AB573: Bill Text

LRB-4383/1

CMH:wlj&amn

2019 - 2020 LEGISLATURE

2019 Assembly BILL 573

October 25, 2019 - Introduced by Representatives Sargent, Crowley, Anderson, Billings, Bowen, Brostoff, Considine, Emerson, Fields, Gruszynski, Goyke, Haywood, Hebl, Hesselbein, Hintz, Kolste, L. Myers, Neubauer, Ohnstad, Sinicki, Subeck, Stubbs, Stuck, C. Taylor, Vining, Zamarripa, Spreitzer and Pope, cosponsored by Senators L. Taylor, Johnson, Carpenter, Hansen, Larson, Miller, Ringhand, Risser, Shilling, Smith and Wirch. Referred to Committee on Criminal Justice and Public Safety.

AB573,1,5 An Act to amend 165.63 (3), 165.63 (4) (d), 175.35 (1) (at), 175.60 (9g) (a) 2., 757.69 (1) (j), 813.06, 813.126 (1), 813.127, 813.128 (2g) (b) and 941.29 (1m) (g); 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 a violation of the prohibition.

This bill creates an extreme risk protection temporary restraining order and an extreme risk protection injunction. Upon receiving a petition filed by a law enforcement officer or a family or household member of the respondent, a court shall schedule an injunction hearing. The court also shall issue a temporary restraining order prohibiting the respondent from possessing a firearm and ordering the respondent to surrender all firearms if the court finds reasonable grounds that the respondent is substantially likely to injure the respondent or another person if the respondent possesses a firearm. The temporary restraining order remains in effect until the injunction hearing. At the injunction hearing, the court may grant an extreme risk protection injunction ordering the respondent to refrain from possessing a firearm if the court finds by clear and convincing evidence that the respondent is substantially likely to injure the respondent or another person if the respondent possesses a firearm. An extreme risk protection injunction is effective for up to one year and may be renewed. Any person who is subject to an extreme risk protection injunction may petition to vacate the injunction. A person who possesses a firearm while subject to an extreme risk protection temporary restraining order or injunction is guilty of a Class G felony. In addition, a person who files a petition for an extreme risk protection temporary restraining order or 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:

AB573,1 Section 1 . 165.63 (3) of the statutes is amended to read:

AB573,2,5 165.63 (3) Requests from courts. In making a determination required under s. 813.124 (8) (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).

AB573,2 Section 2 . 165.63 (4) (d) of the statutes is amended to read:

AB573,2,9 165.63 (4) (d) Aid the court in making a determination required under s. 813.124 (8) (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.

AB573,3 Section 3 . 175.35 (1) (at) of the statutes is amended to read:

AB573,3,14 175.35 (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), and a search to determine whether the person is prohibited from possessing a firearm under s. 813.123 (5m), 813.124 (3) or (4), or 813.125 (4m).

AB573,4 Section 4 . 175.60 (9g) (a) 2. of the statutes is amended to read:

AB573,4,8 175.60 (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); and whether the applicant is prohibited from possessing a firearm under s. 813.123 (5m), 813.124 (3) or (4), 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.

AB573,5 Section 5. 757.69 (1) (j) of the statutes is amended to read:

AB573,4,11 757.69 (1) (j) Hold hearings, make findings and issue temporary restraining orders under s. 813.122 or, 813.123 , or 813.124.

AB573,6 Section 6. 801.50 (5sb) of the statutes is created to read:

AB573,4,14 801.50 (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.

AB573,7 Section 7. 813.06 of the statutes is amended to read:

AB573,4,24 813.06 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.

AB573,8 Section 8. 813.124 of the statutes is created to read:

AB573,5,2 813.124 Extreme risk protection orders and injunctions. (1) Definitions. In this section:

AB573,5,3 (a) “Family or household member” means any of the following:

AB573,5,4 1. A person related by blood, adoption, or marriage to the respondent.

AB573,5,6 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.

AB573,5,8 3. A person who resides with, or within the 6 months before filing a petition, had resided with, the respondent.

AB573,5,9 4. A domestic partner under ch. 770 of the respondent.

AB573,5,12 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.

AB573,5,15 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).

AB573,5,16 (b) “Firearms dealer" has the meaning given in s. 175.35 (1) (ar).

AB573,5,17 (c) “Law enforcement officer” has the meaning given in s. 165.85 (2) (c).

AB573,5,18 (d) “Reasonable grounds” has the meaning given in s. 813.12 (1) (cg).

AB573,6,12 (2) Commencement of action and response. (a) 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. (5) (a). The action commences with the sheriff serving the petition on the respondent if a copy of the petition is filed before service or promptly after service. If the judge or a circuit court commissioner extends the time for a hearing under sub. (3) (c) and the petitioner files an affidavit with the court stating that personal service by the sheriff under s. 801.11 (1) (a) or (b) was unsuccessful because the respondent is avoiding service by concealment or otherwise, the judge or circuit court commissioner shall inform the petitioner that the petitioner may serve the respondent by publication of a summary of the petition as a class 1 notice, under ch. 985, and by mailing or sending a facsimile if the respondent's post-office address or facsimile number is known or can with due diligence be ascertained. The mailing or sending of a facsimile may be omitted if the post-office address or facsimile number cannot be ascertained with due diligence. A summary of the petition published as a class 1 notice shall include the name of the respondent and of the petitioner, notice of the temporary restraining order, and notice of the date, time, and place of the hearing regarding the injunction. The court shall inform the petitioner in writing that the petitioner should contact the sheriff to verify the proof of service of the petition.

AB573,6,15 (b) Section 813.06 does not apply to an action under this section. The respondent may respond to the petition either in writing before or at the injunction hearing or orally at the injunction hearing.

AB573,6,18 (c) When the respondent is served with the petition under this subsection, the respondent shall be provided notice of the requirements and penalties under s. 941.29.

AB573,6,25 (2m) Two-part procedure. Procedure for an action under this section is in 2 parts. First, if the petitioner requests a temporary restraining order, the court shall issue or refuse to issue that order. Second, the court shall hold a hearing under sub. (4) on whether to issue an injunction, which is the final relief. If the court issues a temporary restraining order, the order shall set forth the date for the hearing on an injunction. If the court does not issue a temporary restraining order, the date for the hearing shall be set upon motion by either party.

AB573,7,6 (3) Temporary restraining order. (a) A judge or circuit court commissioner shall issue a temporary restraining order prohibiting the respondent from possessing a firearm and ordering the respondent to surrender all of the firearms in the respondent's possession if the judge or circuit court commissioner finds reasonable grounds that the respondent is substantially likely to injure the respondent or another person if the respondent possesses a firearm.

AB573,7,7 (am) The order issued under par. (a) requires one of the following:

AB573,7,13 1. If the respondent is present at the hearing, the respondent to immediately surrender all firearms in the respondent's possession to the sheriff of the county in which the action under this section was commenced or to the sheriff of the county in which the respondent resides. The sheriff to whom the firearms are surrendered may, at the request of the respondent, arrange for the transfer or sale of the firearms to a firearms dealer.

AB573,7,14 2. One of the following:

AB573,7,19 a. If the respondent is not present at the hearing and the sheriff personally serves the respondent with the order issued under par. (a), the sheriff to require the respondent to immediately surrender all firearms in the respondent's possession. The sheriff may, at the request of the respondent, arrange for the transfer or sale of the firearms to a firearms dealer.

AB573,8,2 b. If the respondent is not present at the hearing and the sheriff does not personally serve the respondent with the order issued under par. (a), the respondent to, within 24 hours of service, surrender all firearms in the respondent's possession to the sheriff 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 from the sheriff or firearms dealer indicating that the respondent surrendered the firearms.

AB573,8,4 (an) 1. The court may schedule a hearing to surrender firearms for any reason relevant to the surrender of firearms.

AB573,8,9 2. If the respondent does not comply with par. (am) or, if applicable, an order issued at a hearing to surrender firearms, or a law enforcement officer has probable cause to believe that the respondent possesses a firearm, the law enforcement officer shall request a search warrant to seize the firearms and may use information contained in the petition to establish probable cause.

AB573,8,12 (b) 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.

AB573,8,20 (c) A temporary restraining order issued under this subsection is in effect until a hearing is held on issuance of an injunction under sub. (4). A judge shall hold a hearing on issuance of an injunction under sub. (4) within 14 days after the temporary restraining order is issued, unless the time is extended once for up to 14 days upon the written consent of the parties or upon a finding that the respondent has not been served with a copy of the temporary restraining order although the petitioner has exercised due diligence. A judge may not extend the temporary restraining order in lieu of ruling on the issuance of an injunction.

AB573,8,25 (d) The judge or circuit court commissioner shall advise the petitioner of the right to serve the respondent the petition by published notice if with due diligence the respondent cannot be served as provided under s. 801.11 (1) (a) or (b). The clerk of the circuit court shall assist the petitioner with the preparation of the notice and filing of the affidavit of printing.

AB573,9,4 (4) Injunction. (a) A judge may grant an injunction prohibiting the respondent from possessing a firearm and, if the respondent was not subject to a temporary restraining order under sub. (3), ordering the respondent to surrender all firearms in the respondent's possession if all of the following occur:

AB573,9,6 1. The petitioner files a petition alleging the elements set forth under sub. (5) (a).

AB573,9,10 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.

AB573,9,13 3. The judge finds by clear and convincing evidence that the respondent is substantially likely to injure the respondent or another person if the respondent possesses a firearm.

AB573,9,15 (b) The judge may enter an injunction only against the respondent named in the petition.

AB573,9,18 (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.

AB573,9,22 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 the respondent or another person if the respondent possesses a firearm.