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.
Becky Young recidivism reduction
The bill increases by $5,000,000 in each fiscal year of the 2021-23 biennium the
funding for community services established by the Department of Corrections that
have the goals of increasing public safety, reducing the risk that offenders on
community supervision will reoffend, and reducing recidivism among people who are
on probation, parole, or extended supervision.
Increasing position authorizations for Department of Justice programs
The bill provides to DOJ the following position authorizations:
1. Five additional positions for the alternatives to prosecution and
incarceration grant program.
2. Two additional positions for law enforcement officer training and wellness
initiatives.
3. Four additional positions for law enforcement toxicology services.
4. Two new investigators in the Division of Criminal Investigation.
5. Two additional assistant attorney general positions to prosecute violent
crimes.
6. Two positions for the Task Force on Missing and Murdered Indigenous
Women.
The bill also converts to permanent positions 2.0 full-time GPR attorney
project positions that assist the Division of Criminal Investigation in Wausau and
Appleton and assist district attorneys in prosecuting drug-related offenses.
Funding and positions for the Office of School Safety
The bill provides funding and authorization for several project positions that,
under current law, are funded with federal funds and are set to expire and for several
new positions in the Office of School Safety in DOJ. The new positions include four
resources center analyst positions for the Speak Up, Speak Out program. The bill
also provides 4,160 hours of funding in the 2021-22 fiscal year and the same amount
in the 2022-23 fiscal year for limited-term employees to review materials submitted
by schools in accordance with
2017 Wisconsin Act 143. That act required schools to
submit guidelines and procedures to address school violence, attacks, and threats,
individual safety plans for each school building and facility, and blueprints of each
school building and facility.
miscellaneous
Mental health and substance use services
Currently, DHS must award crisis program enhancement grants to counties or
multicounty regions to establish crisis programs to serve individuals having crises
in rural areas in amounts that are half of the amount the counties or regions provide
to establish or enhance the program. The bill eliminates the limitation that the
grants be related to rural areas and the requirement that the county or region
provide moneys itself in order to receive a grant. The bill increases the amount of
funding for the program from $250,000 per fiscal biennium of general purpose
revenue to $15,000,000 per fiscal biennium. Additionally, the bill increases general
purpose revenue funding for grants for mental health and substance use services
grants and programs, including peer-run respite centers and opioid and
methamphetamine treatment programs.
Hate crimes reporting portal
This bill requires DOJ to develop an Internet-based reporting system and a
telephone hotline for the reporting of hate crimes. Under the bill, DOJ must conduct
a public education campaign on hate crimes and where to report them and must
collect data relating to the reporting of hate crimes. Under the bill, DOJ is required
to submit a biennial report to the legislature on the reporting of hate crimes.
Higher education and special education funding; maintenance of effort
The bill also provides additional funding for higher education and for special
education aid the Department of Public Instruction pays to school districts,
independent charter schools, cooperative educational service agencies, and county
children with disabilities education boards, for purposes of maintaining compliance
with maintenance of effort requirements of the federal Consolidated Appropriations
Act and the federal American Rescue Plan Act.
Statute of limitations after discovery of DNA evidence
The bill changes the applicable time limits on prosecution when DNA evidence
implicates an individual in the commission of a felony.
Under current law, prosecution for a felony generally must be commenced
within six years of the commission of the felony, and prosecution of a misdemeanor
must be commenced within three years of the commission of the misdemeanor.
Certain crimes have a longer time limit on prosecutions, and prosecution for certain
crimes may be commenced at any time.
