SB1091: Bill Text

LRB-6184/1

EW/MJ/CH/TD:all

2021 - 2022 LEGISLATURE

2021 Senate BILL 1091

March 10, 2022 - Introduced by Senators Roys, Agard, Carpenter, Larson and Ringhand, cosponsored by Representatives McGuire, Stubbs, Anderson, Andraca, Conley, Considine, Doyle, Emerson, Hebl, Hesselbein, Hintz, Ohnstad, Riemer, S. Rodriguez, Shelton, Sinicki, Snodgrass, Subeck and Vruwink. Referred to Committee on Judiciary and Public Safety.

SB1091,3,2 An Act to repeal 20.455 (2) (cs), 20.455 (2) (ct), 20.455 (2) (dm), 165.95 (3) (a), 165.95 (5m), 175.35 (1) (b), 939.74 (2d) (c), 939.74 (2d) (e), 940.201 (title) and (1), 940.42, 940.45 (title), 946.60 and 946.61; to renumber 175.35 (2) (a), (b), (c) and (d) and 175.35 (2j); to renumber and amend 165.95 (3) (i), 165.95 (5) (a), 165.95 (5) (b), 175.35 (2) (intro.), 175.35 (2i), 940.20 (3) (title), 940.20 (3), 940.201 (2), 940.43, 940.44, 940.45, 941.2905 (1) and 947.01 (1); to consolidate, renumber and amend 940.48 (2) (intro.), (a) and (b); to amend 6.47 (1) (b), 20.455 (2) (em) (title), 20.455 (2) (gr), 46.48 (31), 46.536, 48.685 (2) (bb), 48.685 (5) (bm) 4., 48.686 (1) (c) 9., 48.686 (1) (c) 12., 48.686 (2) (bb), 50.065 (2) (bb), 165.63 (3), 165.63 (4) (d), 165.70 (1) (b), 165.84 (7) (ab) 1., 165.84 (7) (ab) 2., 165.95 (title), 165.95 (2), 165.95 (2r), 165.95 (3) (b), 165.95 (3) (d), 165.95 (3) (e), 165.95 (3) (g), 165.95 (3) (h), 165.95 (3) (j), 165.95 (3) (k), 165.95 (6), 165.95 (7), 165.95 (7m), 175.35 (title), 175.35 (1) (at), 175.35 (2g) (a), 175.35 (2g) (b) 1., 175.35 (2g) (b) 2., 175.35 (2k) (ar) 2., 175.35 (2k) (c) 2. a., 175.35 (2k) (c) 2. b., 175.35 (2k) (g), 175.35 (2k) (h), 175.35 (2L), 175.35 (2t) (a), (b) and (c), 175.35 (3) (b) 2., 175.60 (7) (d), 175.60 (9g) (a) 2., 175.60 (11) (a) 2. f., 175.60 (15) (b) 4. b., 301.048 (2) (bm) 1. a., 302.43, 767.461 (4), 801.58 (2m), 813.06, 813.126 (1), 813.127, 813.128 (2g) (b), 938.208 (1) (b), 938.34 (4m) (b) 2., 938.341, 939.22 (21) (em), 939.22 (21) (k), 939.22 (21) (L), 939.31, 939.32 (1) (c), 939.6195 (1) (a) 1., 939.632 (1) (e) 1., 939.632 (1) (e) 3., 940.03, 940.41 (intro.), 940.43 (title), 940.44 (title), 940.46, 940.47 (1), 940.47 (2), 940.48 (1), 940.49, 941.237 (1) (d), 941.29 (1g) (a), 941.29 (1g) (b), 941.29 (1m) (intro.), 941.29 (1m) (f), 941.291 (1) (b), 941.296 (1) (b), 941.38 (1) (b) 5m., 941.38 (1) (b) 11., 941.38 (1) (b) 12., 946.82 (4), 949.03 (1) (b), 961.472 (5) (b), 967.11 (1), 967.11 (2), 968.075 (1) (a) (intro.), 968.20 (3) (b), 968.26 (1b) (a) 2. a., 969.08 (10) (b), 971.17 (1g), 971.37 (1m) (a) 2., 973.055 (1) (a) 1., 973.123 (1), 973.155 (1m) and 973.176 (1); to repeal and recreate 946.65; and to create 20.455 (2) (cs), 20.455 (2) (ct), 20.455 (2) (dm), 20.455 (5) (dm), 165.73, 165.95 (1) (ac), 165.95 (3) (ag), 165.95 (3) (bd), 165.95 (3) (cm) 2., 175.33, 175.35 (1) (br), 175.35 (2) (bm), 175.35 (2) (cm) (intro.), 175.35 (2i) (b) 2., 175.35 (2j) (b), 175.35 (2k) (cm), 175.35 (2k) (gm), 801.50 (5sb), 813.124, 939.74 (2d) (b), 940.202 (1) and (3), 940.41 (1d), 940.43 (1m), 941.29 (1m) (dm), (dn) and (do), 941.2905 (1) (b), 941.293, 943.20 (1) (f), 947.01 (1) (a), 968.075 (1) (f), 969.15 and 973.017 (3) (f) of the statutes; relating to: firearm transfers and possession, certain Department of Justice and Department of Corrections programs, law enforcement and prosecution, victims and witnesses, obstruction of justice, mental health and substance use services, hate crimes reporting portal, fraud, making an appropriation, and providing a penalty.

Analysis by the Legislative Reference Bureau

firearm transfers and possession

Background checks before firearms transfers

Current law provides that a federally licensed firearms dealer may not transfer a handgun after a sale until the dealer has performed a background check on the prospective transferee to determine if he or she is prohibited from possessing a firearm under state or federal law. This bill generally prohibits any person from transferring any firearm, including the frame or receiver of a firearm, unless the transfer occurs through a federally licensed firearms dealer and involves a background check of the prospective transferee. Under the bill, the following are excepted from that prohibition: a transfer to a firearms dealer or to a law enforcement or armed services agency; a transfer of a firearm classified as antique; a transfer for no more than 14 days for the purpose of hunting or target shooting that involves no more than nominal consideration; or a transfer that is by gift, bequest, or inheritance to a family member. A person who is convicted of violating the prohibition is guilty of a misdemeanor and must be fined not less than $500 nor more than $10,000, may be imprisoned for not more than nine months, and may not possess a firearm for a period of two years.

Law enforcement access to handgun background checks

Current law provides that a federally licensed firearms dealer may not transfer a handgun after a sale until the dealer has requested the Department of Justice to perform a background check on the prospective transferee to determine if he or she is prohibited from possessing a firearm. Current law prohibits the following persons from possessing a firearm: persons who have been convicted of a felony; persons found not guilty of a felony by reason of mental disease or defect; persons who are subject to certain injunctions such as a domestic abuse or child abuse injunction or, in certain cases, a harassment or an individuals-at-risk injunction; and persons who have been involuntarily committed for mental health treatment and ordered not to possess a firearm. Current law also prohibits a person from intentionally furnishing, purchasing, or possessing a firearm for a person who is prohibited from possessing a firearm. This practice is commonly called straw purchasing.

Under current law, DOJ must deny access to records regarding background checks; however there are exceptions. The bill creates three new exceptions. First, under current law, if the background check reveals that a prospective transferee is prohibited from possessing a firearm under state law, the attorney general may disclose to a law enforcement agency that the person attempted to purchase a handgun. The bill adds that the attorney general may make such a disclosure to law enforcement if a prospective transferee is prohibited from possessing a firearm under federal law as well as state law. Second, the bill adds that the attorney general may disclose an attempted transfer to a law enforcement agency if the circumstances surrounding the request for a background check indicate that the prospective transferee is trying to make a straw purchase of a handgun. Third, the bill specifies that DOJ may forward the final transaction status of a background check to the National Instant Criminal Background Check System, commonly referred to as NICS, as provided under federal law.

Extreme risk protection order

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.

The 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.

Misdemeanor crimes of domestic violence as a firearms disqualifier

Under federal law, a person is prohibited from possessing a firearm if he or she has been convicted of a misdemeanor crime of domestic violence. Under state law, a person who is prohibited from possessing a firearm under federal or state law also may not purchase a firearm or be issued a license to carry a concealed weapon. State law requires DOJ, before approving a handgun purchase or issuing a license, to conduct a background check to determine if the person is prohibited from possessing a firearm. To determine if the person is prohibited under federal law, DOJ must review court records of all of the person's criminal convictions to identify if any conviction is for a misdemeanor crime of domestic violence. DOJ must determine if the relationship between the offender and the victim qualifies as a domestic relationship and if the offender engaged in violent conduct when committing the crime. The bill reorganizes two statutes—the crime of disorderly conduct and the definition of domestic abuse—so that DOJ is able to more easily determine if a conviction qualifies as a misdemeanor crime of domestic violence.

First, under current law, a person is guilty of disorderly conduct if the person engages in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct and if the conduct tends to cause or provoke a disturbance. A person who has been convicted of disorderly conduct is prohibited from possessing a firearm if the disorderly conduct was a misdemeanor crime of domestic violence—that is if the person engaged in violent conduct and if the relationship between the person and the victim was domestic. The bill reorganizes the disorderly conduct statute to separate “violent” conduct from the other types of disorderly conduct so that the court record clearly indicates that the crime was a violent crime.

Second, under current state law, “domestic abuse” is defined as certain actions taken against a victim if the victim is related to the actor, has a child in common with the actor, or currently resides or has resided with the actor. Unlike state law, federal law does not define a crime as domestic violence if the only relationship is that the victim currently resides or has resided with the actor. The bill reorganizes the statute defining domestic abuse so that a court record would indicate the exact nature of the relationship. Therefore, under the bill, the court record would indicate when a person who is guilty under state law of a crime of domestic abuse is not guilty under federal law of a misdemeanor crime of domestic violence.

Domestic violence protection orders

Under federal law, a person is prohibited from possessing a firearm if the person is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or the partner's child and that contains a finding that the person represents a credible threat to the safety of the partner or child or an explicit term that prohibits the person from using, attempting to use, or threatening to use physical force against the partner or child.

Under the bill, if a person is released on bail or bond and the court issues such an order, the clerk of court must send a copy of the order to the appropriate sheriff within one business day of the person's release. The sheriff must then enter the court order into the information system so that law enforcement has access to the order similar to how law enforcement has access to other orders for domestic violence, harassment, or child abuse that prohibit a person from possessing a firearm.

Prohibition on undetectable “ghost” guns

The bill prohibits the manufacture, transportation, sale, possession, and carrying of firearms that cannot be detected by metal detectors or airport x-ray machines or scanners. Federal law currently has a comparable prohibition; under the bill, the person would violate state law as well. A person who violates the state prohibition is guilty of a Class G felony.

The bill also prohibits the sale, posting, provision, or possession of plans for manufacturing an undetectable firearm. A person who violates the prohibition is guilty of a Class H felony.

Finally, the bill prohibits the possession of a frame or a receiver of a firearm that is not marked with a serial number. A person who violates the prohibition is guilty of a Class I felony.

Penalty increase for the illegal possession of a firearm or for the straw purchase of a firearm

The bill increases the penalty for the illegal possession of a firearm or for the straw purchase of a firearm. Under current law either crime is a Class G felony. The bill increases the penalty to a Class F felony for a repeat offense.

victims and witnesses

Victim witness reimbursement payments

Under current law, DOJ provides reimbursement to counties for costs incurred in providing services to victims and witnesses of crime. The bill increases funding for these reimbursements by $3,250,000 in each fiscal year of the 2021-23 biennium.

Address confidentiality program

The bill provides new general purpose revenue funding for the address confidentiality program operated by DOJ. Under current law, DOJ's address confidentiality program, known as “Safe at Home,” provides certain victims of domestic abuse with a substitute legal address that can be used for both public and private purposes so that the victim's home address can remain confidential.

Intimidation of a witness or a victim

Under current law, the crime of intimidation of a witness or a victim is a Class A misdemeanor, unless certain aggravating factors are present, in which case it is a Class H felony. The bill increases the penalty for the crime of intimidation of a witness or a victim from a Class A misdemeanor to a Class H felony and from a Class H felony to a Class G felony if the aggravating factors are present.

Victim services

The bill provides an additional $10,000,000 in the 2021-23 biennium for victim services provided by DOJ across the state.

law enforcement recruitment, retention, and training

Reimbursement for law enforcement specialized training

Under current law, the Law Enforcement Standards Board reimburses political subdivisions for certain expenses associated with certification training for law enforcement officers. Under current law, these reimbursements are funded from a combination of GPR and penalty surcharges on court fines and forfeitures. The bill increases GPR funding for law enforcement certification training reimbursements by $1,000,000 GPR in each fiscal year.

Law enforcement officer recruitment, retention, and wellness grants

The bill requires DOJ to provide $10,000,000 in grants in the 2021-23 fiscal biennium for programs designed to recruit and retain law enforcement officers and to promote officer wellness.

obstructing justice

Obstructing justice

Under current law, the crime of obstructing justice is defined as knowingly giving, for consideration, false information to a judge, court reporter, bailiff, or district attorney with intent to influence that person in the performance of official functions and is a Class I felony. Under current law, it is also a Class I felony to destroy documents that are subject to subpoena, and it is a Class H felony to bribe a witness.

Under the bill, the crime of obstructing justice is redefined to include a variety of acts that interfere with a governmental or criminal investigation, including all of the following:

1. Withholding or destroying records or oral testimony with intent to obstruct a legal investigation.

2. Interfering with a legal or governmental proceeding through the use of a bribe or a threat.

3. Interfering, by threat or force, with the exercise of rights or performance of duties pursuant to a court order.

4. Obstructing or otherwise interfering with the communication to a criminal investigator of information relating to a crime.

5. Altering or destroying a record, document, or other object in order to interfere with a governmental investigation or administration of any other matter in the jurisdiction of the state government.

6. Accepting a bribe to influence, obstruct, or impede a legal or governmental proceeding.

Any of these activities is a Class H felony under the bill.

Battery or threat of a juror or a family member of a juror

Under current law, the crime of battery is defined as intentionally causing another person bodily harm and is a Class A misdemeanor. Under current law, if the battery is a special circumstance battery—for example, the battery is committed against an individual because of the individual's status as a law enforcement officer, witness in a trial, or juror—the penalty is increased to a Class H felony. Under the bill, a threat or battery against a juror or a threat or battery against a family member of a juror is also a Class H felony.

DEPARTMENT OF justice and DEPARTMENT OF corrections programs

Treatment alternatives and diversion grant program

Under current law, DOJ, in collaboration with the Department of Corrections and the Department of Health Services, awards grants to counties or tribes that have established qualifying treatment alternatives and diversion (TAD) programs that offer substance abuse or mental health treatment services as alternatives to prosecution or incarceration in order to reduce recidivism, promote public safety, and reduce prison and jail populations.

Under current law, in order to qualify for a TAD grant, a county's or tribe's program is required to match 25 percent of the grant, and a program is required to charge participants a fee to participate. A county or tribe that receives a TAD grant must create an oversight committee to administer and evaluate its program. DOJ is required to make grants available to any county or tribe on a competitive basis every five years. At the end of the five-year grant cycle, DOJ is required to prepare a comprehensive report on the grant program based on annual reports and other data it collects from the counties and tribes.

The bill makes several changes to the TAD grant program. Under the bill, a program funded by a TAD grant need not focus solely on alcohol and other drug treatment but must employ evidence-based practices targeted to the population served by the program. The bill changes the match requirement from 25 percent to 10 percent and changes the competitive grant process to a four-year cycle. The bill allows, but does not require, an eligible program to charge participants a fee for their treatment. The bill also eliminates certain requirements pertaining to exposure of genitals during drug testing.

Under current law, when a person pleads or is found guilty of certain drug offenses, the court is required to order a substance use assessment. Under current law, the court does not have to order an assessment if the person is already covered by such an order, has recently completed an assessment under such an order, or is participating in a TAD program. The bill specifies that if a person is participating in any evidence-based substance use disorder treatment program as determined by DOJ, regardless of its status relating to the TAD program, the court does not need to order an assessment.

The bill provides an additional $15,522,000 of funding for TAD programs in the 2021-23 fiscal biennium.

Community policing and community prosecution grant program

The bill provides $20,000,000 in grant funding in the 2021-23 fiscal biennium through DOJ to support community policing and community prosecution. In awarding the grants, DOJ may consider the use of hot-spot policing practices to address the needs of the community.

Violence prevention grants

The bill provides $10,000,000 in grant funding in the 2021-23 fiscal biennium through DOJ for violence prevention programs. Under the bill, DOJ must consult with DHS to determine grant awards.