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.