2017 - 2018 LEGISLATURE
March 22, 2018 - Introduced by Representatives Sargent, Crowley, Berceau,
Zamarripa, C. Taylor, Ohnstad, Vruwink, Kolste, Anderson, Sinicki, Novak,
Hebl, Hesselbein, Considine, Subeck, Brostoff and Kulp, cosponsored by
Senators L. Taylor, Johnson, Schachtner, Larson, Carpenter, Miller and
Risser. 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 (1), 813.127, 813.128 (2g) (b) and 3
941.29 (1m) (g); and to create
813.124 of the statutes; relating to: lethal
4violence protective temporary restraining orders and injunctions and providing
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 certain
persons, such as a law enforcement officer or a family member, household member,
or close friend of the respondent, a court shall issue a temporary restraining order
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 180 days and may be renewed for an unlimited number of 180-day terms. Any
person who is subject to a lethal violence protective injunction may petition 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 from courts.
In making a determination required under 3
s. 813.124 (8) (a),
813.1285 (7) (a),
or 968.20 (1m) (d) 1., a judge or court commissioner 4
shall request information under sub. (2) from the department or from a law 5
enforcement 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),
813.1285 (7) (a),
or 968.20 (1m) (d) 1. or aid an entity in making a 9
determination required under s. 968.20 (1m) (d) 2.
175.35 (1) (at) of the statutes is amended to read:
(at) “Firearms restrictions record search" means a search of 12
department of justice records to determine whether a person seeking to purchase a 13
handgun is prohibited from possessing a firearm under s. 941.29. “Firearms 14
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 2
(13) (cv) 1., 2007 stats., a search in the national instant criminal background check 3
system to determine whether a person has been ordered not to possess a firearm 4
under s. 51.20 (13) (cv) 1., 51.45 (13) (i) 1., 54.10 (3) (f) 1., or 55.12 (10) (a), a search 5
to determine whether the person is subject to an injunction under s. 813.12 or 6
813.122, or a tribal injunction, as defined in s. 813.12 (1) (e), issued by a court 7
established by any federally recognized Wisconsin Indian tribe or band, except the 8
Menominee Indian tribe of Wisconsin, that includes notice to the respondent that he 9
or she is subject to the requirements and penalties under s. 941.29 and that has been 10
filed with the circuit court under s. 813.128 (3g), and a search to determine whether 11
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 15
search and shall search its records and conduct a search in the national instant 16
criminal background check system to determine whether the applicant is prohibited 17
from possessing a firearm under federal law; whether the applicant is prohibited 18
from possessing a firearm under s. 941.29; whether the applicant is prohibited from 19
possessing a firearm under s. 51.20 (13) (cv) 1., 2007 stats.; whether the applicant 20
has been ordered not to possess a firearm under s. 51.20 (13) (cv) 1., 51.45 (13) (i) 1., 21
54.10 (3) (f) 1., or 55.12 (10) (a); whether the applicant is subject to an injunction 22
under s. 813.12 or 813.122, or a tribal injunction, as defined in s. 813.12 (1) (e), issued 23
by a court established by any federally recognized Wisconsin Indian tribe or band, 24
except the Menominee Indian tribe of Wisconsin, that includes notice to the 25
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); and 2
whether the applicant is prohibited from possessing a firearm under s. 813.123 (5m),
3813.124 (3) or (4),
or 813.125 (4m); and to determine if the court has prohibited the 4
applicant from possessing a dangerous weapon under s. 969.02 (3) (c) or 969.03 (1) 5
(c) and if the applicant is prohibited from possessing a dangerous weapon as a 6
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 9
orders under s. 813.122 or,
, or 813.124
801.50 (5s) of the statutes is amended to read:
Venue of an action under s. 813.122
or 813.125 shall be 12
in the county in which the cause of action arose or where the petitioner or the 13
813.06 of the statutes is amended to read:
15813.06 Security for damages.
In proceedings under s. 767.225 the court or 16
judge may, and in all other proceedings except proceedings under ss. 813.12, 813.122, 17813.124,
813.125 and 823.113 the court or judge shall, require a bond of the party 18
seeking an injunction, with sureties, to the effect that he or she will pay to the party 19
enjoined such damages, not exceeding an amount to be specified, as he or she may 20
sustain by reason of the injunction if the court finally decides that the party was not 21
entitled thereto. Copies of such bond, affidavit or other pleading shall be served upon 22
the party enjoined and the officer serving the same shall, within 8 days after such 23
service, file his or her return in the office of the clerk of the court.
813.124 of the statutes is created to read:
1813.124 Lethal violence protective orders and injunctions. (1) 2Definitions.
In this section:
(a) “Firearms dealer" has the meaning given in s. 175.35 (1) (ar).
(b) “Law enforcement officer” has the meaning given in s. 165.85 (2) (c).
(c) “Reasonable grounds" means more likely than not that a specific event will 6
7(2) Commencement of action and response.
(a) No action under this section 8
may be commenced by complaint and summons. An action under this section may 9
be commenced only by a petition described under sub. (5) (a). The action commences 10
with the sheriff serving the petition on the respondent if a copy of the petition is filed 11
before service or promptly after service. If the judge or a circuit court commissioner 12
extends the time for a hearing under sub. (3) (c) and the petitioner files an affidavit 13
with the court stating that personal service by the sheriff under s. 801.11 (1) (a) or 14
(b) was unsuccessful because the respondent is avoiding service by concealment or 15
otherwise, the judge or circuit court commissioner shall inform the petitioner that 16
he or she may serve the respondent by publication of a summary of the petition as 17
a class 1 notice, under ch. 985, and by mailing or sending a facsimile if the 18
respondent's post-office address or facsimile number is known or can with due 19
diligence be ascertained. The mailing or sending of a facsimile may be omitted if the 20
post-office address or facsimile number cannot be ascertained with due diligence. 21
A summary of the petition published as a class 1 notice shall include the name of the 22
respondent and of the petitioner, notice of the temporary restraining order, and 23
notice of the date, time, and place of the hearing regarding the injunction. The court 24
shall inform the petitioner in writing that the petitioner should contact the sheriff 25
to verify the proof of service of the petition.
(b) Section 813.06 does not apply to an action under this section. The 2
respondent may respond to the petition either in writing before or at the hearing on 3
the issuance of the injunction or orally at that hearing.
(c) When the respondent is served with the petition under this subsection, the 5
respondent shall be provided notice of the requirements and penalties under s. 6
7(2m) Two-part procedure.
Procedure for an action under this section is in 2 8
parts. First, if the petitioner requests a temporary restraining order, the court shall 9
issue or refuse to issue that order. Second, the court shall hold a hearing under sub. 10
(4) on whether to issue an injunction, which is the final relief. If the court issues a 11
temporary restraining order, the order shall set forth the date for the hearing on an 12
injunction. If the court does not issue a temporary restraining order, the date for the 13
hearing shall be set upon motion by either party.
14(3) Temporary restraining order.
(a) 1. A judge or circuit court commissioner 15
shall issue a temporary restraining order prohibiting the respondent from 16
possessing a firearm and ordering the respondent to surrender all of his or her 17
firearms if the judge or circuit court commissioner finds reasonable grounds to 18
believe that the respondent is substantially likely to injure himself or herself or 19
another person if the respondent possesses a firearm.
2. The judge or circuit court commissioner shall base the finding under subd. 21
1. on the following:
a. Any testimony.
b. The petition.
c. A recent threat of violence or act of violence by the respondent directed 25
toward himself or herself or another person.
d. A pattern of violent acts or violent threats by the respondent within the past 2
12 months, including threats of violence or acts of violence directed toward himself 3
or herself or another person.
3. The judge or circuit court commissioner may base the finding under subd. 5
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 7
b. The respondent's history of use, attempted use, or threatened use of physical 9
force against himself or herself or 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, 13
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 16
surrender all firearms that he or she has in his or her possession to the sheriff of the 17
county in which the action under this section was commenced or to the sheriff of the 18
county in which the respondent resides. The sheriff to whom the firearms are 19
surrendered may, at the request of the respondent, arrange for the sale of the 20
firearms to a firearms dealer.
2. One of the following: