941.28 Annotation
The intent in sub. (1) (d) is that of the fabricator; that the gun is incapable of being fired or not intended to be fired by the possessor is immaterial. State v. Johnson,
171 Wis. 2d 175,
491 N.W.2d 110 (Ct. App. 1992).
941.28 Annotation
"Firearm" means a weapon that acts by force of gunpowder to fire a projectile, regardless of whether it is inoperable due to disassembly. State v. Rardon,
185 Wis. 2d 701,
518 N.W.2d 330 (Ct. App. 1994).
941.29
941.29
Possession of a firearm. 941.29(1)
(1) A person is subject to the requirements and penalties of this section if he or she has been:
941.29(1)(b)
(b) Convicted of a crime elsewhere that would be a felony if committed in this state.
941.29(1)(bm)
(bm) Adjudicated delinquent for an act committed on or after April 21, 1994, that if committed by an adult in this state would be a felony.
941.29(1)(c)
(c) Found not guilty of a felony in this state by reason of mental disease or defect.
941.29(1)(d)
(d) Found not guilty of or not responsible for a crime elsewhere that would be a felony in this state by reason of insanity or mental disease, defect or illness.
941.29(1)(e)
(e) Committed for treatment under
s. 51.20 (13) (a) and ordered not to possess a firearm under
s. 51.20 (13) (cv) 1., 2007 stats.
941.29(1)(f)
(f) Enjoined under an injunction issued under
s. 813.12 or
813.122 or under 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 under
s. 806.247 (3).
941.29(2)
(2) A person specified in
sub. (1) is guilty of a Class G felony if he or she possesses a firearm under any of the following circumstances:
941.29(2)(a)
(a) The person possesses a firearm subsequent to the conviction for the felony or other crime, as specified in
sub. (1) (a) or
(b).
941.29(2)(b)
(b) The person possesses a firearm subsequent to the adjudication, as specified in
sub. (1) (bm).
941.29(2)(c)
(c) The person possesses a firearm subsequent to the finding of not guilty or not responsible by reason of insanity or mental disease, defect or illness as specified in
sub. (1) (c) or
(d).
941.29(2)(e)
(e) The person possesses a firearm while the injunction, as specified in
sub. (1) (f), is in effect.
941.29(4)
(4) A person is concerned with the commission of a crime, as specified in
s. 939.05 (2) (b), in violation of this section if he or she knowingly furnishes a person with a firearm in violation of
sub. (2).
941.29(5)
(5) This section does not apply to any person specified in
sub. (1) who:
941.29(5)(a)
(a) Has received a pardon with respect to the crime or felony specified in
sub. (1) and has been expressly authorized to possess a firearm under 18 USC app. 1203; or
941.29(6)
(6) The prohibition against firearm possession under this section does not apply to any correctional officer employed before May 1, 1982, who is required to possess a firearm as a condition of employment. This exemption applies if the officer is eligible to possess a firearm under any federal law and applies while the officer is acting in an official capacity.
941.29(7)
(7) This section does not apply to any person who has been found not guilty or not responsible by reason of insanity or mental disease, defect or illness if a court subsequently determines both of the following:
941.29(7)(a)
(a) The person is no longer insane or no longer has a mental disease, defect or illness.
941.29(7)(b)
(b) The person is not likely to act in a manner dangerous to public safety.
941.29(8)
(8) This section does not apply to any person specified in
sub. (1) (bm) if a court subsequently determines that the person is not likely to act in a manner dangerous to public safety. In any action or proceeding regarding this determination, the person has the burden of proving by a preponderance of the evidence that he or she is not likely to act in a manner dangerous to public safety.
941.29(9)(b)
(b) This section does not apply to a person specified in
sub. (1) (em) if the order under
s. 51.30 (13) (cv) 1. [. 51.30 (13) (cv)
941.29 Note
NOTE: The correct cross-reference is shown in brackets. Corrective legislation is pending.
941.29(10)
(10) The prohibition against firearm possession under this section does not apply to a person specified in
sub. (1) (f) if the person satisfies any of the following:
941.29(10)(a)
(a) The person is a peace officer and the person possesses a firearm while in the line of duty or, if required to do so as a condition of employment, while off duty. Notwithstanding
s. 939.22 (22), for purposes of this paragraph, peace officer does not include a commission warden who is not a state-certified commission warden.
941.29(10)(b)
(b) The person is a member of the U.S. armed forces or national guard and the person possesses a firearm while in the line of duty.
941.29 Annotation
If a defendant is willing to stipulate to being a convicted felon, evidence of the nature of the felony is irrelevant if offered only to support the felony conviction element. State v. McAllister,
153 Wis. 2d 523,
451 N.W.2d 764 (Ct. App. 1989).
941.29 Annotation
Failure to give the warning under s. 973.033 does not prevent a conviction under this section. State v. Phillips,
172 Wis. 2d 391,
493 N.W.2d 238 (Ct. App. 1992).
941.29 Annotation
Retroactive application of this provision did not violate the prohibition against ex post facto laws because the law is intended not to punish persons for a prior crime but to protect public safety. State v. Thiel,
188 Wis. 2d 695,
524 N.W.2d 641 (1994).
941.29 Annotation
Sub. (2m) is not in the nature of a penalty enhancer, but defines an additional element to the crime described in sub. (2). It was proper for the trial court to apply the general repeater statute to a violator. State v. Gibson, 2000 WI App 207,
238 Wis. 2d 547,
618 N.W.2d 248,
99-2612.
941.29 Annotation
In this section, to possess means that the defendant knowingly has control of a firearm. There is no minimum length of time the firearm must be possessed for a violation to occur. Intention in handling a firearm is irrelevant unless the handling is privileged under s. 939.45. State v. Black, 2001 WI 31,
242 Wis. 2d 126,
624 N.W.2d 363,
99-0230.
941.29 Annotation
To determine whether a person has been "convicted of a crime elsewhere that would be a felony if committed in this state" under sub. (1) (b), the courts must consider the underlying conduct of the out-of-state conviction, not merely the statute that was violated. State v. Campbell, 2002 WI App 20,
250 Wis. 2d 238,
642 N.W.2d 230,
01-0758.
941.29 Annotation
Article I, s. 25, of the Wisconsin constitution did not effectively repeal this section, nor is this section unconstitutionally vague, overbroad, or in violation of the equal protection clauses of the United States and Wisconsin constitutions. State v. Thomas, 2004 WI App 115,
274 Wis. 2d 513,
683 N.W.2d 497,
03-1369.
941.29 Annotation
While 18 U.S.C. s. 1162(b) prohibits the state from depriving any Indian of any right, privilege, or immunity afforded under federal treaty, defendant's claim that he was exercising tribal hunting rights did not prevent the application of this section. Application of this section did not make defendant's exercise of treaty hunting rights illegal. Rather, the defendant's own actions in committing a felony limited him from fully enjoying those rights. State v. Jacobs, 2007 WI App 155,
302 Wis. 2d 675,
735 N.W.2d 535,
06-2076.
941.29 Annotation
Sub. (5) (a) has been invalidated by congressional action. Pardons granted after November 15, 1986 will give recipients the right to receive, possess, or transport in commerce firearms unless the pardon expressly provides otherwise.
78 Atty. Gen. 22.
941.291
941.291
Possession of body armor. 941.291(1)(a)
(a) "Body armor" means any garment that is designed, redesigned, or adapted to prevent bullets from penetrating through the garment.
941.291(1)(b)
(b) "Violent felony" means any felony, or the solicitation, conspiracy, or attempt to commit any felony, under s.
943.23 (1m) or
(1r), 1999 stats., or
s. 940.01,
940.02,
940.03,
940.05,
940.06,
940.08,
940.09,
940.10,
940.19,
940.195,
940.20,
940.201,
940.203,
940.21,
940.225,
940.23,
940.285 (2),
940.29,
940.295 (3),
940.30,
940.305,
940.31,
940.43 (1) to
(3),
940.45 (1) to
(3),
941.20,
941.26,
941.28,
941.29,
941.30,
941.327,
943.01 (2) (c),
943.011,
943.013,
943.02,
943.04,
943.06,
943.10 (2),
943.23 (1g),
943.32,
943.81,
943.82,
943.83,
943.85,
943.86,
943.87,
943.88,
943.89,
943.90,
946.43,
947.015,
948.02 (1) or
(2),
948.025,
948.03,
948.04,
948.05,
948.06,
948.07,
948.08,
948.085, or
948.30; or, if the victim is a financial institution, as defined in
s. 943.80 (2), a felony, or the solicitation, conspiracy, or attempt to commit a felony under
s. 943.84 (1) or
(2).
941.291(2)
(2) Prohibition. Except as provided in
subs. (4),
(5),
(5m), and
(6), no person may possess body armor if any of the following applies to the person:
941.291(2)(a)
(a) The person has been convicted of a violent felony in this state and has not been pardoned for it.
941.291(2)(b)
(b) The person has been convicted of a crime elsewhere that would be a violent felony if committed in this state and has not been pardoned for it.
941.291(2)(c)
(c) The person has been adjudicated delinquent for an act that if committed by an adult in this state would be a violent felony.
941.291(2)(d)
(d) The person has been found not guilty of a violent felony in this state by reason of mental disease or defect.
941.291(2)(e)
(e) The person has been found not guilty of or not responsible for a crime elsewhere by reason of insanity or mental disease, defect, or illness if the crime would be a violent felony in this state.
941.291(3)(b)
(b) Whoever violates
sub. (2) after being convicted of violating
sub. (2) is guilty of a Class D felony.
941.291(4)
(4) Request by certain persons for complete or partial exemption from prohibition. 941.291(4)(a)(a) A person who is otherwise prohibited from possessing body armor under
sub. (2) may request a complete or partial exemption from the prohibition if all of the following apply:
941.291(4)(a)1.
1. The person has a reasonable need to possess body armor to ensure his or her personal safety, to earn a livelihood, or as a condition of employment.
941.291(4)(a)2.
2. The person is likely to use the body armor in a safe and lawful manner.
941.291(4)(b)
(b) A person seeking a complete or partial exemption under this subsection from the prohibition under
sub. (2) shall request the exemption by filing a written motion in the circuit court for the county in which the person will possess the body armor. A person who files a motion under this paragraph shall send a copy of the motion to the district attorney for the county in which the motion is filed. The district attorney shall make a reasonable attempt to contact the county sheriff and, if applicable, the chief of police of a city, village, or town in the county in which the person will possess the body armor for the purpose of informing the sheriff and the chief of police that the person has made a request for an exemption and to solicit from the sheriff and chief of police any information that may be relevant to the criteria specified in
par. (a) 1. and
2.
941.291(4)(c)
(c) A court deciding whether to grant a request for an exemption made under
par. (b) may deny the request for an exemption, grant a complete exemption from the prohibition, or grant a partial exemption by allowing possession of body armor only under certain specified circumstances or in certain locations or both. In deciding whether a person satisfies the criteria specified in
par. (a) 1. and
2. and, if so, whether to grant an exemption, the court shall consider the person's character, including the person's criminal record, the totality of the person's circumstances, and any relevant evidence of the person's character and circumstances, including any relevant evidence submitted by the district attorney who received the copy of the motion under
par. (b).
941.291(4)(d)
(d) If a court grants a request for an exemption under
par. (c), the court shall issue a written order of exemption to the person who requested the exemption. The exemption is valid only in the county in which the court is located. If the exemption is a partial exemption, the order shall specify the circumstances under which the person may possess body armor, the locations in which the person may possess body armor, or, if applicable, both. The person granted the exemption shall carry a copy of the order of exemption at all times during which he or she is in possession of body armor. The clerk of the circuit court shall send a copy of the order of exemption to the county sheriff and, if applicable, to the chief of police of a city, village, or town in the county in which the person will possess the body armor.
941.291(5)
(5) Exemption based on request of law enforcement agency for certain witnesses and informers. A person who is otherwise prohibited from possessing body armor under
sub. (2) may wear body armor if the person is furnishing or has furnished information to a law enforcement agency relating to a possible violation of law or is assisting or has assisted a law enforcement agency in an investigation of a possible violation of law and is wearing the body armor at the request or direction of the law enforcement agency.
941.291(5m)
(5m) Exemption based on request by certain witnesses and informers. 941.291(5m)(a)(a) A person who is otherwise prohibited from possessing body armor under
sub. (2) may possess body armor if all of the following apply:
941.291(5m)(a)2.
2. The law enforcement agency to which the person is furnishing or has furnished information or to which the person is providing or has provided assistance determines that there is reason to believe that the person may be in danger of suffering death or great bodily harm because he or she is furnishing or has furnished information or because he or she is assisting or has assisted or is assisting in an investigation.
941.291(5m)(a)3.
3. The law enforcement agency to which the person is furnishing or has furnished information or to which the person is providing or has provided assistance approves of the person's request to possess body armor under
par. (b).
941.291(5m)(b)
(b) A person seeking an exemption under this subsection from the prohibition under
sub. (2) shall request the exemption from the law enforcement agency to which the person is furnishing or has furnished information or to which the person is providing or has provided assistance. The law enforcement agency may deny the request for an exemption, grant a complete exemption from the prohibition, or grant a partial exemption by allowing possession of body armor only under certain specified circumstances or in certain locations or both. If the law enforcement agency grants a request for an exemption under this subsection, it shall keep a written record of the exemption. If the exemption is a partial exemption, the record shall specify the circumstances under which the person may possess body armor, the locations in which the person may possess body armor, or, if applicable, both. A written record relating to an exemption granted by a law enforcement agency under this subsection is not subject to inspection or copying under
s. 19.35 (1), except that a written record shall, upon request, be disclosed to another law enforcement agency or a district attorney, if the other law enforcement agency or the district attorney is investigating or prosecuting an alleged violation of
sub. (2) or to the person to whom the exemption was granted.
941.291(6)
(6) Exemption from prohibition for certain prisoners. A person who is prohibited from possessing body armor under
sub. (2) may wear body armor if he or she is in the actual custody of a law enforcement officer, as defined in
s. 165.85 (2) (c), or a correctional officer, as defined in
s. 102.475 (8) (a), and is wearing the body armor at the request or direction of the law enforcement officer or correctional officer.
941.295
941.295
Possession of electric weapon. 941.295(1)
(1) Whoever sells, transports, manufactures, possesses or goes armed with any electric weapon is guilty of a Class H felony.
941.295(2)(a)
(a) Any peace officer. Notwithstanding
s. 939.22 (22), for purposes of this paragraph, peace officer does not include a commission warden who is not a state-certified commission warden.
941.295(2)(b)
(b) Any armed forces or national guard personnel while on official duty.
941.295(2)(c)
(c) Any corrections personnel in a county or in the department of corrections while on official duty.
941.295(2)(d)
(d) Any manufacturer or seller whose electric weapons are used in this state solely by persons specified in
pars. (a) to
(c).
941.295(2)(e)
(e) Any common carrier transporting electric weapons.
941.295(3)
(3) During the first 30 days after May 7, 1982, the electric weapons may be surrendered to any peace officer. Peace officers shall forward electric weapons to the crime laboratories if the retention of those weapons is not necessary for criminal prosecution purposes.
941.295(4)
(4) In this section, "electric weapon" means any device which is designed, redesigned, used or intended to be used, offensively or defensively, to immobilize or incapacitate persons by the use of electric current.
941.296
941.296
Use or possession of a handgun and an armor-piercing bullet during crime.
