcement agencies or DOJ, whichever is issuing the certification card to the former officer, must include personal information about the former officer, including a photograph; must include a statement that the former officer has met certain standards for qualification for active duty law enforcement officers to carry the types of firearms that are listed on the certification card; and must provide an expiration date of 12 months after the certification card is issued or renewed.

If a former officer is carrying his or her valid certification card, he or she is exempt from the prohibitions against carrying a concealed weapon only if the following apply: 1) the former 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 he or she is not carrying a firearm silencer; 2) the former officer is not under the influence of an intoxicant; and 3) federal law does not prohibit the former officer from possessing a firearm.

Other laws regarding weapons

This bill specifies that an individual does not violate the prohibition against disorderly conduct, or does not violate any local ordinance prohibiting disorderly conduct, by loading, carrying, or going armed with a firearm without regard to whether the firearm is loaded or whether the firearm is concealed or openly carried.

Current law imposes certain restrictions on the placement, possession, and transportation (carrying) of a firearm in or on a vehicle. The restrictions vary depending on the type of vehicle in which the firearm is carried. Generally, current law prohibits a person from carrying a firearm in or on a vehicle unless the firearm is unloaded and encased and prohibits a person from loading or discharging a firearm in or from a vehicle. This bill specifies that these restrictions do not apply to a person who carries a firearm in a vehicle, other than a commercial airplane, if the person is a qualified active duty or former law enforcement officer or a licensee and if the firearm is a a handgun.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report concerning the proposed penalty and the costs or savings that are likely to result if the bill is enacted.

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: