2023 - 2024 LEGISLATURE
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2023 SENATE BILL 352
June 29, 2023 - Introduced by Senators TAYLOR, AGARD, L. JOHNSON, CARPENTER,
HESSELBEIN, LARSON, ROYS, SMITH and SPREITZER, cosponsored by
Representatives ANDRACA, STUBBS, C. ANDERSON, J. ANDERSON, BALDEH, BARE,
BILLINGS, CABRERA, CONLEY, CONSIDINE, DONOVAN, DOYLE, GOYKE, HONG,
JACOBSON, JOERS, MOORE OMOKUNDE, MYERS, OHNSTAD, PALMERI, RATCLIFF,
SHELTON, SINICKI, SNODGRASS, SUBECK and VINING. Referred to Committee on
Judiciary and Public Safety.
1 AN ACT to amend 165.63 (3), 165.63 (4) (d), 175.35 (1) (at), 175.60 (9g) (a) 2.,
2 175.60 (11) (a) 2. f., 801.58 (2m), 813.06, 813.126 (1), 813.127, 813.128 (2g) (b)
3 and 941.29 (1m) (f); and to create 801.50 (5sb) and 813.124 of the statutes;
4 relating to: extreme risk protection temporary restraining orders and
5 injunctions 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.
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SENATE BILL 352
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 increases 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:
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SENATE BILL 352 SECTION 1
1 SECTION 1. 165.63 (3) of the statutes is amended to read:
2 165.63 (3) REQUESTS FROM COURTS. In making a determination required under
3 s. 813.124 (7) (a), 813.1285 (7) (a), or 968.20 (1m) (d) 1., a judge or court commissioner
4 shall request information under sub. (2) from the department or from a law
5 enforcement agency or law enforcement officer as provided in sub. (4) (d).
6 SECTION 2. 165.63 (4) (d) of the statutes is amended to read:
7 165.63 (4) (d) Aid the court in making a determination required under s.
8 813.124 (7) (a), 813.1285 (7) (a), or 968.20 (1m) (d) 1. or aid an entity in making a
9 determination required under s. 968.20 (1m) (d) 2.
10 SECTION 3. 175.35 (1) (at) of the statutes is amended to read:
11 175.35 (1) (at) “Firearms restrictions record search" means a search of
12 department of justice records to determine whether a person seeking to purchase a
13 handgun is prohibited from possessing a firearm under s. 941.29. “Firearms
14 restrictions record search" includes a criminal history record search, a search to
15 determine 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
17 system to determine whether a person has been ordered not to possess a firearm
18 under s. 51.20 (13) (cv) 1., 51.45 (13) (i) 1., 54.10 (3) (f) 1., or 55.12 (10) (a), a search
19 to determine whether the person is subject to an injunction under s. 813.12 or
20 813.122, or a tribal injunction, as defined in s. 813.12 (1) (e), issued by a court
21 established by any federally recognized Wisconsin Indian tribe or band, except the
22 Menominee Indian tribe of Wisconsin, that includes notice to the respondent that he
23 or she is subject to the requirements and penalties under s. 941.29 and that has been
24 filed with the circuit court under s. 813.128 (3g), a search to determine whether the
25 person is subject to a temporary restraining order or injunction under s. 813.124, and
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SENATE BILL 352 SECTION 3
1 a search to determine whether the person is prohibited from possessing a firearm
2 under s. 813.123 (5m) or 813.125 (4m).
3 SECTION 4. 175.60 (9g) (a) 2. of the statutes is amended to read:
4 175.60 (9g) (a) 2. The department shall conduct a criminal history record
5 search and shall search its records and conduct a search in the national instant
6 criminal background check system to determine whether the applicant is prohibited
7 from possessing a firearm under federal law; whether the applicant is prohibited
8 from possessing a firearm under s. 941.29; whether the applicant is prohibited from
9 possessing a firearm under s. 51.20 (13) (cv) 1., 2007 stats.; whether the applicant
10 has been ordered not to possess a firearm under s. 51.20 (13) (cv) 1., 51.45 (13) (i) 1.,
11 54.10 (3) (f) 1., or 55.12 (10) (a); whether the applicant is subject to an injunction
12 under s. 813.12 or 813.122, or a tribal injunction, as defined in s. 813.12 (1) (e), issued
13 by a court established by any federally recognized Wisconsin Indian tribe or band,
14 except the Menominee Indian tribe of Wisconsin, that includes notice to the
15 respondent that he or she is subject to the requirements and penalties under s.
16 941.29 and that has been filed with the circuit court under s. 813.128 (3g); whether
17 the applicant is subject to a temporary restraining order or injunction under s.
18 813.124; and whether the applicant is prohibited from possessing a firearm under
19 s. 813.123 (5m) or 813.125 (4m); and to determine if the court has prohibited the
20 applicant 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
22 condition of release under s. 969.01.
23 SECTION 5. 175.60 (11) (a) 2. f. of the statutes is amended to read:
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SENATE BILL 352 SECTION 5
1 175.60 (11) (a) 2. f. The individual becomes subject to an a temporary
2 restraining order or injunction described in s. 941.29 (1m) (f) or is ordered not to
3 possess a firearm under s. 813.123 (5m) or 813.125 (4m).
4 SECTION 6. 801.50 (5sb) of the statutes is created to read:
5 801.50 (5sb) Venue of an action under s. 813.124 shall be in the county in which
6 the cause of action arose or where the petitioner or the respondent resides.
7 SECTION 7. 801.58 (2m) of the statutes is amended to read:
8 801.58 (2m) If, under sub. (2), the judge determines that the request for
9 substitution was made timely and in proper form, any ex parte order granted by the
10 original judge remains in effect according to the terms, except that a temporary
11 restraining order issued under s. 813.12 (3), 813.122 (4), 813.123 (4), 813.124 (2t), or
12 813.125 (3) by the original judge is extended until the newly assigned judge holds a
13 hearing on the issuance of an injunction. The newly assigned judge shall hear any
14 subsequent motion to modify or vacate any ex parte order granted by the original
15 judge.
16 SECTION 8. 813.06 of the statutes is amended to read:
17 813.06 Security for damages. In proceedings under s. 767.225 the court or
18 judge may, and in all other proceedings except proceedings under ss. 813.12, 813.122,
19 813.124, 813.125 and 823.113 the court or judge shall, require a bond of the party
20 seeking an injunction, with sureties, to the effect that he or she will pay to the party
21 enjoined such damages, not exceeding an amount to be specified, as he or she may
22 sustain by reason of the injunction if the court finally decides that the party was not
23 entitled thereto. Copies of such bond, affidavit or other pleading shall be served upon
24 the party enjoined and the officer serving the same shall, within 8 days after such
25 service, file his or her return in the office of the clerk of the court.
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SENATE BILL 352 SECTION 9
1 SECTION 9. 813.124 of the statutes is created to read:
2 813.124 Extreme risk protection temporary restraining orders and
3 injunctions. (1) DEFINITIONS. In this section:
4 (a) “Family or household member” means any of the following:
5 1. A person related by blood, adoption, or marriage to the respondent.
6 2. A person with whom the respondent has or had a dating relationship, as
7 defined in s. 813.12 (1) (ag), or with whom the respondent has a child in common.
8 3. A person who resides with, or within the 6 months before filing a petition,
9 had resided with, the respondent.
10 4. A domestic partner under ch. 770 of the respondent.
11 5. A person who is acting or has acted as the respondent's legal guardian or who
12 is or was a foster parent or other physical custodian described in s. 48.62 (2) of the
13 respondent.
14 6. A person for whom the respondent is acting or has acted as a legal guardian
15 or for whom the respondent is or was the foster parent or other physical custodian
16 described in s. 48.62 (2).
17 (b) “Firearms dealer" has the meaning given in s. 175.35 (1) (ar).
18 (c) “Law enforcement officer” has the meaning given in s. 165.85 (2) (c).
19 (2) COMMENCEMENT OF ACTION AND RESPONSE. No action under this section may
20 be commenced by complaint and summons. An action under this section may be
21 commenced only by a petition described under sub. (4) (a).
22 (2m) PROCEDURE. Procedure for an action under this section is as follows:
23 (a) If the petitioner requests an extreme risk protection temporary restraining
24 order, the court shall consider the request as provided under sub. (2t). If the court
25 issues a temporary restraining order, the court shall set forth the date, which must
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1 be within 14 days of issuing the temporary restraining order, for the hearing on the
2 injunction and shall forward a copy of the temporary restraining order, the
3 injunction hearing date, and the petition to the appropriate law enforcement agency
4 with jurisdiction over the respondent's residence. The law enforcement agency shall
5 immediately, or as soon as practicable, serve it on the respondent. If personal service
6 cannot be effected upon the respondent, the court may order other appropriate
7 service.
8 (b) The court shall hold a hearing under sub. (3) on whether to issue an extreme
9 risk protection injunction, which is the final relief. If there was no temporary
10 restraining order, the respondent shall be served notice of the petition by a law
11 enforcement officer and the date for the hearing shall be set upon motion by either
12 party. If personal service cannot be effected upon the respondent, the court may
13 order other appropriate service. The service shall include the name of the respondent
14 and of the petitioner, and, if known, notice of the date, time, and place of the
15 injunction hearing.
16 (c) When the respondent is served under this subsection, the respondent shall
17 be provided notice of the requirements and penalties under s. 941.29.
18 (2t) EXTREME RISK PROTECTION TEMPORARY RESTRAINING ORDER. (a) A judge shall
19 issue an extreme risk protection temporary restraining order under this subsection
20 prohibiting the respondent from possessing a firearm and ordering the respondent
21 to surrender all firearms in the respondent's possession if all of the following occur:
22 1. A petitioner files a petition alleging the elements under sub. (4) (a), and
23 requests a temporary restraining order. The petition requesting a temporary
24 restraining order shall be heard by the court in an expedited manner. The court shall
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1 examine under oath the petitioner and any witness the petitioner may produce or
2 may rely on an affidavit submitted in support of the petition.
3 2. The judge finds all of the following:
4 a. Substantial likelihood that the petition for an injunction will be successful.
5 b. Good cause to believe that there is an immediate and present danger that
6 the respondent may injure himself or herself or another person if the respondent
7 possesses a firearm and that waiting for the injunction hearing may increase the
8 immediate and present danger.
9 (b) A temporary restraining order issued under this subsection shall remain
10 in effect until a hearing is held on issuance of an injunction under sub. (3). Notice
11 need not be given to the respondent before issuing a temporary restraining order
12 under this subsection. A temporary restraining order may be entered against only
13 the respondent named in the petition and may not be renewed or extended.
14 (c) A temporary restraining order issued under this subsection shall inform the
15 respondent named in the petition of the requirements and penalties under s.