AB561: Bill Text

2005 Assembly BILL 561

July 18, 2005 - Introduced by Representatives Sherman, Hubler, Mursau, Lehman, Turner, Hines, Zepnick and Seidel, cosponsored by Senators Jauch, Breske and Hansen. Referred to Committee on Criminal Justice and Homeland Security.

AB561,1,9 An Act to renumber and amend 23.33 (3) (e), 29.091, 29.621 (4), 440.26 (3m) and 941.23; to amend 165.82 (1) (intro.), 165.82 (2) and 885.235 (1g) (intro.); and to create 20.455 (2) (gu), 23.33 (3) (e) 1., 23.33 (3) (e) 2., 23.33 (3) (e) 3., 23.33 (3) (em), 29.091 (2), 29.621 (4) (a), 29.621 (4) (b), 29.621 (4) (c), 29.621 (6), 167.31 (4) (ar), 175.50, 440.26 (3m) (a), 440.26 (3m) (b), 941.23 (1), 941.23 (2) (a), 941.23 (2) (b), 941.23 (2) (c), 941.23 (3), 941.23 (4), 941.237 (3) (cr), 941.237 (3) (L), 941.29 (11) and 948.605 (2) (c) of the statutes; relating to: carrying of concealed weapons by out-of-state and retired law enforcement officers, granting rule-making authority, and making an appropriation.

Analysis by the Legislative Reference Bureau

This bill makes certain changes in Wisconsin law to account for a federal law that requires the state to permit an individual who works as or who has retired from working as a federal, state, tribal, or local law enforcement officer in Wisconsin or in any other state to carry a concealed firearm under certain circumstances.

Current state and federal law regarding concealed weapons

Wisconsin law specifies that, in general, no person may go armed with a concealed firearm or any other concealed, dangerous weapon. This prohibition, however, does not apply to peace officers, such as local, state, tribal, or federal law enforcement officers. In addition, under State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, it is unconstitutional to apply this prohibition 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. The Hamdan court also indicated that the constitutional right to keep and bear arms for security must permit a person to carry a concealed weapon under certain circumstances in his or her own home.

In addition, federal law prohibits the state from barring certain active duty or retired law enforcement officers from carrying concealed firearms. Under federal law, qualified law enforcement officers and qualified retired law enforcement officers who meet certain specified requirements may carry concealed firearms that have been shipped or transported in interstate or foreign commerce, regardless of any prohibition imposed under state law.

Federal law specifies the criteria that a person must meet to be a qualified law enforcement officer or a qualified retired law enforcement officer. To be the former, a person must: 1) be employed by a government agency; 2) be a law enforcement officer (defined under federal law as a person authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law and having statutory powers of arrest); 3) be authorized by the agency to carry a firearm; 4) not be the subject of any disciplinary action by the agency; 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 retired law enforcement officer, all of the following must apply: 1) the person retired in good standing from service with a government agency as a law enforcement officer, other than for reasons of mental instability; 2) before retirement, the person was regularly employed as a law enforcement officer for an aggregate of 15 years or more or retired after completing any applicable probationary period of service due to a service-connected disability; 3) the person has a nonforfeitable right to benefits under the agency's retirement plan; 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 the state's standards for training and qualification for active duty law enforcement officers to carry firearms. (Wisconsin law does not currently set or impose any standards for ongoing training and qualification for active duty law enforcement officers to remain eligible to carry firearms.)

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 photo ID issued by the agency for which he or she works. If the person is a qualified retired 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 photo ID issued by the agency from which the person retired as a law enforcement officer that indicates that, within the preceding 12 months, the agency has tested the person or otherwise found that he or she meets its standards for training and qualification for active duty law enforcement officers to carry the type of firearm that the qualified retired law enforcement officer is carrying concealed; or 2) both of the following: a) a photo ID issued by the agency from which the person retired as a law enforcement officer; and b) a certification issued by the state in which the person resides that indicates that, within the preceding 12 months, the state has tested the person or otherwise found that he or she meets its standards for training and qualification for active duty law enforcement officers to carry the type of firearm that the qualified retired law enforcement officer is carrying concealed. Federal law, however, specifies that the exemption for qualified law enforcement officers and qualified retired law enforcement officers does not apply if the firearm involved is a machine gun, has a silencer attached to it, or is a destructive device (such as a bomb). 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.

What the bill does

This bill codifies in the state concealed weapons statute the provisions of federal law that make the statute inapplicable to active duty and retired law enforcement officers under the circumstances specified in federal law (and 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 retired law enforcement officer if he or she is carrying a concealed firearm under those same circumstances. These include the prohibition on going armed with a handgun in a tavern, the prohibition regarding the possession, transportation, or loading of a handgun in vehicles, motorboats, and aircraft, and the prohibition on possessing a firearm that may arise in certain domestic abuse cases. (Depending on the facts, however, a person who is subject to such an injunction may, as a result of that case, also be prohibited under federal law from possessing a firearm, which means that the federal law regarding the carrying of a concealed firearm would not apply.) Similarly, the bill modifies the state's prohibition on possessing a firearm in a school zone to create an exemption for active duty and retired law enforcement officers who are carrying concealed firearms. These changes, however, relate only to the carrying of a concealed firearm at or within 1,000 feet of a private school and within 1,000 feet of the grounds of a public school. The bill leaves unaffected the provisions of the gun-free school zone law that relate to possession of a firearm in a public school itself or on the grounds of a public school.

The bill also imposes certain requirements on state and local law enforcement agencies in Wisconsin to enable retired law enforcement officers to carry concealed firearms in the manner provided under federal law. Under the bill, after a law enforcement officer retires from service with a state or local law enforcement agency, the agency must provide the retired officer, upon his or her request, opportunities to meet the agency's standards for training and qualification that active duty officers must meet to carry firearms. The agency must also provide the retired officer a photo ID card upon his or her request if, within the preceding 12 months, the officer met those standards or if the agency does not have any such standards. The photo ID card must indicate all of the following: 1) that the agency has found that the officer has met the issuing agency's standards for training and qualification for its active duty law enforcement officers to carry firearms; 2) the date on which the agency made that finding; and 3) the type of firearm that, as a result of the finding, the officer may be qualified to carry concealed. These requirements, however, apply only if: 1) the retired officer satisfies the first three criteria listed above for being a "qualified retired law enforcement officer" under federal law; 2) the Department of Justice (DOJ) determines that its records do not indicate that the retired officer is prohibited from possessing a firearm under federal law or (with the exception of the prohibition based on a domestic abuse injunction) state law; and 3) the retired officer is a Wisconsin resident. If a retired officer lives in another state, he or she may have the agency issue a less detailed photo ID card which, in combination with a certification issued by the other state, would permit the person to carry a concealed firearm.

A law enforcement agency may charge a retired officer a fee to cover the costs of issuing either type of ID card. DOJ and other law enforcement agencies may also charge a Wisconsin resident a fee to cover the costs of providing training and determining the person's eligibility.

Finally, the bill requires an active duty or retired law enforcement officer to carry his or her ID card, or ID card and certification, while carrying a concealed firearm. A person who violates this prohibition is subject to a forfeiture (a civil penalty) of not more than $200. (In contrast to the requirements of federal law, the exemption that the bill creates in the state's concealed weapons statute for an active duty or retired law enforcement officer is not dependent on the person carrying his or her ID card, or ID card and certification. The person only needs to have been issued the ID card, or ID card and certification, for the exemption to apply.) In addition, if a retired law enforcement officer has been issued an identification card that authorizes the carrying of a concealed firearm, the retired officer must notify the sheriff for his or her county of residence that he or she has been issued the card. (This requirement does not apply if the retired officer was issued the card by a local law enforcement agency in Wisconsin and resides in the county in which it was issued.) A person who fails to comply with this requirement is subject to a forfeiture of not more than $200.

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:

AB561, s. 1 Section 1. 20.455 (2) (gu) of the statutes is created to read:

AB561,5,4 20.455 (2) (gu) Training and identification cards relating to carrying of concealed weapons. All moneys received as fees under s. 175.50 to provide training and identification cards to retired law enforcement officers seeking to carry concealed weapons and to confirm their eligibility to do so.

AB561, s. 2 Section 2. 23.33 (3) (e) of the statutes is renumbered 23.33 (3) (e) (intro.) and amended to read:

AB561,5,9 23.33 (3) (e) (intro.) With any firearm in his or her possession unless it is unloaded and enclosed in a carrying case, or any bow unless it is unstrung or enclosed in a carrying case. This paragraph does not apply to any of the following:

AB561, s. 3 Section 3. 23.33 (3) (e) 1. of the statutes is created to read:

AB561,5,14 23.33 (3) (e) 1. A person who is employed in this state by a public agency as a law enforcement officer, who is carrying a concealed firearm that has been shipped or transported in interstate or foreign commerce, and to whom s. 941.23 (1) (d) 2. to 5. and (2) (b) 1. to 3. applies.

AB561, s. 4 Section 4. 23.33 (3) (e) 2. of the statutes is created to read:

AB561,5,19 23.33 (3) (e) 2. A qualified out-of-state law enforcement officer, as defined in s. 941.23 (1) (d), who is carrying a concealed firearm that has been shipped or transported in interstate or foreign commerce and to whom s. 941.23 (2) (b) 1. to 3. applies.

AB561, s. 5 Section 5. 23.33 (3) (e) 3. of the statutes is created to read:

AB561,5,25 23.33 (3) (e) 3. A retired Wisconsin law enforcement officer, as defined in s. 941.23 (1) (f), or a retired federal or out-of-state law enforcement officer, as defined in s. 941.23 (1) (e), who is carrying a concealed firearm that has been shipped or transported in interstate or foreign commerce and to whom s. 941.23 (2) (c) 3. a. to f. applies.

AB561, s. 6 Section 6. 23.33 (3) (em) of the statutes is created to read:

AB561,6,2 23.33 (3) (em) With any bow unless it is unstrung or enclosed in a carrying case.

AB561, s. 7 Section 7. 29.091 of the statutes is renumbered 29.091 (1) and amended to read:

AB561,6,12 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".

AB561, s. 8 Section 8. 29.091 (2) of the statutes is created to read:

AB561,6,16 29.091 (2) The prohibition in sub. (1), as it relates to the possession or control of a loaded or unencased firearm within a game refuge established under s. 23.09 (2) (b), does not apply to any of the following:

AB561,6,20 (a) A person who is employed in this state by a public agency as a law enforcement officer, who is carrying a concealed firearm that has been shipped or transported in interstate or foreign commerce, and to whom s. 941.23 (1) (d) 2. to 5. and (2) (b) 1. to 3. applies.

AB561,6,23 (b) A qualified out-of-state law enforcement officer, as defined in s. 941.23 (1) (d), who is carrying a concealed firearm that has been shipped or transported in interstate or foreign commerce and to whom s. 941.23 (2) (b) 1. to 3. applies.

AB561,7,2 (c) A retired Wisconsin law enforcement officer, as defined in s. 941.23 (1) (f), or a retired federal or out-of-state law enforcement officer, as defined in s. 941.23 (1) (e), who is carrying a concealed firearm that has been shipped or transported in interstate or foreign commerce and to whom s. 941.23 (2) (c) 3. a. to f. applies.

AB561, s. 9 Section 9. 29.621 (4) of the statutes is renumbered 29.621 (4) (intro.) and amended to read:

AB561,7,13 29.621 (4) Protection. (intro.) 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 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. This subsection, as it relates to the possession or control of a loaded or unencased firearm, does not apply to any of the following:

AB561, s. 10 Section 10. 29.621 (4) (a) of the statutes is created to read:

AB561,7,18 29.621 (4) (a) A person who is employed in this state by a public agency as a law enforcement officer, who is carrying a concealed firearm that has been shipped or transported in interstate or foreign commerce, and to whom s. 941.23 (1) (d) 2. to 5. and (2) (b) 1. to 3. applies.

AB561, s. 11 Section 11. 29.621 (4) (b) of the statutes is created to read:

AB561,7,23 29.621 (4) (b) A qualified out-of-state law enforcement officer, as defined in s. 941.23 (1) (d), who is carrying a concealed firearm that has been shipped or transported in interstate or foreign commerce and to whom s. 941.23 (2) (b) 1. to 3. applies.

AB561, s. 12 Section 12. 29.621 (4) (c) of the statutes is created to read:

AB561,8,5 29.621 (4) (c) A retired Wisconsin law enforcement officer, as defined in s. 941.23 (1) (f), or a retired federal or out-of-state law enforcement officer, as defined in s. 941.23 (1) (e), who is carrying a concealed firearm that has been shipped or transported in interstate or foreign commerce and to whom s. 941.23 (2) (c) 3. a. to f. applies.

AB561, s. 13 Section 13. 29.621 (6) of the statutes is created to read:

AB561,8,8 29.621 (6) Injurious animals. Nothing in this section may prohibit, prevent, or interfere with the department in the destruction of injurious animals.

AB561, s. 14 Section 14. 165.82 (1) (intro.) of the statutes is amended to read:

AB561,8,12 165.82 (1) (intro.) Notwithstanding s. 19.35 (3), the department of justice shall impose the following fees, plus any surcharge required under sub. (1m), for criminal history searches for purposes unrelated to criminal justice or to s. 175.35 or 175.50:

AB561, s. 15 Section 15. 165.82 (2) of the statutes is amended to read:

AB561,8,15 165.82 (2) Except as provided in s. 175.35, the The department of justice shall not impose fees for criminal history searches for purposes related to criminal justice.

AB561, s. 16 Section 16. 167.31 (4) (ar) of the statutes is created to read:

AB561,8,18 167.31 (4) (ar) Subsections (2) (a) and (b) and (3) (a) and (b) do not apply to the placement, possession, or transportation of a firearm by any of the following:

AB561,8,22 1. A person who is employed in this state by a public agency as a law enforcement officer, who is carrying a concealed firearm that has been shipped or transported in interstate or foreign commerce, and to whom s. 941.23 (1) (d) 2. to 5. and (2) (b) 1. to 3. applies.

AB561,8,25 2. A qualified out-of-state law enforcement officer, as defined in s. 941.23 (1) (d), who is carrying a concealed firearm that has been shipped or transported in interstate or foreign commerce and to whom s. 941.23 (2) (b) 1. to 3. applies.

AB561,9,4 3. A retired Wisconsin law enforcement officer, as defined in s. 941.23 (1) (f), or a retired federal or out-of-state law enforcement officer, as defined in s. 941.23 (1) (e), who is carrying a concealed firearm that has been shipped or transported in interstate or foreign commerce and to whom s. 941.23 (2) (c) 3. a. to f. applies.

AB561, s. 17 Section 17. 175.50 of the statutes is created to read:

AB561,9,7 175.50 Retired law enforcement officers seeking to carry concealed weapons. (1) Definitions. In this section:

AB561,9,8 (a) "Department" means the department of justice.

AB561,9,12 (b) "Law enforcement officer" means a person who is employed by a public agency for the purpose of engaging in, or supervising others engaging in, the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law and who has statutory powers of arrest.

AB561,9,14 (c) "Wisconsin law enforcement agency" has the meaning given in s. 175.46 (1) (f).

AB561,9,17 (2) Law enforcement agency duties. Subject to sub. (3), after a law enforcement officer retires from service with a Wisconsin law enforcement agency, the agency shall do all of the following:

AB561,9,22 (a) Provide the retired officer, upon request and at his or her own expense, opportunities to meet the standards established by the agency for training and qualification that its active duty officers are required to meet as a condition of their carrying firearms. This paragraph applies only if the retired officer is a resident of this state.

AB561,9,24 (b) Issue and provide the retired officer, upon request and at his or her own expense, an identification card that contains his or her photograph and that meets the requirements of sub. (4) if the retired officer is a resident of this state and one of the following applies:

AB561,10,4 1. Within the preceding 12 months, either before or after retiring, the retired officer met the standards described in par. (a).

AB561,10,5 2. The agency does not have any standards of the type described in par. (a).

AB561,10,10 (c) Issue and provide the retired officer, upon request and at his or her own expense, an identification card that contains his or her photograph and that indicates that he or she retired from service from the agency as a law enforcement officer. This paragraph applies only if the retired officer is not a resident of Wisconsin when requesting the issuance of the card.

AB561,10,14 (3) Prerequisites for agency action. (a) Subsection (2) does not apply with respect to a person requesting an opportunity to meet a law enforcement agency's firearms standards under sub. (2) (a) or requesting an identification card from a law enforcement agency under sub. (2) (b) or (c) unless all of the following apply:

AB561,10,16 1. The person retired in good standing from service as a law enforcement officer with the agency for reasons other than mental instability.

AB561,10,17 2. At least one of the following applies:

AB561,10,19 a. Before retiring, the person was regularly employed as a law enforcement officer for an aggregate of 15 years or more.

AB561,10,22 b. The person completed any applicable probationary period of service with the agency and retired from service with the agency due to a service-connected disability, as determined by the agency.

AB561,10,24 3. The person has a nonforfeitable right to benefits under the agency's retirement plan.

AB561,11,8 4. The department determines that its records do not indicate that the person is prohibited from possessing a firearm under federal law or is a person specified in s. 941.29 (1) (a), (b), (bm), (c), (d), (e), or (g). The department shall promulgate rules specifying how Wisconsin law enforcement agencies may request that the department make such a determination with respect to a person formerly employed as a law enforcement officer by that agency. Rules promulgated under this paragraph may require a person who is the subject of a determination under this subdivision to pay a fee to the department to cover the department's costs.

AB561,11,12 (b) A Wisconsin law enforcement agency may require a person to sign appropriate consents for release of information to enable the agency to confirm that he or she meets all of the prerequisites under this subsection for the agency to act under sub. (2).

AB561,11,16 (c) In addition to other fees authorized under sub. (2) (a) and (b), a Wisconsin law enforcement agency may require a person to pay a fee, not to exceed the agency's costs, for verifying his or her employment history or retirement plan status under par. (a).

AB561,11,18 (4) Requirements for identification cards. An identification card issued to a retired officer under sub. (2) shall indicate all of the following:

AB561,11,20 (a) That the agency has found that the retired officer has met the standards described in sub. (2) (a), if any.

AB561,11,21 (b) The date on which the agency made the finding under par. (a).

AB561,11,23 (c) The type of firearm that, as a result of the finding under par. (a), the retired officer may be qualified to carry concealed.

AB561,12,3 (5) Fees. Payments made to the department under sub. (2) or (3) (c) or under rules promulgated under sub. (3) (a) 4. shall be credited to the appropriation under s. 20.455 (2) (gu).

AB561,12,6 (6) Scheduling of training. A Wisconsin law enforcement agency is not required to offer training under sub. (2) (a) other than through regularly scheduled sessions for its active duty law enforcement officers.

AB561, s. 18 Section 18. 440.26 (3m) of the statutes is renumbered 440.26 (3m) (intro.) and amended to read:

AB561,12,13 440.26 (3m) Rules concerning dangerous weapons. (intro.) The department shall promulgate rules relating to the carrying of dangerous weapons by a person who holds a license or permit issued under this section or who is employed by a person licensed under this section. The rules shall meet the minimum requirements specified in 15 USC 5902 (b). and shall allow all of the following:

AB561, s. 19 Section 19. 440.26 (3m) (a) of the statutes is created to read: