2015 - 2016 LEGISLATURE
October 13, 2015 - Introduced by Representatives Barnes, Johnson, Sargent,
Young, Pope, Berceau, Goyke, Brostoff, C. Taylor, Sinicki, Subeck,
Ohnstad, Bowen and Zamarripa, cosponsored by Senators Harris Dodd and
L. Taylor. Referred to Committee on Judiciary.
1An Act to amend
165.63 (3), 165.63 (4) (d), 175.35 (1) (at), 175.60 (9g) (a) 2., 2
757.69 (1) (j), 801.50 (5s), 813.06, 813.126, 813.127, 813.128 (1) (a), 941.29 (1) 3
(f) and 941.29 (2) (e); and to create
813.124 of the statutes; relating to: lethal
4violence protective temporary restraining orders and injunctions and providing
5a criminal penalty.
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 possesses, if he or she is subject to a domestic abuse
injunction, a child abuse injunction, or, in certain cases, a harassment or an
individuals-at-risk injunction. If a person surrenders a firearm because he or she
is subject to one of those injunctions, the firearm may not be returned to the person
until a court determines that the injunction has been vacated or has expired and that
the person is not otherwise prohibited from possessing a firearm. A person who is
prohibited from possessing a firearm under such an injunction is guilty of a Class G
felony if he or she violates the prohibition.
This bill creates a lethal violence protective temporary restraining order and
a lethal violence protective injunction. Upon receiving a petition filed by a law
enforcement officer or a family or household member of the respondent, a court shall
issue a temporary restraining order (TRO) prohibiting the respondent from
possessing a firearm and ordering the respondent to surrender all of his or her
firearms if the court finds reasonable grounds to believe that the respondent is
substantially likely to injure himself or herself or another person if the respondent
possesses a firearm. At the injunction hearing, the court may grant a lethal violence
protective injunction ordering the respondent to refrain from possessing a firearm
if the court finds reasonable grounds to believe that the respondent is substantially
likely to injure himself or herself or another person if the respondent possesses a
firearm. A lethal violence protective injunction is effective for one year and may be
renewed for additional one-year terms. Any person who is subject to a lethal violence
protective injunction may petition no more than once a year to vacate the injunction.
A person who possesses a firearm while subject to a lethal violence protective TRO
or injunction is guilty of a Class G felony. In addition, a person who files a petition
for a lethal violence protective TRO or injunction, knowing the information in the
petition to be false or with the intent to harass, is subject to a fine of up to $10,000
and imprisonment for up to nine months or both.
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:
165.63 (3) of the statutes is amended to read:
165.63 (3) Requests for injunctions.
In making a determination required 3
under s. 813.124 (8) (a) or
813.1285 (7) (a), a judge or court commissioner shall 4
request information under sub. (2) from the department or from a law enforcement 5
agency or law enforcement officer as provided in sub. (4) (d).
165.63 (4) (d) of the statutes is amended to read:
(d) Aid the court in making a determination required under s. 8813.124 (8) (a) or
813.1285 (7) (a).
175.35 (1) (at) of the statutes is amended to read:
(at) "Firearms restrictions record search" means a search of 11
department of justice records to determine whether a person seeking to purchase a 12
handgun is prohibited from possessing a firearm under s. 941.29. "Firearms 13
restrictions record search" includes a criminal history record search, a search to 14
determine whether a person is prohibited from possessing a firearm under s. 51.20
(13) (cv) 1., 2007 stats., a search in the national instant criminal background check 2
system to determine whether a person has been ordered not to possess a firearm 3
under s. 51.20 (13) (cv) 1., 51.45 (13) (i) 1., 54.10 (3) (f) 1., or 55.12 (10) (a), a search 4
to determine whether the person is subject to an injunction under s. 813.12 or 5
813.122, or a tribal injunction, as defined in s. 813.12 (1) (e), issued by a court 6
established by any federally recognized Wisconsin Indian tribe or band, except the 7
Menominee Indian tribe of Wisconsin, that includes notice to the respondent that he 8
or she is subject to the requirements and penalties under s. 941.29 and that has been 9
filed with the circuit court under s. 806.247 (3), and a search to determine whether 10
the person is prohibited from possessing a firearm under s. 813.123 (5m), 813.124 (3)
or 813.125 (4m).
175.60 (9g) (a) 2. of the statutes is amended to read:
(a) 2. The department shall conduct a criminal history record 14
search and shall search its records and conduct a search in the national instant 15
criminal background check system to determine whether the applicant is prohibited 16
from possessing a firearm under federal law; whether the applicant is prohibited 17
from possessing a firearm under s. 941.29; whether the applicant is prohibited from 18
possessing a firearm under s. 51.20 (13) (cv) 1., 2007 stats.; whether the applicant 19
has been ordered not to possess a firearm under s. 51.20 (13) (cv) 1., 51.45 (13) (i) 1., 20
54.10 (3) (f) 1., or 55.12 (10) (a); whether the applicant is subject to an injunction 21
under s. 813.12 or 813.122, or a tribal injunction, as defined in s. 813.12 (1) (e), issued 22
by a court established by any federally recognized Wisconsin Indian tribe or band, 23
except the Menominee Indian tribe of Wisconsin, that includes notice to the 24
respondent that he or she is subject to the requirements and penalties under s. 25
941.29 and that has been filed with the circuit court under s. 806.247 (3); and
whether the applicant is prohibited from possessing a firearm under s. 813.123 (5m),
2813.124 (3) or (4),
or 813.125 (4m); and to determine if the court has prohibited the 3
applicant from possessing a dangerous weapon under s. 969.02 (3) (c) or 969.03 (1) 4
(c) and if the applicant is prohibited from possessing a dangerous weapon as a 5
condition of release under s. 969.01.
757.69 (1) (j) of the statutes is amended to read:
(j) Hold hearings, make findings and issue temporary restraining 8
orders under s. 813.122 or,
813.123, or 813.124
801.50 (5s) of the statutes is amended to read:
Venue of an action under s. 813.122, 813.124,
or 813.125 shall be 11
in the county in which the cause of action arose or where the petitioner or the 12
813.06 of the statutes is amended to read:
14813.06 Security for damages.
In proceedings under s. 767.225 the court or 15
judge may, and in all other proceedings except proceedings under ss. 813.12, 813.122, 16813.124,
813.125 and 823.113 the court or judge shall, require a bond of the party 17
seeking an injunction, with sureties, to the effect that he or she will pay to the party 18
enjoined such damages, not exceeding an amount to be specified, as he or she may 19
sustain by reason of the injunction if the court finally decides that the party was not 20
entitled thereto. Copies of such bond, affidavit or other pleading shall be served upon 21
the party enjoined and the officer serving the same shall, within 8 days after such 22
service, file his or her return in the office of the clerk of the court.
813.124 of the statutes is created to read:
24813.124 Lethal violence protective orders and injunctions. (1) 25Definitions.
In this section:
(a) "Firearms dealer" has the meaning given in s. 175.35 (1) (ar).
(b) "Reasonable grounds" means more likely than not that a specific event will 3
4(2) Commencement of action and response.
(a) No action under this section 5
may be commenced by complaint and summons. An action under this section may 6
be commenced only by a petition described under sub. (5) (a). The action commences 7
with the sheriff serving the petition on the respondent if a copy of the petition is filed 8
before service or promptly after service. If the judge or a circuit court commissioner 9
extends the time for a hearing under sub. (3) (c) and the petitioner files an affidavit 10
with the court stating that personal service by the sheriff under s. 801.11 (1) (a) or 11
(b) was unsuccessful because the respondent is avoiding service by concealment or 12
otherwise, the judge or circuit court commissioner shall inform the petitioner that 13
he or she may serve the respondent by publication of a summary of the petition as 14
a class 1 notice, under ch. 985, and by mailing or sending a facsimile if the 15
respondent's post-office address or facsimile number is known or can with due 16
diligence be ascertained. The mailing or sending of a facsimile may be omitted if the 17
post-office address or facsimile number cannot be ascertained with due diligence. 18
A summary of the petition published as a class 1 notice shall include the name of the 19
respondent and of the petitioner, notice of the temporary restraining order, and 20
notice of the date, time, and place of the hearing regarding the injunction. The court 21
shall inform the petitioner in writing that the petitioner should contact the sheriff 22
to verify the proof of service of the petition.
(b) Section 813.06 does not apply to an action under this section. The 24
respondent may respond to the petition either in writing before or at the hearing on 25
the issuance of the injunction or orally at that hearing.
(c) When the respondent is served with the petition under this subsection, the 2
respondent shall be provided notice of the requirements and penalties under s. 3
941.29 (1) (f) and (2) (e).
4(2m) Two-part procedure.
Procedure for an action under this section is in 2 5
parts. First, if the petitioner requests a temporary restraining order, the court shall 6
issue or refuse to issue that order. Second, the court shall hold a hearing under sub. 7
(4) on whether to issue an injunction, which is the final relief. If the court issues a 8
temporary restraining order, the order shall set forth the date for the hearing on an 9
injunction. If the court does not issue a temporary restraining order, the date for the 10
hearing shall be set upon motion by either party.
11(3) Temporary restraining order.
(a) 1. A judge or circuit court commissioner 12
shall issue a temporary restraining order prohibiting the respondent from 13
possessing a firearm and ordering the respondent to surrender all of his or her 14
firearms if the judge or circuit court commissioner finds reasonable grounds to 15
believe that the respondent is substantially likely to injure himself or herself or 16
another person if the respondent possesses a firearm.
2. The judge or circuit court commissioner shall base the finding under subd. 18
1. on the following:
a. Any testimony.
b. The petition.
c. Any recent threat of violence or act of violence by the respondent directed 22
toward himself or herself or another person.
d. Any pattern of violent acts or violent threats by the respondent within the 24
past 12 months, including threats of violence or acts of violence directed toward 25
himself or herself or another person.
3. The judge or circuit court commissioner may base the finding under subd. 2
1. on any factors in addition to those under subd. 2., including any of the following:
a. Any unlawful or reckless use, display, or brandishing of a firearm by the 4
b. The respondent's history of use, attempted use, or threatened use of physical 6
force against another person.
c. A prior arrest of the respondent for a felony.
d. Evidence that the respondent has abused controlled substances or alcohol.
e. Evidence that the respondent has recently acquired firearms, ammunition, 10
or other dangerous weapons.
(am) The order issued under par. (a) requires one of the following:
1. If the respondent is present at the hearing, the respondent to immediately 13
surrender all firearms that he or she has in his or her possession to the sheriff of the 14
county in which the action under this section was commenced or to the sheriff of the 15
county in which the respondent resides. The sheriff to whom the firearms are 16
surrendered may, at the request of the respondent, arrange for the sale of the 17
firearms to a firearms dealer.
2. One of the following:
a. If the respondent is not present at the hearing and the sheriff personally 20
serves the respondent with the order issued under par. (a), the sheriff to request the 21
respondent to immediately surrender all firearms in his or her possession. The 22
sheriff may, at the request of the respondent, arrange for the sale of the firearms to 23
a firearms dealer.