Chapter 941

941.26(4) (4) 

941.26(4)(a) (a) Subsections (1g) to (3) do not apply to any device or container that contains a combination of oleoresin of capsicum or CS gel and inert ingredients but does not contain any other gas or substance that will cause bodily discomfort.

941.26(4)(b) (b) Whoever intentionally uses a device or container described under par. (a) to cause bodily harm or bodily discomfort to another is guilty of a Class A misdemeanor.

941.26(4)(c) (c) Paragraph (b) does not apply to any of the following:

941.26(4)(c)1. 1. Any person acting in self-defense or defense of another, as allowed under s. 939.48.

941.26(4)(c)2. 2. Any peace officer acting in his or her official capacity. Notwithstanding s. 939.22 (22), for purposes of this subdivision, peace officer does not include a commission warden who is not a state-certified commission warden.

941.26(4)(c)3. 3. Any armed forces or national guard personnel acting in the line of duty.

941.26(4)(d) (d) Whoever intentionally uses a device or container described under par. (a) to cause bodily harm or bodily discomfort to a person who the actor knows, or has reason to know, is a peace officer who is acting in an official capacity is guilty of a Class H felony.

941.26(4)(e) (e) Whoever uses a device or container described under par. (a) during his or her commission of another crime to cause bodily harm or bodily discomfort to another or who threatens to use the device or container during his or her commission of another crime to incapacitate another person is guilty of a Class H felony.

941.26(4)(g) (g)

941.26(4)(g)1. 1. Any person who sells or distributes a device or container described under par. (a) to a person who has not attained 18 years of age is subject to a Class C forfeiture.

941.26(4)(g)1m. 1m. Subdivision 1. does not apply to an actor who is a parent, guardian, or legal custodian of a person who has not attained 18 years of age if the actor gives the person the device or container.

941.26(4)(g)2. 2. A person who proves all of the following by a preponderance of the evidence has a defense to prosecution under subd. 1.:

941.26(4)(g)2.a. a. That the purchaser or distributee falsely represented that he or she had attained the age of 18 and presented an identification card.

941.26(4)(g)2.b. b. That the appearance of the purchaser or distributee was such that an ordinary and prudent person would believe that the purchaser or distributee had attained the age of 18.

941.26(4)(g)2.c. c. That the sale was made in good faith, in reasonable reliance on the identification card and appearance of the purchaser or distributee and in the belief that the purchaser or distributee had attained the age of 18.

941.26(4)(j) (j) Whoever intentionally sells a device or container described under par. (a) without providing the purchaser with a proper label on the device or container and written safety instructions for using the device or container is guilty of a Class A misdemeanor.

941.26(4)(k) (k)

941.26(4)(k)1. 1. Except as provided in subd. 2., any person who has not attained the age of 18 years and who possesses a device or container described under par. (a) is subject to a Class E forfeiture.

941.26(4)(k)2. 2. Subdivision 1. does not apply if the person’s parent, guardian, or legal custodian purchased the device or container for him or her or gave the device or container to him or her.

941.26(4)(L) (L) Any person who has been convicted of a felony in this state or has been convicted of a crime elsewhere that would be a felony if committed in this state who possesses a device or container described under par. (a) is subject to a Class A misdemeanor. This paragraph does not apply if the person has received a pardon for the felony or crime.

941.26(4)(m) (m) The department of justice may not promulgate or enforce any rule that regulates a device or container described under par. (a).

941.26(5) (5) This section does not prohibit or interfere with the manufacture for, and sale of, machine guns to the military forces or the peace officers of the United States or of any political subdivision thereof, or the transportation required for that purpose; the possession of a machine gun for scientific purpose, or the possession of a machine gun not usable as a weapon and possessed as a curiosity, ornament, or keepsake; or the possession of a machine gun other than one adapted to use pistol cartridges for a purpose manifestly not aggressive or offensive.

941.26 History History: 1977 c. 173; 1987 a. 234; 1991 a. 137; 1993 a. 91; 1995 a. 25; 2001 a. 109; 2007 a. 27; 2013 a. 77; 2015 a. 197; 2019 a. 52.

941.28 941.28 Possession of short-barreled shotgun or short-barreled rifle.

941.28(1) (1) In this section:

941.28(1)(a) (a) “Rifle” means a firearm designed or redesigned, made or remade, and intended to be fired from the shoulder or hip and designed or redesigned and made or remade to use the energy of a propellant in a metallic cartridge to fire through a rifled barrel a single projectile for each pull of the trigger.

941.28(1)(b) (b) “Short-barreled rifle” means a rifle having one or more barrels having a length of less than 16 inches measured from closed breech or bolt face to muzzle or a rifle having an overall length of less than 26 inches.

941.28(1)(c) (c) “Short-barreled shotgun” means a shotgun having one or more barrels having a length of less than 18 inches measured from closed breech or bolt face to muzzle or a shotgun having an overall length of less than 26 inches.

941.28(1)(d) (d) “Shotgun” means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder or hip and designed or redesigned and made or remade to use the energy of a propellant in a fixed shotgun shell to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger.

941.28(2) (2) No person may sell or offer to sell, transport, purchase, possess or go armed with a short-barreled shotgun or short-barreled rifle.

941.28(3) (3) Any person violating this section is guilty of a Class H felony.

941.28(4) (4) This section does not apply to the sale, purchase, possession, use or transportation of a short-barreled shotgun or short-barreled rifle to or by any armed forces or national guard personnel in line of duty, any peace officer of the United States or of any political subdivision of the United States or any person who has complied with the licensing and registration requirements under 26 USC 5801 to 5872. This section does not apply to the manufacture of short-barreled shotguns or short-barreled rifles for any person or group authorized to possess these weapons. The restriction on transportation contained in this section does not apply to common carriers. This section shall not apply to any firearm that may be lawfully possessed under federal law, or any firearm that could have been lawfully registered at the time of the enactment of the national firearms act of 1968.

941.28(5) (5) Any firearm seized under this section is subject to s. 968.20 (3) and is presumed to be contraband.

941.28 History History: 1979 c. 115; 2001 a. 109.

941.28 Annotation The intent in sub. (1) (d) is that of the fabricator; that the gun is incapable of being fired or not intended to be fired by the possessor is immaterial. State v. Johnson, 171 Wis. 2d 175, 491 N.W.2d 110 (Ct. App. 1992).

941.28 Annotation “Firearm” means a weapon that acts by force of gunpowder to fire a projectile, regardless of whether it is inoperable due to disassembly. State v. Rardon, 185 Wis. 2d 701, 518 N.W.2d 330 (Ct. App. 1994).

941.29 941.29 Possession of a firearm.

941.29(1g) (1g) In this section:

941.29(1g)(a) (a) “Violent felony” means any felony under s. 943.23 (1m), 1999 stats., s. 943.23 (1r), 1999 stats., or s. 943.23 (1g), 2021 stats., this section, or s. 940.01, 940.02, 940.03, 940.05, 940.06, 940.08, 940.09, 940.10, 940.19, 940.195, 940.198, 940.20, 940.201, 940.203, 940.204, 940.21, 940.225, 940.23, 940.235, 940.285 (2), 940.29, 940.295 (3), 940.30, 940.302, 940.305, 940.31, 940.43 (1) to (3), 940.45 (1) to (3), 941.20, 941.26, 941.28, 941.2905, 941.292, 941.30, 941.327 (2) (b) 3. or 4., 943.02, 943.04, 943.06, 943.10 (2), 943.231 (1), 943.32, 943.87, 946.43, 948.02 (1) or (2), 948.025, 948.03, 948.04, 948.05, 948.051, 948.06, 948.07, 948.08, 948.085, or 948.30.

941.29(1g)(b) (b) “Violent misdemeanor” means a violation of s. 813.12, 813.122, 813.125, 940.19 (1), 940.195, 940.42, 940.44, 941.20 (1), 941.26, 941.38 (3), 941.39, 947.013, 948.55, 951.02, 951.08, 951.09, or 951.095 or a violation to which a penalty specified in s. 939.63 (1) is applied.

941.29(1m) (1m) A person who possesses a firearm is guilty of a Class G felony if any of the following applies:

941.29(1m)(a) (a) The person has been convicted of a felony in this state.

941.29(1m)(b) (b) The person has been convicted of a crime elsewhere that would be a felony if committed in this state.

941.29(1m)(bm) (bm) The person has been adjudicated delinquent for an act committed on or after April 21, 1994, that if committed by an adult in this state would be a felony.

941.29(1m)(c) (c) The person has been found not guilty of a felony in this state by reason of mental disease or defect.

941.29(1m)(d) (d) The person has been found not guilty of or not responsible for a crime elsewhere that would be a felony in this state by reason of insanity or mental disease, defect or illness.

941.29(1m)(e) (e) The person has been committed for treatment under s. 51.20 (13) (a) and is subject to an order not to possess a firearm under s. 51.20 (13) (cv) 1., 2007 stats.

941.29(1m)(em) (em) The person is subject to an order 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).

941.29(1m)(f) (f) The person is subject to an injunction issued under s. 813.12 or 813.122 or under 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 this section and that has been filed under s. 813.128 (3g).

941.29(1m)(g) (g) The person is subject to an order not to possess a firearm under s. 813.123 (5m) or 813.125 (4m).

941.29(3) (3) Any firearm involved in an offense under this section is subject to s. 968.20 (3).

941.29(4m) (4m) 

941.29(4m)(a) (a) If a person commits a violation of sub. (1m), the court shall impose a bifurcated sentence under s. 973.01 and the confinement portion of the bifurcated sentence imposed on the person shall be not less than 3 years if all of the following are true:

941.29(4m)(a)1. 1. The person is subject to this section because he or she was convicted of, adjudicated delinquent for, or found not guilty of by reason of mental disease or defect, committing, soliciting, conspiring, or attempting to commit a violent felony.

941.29(4m)(a)2. 2. Any of the following applies:

941.29(4m)(a)2.a. a. The person committed the current offense within 5 years after completing his or her sentence, including any parole or extended supervision, or after completing a period of probation imposed for a prior felony or violent misdemeanor.

941.29(4m)(a)2.b. b. The person committed the current offense while on probation, parole, extended supervision, or conditional release for the commission of a prior felony or violent misdemeanor.

941.29(4m)(a)2.c. c. The person committed the current offense within 5 years after being discharged from commitment under ch. 971 for the commission of a prior felony or violent misdemeanor.

941.29(4m)(b) (b) This subsection does not apply to sentences imposed after July 1, 2020.

941.29(5) (5) This section does not apply to any person specified in sub. (1m) who:

941.29(5)(a) (a) Has received a pardon with respect to the crime or felony specified in sub. (1m) or (4m) and has been expressly authorized to possess a firearm under 18 USC app. 1203; or

941.29(5)(b) (b) Has obtained relief from disabilities under 18 USC 925 (c).

941.29(6) (6) The prohibition against firearm possession under this section does not apply to any correctional officer employed before May 1, 1982, who is required to possess a firearm as a condition of employment. This exemption applies if the officer is eligible to possess a firearm under any federal law and applies while the officer is acting in an official capacity.

941.29(7) (7) This section does not apply to any person who has been found not guilty or not responsible by reason of insanity or mental disease, defect or illness if a court subsequently determines both of the following:

941.29(7)(a) (a) The person is no longer insane or no longer has a mental disease, defect or illness.

941.29(7)(b) (b) The person is not likely to act in a manner dangerous to public safety.

941.29(8) (8) This section does not apply to any person specified in sub. (1m) (bm) if a court subsequently determines that the person is not likely to act in a manner dangerous to public safety. In any action or proceeding regarding this determination, the person has the burden of proving by a preponderance of the evidence that he or she is not likely to act in a manner dangerous to public safety.

941.29(9) (9) 

941.29(9)(a) (a) This section does not apply to a person specified in sub. (1m) (e) if the prohibition under s. 51.20 (13) (cv) 1., 2007 stats., has been canceled under s. 51.20 (13) (cv) 2. or (16) (gm), 2007 stats., or under s. 51.20 (13) (cv) 1m. c.

941.29(9)(b) (b) This section does not apply to a person specified in sub. (1m) (em) if the order under s. 51.20 (13) (cv) 1. is canceled under s. 51.20 (13) (cv) 1m. c., if the order under s. 51.45 (13) (i) 1. is canceled under s. 51.45 (13) (i) 2. c., if the order under s. 54.10 (3) (f) 1. is canceled under s. 54.10 (3) (f) 2. c., or if the order under s. 55.12 (10) (a) is canceled under s. 55.12 (10) (b) 3.

941.29(10) (10) The prohibition against firearm possession under this section does not apply to a person specified in sub. (1m) (f) if the person satisfies any of the following:

941.29(10)(a) (a) The person is a peace officer and the person possesses a firearm while in the line of duty or, if required to do so as a condition of employment, while off duty. Notwithstanding s. 939.22 (22), for purposes of this paragraph, peace officer does not include a commission warden who is not a state-certified commission warden.

941.29(10)(b) (b) The person is a member of the U.S. armed forces or national guard and the person possesses a firearm while in the line of duty.

941.29 History History: 1981 c. 141, 317; 1983 a. 269; 1985 a. 259; 1993 a. 195, 196, 491; 1995 a. 71, 77, 306, 417; 2001 a. 109; 2007 a. 27; 2009 a. 258; 2011 a. 257, 258; 2013 a. 223; 2015 a. 109, 352; 2017 a. 145, 310, 365; 2021 a. 76, 209; 2023 a. 10.

941.29 Note NOTE: See Chapter 141, laws of 1981, section 2, entitled “Initial applicability.”

941.29 Annotation If a defendant is willing to stipulate to being a convicted felon, evidence of the nature of the felony is irrelevant if offered only to support the felony conviction element. State v. McAllister, 153 Wis. 2d 523, 451 N.W.2d 764 (Ct. App. 1989).

941.29 Annotation Failure to give the warning under former s. 973.033, 1989 stats., does not prevent a conviction under this section. State v. Phillips, 172 Wis. 2d 391, 493 N.W.2d 238 (Ct. App. 1992).

941.29 Annotation Retroactive application of this provision did not violate the prohibition against ex post facto laws because the law is intended not to punish persons for a prior crime but to protect public safety. State v. Thiel, 188 Wis. 2d 695, 524 N.W.2d 641 (1994).

941.29 Annotation A convicted felon’s possession of a firearm is privileged in limited enumerated circumstances. State v. Coleman, 206 Wis. 2d 199, 556 N.W.2d 701 (1996), 95-0917.

941.29 Annotation In this section, to possess means that the defendant knowingly has control of a firearm. There is no minimum length of time the firearm must be possessed for a violation to occur. Intention in handling a firearm is irrelevant unless the handling is privileged under s. 939.45. State v. Black, 2001 WI 31, 242 Wis. 2d 126, 624 N.W.2d 363, 99-0230.

941.29 Annotation To determine whether a person has been convicted of a crime elsewhere that would be a felony if committed in this state under sub. (1) (b) [now sub. (1m) (b)], the courts must consider the underlying conduct of the out-of-state conviction, not merely the statute that was violated. State v. Campbell, 2002 WI App 20, 250 Wis. 2d 238, 642 N.W.2d 230, 01-0758.

941.29 Annotation Article I, section 25, of the Wisconsin Constitution did not effectively repeal this section, nor is this section unconstitutionally vague, overbroad, or in violation of the equal protection clauses of the U.S. and Wisconsin constitutions. State v. Thomas, 2004 WI App 115, 274 Wis. 2d 513, 683 N.W.2d 497, 03-1369.

941.29 Annotation While 18 USC 1162 (b) prohibits the state from depriving any Indian of any right, privilege, or immunity afforded under federal treaty, defendant’s claim that he was exercising tribal hunting rights did not prevent the application of this section. Application of this section did not make the defendant’s exercise of treaty hunting rights illegal. Rather, the defendant’s own actions in committing a felony limited him from fully enjoying those rights. State v. Jacobs, 2007 WI App 155, 302 Wis. 2d 675, 735 N.W.2d 535, 06-2076.

941.29 Annotation The ban on felons possessing firearms is constitutional, and that ban extends to all felons, including nonviolent ones. The governmental objective of public safety is an important one, and the legislature’s decision to deprive a nonviolent felon of the right to possess a firearm is substantially related to this goal. State v. Pocian, 2012 WI App 58, 341 Wis. 2d 380, 814 N.W.2d 894, 11-1035. See also State v. Culver, 2018 WI App 55, 384 Wis. 2d 222, 918 N.W.2d 103, 16-2160; State v. Roundtree, 2021 WI 1, 395 Wis. 2d 94, 952 N.W.2d 765, 18-0594; Kanter v. Barr, 919 F.3d 437 (2019).

941.29 Annotation Attempted possession of a firearm by a felon is a crime recognized under Wisconsin law. State v. Henning, 2013 WI App 15, 346 Wis. 2d 246, 828 N.W.2d 235, 10-2449.

941.29 Annotation Denial of the defendant’s motion to dismiss a charge of possession of a firearm as someone who has been adjudicated delinquent that was based on the same underlying chain of events as an earlier dismissed charge of possession of a firearm as a felon did not violate the defendant’s right to be free from double jeopardy. State v. Berry, 2016 WI App 40, 369 Wis. 2d 211, 879 N.W.2d 802, 15-1195.

941.29 Annotation The restoration of a felon’s rights in Virginia is not a pardon for the purposes of sub. (5) (a). Moran v. Department of Justice, 2019 WI App 38, 388 Wis. 2d 193, 932 N.W.2d 430, 18-0563.

941.29 Annotation Sub. (5) (a) has been invalidated by congressional action. Pardons granted after November 15, 1986, will give recipients the right to receive, possess, or transport in commerce firearms unless the pardon expressly provides otherwise. 78 Atty. Gen. 22.