Amendment SSA1-SB214

LRBs0161/3

MGD:jld:ch

2003 - 2004 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, TO 2003 SENATE BILL 214

October 15, 2003 - Offered by Committee on Judiciary, Corrections and Privacy.

SB214-SSA1,1,10 An Act to renumber and amend 29.091, 29.621 (4), 941.23 and 941.235 (2); to amend 23.33 (3) (e), 29.089 (2), 51.20 (13) (cv) 4., 51.20 (16) (gm), 51.30 (3) (a), 165.82 (1) (intro.), 165.82 (2), 440.26 (3m), 813.12 (6) (am) 1., 813.12 (6) (am) 2., 813.122 (9) (am) 1., 813.122 (9) (am) 2., 813.125 (5r) (a), 813.125 (5r) (b), 938.396 (8) and 941.295 (2) (d); and to create 29.091 (2), 29.621 (4) (b), 55.06 (17) (bm), 59.25 (3) (u), 167.31 (4) (ar), 175.50, 938.396 (8m), 941.23 (1) (a), 941.23 (1) (b), 941.23 (1) (c), 941.23 (2), 941.235 (2) (c), 941.237 (3) (ct), 941.295 (2g), 941.295 (2r), 946.32 (3), 948.605 (2) (c) and 948.61 (3m) of the statutes; relating to: carrying or going armed with a concealed weapon, requiring the exercise of rule-making authority, and providing penalties.

Analysis by the Legislative Reference Bureau

Under current law, no person other than a peace officer may go armed with a concealed and dangerous weapon. The "going armed with" language applies to, among others, cases in which a person is carrying a concealed weapon but has not gone and is not going anywhere and cases in which a weapon is readily accessible to — but not physically carried by — a person in a car. A person who violates the prohibition on going armed with a concealed and dangerous weapon may be fined not more than $10,000 or imprisoned for not more than nine months or both. But under State v. Hamdan, 2003 WI 113, __ Wis. 2d __, it is unconstitutional to apply this prohibition to a person carrying a concealed weapon at his or her own business when: 1) the need to exercise this right is substantial; 2) the person has no other reasonable means to keep and handle the weapon; and 3) the person was not motivated by an unlawful purpose in concealing it.

In addition, current law prohibits, with certain exceptions, going armed with or possessing a firearm in a number of places, such as in a public building, tavern, state park, or wildlife refuge or within 1,000 feet of the grounds of a school. Current law also prohibits, with certain exceptions, carrying a loaded or unencased firearm in an automobile, motorboat, or airplane. A person who violates one of these prohibitions is subject to civil or criminal penalties.

This substitute amendment 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, unless the person is prohibited under federal or state law from possessing that weapon (prohibitions that apply to firearms if the person has been convicted of a misdemeanor crime of domestic violence or a felony; the person unlawfully uses a controlled substance; the person has been committed to a mental health facility; or the person is subject to a stalking, harassment, or domestic abuse restraining order or a harassment, domestic abuse, or child abuse injunction).

This substitute amendment also creates a procedure by which a person may apply to a county sheriff for a license to carry a concealed weapon more generally. The license authorizes a person to carry (defined in the bill to mean to go armed with) a concealed weapon (defined in the substitute amendment as a handgun, a stungun, a tear gas gun, a knife other than a switchblade, or a billy club) anywhere in this state except in particular places specified in the substitute amendment. These specified places include a police station, a sheriff's office, a state patrol station, a prison, a jail, a tavern (unless: 1) the person owns or manages the tavern; 2) the person is otherwise authorized to possess a handgun at the tavern; or 3) the sale of alcohol accounts for no more than 50% of the tavern's receipts), a school administration building, an airport, and any place in which the carrying of a weapon is prohibited by federal law. The substitute amendment also exempts licensees from the prohibition on possessing firearms in a school zone under certain circumstances. Specifically, the substitute amendment authorizes a licensee to carry a handgun in a school zone if: 1) the licensee is in a motor vehicle or on a snowmobile or bicycle; 2) the licensee has exited from a motor vehicle and is encasing the handgun or storing it in the motor vehicle; or 3) the licensee is traveling directly between any two of the following places: any person's private property, the licensee's place of employment or business, or a place outside of the school zone. This exemption does not apply if the licensee is on the school grounds. At the same time, the substitute amendment reduces the penalty for licensees who unlawfully carry handguns in a school zone or on school grounds or who carry electric weapons, tear gas guns, knives, or billy clubs on school grounds.

Under the substitute amendment, a county sheriff must issue a license to carry a concealed weapon to a person who meets the qualifications established in the substitute amendment for the license unless the county board of the sheriff's county decides by a two-thirds vote, taken before the fourth month after the substitute amendment becomes law, to authorize the sheriff not to issue concealed weapons licenses. The county board's vote does not prohibit the sheriff from issuing licenses; he or she may still choose to do so. The substitute amendment also allows two or more sheriffs to enter into cooperative agreements under which the sheriffs may jointly issue licenses to carry a concealed weapon or exercise their other responsibilities under the substitute amendment.

The substitute amendment specifies the requirements that a person must satisfy in order to qualify for a license to carry a concealed weapon. Included among the requirements that a person must satisfy are the following: 1) he or she must be at least 21 years old; 2) he or she does not have a physical disability that prevents him or her from safely handling a weapon; 3) he or she must be eligible to possess a firearm under federal law; 4) he or she must not be prohibited from possessing a firearm due to a felony conviction, a juvenile delinquency adjudication, an order issued in a civil commitment case, or any other order prohibiting the person from possessing a firearm; 5) he or she must not have been committed for the treatment of drug dependency during the preceding three years; 6) he or she must not have been convicted of an offense relating to controlled substances during the preceding three years; 7) he or she must not chronically or habitually use alcohol or other substances to the extent that his or her normal faculties are impaired; 8) he or she must have successfully completed one of several specified firearms training or safety courses or classes; 9) he or she must not have been subject to a finding of incompetency, subject of a protective placement as a minor based on a developmental disability, found not guilty of a crime by reason of mental disease or mental defect, or involuntarily committed for treatment of mental illness during the preceding five years; 10) he or she must not have been convicted of one of a set of specified misdemeanors involving violence or serving a sentence for committing such a misdemeanor within the preceding three years; and 11) he or she must be a Wisconsin resident. In addition, the substitute amendment requires the Department of Justice (DOJ) to conduct a background check of a person who applies for a license to carry a concealed weapon to help determine the person's eligibility for a license. The background check requirement does not apply to a person applying for a license if the person is a law enforcement officer, a correctional officer, a probation and parole agent, or a person holding a current certification from the law enforcement standards board.

In addition, the substitute amendment does all of the following:

1. Allows a sheriff to issue an emergency license to an individual if the sheriff determines that immediate licensure is warranted to protect the individual from death or great bodily harm.

2. Provides that a license to carry a concealed weapon is valid for five years and establishes a renewal procedure that includes a background check of the person renewing the license.

3. Requires a sheriff to revoke a license to carry a concealed weapon if the licensee no longer meets all of the requirements for licensure.

4. Requires a sheriff to suspend a license to carry a concealed weapon if the licensee is the subject of a civil or criminal case that may ultimately lead to the revocation of the license or, after being charged with a misdemeanor, is ordered by the court not to possess a firearm.

5. Provides that a person whose application for a license is denied or whose license is suspended or revoked by the sheriff may appeal the sheriff's action to circuit court for review by a judge.

6. Specifies the information that must be on a license to carry a concealed weapon and an application for such a license and requires DOJ to design the form of the license and the license application and renewal forms.

7. Requires the sheriff to provide information to DOJ concerning a person licensed to carry a concealed weapon, and requires DOJ to keep a computerized list of persons licensed to carry a concealed weapon. The list kept by DOJ is available only to law enforcement agencies in certain specified circumstances.

8. Requires the clerk of each court to notify DOJ of court proceedings relating to licensees and nonlicensees (including juvenile delinquency mental health commitment proceedings that are closed to the public) if those proceedings require suspension or revocation of the person's license if he or she is a licensee.

9. Requires each licensee to notify the sheriff within ten days after being charged with a crime or a drunk driving offense under federal law or the law of another state.

10. Requires a person who applies for a license to carry a concealed weapon to pay an application fee, which may not exceed either the cost to the sheriff of issuing the license or $75, whichever is less.

11. Requires the sheriff to collect an $8 background check fee from a person who applies for a license to carry a concealed weapon unless, in the case of a person applying for an emergency license, the sheriff waives the fee. The sheriff must forward all background check fees that he or she receives to the state treasurer.

12. Requires a person who applies for a license to carry a concealed weapon to pay a $15 shooting range improvement fee, which is to be used by the sheriff to provide grants for the construction and improvement of shooting ranges.

13. Requires a person who applies for a license to carry a concealed weapon to pay a $15 law enforcement excellence fund fee, which is to be used by the sheriff to improve law enforcement services in his or her county.

14. Grants immunity from liability to DOJ and its employees, sheriffs and their employees, and persons providing firearm training or safety classes for conduct undertaken in good faith under the substitute amendment.

15. Treats a license or permit issued by another state in the same manner as a license issued under this substitute amendment.

The substitute amendment also establishes the following penalties for offenses relating to licenses to carry a concealed weapon. First, a person who fails to carry his or her license document or who fails to display it upon the request of a law enforcement officer while the person is carrying a concealed weapon may be required to forfeit $25. Second, a person who is licensed to carry a concealed weapon and who carries a concealed weapon in a place where the license does not authorize him or her to do so may be fined not more than $1,000 or imprisoned for not more than 90 days or both. Third, a person who does any of the following shall be fined not less than $500 nor more than $10,000 and may be imprisoned for not more than nine months: 1) intentionally makes a false statement in an application for a license; 2) intentionally fails to report being charged under federal law or the law of another state with any crime or any drunk driving offense within ten days after being charged; or 3) intentionally fails to relinquish a license document to a sheriff after the license has been revoked.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB214-SSA1, s. 1 Section 1. 23.33 (3) (e) of the statutes is amended to read:

SB214-SSA1,5,6 23.33 (3) (e) With any firearm in his or her possession unless it is unloaded and enclosed in a carrying case, or. This paragraph does not apply to the possession of a handgun, as defined in s. 175.50 (1) (bm), by a person who holds a valid license to carry a concealed weapon issued under s. 175.50 or by an out-of-state licensee, as defined in s. 175.50 (1) (g).

SB214-SSA1,5,7 (em) With any bow unless it is unstrung or enclosed in a carrying case.

SB214-SSA1, s. 2 Section 2. 29.089 (2) of the statutes is amended to read:

SB214-SSA1,5,14 29.089 (2) Except as provided in sub. (3), no person may have in his or her possession or under his or her control a firearm on land located in state parks or state fish hatcheries unless the firearm is unloaded and enclosed within a carrying case. This subsection does not apply if the firearm is a handgun, as defined in s. 175.50 (1) (bm), and the person holds a valid license to carry a concealed weapon issued under s. 175.50 or an out-of-state licensee, as defined in s. 175.50 (1) (g).

SB214-SSA1, s. 3 Section 3. 29.091 of the statutes is renumbered 29.091 (1) and amended to read:

SB214-SSA1,6,10 29.091 (1) No person may hunt or trap within any wildlife refuge established under s. 23.09 (2) (b) or 29.621 (1), or, except as provided in sub. (2), have possession or control of any gun, firearm, bow or crossbow unless the gun or firearm is unloaded, the bow or crossbow is unstrung and the gun, firearm, bow or crossbow is enclosed within a carrying case. The taking of predatory game birds and animals shall be done as the department directs. All state wildlife refuge boundary lines shall be marked by posts placed at intervals of not over 500 feet and bearing signs with the words "Wisconsin Wildlife Refuge".

SB214-SSA1, s. 4 Section 4. 29.091 (2) of the statutes is created to read:

SB214-SSA1,6,15 29.091 (2) The prohibition of the possession or control of a loaded or unencased gun or firearm in sub. (1) does not apply to the possession of a handgun, as defined in s. 175.50 (1) (bm), by a person who holds a valid license to carry a concealed weapon issued under s. 175.50 or by an out-of-state licensee, as defined in s. 175.50 (1) (g).

SB214-SSA1, s. 5 Section 5. 29.621 (4) of the statutes is renumbered 29.621 (4) (a) and amended to read:

SB214-SSA1,6,24 29.621 (4) (a) Except as provided in s. 29.091 (1), no owner of a wildlife refuge, and no other person, may hunt or trap within the boundaries of any wildlife refuge or, except as provided in par. (b), have in his or her possession or under his or her control in the wildlife refuge a gun, firearm, bow or crossbow, unless the gun or firearm is unloaded, the bow or crossbow is unstrung and the gun, firearm, bow or crossbow is enclosed within a carrying case. Nothing in this section may prohibit, prevent or interfere with the department in the destruction of injurious animals.

SB214-SSA1, s. 6 Section 6. 29.621 (4) (b) of the statutes is created to read:

SB214-SSA1,7,5 29.621 (4) (b) The prohibition of the possession or control of a loaded or unencased gun or firearm in par. (a) does not apply to the possession of a handgun, as defined in s. 175.50 (1) (bm), by a person who holds a valid license to carry a concealed weapon issued under s. 175.50 or an out-of-state licensee, as defined in s. 175.50 (1) (g).

SB214-SSA1, s. 7 Section 7. 51.20 (13) (cv) 4. of the statutes is amended to read:

SB214-SSA1,7,17 51.20 (13) (cv) 4. If the court prohibits a subject individual from possessing a firearm under subd. 1. or cancels a prohibition under subd. 2., the court clerk shall notify the department of justice of that fact and provide any information identifying the subject individual that is necessary to permit an accurate involuntary commitment history record search under s. 175.35 (2g) (c) or a background check under s. 175.50 (9g) (b). No other information from the subject individual's court records may be disclosed to the department of justice except by order of the court. The department of justice may disclose information provided under this subdivision only as part of an involuntary commitment history record search under s. 175.35 (2g) (c) or a background check under s. 175.50 (9g) (b) or to a sheriff under s. 175.50 (9g) (b) 3. a. or c. or (e) 1., (9r) (b) 2., or (11) (d) 3.

SB214-SSA1, s. 8 Section 8. 51.20 (16) (gm) of the statutes is amended to read:

SB214-SSA1,8,4 51.20 (16) (gm) Upon a request under par. (a), a court may cancel the prohibition under sub. (13) (cv) 1. if the court determines, based on evidence presented on the issue of the subject individual's dangerousness, that there no longer is a substantial probability that the individual may use a firearm to cause physical harm to himself or herself or endanger public safety. If a court cancels a prohibition under sub. (13) (cv) 1. under this paragraph, the court clerk shall notify the department of justice of that fact and provide any information identifying the subject individual that is necessary to permit an accurate involuntary commitment record search under s. 175.35 (2g) (c) or a background check under s. 175.50 (9g) (b). No other information from the subject individual's court records may be disclosed to the department of justice except by order of the court.

SB214-SSA1, s. 9 Section 9. 51.30 (3) (a) of the statutes is amended to read: