Wis. Stat. § 813.1285

Current through Acts 2023-2024, ch. 272

Section 813.1285 - Notice and process for firearm surrender

(1) DEFINITIONS. In this section:

(a) "Firearm possession form" means the form developed under sub. (5) (a).

(am) "Injunction" means an injunction issued under s. 813.12 (4) or 813.122 (5); an injunction issued under s. 813.123 if the court has required the individual to surrender his or her firearms under s. 813.123 (5m); or an injunction issued under s. 813.125 if the court has required the individual to surrender his or her firearms under s. 813.125 (4m). "Injunction" includes an injunction that has been stayed under this section.

(b) "Petitioner" means an individual who is applying for, or for whom a court has granted, an injunction.

(c) "Petition for the return of firearms" means a petition developed under sub. (5) (b).

(d) "Respondent" means the individual who is the subject of an injunction.

(e) "Surrender and extend order" means an order under sub. (1g).

(1g) SURRENDER AND EXTEND ORDER. If the court issues a surrender and extend order, the court shall do all of the following:

(a) Order the respondent to surrender, within a period that is no longer than 48 hours, any firearm that he or she owns or possesses to the sheriff or, in the court's discretion, to another person.

(b) Order that the respondent may possess or transport a firearm only for the purpose of complying with par. (a).

(c) If the court stays an injunction, order the respondent subject to a temporary restraining order during the stay of the injunction and extend the temporary restraining order for a period of 48 hours for the purpose of firearm surrender.

(d) Inform the respondent when the injunction will take effect and the penalty for possessing a firearm while the injunction is in effect.

(e) Instruct the respondent how to surrender any firearm.

(f) If appropriate, order the respondent to attend a hearing to surrender firearms.

(1m) TEMPORARY RESTRAINING ORDERS. If the court is required to extend a temporary restraining order under this section, and a temporary restraining order was not previously granted, the court shall, on its own motion, reconsider and grant the temporary restraining order.

(2) FIREARM POSSESSION DETERMINATION.

(a) If the respondent is present at the injunction hearing, the court shall stay the injunction for a period not to exceed 48 hours and shall extend the temporary restraining order for 48 hours for the purpose of firearm surrender. The respondent shall provide the court a completed firearm possession form. The court shall verify the information on the firearm possession form and shall make an inquiry on the record as to the contents of the firearm possession form.

(b) If the respondent is not present at the injunction hearing, the court shall provide the petitioner with an opportunity to inform the court orally or in writing whether he or she believes that the respondent possesses a firearm. If the petitioner informs the court that the respondent possesses a firearm, the court shall request the petitioner to inform the court orally or in writing how many firearms he or she believes the respondent possesses, the make and model of any firearm he or she believes the respondent possesses, and the location of any firearm he or she believes the respondent possesses.

(c)

1. If the firearm possession form submitted to the court under par. (a) or (b) indicates the respondent does not possess a firearm, and the court, after an inquiry, is satisfied that the respondent does not possess a firearm, the court shall file the firearm possession form, lift the stay of the injunction, and dismiss the temporary restraining order extended under par. (a).

2. If, under par. (a), the firearm possession form submitted to the court indicates the respondent possesses a firearm, and the respondent has not surrendered his or her firearm as described under sub. (3) (a), the court shall continue to stay the injunction as provided under par. (a) for a period not to exceed 48 hours, issue a surrender and extend order, and schedule a hearing to surrender firearms to occur within one week of the injunction hearing.

3. If, under par. (b), the petitioner indicates that the respondent possesses a firearm or if the court is not satisfied under subd. 1. that the respondent does not possess a firearm, the court shall schedule a hearing to surrender firearms to occur within one week of the injunction hearing. The court shall do one of the following:

a. Continue the stay under par. (a) of the injunction and issue a surrender and extend order.

b. Lift the stay of the injunction.

4. The court may schedule a hearing to surrender firearms for any reason relevant to the surrender of firearms.

(3) SURRENDER OF FIREARMS.

(a) Unless the court has noted another reason that is relevant to the surrender of firearms that would require the hearing to surrender firearms to occur, the court shall dismiss the hearing to surrender firearms scheduled under sub. (2) (c) 2. or 3. if the respondent surrenders his or her firearm in one of the following manners:

1. The respondent surrenders his or her firearm to another person and all of the following apply:

a. The respondent and the person to whom the respondent is surrendering his or her firearm appear at the injunction hearing.

b. At the injunction hearing, the person testifies under oath that the person has received the firearms listed on the respondent's firearm possession form.

c. At the injunction hearing, the court determines that the person is not prohibited from possessing a firearm.

d. The court informs the person to whom the firearm is surrendered of the requirements and penalties under s. 941.2905.

e. The court, after considering all relevant factors and any input from the petitioner, approves the surrender of the firearm.

f. The court does not use the process under subd. 3.

2. The respondent surrenders his or her firearm to a sheriff no later than 48 hours after the injunction hearing ordering the respondent to surrender his or her firearm and provides a copy of the receipt to the clerk of courts as provided in sub. (6) (b).

3. The respondent surrenders his or her firearm to a sheriff as provided under subd. 2., and a person who appeared at the injunction hearing takes possession of the firearm from the sheriff, if all of the following apply:

a. Subdivision 1. d. and e. apply.

b. The sheriff determines that the person is not prohibited from possessing a firearm.

(b) If the court approves the surrender under par. (a) 1., and if the court has issued a surrender and extend order and has stayed the injunction, the court shall lift the stay and dismiss the temporary restraining order.

(4) HEARING TO SURRENDER FIREARMS.

(a) Unless the court dismisses the hearing to surrender firearms, a respondent for whom a hearing to surrender firearms has been scheduled must attend the hearing. If the respondent fails to attend the hearing to surrender firearms, the court shall issue an arrest warrant for the respondent.

(b) At the hearing to surrender firearms, the court shall stay the injunction for a period not to exceed 48 hours, shall extend the temporary restraining order for 48 hours, shall ensure that the respondent has completed a firearm possession form and verify the information provided on the firearm possession form if the information was not already verified under sub. (2) (a), shall make an inquiry on the record as to the contents of the firearm possession form, and shall do one of the following:

1. If the respondent wants to surrender his or her firearms to a person who is not the sheriff and who appears at the hearing to surrender firearms, and if the court, after considering all relevant factors and input from the petitioner, approves the surrender and informs the person to whom the firearms are surrendered of the requirements and penalties under s. 941.2905, order the respondent to surrender his or her firearms in one of the following ways:

a. To the person, after the person testifies under oath that he or she has received the firearms listed on the respondent's firearm possession form and after the court determines that the person is not prohibited from possessing a firearm.

b. To the sheriff, who shall transfer the firearms to the person after determining that the person is not prohibited from possessing a firearm.

1m. If the respondent claims to have surrendered his or her firearms to the sheriff in accordance with sub. (6), verify that the respondent has surrendered all such firearms, lift the stay of the injunction, and dismiss the temporary restraining order.

2. Order the respondent to surrender any firearm that the court finds the respondent owns or possesses to a sheriff in accordance with sub. (6). If the respondent has not provided to the court, within 48 hours of the hearing to surrender firearms, a receipt as specified in sub. (6) (b) that shows surrender of all of the firearms that were subject to the order, the court shall presume the respondent is violating the order and the injunction and may do any of the following:

a. Notify the sheriff of the violation for investigation and appropriate action.

b. Schedule another hearing to surrender firearms.

c. Issue a warrant to the sheriff ordering that the respondent be brought before the court to show cause why the respondent should not be held in contempt.

3.

a. If, under subd. 1. b. or 2., the court orders the respondent to surrender his or her firearms to the sheriff, the court shall issue a surrender and extend order.

b. If, under subd. 1. a., the court orders the respondent to surrender his or her firearms to a person who is not the sheriff, the court shall lift any stay of the injunction and dismiss the temporary restraining order.

4. If the firearm possession form indicates that the respondent does not possess a firearm, and the court, after an inquiry, is satisfied that the respondent does not possess a firearm, the court shall file the firearm possession form, lift any stay of the injunction, and dismiss the temporary restraining order.

(5) FIREARM POSSESSION FORM AND PETITION FOR THE RETURN OF FIREARMS.

(a) The director of state courts shall develop a firearm possession form. Any false information provided on the form by the respondent may be subject to a penalty of false swearing under s. 946.32. The director of state courts shall ensure that the firearm possession form does all of the following:

1. Requires the respondent to list his or her name and address.

2. Includes space for the respondent's signature and date signed.

3. Requires the respondent to indicate whether he or she owns or possesses any firearm or has owned or possessed any firearm in the 6 months immediately preceding the issuance of the injunction, and, if the answer is yes, to list the quantity and the make and model of each firearm and to note whether the firearm was sold or surrendered and whether he or she has a receipt for the firearm sale or surrender.

4. Gives notice of the penalty for false swearing under s. 946.32.

(b) The director of state courts shall develop a petition for the return of firearms in substantially the following form:

STATE OF WISCONSIN

IN CIRCUIT COURT FOR .... COUNTY

Petition to Return Firearm(s)

In re the Return of Firearms to (name of person required to surrender firearms in an injunction action)

Requesting person's information: date of birth, sex, race, height, weight, hair color, eye color, address, and phone number.

Under oath I state that:

1. The court issued an injunction against me on (date of injunction). The injunction was issued based on a:

Domestic Abuse petition.

Child Abuse petition.

Harassment petition.

Adult-at-risk petition.

2. The court ordered me to surrender any firearms I owned or had in my possession to:

the sheriff of this county.

the sheriff of the county in which I resided, which is (name of county).

to the following person (whether directly or indirectly through a sheriff):

name:

address:

3. I surrendered the following firearms as provided in item 2 and have attached a receipt from the sheriff or from the 3rd person (if the person did not provide a receipt, attach a description of the firearm(s)):

4. The injunction has (been vacated) (expired and has not been extended).

5. I (have) (have not) been convicted of a misdemeanor crime of domestic violence.

6. I (have) (have not) been convicted of a felony.

7. I am not prohibited from possessing a firearm under any state or federal law or by the order of any federal court or state court, other than an order from which a judge or family court commissioner is competent to grant relief.

I request that the court enter an order directing that the person named under item 2 return to me those firearms that were surrendered under the order of the court.

Subscribed and sworn to before me on (date)

(Signature of person requesting return of firearms)

(Signature of notary public, state of Wisconsin)

My commission expires on (date)

Dated this .... day of ...., .... (year)

Distribution:

1. Court - original

2. Petitioner in injunction action

3. Person to whom firearm(s) were surrendered

(5m) NOTIFICATION TO LOCAL LAW ENFORCEMENT.

(a) Within one business day after the court issues an order, extends or modifies a temporary restraining order, or stays or lifts a stay on an injunction under this section, the clerk of the circuit court shall send a copy of the order, the extension or modification, or the stay or lift to the sheriff or to any other local law enforcement agency that is the repository for such actions and that has jurisdiction over the premises of the petitioner.

(b) No later than 24 hours after receiving the information under par. (a), the sheriff or other local law enforcement agency under par. (a) shall enter the information concerning the order issued, the extension or modification, or the stay or lift of the injunction under par. (a) into the transaction information for management of enforcement system. The sheriff or other local law enforcement agency shall also make available to other law enforcement agencies, through a verification system, the information received and entered under this paragraph. The information need not be maintained after the order or injunction is no longer in effect.

(6) SURRENDER OF FIREARM TO SHERIFF.

(a) When a respondent surrenders a firearm under sub. (3) (a) 2. or (4) (b) 2. to a sheriff, the sheriff who is receiving the firearm shall prepare a receipt for each firearm surrendered to him or her. The receipt shall include the date on which the firearm was surrendered and the manufacturer, model, and serial number of the firearm surrendered to the sheriff and shall be signed by the respondent and by the sheriff to whom the firearm is surrendered.

(b) The sheriff shall keep the original of a receipt prepared under par. (a) and shall provide 2 copies of the receipt to the respondent. The respondent shall provide one copy of the receipt to the clerk of courts within 48 hours of the order to surrender firearms. When the firearm covered by the receipt is returned to the respondent under sub. (7), the sheriff shall surrender to the respondent the original receipt and all of his or her copies of the receipt.

(c) A receipt prepared under par. (a) is conclusive proof that the respondent owns the firearm for purposes of returning the firearm covered by the receipt to the respondent under sub. (7).

(d) The sheriff may not enter any information contained on a receipt prepared under par. (a) into any computerized or direct electronic data transfer system in order to store the information or, except as provided in par. (b), disseminate or provide access to the information.

(e)

1. A sheriff may store a firearm surrendered to him or her under sub. (3) (a) 2. or (4) (b) 2. in a warehouse that is operated by a public warehouse keeper licensed under ch. 99. If a sheriff stores a firearm at a warehouse under this subdivision, the respondent shall pay the costs charged by the warehouse for storing that firearm.

2. If an injunction expires and is not extended, or an injunction is vacated, a sheriff may charge the respondent for any costs incurred 30 days after the injunction expires for storage of the firearm surrendered to the sheriff due to that injunction. A sheriff may dispose of a firearm surrendered to the sheriff due to that injunction 12 months after the injunction expires or is vacated and, if the sheriff disposes of the firearm, the sheriff may charge the respondent for the costs of disposal.

(7) RETURN OF FIREARM.

(a) A firearm surrendered under this section may not be returned to the respondent until the respondent completes a petition for the return of firearms and a judge or circuit court commissioner determines all of the following:

1. That the injunction has been vacated or has expired and not been extended.

2. That the person is not prohibited from possessing a firearm under any state or federal law or by the order of any federal court or state court, other than an order from which the judge or circuit court commissioner is competent to grant relief. The court or commissioner shall use the information provided under s. 165.63 to aid in making the determination under this subdivision.

(b) If a respondent surrenders a firearm under this section that is owned by a person other than the respondent, the person who owns the firearm may apply for its return to the circuit court for the county in which the person to whom the firearm was surrendered is located. The court shall order such notice as it considers adequate to be given to all persons who have or may have an interest in the firearm and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court's satisfaction, it shall order the firearm returned. If the court returns a firearm under this paragraph, the court shall inform the person to whom the firearm is returned of the requirements and penalties under s. 941.2905.

(8) PENALTIES. A respondent who violates an order described under sub. (1g) (a) or (b) is subject to a fine of not more than $10,000 or imprisonment for not more than 9 months or both in addition to any other penalty to which he or she is subject.

Wis. Stat. § 813.1285

Amended by Acts 2018 ch, 145,s 10, eff. 3/30/2018.

Amended by Acts 2018 ch, 145,s 9, eff. 3/30/2018.

Amended by Acts 2018 ch, 145,s 8, eff. 3/30/2018.

Enacted by Acts 2013 ch, 321,s 28, eff. 11/1/2014.

Amended by Acts 2013 ch, 321,s 10, eff. 11/1/2014.

Amended by Acts 2013 ch, 321,s 9, eff. 11/1/2014.

Amended by Acts 2013 ch, 321,s 8, eff. 11/1/2014.

Amended by Acts 2013 ch, 321,s 7, eff. 11/1/2014.