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LRB-3007/1
CMH:cdc
2021 - 2022 LEGISLATURE
October 21, 2021 - Introduced by Representatives Andraca, Stubbs, Hesselbein,
Conley, Hong, Anderson, Hebl, Snodgrass, Baldeh, Sinicki, S. Rodriguez,
Pope, Emerson, Ortiz-Velez, Neubauer, Billings, Brostoff, Spreitzer,
Shelton, Goyke, Bowen, Ohnstad, Vining, Considine, Moore Omokunde,
Subeck, Vruwink, Cabrera and Drake, cosponsored by Senators L. Taylor,
Agard, Johnson, Erpenbach, Roys, Larson, Carpenter, Smith and Ringhand.
Referred to Committee on Criminal Justice and Public Safety.
AB638,1,5 1An Act to amend 165.63 (3), 165.63 (4) (d), 175.35 (1) (at), 175.60 (9g) (a) 2.,
2175.60 (11) (a) 2. f., 801.58 (2m), 813.06, 813.126 (1), 813.127, 813.128 (2g) (b)
3and 941.29 (1m) (f); and to create 801.50 (5sb) and 813.124 of the statutes;
4relating to: extreme risk protection temporary restraining orders and
5injunctions 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
violating the prohibition.
This 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.
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:
AB638,1
1Section 1. 165.63 (3) of the statutes is amended to read:
AB638,3,52 165.63 (3) Requests from courts. In making a determination required under
3s. 813.124 (7) (a), 813.1285 (7) (a), or 968.20 (1m) (d) 1., a judge or court commissioner
4shall request information under sub. (2) from the department or from a law
5enforcement agency or law enforcement officer as provided in sub. (4) (d).
AB638,2 6Section 2 . 165.63 (4) (d) of the statutes is amended to read:
AB638,3,97 165.63 (4) (d) Aid the court in making a determination required under s.
8813.124 (7) (a), 813.1285 (7) (a), or 968.20 (1m) (d) 1. or aid an entity in making a
9determination required under s. 968.20 (1m) (d) 2.
AB638,3 10Section 3 . 175.35 (1) (at) of the statutes is amended to read:
AB638,4,211 175.35 (1) (at) “Firearms restrictions record search" means a search of
12department of justice records to determine whether a person seeking to purchase a
13handgun is prohibited from possessing a firearm under s. 941.29. “Firearms
14restrictions record search" includes a criminal history record search, a search to
15determine whether a person is prohibited from possessing a firearm under s. 51.20
16(13) (cv) 1., 2007 stats., a search in the national instant criminal background check
17system to determine whether a person has been ordered not to possess a firearm
18under s. 51.20 (13) (cv) 1., 51.45 (13) (i) 1., 54.10 (3) (f) 1., or 55.12 (10) (a), a search
19to determine whether the person is subject to an injunction under s. 813.12 or
20813.122, or a tribal injunction, as defined in s. 813.12 (1) (e), issued by a court
21established by any federally recognized Wisconsin Indian tribe or band, except the
22Menominee Indian tribe of Wisconsin, that includes notice to the respondent that he
23or she is subject to the requirements and penalties under s. 941.29 and that has been
24filed with the circuit court under s. 813.128 (3g), a search to determine whether the
25person is subject to a temporary restraining order or injunction under s. 813.124,
and

1a search to determine whether the person is prohibited from possessing a firearm
2under s. 813.123 (5m) or 813.125 (4m).
AB638,4 3Section 4 . 175.60 (9g) (a) 2. of the statutes is amended to read:
AB638,4,224 175.60 (9g) (a) 2. The department shall conduct a criminal history record
5search and shall search its records and conduct a search in the national instant
6criminal background check system to determine whether the applicant is prohibited
7from possessing a firearm under federal law; whether the applicant is prohibited
8from possessing a firearm under s. 941.29; whether the applicant is prohibited from
9possessing a firearm under s. 51.20 (13) (cv) 1., 2007 stats.; whether the applicant
10has been ordered not to possess a firearm under s. 51.20 (13) (cv) 1., 51.45 (13) (i) 1.,
1154.10 (3) (f) 1., or 55.12 (10) (a); whether the applicant is subject to an injunction
12under s. 813.12 or 813.122, or a tribal injunction, as defined in s. 813.12 (1) (e), issued
13by a court established by any federally recognized Wisconsin Indian tribe or band,
14except the Menominee Indian tribe of Wisconsin, that includes notice to the
15respondent that he or she is subject to the requirements and penalties under s.
16941.29 and that has been filed with the circuit court under s. 813.128 (3g); whether
17the applicant is subject to a temporary restraining order or injunction under s.
18813.124;
and whether the applicant is prohibited from possessing a firearm under
19s. 813.123 (5m) or 813.125 (4m); and to determine if the court has prohibited the
20applicant from possessing a dangerous weapon under s. 969.02 (3) (c) or 969.03 (1)
21(c) and if the applicant is prohibited from possessing a dangerous weapon as a
22condition of release under s. 969.01.
AB638,5 23Section 5. 175.60 (11) (a) 2. f. of the statutes is amended to read:
AB638,5,3
1175.60 (11) (a) 2. f. The individual becomes subject to an a temporary
2restraining order or
injunction described in s. 941.29 (1m) (f) or is ordered not to
3possess a firearm under s. 813.123 (5m) or 813.125 (4m).
AB638,6 4Section 6. 801.50 (5sb) of the statutes is created to read:
AB638,5,65 801.50 (5sb) Venue of an action under s. 813.124 shall be in the county in which
6the cause of action arose or where the petitioner or the respondent resides.
AB638,7 7Section 7. 801.58 (2m) of the statutes is amended to read:
AB638,5,158 801.58 (2m) If, under sub. (2), the judge determines that the request for
9substitution was made timely and in proper form, any ex parte order granted by the
10original judge remains in effect according to the terms, except that a temporary
11restraining order issued under s. 813.12 (3), 813.122 (4), 813.123 (4), 813.124 (2t), or
12813.125 (3) by the original judge is extended until the newly assigned judge holds a
13hearing on the issuance of an injunction. The newly assigned judge shall hear any
14subsequent motion to modify or vacate any ex parte order granted by the original
15judge.
AB638,8 16Section 8. 813.06 of the statutes is amended to read:
AB638,5,25 17813.06 Security for damages. In proceedings under s. 767.225 the court or
18judge may, and in all other proceedings except proceedings under ss. 813.12, 813.122,
19813.124, 813.125 and 823.113 the court or judge shall, require a bond of the party
20seeking an injunction, with sureties, to the effect that he or she will pay to the party
21enjoined such damages, not exceeding an amount to be specified, as he or she may
22sustain by reason of the injunction if the court finally decides that the party was not
23entitled thereto. Copies of such bond, affidavit or other pleading shall be served upon
24the party enjoined and the officer serving the same shall, within 8 days after such
25service, file his or her return in the office of the clerk of the court.
AB638,9
1Section 9. 813.124 of the statutes is created to read:
AB638,6,3 2813.124 Extreme risk protection temporary restraining orders and
3injunctions.
(1) Definitions. In this section:
AB638,6,44 (a) “Family or household member” means any of the following:
AB638,6,55 1. A person related by blood, adoption, or marriage to the respondent.
AB638,6,76 2. A person with whom the respondent has or had a dating relationship, as
7defined in s. 813.12 (1) (ag), or with whom the respondent has a child in common.
AB638,6,98 3. A person who resides with, or within the 6 months before filing a petition,
9had resided with, the respondent.
AB638,6,1010 4. A domestic partner under ch. 770 of the respondent.
AB638,6,1311 5. A person who is acting or has acted as the respondent's legal guardian or who
12is or was a foster parent or other physical custodian described in s. 48.62 (2) of the
13respondent.
AB638,6,1614 6. A person for whom the respondent is acting or has acted as a legal guardian
15or for whom the respondent is or was the foster parent or other physical custodian
16described in s. 48.62 (2).
AB638,6,1717 (b) “Firearms dealer" has the meaning given in s. 175.35 (1) (ar).
AB638,6,1818 (c) “Law enforcement officer” has the meaning given in s. 165.85 (2) (c).
AB638,6,21 19(2) Commencement of action and response. No action under this section may
20be commenced by complaint and summons. An action under this section may be
21commenced only by a petition described under sub. (4) (a).
AB638,6,22 22(2m) Procedure. Procedure for an action under this section is as follows:
AB638,7,723 (a) If the petitioner requests an extreme risk protection temporary restraining
24order, the court shall consider the request as provided under sub. (2t). If the court
25issues a temporary restraining order, the court shall set forth the date, that must be

1within 14 days of issuing the temporary restraining order, for the hearing on the
2injunction and shall forward a copy of the temporary restraining order, the
3injunction hearing date, and the petition to the appropriate law enforcement agency
4with jurisdiction over the respondent's residence. The law enforcement agency shall
5immediately, or as soon as practicable, serve it on the respondent. If personal service
6cannot be effected upon the respondent, the court may order other appropriate
7service.
AB638,7,158 (b) The court shall hold a hearing under sub. (3) on whether to issue an extreme
9risk protection injunction, which is the final relief. If there was no temporary
10restraining order, the respondent shall be served notice of the petition by a law
11enforcement officer and the date for the hearing shall be set upon motion by either
12party. If personal service cannot be effected upon the respondent, the court may
13order other appropriate service. The service shall include the name of the respondent
14and of the petitioner, and, if known, notice of the date, time, and place of the
15injunction hearing.
AB638,7,1716 (c) When the respondent is served under this subsection, the respondent shall
17be provided notice of the requirements and penalties under s. 941.29.
AB638,7,21 18(2t) Extreme risk protection temporary restraining order. (a) A judge shall
19issue an extreme risk protection temporary restraining order under this subsection
20prohibiting the respondent from possessing a firearm and ordering the respondent
21to surrender all firearms in the respondent's possession if all of the following occur:
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