AB638: Bill Text

CMH:cdc

2021 - 2022 LEGISLATURE

2021 Assembly BILL 638

October 21, 2021 - Introduced by Representatives Andraca, Stubbs, Hesselbein, Conley, Hong, Anderson, Hebl, Snodgrass, Baldeh, Sinicki, S. Rodriguez, Pope, Emerson, Ortiz-Velez, Neubauer, Billings, Brostoff, Spreitzer, Shelton, Goyke, Bowen, Ohnstad, Vining, Considine, Moore Omokunde, Subeck, Vruwink, Cabrera and Drake, cosponsored by Senators L. Taylor, Agard, Johnson, Erpenbach, Roys, Larson, Carpenter, Smith and Ringhand. Referred to Committee on Criminal Justice and Public Safety.

AB638,1,5 An Act to amend 165.63 (3), 165.63 (4) (d), 175.35 (1) (at), 175.60 (9g) (a) 2., 175.60 (11) (a) 2. f., 801.58 (2m), 813.06, 813.126 (1), 813.127, 813.128 (2g) (b) and 941.29 (1m) (f); and to create 801.50 (5sb) and 813.124 of the statutes; relating to: extreme risk protection temporary restraining orders and injunctions and providing a penalty.

Analysis by the Legislative Reference Bureau

Under current law, a person is prohibited from possessing a firearm, and must surrender all firearms, if the person 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 the person 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 for violating the prohibition.

This bill creates an extreme risk protection temporary restraining order and injunction to prohibit a person from possessing a firearm. Under the bill, either a law enforcement officer or a family or household member of the person may file a petition with a court to request an extreme risk protection injunction. The petition must allege facts that show that the person is substantially likely to injure himself or herself or another if the person possesses a firearm.

Under the bill, the petitioner may request the court to consider first granting a temporary restraining order. If the petitioner does request a TRO, the petitioner must include evidence that there is an immediate and present danger that the person may injure himself or herself or another if the person possesses a firearm and that waiting for the injunction hearing may increase the immediate and present danger.

If the petitioner requests a TRO, the court must hear the petition in an expedited manner. The judge must issue a TRO if, after questioning the petitioner and witnesses or relying on affidavits, the judge determines that it is substantially likely that the petition for an injunction will be granted and the judge finds good cause to believe there is an immediate and present danger that the person will injure himself or herself or another if the person has a firearm and that waiting for the injunction hearing may increase the immediate and present danger. If the judge issues a TRO, the TRO is in effect until the injunction hearing, which must occur within 14 days of the TRO issuance. The TRO must require a law enforcement officer to personally serve the person with the order and to require the person to immediately surrender all firearms in his or her possession. If a law enforcement officer is unable to personally serve the person, then the TRO requires the person to surrender within 24 hours all firearms to a law enforcement officer or a firearms dealer and to provide the court a receipt indicating the surrender occurred.

At the injunction hearing, the court may grant an extreme risk protection injunction ordering the person to refrain from possessing a firearm and, if the person was not subject to a TRO, to surrender all firearms he or she possesses if the court finds by clear and convincing evidence that the person is substantially likely to injure himself or herself or another if the person possesses a firearm. An extreme risk protection injunction is effective for up to one year and may be renewed. A person who is subject to an extreme risk protection injunction may petition to vacate the injunction. If a person surrenders a firearm because the person is subject to an extreme risk protection TRO or injunction, the firearm may not be returned to the person until a court determines that the TRO has expired or the injunction has been vacated or has expired and that the person is not otherwise prohibited from possessing a firearm.

A person who possesses a firearm while subject to an extreme risk protection TRO or injunction is guilty of a Class G felony. In addition, a person who files a petition for an extreme risk protection injunction, knowing the information in the petition to be false, is guilty of the crime of false swearing, a Class H felony.

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.

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:

AB638,1 Section 1. 165.63 (3) of the statutes is amended to read:

AB638,3,5 165.63 (3) Requests from courts. In making a determination required under s. 813.124 (7) (a), 813.1285 (7) (a), or 968.20 (1m) (d) 1., a judge or court commissioner shall request information under sub. (2) from the department or from a law enforcement agency or law enforcement officer as provided in sub. (4) (d).

AB638,2 Section 2 . 165.63 (4) (d) of the statutes is amended to read:

AB638,3,9 165.63 (4) (d) Aid the court in making a determination required under s. 813.124 (7) (a), 813.1285 (7) (a), or 968.20 (1m) (d) 1. or aid an entity in making a determination required under s. 968.20 (1m) (d) 2.

AB638,3 Section 3 . 175.35 (1) (at) of the statutes is amended to read:

AB638,4,2 175.35 (1) (at) “Firearms restrictions record search" means a search of department of justice records to determine whether a person seeking to purchase a handgun is prohibited from possessing a firearm under s. 941.29. “Firearms restrictions record search" includes a criminal history record search, a search to 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 system to determine whether a person has been ordered not to possess a firearm under s. 51.20 (13) (cv) 1., 51.45 (13) (i) 1., 54.10 (3) (f) 1., or 55.12 (10) (a), a search to determine whether the person is subject to an injunction under s. 813.12 or 813.122, or a tribal injunction, as defined in s. 813.12 (1) (e), issued by a court established by any federally recognized Wisconsin Indian tribe or band, except the Menominee Indian tribe of Wisconsin, that includes notice to the respondent that he or she is subject to the requirements and penalties under s. 941.29 and that has been filed with the circuit court under s. 813.128 (3g), a search to determine whether the person is subject to a temporary restraining order or injunction under s. 813.124, and a search to determine whether the person is prohibited from possessing a firearm under s. 813.123 (5m) or 813.125 (4m).

AB638,4 Section 4 . 175.60 (9g) (a) 2. of the statutes is amended to read:

AB638,4,22 175.60 (9g) (a) 2. The department shall conduct a criminal history record search and shall search its records and conduct a search in the national instant criminal background check system to determine whether the applicant is prohibited from possessing a firearm under federal law; whether the applicant is prohibited from possessing a firearm under s. 941.29; whether the applicant is prohibited from possessing a firearm under s. 51.20 (13) (cv) 1., 2007 stats.; whether the applicant has been ordered not to possess a firearm under s. 51.20 (13) (cv) 1., 51.45 (13) (i) 1., 54.10 (3) (f) 1., or 55.12 (10) (a); whether the applicant is subject to an injunction under s. 813.12 or 813.122, or a tribal injunction, as defined in s. 813.12 (1) (e), issued by a court established by any federally recognized Wisconsin Indian tribe or band, except the Menominee Indian tribe of Wisconsin, that includes notice to the respondent that he or she is subject to the requirements and penalties under s. 941.29 and that has been filed with the circuit court under s. 813.128 (3g); whether the applicant is subject to a temporary restraining order or injunction under s. 813.124; and whether the applicant is prohibited from possessing a firearm under s. 813.123 (5m) or 813.125 (4m); and to determine if the court has prohibited the applicant from possessing a dangerous weapon under s. 969.02 (3) (c) or 969.03 (1) (c) and if the applicant is prohibited from possessing a dangerous weapon as a condition of release under s. 969.01.

AB638,5 Section 5. 175.60 (11) (a) 2. f. of the statutes is amended to read:

AB638,5,3 175.60 (11) (a) 2. f. The individual becomes subject to an a temporary restraining order or injunction described in s. 941.29 (1m) (f) or is ordered not to possess a firearm under s. 813.123 (5m) or 813.125 (4m).

AB638,6 Section 6. 801.50 (5sb) of the statutes is created to read:

AB638,5,6 801.50 (5sb) Venue of an action under s. 813.124 shall be in the county in which the cause of action arose or where the petitioner or the respondent resides.

AB638,7 Section 7. 801.58 (2m) of the statutes is amended to read:

AB638,5,15 801.58 (2m) If, under sub. (2), the judge determines that the request for substitution was made timely and in proper form, any ex parte order granted by the original judge remains in effect according to the terms, except that a temporary restraining order issued under s. 813.12 (3), 813.122 (4), 813.123 (4), 813.124 (2t), or 813.125 (3) by the original judge is extended until the newly assigned judge holds a hearing on the issuance of an injunction. The newly assigned judge shall hear any subsequent motion to modify or vacate any ex parte order granted by the original judge.

AB638,8 Section 8. 813.06 of the statutes is amended to read:

AB638,5,25 813.06 Security for damages. In proceedings under s. 767.225 the court or judge may, and in all other proceedings except proceedings under ss. 813.12, 813.122, 813.124, 813.125 and 823.113 the court or judge shall, require a bond of the party seeking an injunction, with sureties, to the effect that he or she will pay to the party enjoined such damages, not exceeding an amount to be specified, as he or she may sustain by reason of the injunction if the court finally decides that the party was not entitled thereto. Copies of such bond, affidavit or other pleading shall be served upon the party enjoined and the officer serving the same shall, within 8 days after such service, file his or her return in the office of the clerk of the court.

AB638,9 Section 9. 813.124 of the statutes is created to read:

AB638,6,3 813.124 Extreme risk protection temporary restraining orders and injunctions. (1) Definitions. In this section:

AB638,6,4 (a) “Family or household member” means any of the following:

AB638,6,5 1. A person related by blood, adoption, or marriage to the respondent.

AB638,6,7 2. A person with whom the respondent has or had a dating relationship, as defined in s. 813.12 (1) (ag), or with whom the respondent has a child in common.

AB638,6,9 3. A person who resides with, or within the 6 months before filing a petition, had resided with, the respondent.

AB638,6,10 4. A domestic partner under ch. 770 of the respondent.

AB638,6,13 5. A person who is acting or has acted as the respondent's legal guardian or who is or was a foster parent or other physical custodian described in s. 48.62 (2) of the respondent.

AB638,6,16 6. A person for whom the respondent is acting or has acted as a legal guardian or for whom the respondent is or was the foster parent or other physical custodian described in s. 48.62 (2).

AB638,6,17 (b) “Firearms dealer" has the meaning given in s. 175.35 (1) (ar).

AB638,6,18 (c) “Law enforcement officer” has the meaning given in s. 165.85 (2) (c).

AB638,6,21 (2) Commencement of action and response. No action under this section may be commenced by complaint and summons. An action under this section may be commenced only by a petition described under sub. (4) (a).

AB638,6,22 (2m) Procedure. Procedure for an action under this section is as follows:

AB638,7,7 (a) If the petitioner requests an extreme risk protection temporary restraining order, the court shall consider the request as provided under sub. (2t). If the court issues a temporary restraining order, the court shall set forth the date, that must be within 14 days of issuing the temporary restraining order, for the hearing on the injunction and shall forward a copy of the temporary restraining order, the injunction hearing date, and the petition to the appropriate law enforcement agency with jurisdiction over the respondent's residence. The law enforcement agency shall immediately, or as soon as practicable, serve it on the respondent. If personal service cannot be effected upon the respondent, the court may order other appropriate service.

AB638,7,15 (b) The court shall hold a hearing under sub. (3) on whether to issue an extreme risk protection injunction, which is the final relief. If there was no temporary restraining order, the respondent shall be served notice of the petition by a law enforcement officer and the date for the hearing shall be set upon motion by either party. If personal service cannot be effected upon the respondent, the court may order other appropriate service. The service shall include the name of the respondent and of the petitioner, and, if known, notice of the date, time, and place of the injunction hearing.

AB638,7,17 (c) When the respondent is served under this subsection, the respondent shall be provided notice of the requirements and penalties under s. 941.29.

AB638,7,21 (2t) Extreme risk protection temporary restraining order. (a) A judge shall issue an extreme risk protection temporary restraining order under this subsection prohibiting the respondent from possessing a firearm and ordering the respondent to surrender all firearms in the respondent's possession if all of the following occur:

AB638,8,2 1. A petitioner files a petition alleging the elements under sub. (4) (a), and requests a temporary restraining order. The petition requesting a temporary restraining order shall be heard by the court in an expedited manner. The court shall examine under oath the petitioner and any witness the petitioner may produce or may rely on an affidavit submitted in support of the petition.

AB638,8,3 2. The judge finds all of the following:

AB638,8,4 a. Substantial likelihood that the petition for an injunction will be successful.

AB638,8,8 b. Good cause to believe that there is an immediate and present danger that the respondent may injure himself or herself or another person if the respondent possesses a firearm and that waiting for the injunction hearing may increase the immediate and present danger.

AB638,8,13 (b) A temporary restraining order issued under this section shall remain in effect until a hearing is held on issuance of an injunction under sub. (3). Notice need not be given to the respondent before issuing a temporary restraining order under this subsection. A temporary restraining order may be entered only against the respondent named in the petition and may not be renewed or extended.

AB638,8,15 (c) A temporary restraining order issued under this subsection shall inform the respondent named in the petition of the requirements and penalties under s. 941.29.

AB638,8,17 (d) The temporary restraining order issued under par. (a) shall require one of the following:

AB638,8,20 1. If a law enforcement officer is able to personally serve the respondent with the order, the officer to require the respondent to immediately surrender all firearms in the respondent's possession.

AB638,9,5 2. If a law enforcement officer is not able to personally serve the respondent with the order, the respondent to, within 24 hours of service, surrender all firearms in the respondent's possession to a law enforcement officer or transfer or sell all firearms in the respondent's possession to a firearms dealer. Within 48 hours of service, the respondent shall file with the court that issued the order under par. (a) a receipt indicating that the respondent surrendered, transferred, or sold the firearms. The receipt must include the date on which the firearm was surrendered, transferred, or sold and the manufacturer, model, and serial number of each firearm and must be signed by either the law enforcement officer to whom the firearm was surrendered or the firearms dealer to whom the firearm was transferred or sold.

AB638,9,11 (3) Extreme risk protection injunction. (a) The court shall hold a hearing on whether to issue an extreme risk protection injunction, which is the final relief. At the hearing, a judge may grant an injunction prohibiting the respondent from possessing a firearm and, if there was no temporary restraining order under sub. (2t), ordering the respondent to surrender all firearms in the respondent's possession if all of the following occur:

AB638,9,13 1. The petitioner files a petition alleging the elements set forth under sub. (4) (a).

AB638,9,17 2. The petitioner serves upon the respondent a copy or summary of the petition and notice of the time for hearing on the issuance of the injunction, or the respondent serves upon the petitioner notice of the time for hearing on the issuance of the injunction.

AB638,9,20 3. The judge finds by clear and convincing evidence that the respondent is substantially likely to injure himself or herself or another person if the respondent possesses a firearm.

AB638,9,22 (b) The judge may enter an injunction only against the respondent named in the petition.

AB638,9,25 (c) 1. Unless a judge vacates the injunction under par. (d), an injunction under this subsection is effective for a period determined by the judge that is no longer than one year.

AB638,10,4 2. When an injunction expires, the court shall extend the injunction, upon petition, for up to one year if the judge finds by clear and convincing evidence that the respondent is still substantially likely to injure himself or herself or another person if the respondent possesses a firearm.

AB638,10,11 (d) A respondent who is subject to an injunction issued under this subsection may request in writing a judge to vacate the injunction one time during any injunction period. If a respondent files a request under this paragraph, the petitioner shall be notified of the request before the judge considers the request. The judge shall vacate the injunction if the respondent demonstrates by clear and convincing evidence that the respondent is no longer substantially likely to injure himself or herself or another person if the respondent possesses a firearm.

AB638,10,13 (e) An injunction issued under this subsection shall inform the respondent named in the petition of the requirements and penalties under s. 941.29.

AB638,10,14 (4) Petition. (a) The petition shall allege facts sufficient to show the following:

AB638,10,16 1. The name of the petitioner and, unless the petitioner is a law enforcement officer, how the petitioner is a family or household member of the respondent.

AB638,10,17 2. The name of the respondent.

AB638,10,19 3. That the respondent is substantially likely to injure himself or herself or another person if the respondent possesses a firearm.

AB638,10,21 4. If the petitioner knows, the number, types, and locations of any firearms that the respondent possesses.

AB638,10,25 5. If requesting a temporary restraining order, evidence of an immediate and present danger that the respondent may injure himself or herself or another person if the respondent possesses a firearm and that waiting for the injunction hearing may increase the immediate and present danger.

AB638,11,2 (b) The clerk of the circuit court shall provide simplified forms to help a person file a petition.

AB638,11,3 (c) Only the following persons may file a petition under this section:

AB638,11,4 1. A law enforcement officer.

AB638,11,5 2. A family or household member of the respondent.

AB638,11,13 (5) Enforcement assistance. (a) 1. If a temporary restraining order is issued under sub. (2t) or an injunction is issued, extended, or vacated under sub. (3), the clerk of the circuit court shall notify the department of justice of the action and shall provide the department of justice with information concerning the period during which the order or injunction is in effect or the date on which the injunction is vacated and with information necessary to identify the respondent for purposes of responding to a request under s. 165.63 or for purposes of a firearms restrictions record search under s. 175.35 (2g) (c) or a background check under s. 175.60 (9g) (a).

AB638,11,17 2. Except as provided in subd. 3., the department of justice may disclose information that it receives under subd. 1. only to respond to a request under s. 165.63 or as part of a firearms restrictions record search under s. 175.35 (2g) (c) or a background check under s. 175.60 (9g) (a).

AB638,11,20 3. The department of justice shall disclose any information that it receives under subd. 1. to a law enforcement agency when the information is needed for law enforcement purposes.