Wisconsin Legislature: AB1051,5

LRB-2543/1

CMH:kjf

2017 - 2018 LEGISLATURE

2017 Assembly BILL 1051

March 22, 2018 - Introduced by Representatives Sargent, Crowley, Berceau,
Zamarripa, C. Taylor, Ohnstad, Vruwink, Kolste, Anderson, Sinicki, Novak,
Hebl, Hesselbein, Considine, Subeck, Brostoff and Kulp, cosponsored by
Senators L. Taylor, Johnson, Schachtner, Larson, Carpenter, Miller and
Risser. Referred to Committee on Judiciary.

AB1051,1,5 1An Act to amend 165.63 (3), 165.63 (4) (d), 175.35 (1) (at), 175.60 (9g) (a) 2.,
2757.69 (1) (j), 801.50 (5s), 813.06, 813.126 (1), 813.127, 813.128 (2g) (b) and
3941.29 (1m) (g); and to create 813.124 of the statutes; relating to: lethal
4violence protective temporary restraining orders and injunctions and providing
5criminal penalties.

Analysis by the Legislative Reference Bureau

Under current law, a person is prohibited from possessing a firearm, and must
surrender any firearm he or she possesses, if he or she 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 he or she
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 if he or she violates the prohibition.

This bill creates a lethal violence protective temporary restraining order and
a lethal violence protective injunction. Upon receiving a petition filed by certain
persons, such as a law enforcement officer or a family member, household member,
or close friend of the respondent, a court shall issue a temporary restraining order
prohibiting the respondent from possessing a firearm and ordering the respondent
to surrender all of his or her firearms if the court finds reasonable grounds to believe

that the respondent is substantially likely to injure himself or herself or another
person if the respondent possesses a firearm. At the injunction hearing, the court
may grant a lethal violence protective injunction ordering the respondent to refrain
from possessing a firearm if the court finds reasonable grounds to believe that the
respondent is substantially likely to injure himself or herself or another person if the
respondent possesses a firearm. A lethal violence protective injunction is effective
for 180 days and may be renewed for an unlimited number of 180-day terms. Any
person who is subject to a lethal violence protective injunction may petition to vacate
the injunction. A person who possesses a firearm while subject to a lethal violence
protective TRO or injunction is guilty of a Class G felony. In addition, a person who
files a petition for a lethal violence protective TRO or injunction, knowing the
information in the petition to be false or with the intent to harass, is subject to a fine
of up to $10,000 and imprisonment for up to nine months or both.

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:

AB1051,1 1Section 1 . 165.63 (3) of the statutes is amended to read:

AB1051,2,52 165.63 (3) Requests from courts. In making a determination required under
3s. 813.124 (8) (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).

AB1051,2 6Section 2 . 165.63 (4) (d) of the statutes is amended to read:

AB1051,2,97 165.63 (4) (d) Aid the court in making a determination required under s.
8813.124 (8) (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.

AB1051,3 10Section 3 . 175.35 (1) (at) of the statutes is amended to read:

AB1051,3,1211 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

1determine whether a person is prohibited from possessing a firearm under s. 51.20
2(13) (cv) 1., 2007 stats., a search in the national instant criminal background check
3system to determine whether a person has been ordered not to possess a firearm
4under s. 51.20 (13) (cv) 1., 51.45 (13) (i) 1., 54.10 (3) (f) 1., or 55.12 (10) (a), a search
5to determine whether the person is subject to an injunction under s. 813.12 or
6813.122, or a tribal injunction, as defined in s. 813.12 (1) (e), issued by a court
7established by any federally recognized Wisconsin Indian tribe or band, except the
8Menominee Indian tribe of Wisconsin, that includes notice to the respondent that he
9or she is subject to the requirements and penalties under s. 941.29 and that has been
10filed with the circuit court under s. 813.128 (3g), and a search to determine whether
11the person is prohibited from possessing a firearm under s. 813.123 (5m), 813.124 (3)
12or (4), or 813.125 (4m).

AB1051,4 13Section 4 . 175.60 (9g) (a) 2. of the statutes is amended to read:

AB1051,4,614 175.60 (9g) (a) 2. The department shall conduct a criminal history record
15search and shall search its records and conduct a search in the national instant
16criminal background check system to determine whether the applicant is prohibited
17from possessing a firearm under federal law; whether the applicant is prohibited
18from possessing a firearm under s. 941.29; whether the applicant is prohibited from
19possessing a firearm under s. 51.20 (13) (cv) 1., 2007 stats.; whether the applicant
20has been ordered not to possess a firearm under s. 51.20 (13) (cv) 1., 51.45 (13) (i) 1.,
2154.10 (3) (f) 1., or 55.12 (10) (a); whether the applicant is subject to an injunction
22under s. 813.12 or 813.122, or a tribal injunction, as defined in s. 813.12 (1) (e), issued
23by a court established by any federally recognized Wisconsin Indian tribe or band,
24except the Menominee Indian tribe of Wisconsin, that includes notice to the
25respondent that he or she is subject to the requirements and penalties under s.

1941.29 and that has been filed with the circuit court under s. 813.128 (3g); and
2whether the applicant is prohibited from possessing a firearm under s. 813.123 (5m),
3813.124 (3) or (4), or 813.125 (4m); and to determine if the court has prohibited the
4applicant from possessing a dangerous weapon under s. 969.02 (3) (c) or 969.03 (1)
5(c) and if the applicant is prohibited from possessing a dangerous weapon as a
6condition of release under s. 969.01.

AB1051,5 7Section 5. 757.69 (1) (j) of the statutes is amended to read:

AB1051,4,98 757.69 (1) (j) Hold hearings, make findings and issue temporary restraining
9orders under s. 813.122 or, 813.123 , or 813.124.

AB1051,6 10Section 6. 801.50 (5s) of the statutes is amended to read:

AB1051,4,1311 801.50 (5s) Venue of an action under s. 813.122 , 813.124, or 813.125 shall be
12in the county in which the cause of action arose or where the petitioner or the
13respondent resides.

AB1051,7 14Section 7. 813.06 of the statutes is amended to read:

AB1051,4,23 15813.06 Security for damages. In proceedings under s. 767.225 the court or
16judge may, and in all other proceedings except proceedings under ss. 813.12, 813.122,
17813.124, 813.125 and 823.113 the court or judge shall, require a bond of the party
18seeking an injunction, with sureties, to the effect that he or she will pay to the party
19enjoined such damages, not exceeding an amount to be specified, as he or she may
20sustain by reason of the injunction if the court finally decides that the party was not
21entitled thereto. Copies of such bond, affidavit or other pleading shall be served upon
22the party enjoined and the officer serving the same shall, within 8 days after such
23service, file his or her return in the office of the clerk of the court.

AB1051,8 24Section 8. 813.124 of the statutes is created to read:

AB1051,5,2

1813.124 Lethal violence protective orders and injunctions. (1)
2Definitions. In this section:

AB1051,5,33 (a) “Firearms dealer" has the meaning given in s. 175.35 (1) (ar).

AB1051,5,44 (b) “Law enforcement officer” has the meaning given in s. 165.85 (2) (c).

AB1051,5,65 (c) “Reasonable grounds" means more likely than not that a specific event will
6occur.

AB1051,5,25 7(2) Commencement of action and response. (a) No action under this section
8may be commenced by complaint and summons. An action under this section may
9be commenced only by a petition described under sub. (5) (a). The action commences
10with the sheriff serving the petition on the respondent if a copy of the petition is filed
11before service or promptly after service. If the judge or a circuit court commissioner
12extends the time for a hearing under sub. (3) (c) and the petitioner files an affidavit
13with the court stating that personal service by the sheriff under s. 801.11 (1) (a) or
14(b) was unsuccessful because the respondent is avoiding service by concealment or
15otherwise, the judge or circuit court commissioner shall inform the petitioner that
16he or she may serve the respondent by publication of a summary of the petition as
17a class 1 notice, under ch. 985, and by mailing or sending a facsimile if the
18respondent's post-office address or facsimile number is known or can with due
19diligence be ascertained. The mailing or sending of a facsimile may be omitted if the
20post-office address or facsimile number cannot be ascertained with due diligence.
21A summary of the petition published as a class 1 notice shall include the name of the
22respondent and of the petitioner, notice of the temporary restraining order, and
23notice of the date, time, and place of the hearing regarding the injunction. The court
24shall inform the petitioner in writing that the petitioner should contact the sheriff
25to verify the proof of service of the petition.

AB1051,6,3

1(b) Section 813.06 does not apply to an action under this section. The
2respondent may respond to the petition either in writing before or at the hearing on
3the issuance of the injunction or orally at that hearing.

AB1051,6,64 (c) When the respondent is served with the petition under this subsection, the
5respondent shall be provided notice of the requirements and penalties under s.
6941.29.

AB1051,6,13 7(2m) Two-part procedure. Procedure for an action under this section is in 2
8parts. First, if the petitioner requests a temporary restraining order, the court shall
9issue or refuse to issue that order. Second, the court shall hold a hearing under sub.
10(4) on whether to issue an injunction, which is the final relief. If the court issues a
11temporary restraining order, the order shall set forth the date for the hearing on an
12injunction. If the court does not issue a temporary restraining order, the date for the
13hearing shall be set upon motion by either party.

AB1051,6,19 14(3) Temporary restraining order. (a) 1. A judge or circuit court commissioner
15shall issue a temporary restraining order prohibiting the respondent from
16possessing a firearm and ordering the respondent to surrender all of his or her
17firearms if the judge or circuit court commissioner finds reasonable grounds to
18believe that the respondent is substantially likely to injure himself or herself or
19another person if the respondent possesses a firearm.

AB1051,6,2120 2. The judge or circuit court commissioner shall base the finding under subd.
211. on the following:

AB1051,6,2222 a. Any testimony.

AB1051,6,2323 b. The petition.

AB1051,6,2524 c. A recent threat of violence or act of violence by the respondent directed
25toward himself or herself or another person.

AB1051,7,3

1d. A pattern of violent acts or violent threats by the respondent within the past
212 months, including threats of violence or acts of violence directed toward himself
3or herself or another person.

AB1051,7,54 3. The judge or circuit court commissioner may base the finding under subd.
51. on any factors in addition to those under subd. 2., including any of the following:

AB1051,7,76 a. Any unlawful or reckless use, display, or brandishing of a firearm by the
7respondent.

AB1051,7,98 b. The respondent's history of use, attempted use, or threatened use of physical
9force against himself or herself or another person.

AB1051,7,1010 c. A prior arrest of the respondent for a felony.

AB1051,7,1111 d. Evidence that the respondent has abused controlled substances or alcohol.

AB1051,7,1312 e. Evidence that the respondent has recently acquired firearms, ammunition,
13or other dangerous weapons.

AB1051,7,1414 (am) The order issued under par. (a) requires one of the following:

AB1051,7,2015 1. If the respondent is present at the hearing, the respondent to immediately
16surrender all firearms that he or she has in his or her possession to the sheriff of the
17county in which the action under this section was commenced or to the sheriff of the
18county in which the respondent resides. The sheriff to whom the firearms are
19surrendered may, at the request of the respondent, arrange for the sale of the
20firearms to a firearms dealer.

AB1051,7,2121 2. One of the following:

AB1051,8,222 a. If the respondent is not present at the hearing and the sheriff personally
23serves the respondent with the order issued under par. (a), the sheriff to request the
24respondent to immediately surrender all firearms in his or her possession. The

1sheriff may, at the request of the respondent, arrange for the sale of the firearms to
2a firearms dealer.

AB1051,8,93 b. If the respondent is not present at the hearing and the sheriff does not
4personally serve the respondent with the order issued under par. (a), the respondent
5to, within 24 hours of service, surrender all firearms in his or her possession to the
6sheriff or sell all firearms in his or her possession to a firearms dealer. Within 48
7hours of service, the respondent shall file with the court that issued the order under
8par. (a) a receipt from the sheriff or firearms dealer indicating that the respondent
9surrendered the firearms.

AB1051,8,1310 (an) If the respondent does not comply with par. (am) and a law enforcement
11officer has probable cause to believe that the respondent possesses a firearm, the law
12enforcement officer shall request a search warrant to seize the firearms and may use
13information contained in the petition to establish probable cause.

AB1051,8,1614 (b) Notice need not be given to the respondent before issuing a temporary
15restraining order under this subsection. A temporary restraining order may be
16entered only against the respondent named in the petition.

AB1051,8,2517 (c) A temporary restraining order issued under this subsection is in effect until
18a hearing is held on issuance of an injunction under sub. (4). A judge or circuit court
19commissioner shall hold a hearing on issuance of an injunction under sub. (4) within
2014 days after the temporary restraining order is issued, unless the time is extended
21once for up to 14 days upon the written consent of the parties or upon a finding that
22the respondent has not been served with a copy of the temporary restraining order
23although the petitioner has exercised due diligence. A judge or court commissioner
24may not extend the temporary restraining order in lieu of ruling on the issuance of
25an injunction.

AB1051,9,5

1(d) The judge or circuit court commissioner shall advise the petitioner of the
2right to serve the respondent the petition by published notice if with due diligence
3the respondent cannot be served as provided under s. 801.11 (1) (a) or (b). The clerk
4of the circuit court shall assist the petitioner with the preparation of the notice and
5filing of the affidavit of printing.

AB1051,9,9 6(4) Injunction. (a) A judge may grant an injunction prohibiting the respondent
7from possessing a firearm and, if the respondent was not subject to a temporary
8restraining order under sub. (3), ordering the respondent to surrender his or her
9firearms if all of the following occur:

AB1051,9,1110 1. The petitioner files a petition alleging the elements set forth under sub. (5)
11(a).

AB1051,9,1512 2. The petitioner serves upon the respondent a copy or summary of the petition
13and notice of the time for hearing on the issuance of the injunction, or the respondent
14serves upon the petitioner notice of the time for hearing on the issuance of the
15injunction.

AB1051,9,1816 3. The judge finds reasonable grounds to believe that the respondent is
17substantially likely to injure himself or herself or another person if the respondent
18possesses a firearm.

AB1051,9,2019 4. The judge or circuit court commissioner shall base the finding under subd.
203. on the following:

AB1051,9,2121 a. Any testimony.

AB1051,9,2222 b. The petition.

AB1051,9,2423 c. Any recent threat of violence or act of violence by the respondent directed
24toward himself or herself or another person.

AB1051,10,3

1d. Any pattern of violent acts or violent threats by the respondent within the
2past 12 months, including threats of violence or acts of violence directed toward
3himself or herself or another person.

AB1051,10,54 5. The judge or circuit court commissioner may base the finding under subd.
53. on any factors in addition to those under subd. 4., including any of the following:

AB1051,10,76 a. Any unlawful or reckless use, display, or brandishing of a firearm by the
7respondent.

AB1051,10,98 b. The respondent's history of use, attempted use, or threatened use of physical
9force against himself or herself or another person.

AB1051,10,1010 c. A prior arrest of the respondent for a felony.

AB1051,10,1111 d. Evidence that the respondent has abused controlled substances or alcohol.

AB1051,10,1312 e. Evidence that the respondent has recently acquired firearms, ammunition,
13or other dangerous weapons.

AB1051,10,1514 (b) The judge may enter an injunction only against the respondent named in
15the petition.

AB1051,10,1716 (c) 1. An injunction under this subsection is effective for 180 days unless a judge
17vacates the injunction under par. (d).

AB1051,10,2218 2. When an injunction expires, the court shall extend the injunction, upon
19petition, for 180 days if the judge finds reasonable grounds to believe that the
20respondent is substantially likely to injure himself or herself or another person if the
21respondent possesses a firearm. There is no limit to the number of extensions that
22may be made under this subdivision.

AB1051,11,423 (d) A respondent who is subject to an injunction that has been extended under
24par. (c) may request a judge to vacate the injunction during any injunction period
25other than the initial injunction period. If a respondent files a request under this

1paragraph, the petitioner shall be notified of the request before the judge considers
2the request. The judge shall vacate the injunction if the judge does not find
3reasonable grounds to believe that the respondent is substantially likely to injure
4himself or herself or another person if the respondent possesses a firearm.

AB1051,11,65 (e) An injunction issued under this subsection shall inform the respondent
6named in the petition of the requirements and penalties under s. 941.29.

AB1051,11,7 7(5) Petition. (a) The petition shall allege facts sufficient to show the following:

AB1051,11,98 1. The name of the petitioner and, unless the petitioner is a law enforcement
9officer, his or her relationship to the respondent, as provided under par. (c) 2. to 7.

AB1051,11,1010 2. The name of the respondent.

AB1051,11,1211 3. That the respondent is substantially likely to injure himself or herself or
12another person if the respondent possesses a firearm.