FIREARM SURRENDER HEARINGS IN WISCONSIN - MILWAUKEE COUNTY PROCEDURES

BY

HON. JOHN J. DIMOTTO

     In Wisconsin, if a court issues a Domestic Abuse Injunction under 813.12, a Child Abuse Injunction under 813.122, an Individual at Risk Injunction under 813.123 or an Harassment Injunction under 813.125, the court is required to enter an order prohibiting the respondent - the person against whom the injunction is issued -- from possessing any firearms during the time period the injunction is in effect. 

     When one of the above injunctions is issued, the court must give notice to the respondent of: 

1)  The necessity to surrender all firearms; 

2)  The procedure for litigating a firearm surrender hearing: and 

3)  The failure to surrender firearms when ordered by the court may result in being charged with a felony for possessing a firearm under 941.29. 

FILING OF PETITION AND ISSUANCE OF TEMPORARY RESTRAINING ORDER

     The procedures enacted by the Wisconsin Legislature set forth the when the Petition is filed and a Temporary Restraining Order (TRO) issued, it must be served on the respondent.  Accompanying the Petition and TRO are forms regarding: 

1)  The Surrender and Return of Firearms.  (CV-804)

2)  The respondent's statement of possession of firearms.  (CV-800)

3)  Notice of Firearms Possession Penalties.  (CV-432)

INJUNCTION HEARING - RESPONDENT PRESENT

INJUNCTION GRANTED

      If the respondent appears at the injunction hearing and if an injunction is to be issued, the court must determine whether the respondent possesses any firearms.  If the court determines that the respondent does not possess any firearms:

1)  The respondent's statement of nonpossession is filed with the court;

2)  The court issues the injunction forthwith;

3)  The respondent is admonished regarding no firearm possession during the pendency of the injunction.

4)  No Firearms Surrender Hearing is necessary.

     If the respondent appears at the injunction hearing and if an injunction is to be issued, and the court determines that the respondent does possess a firearm or there is evidence that the respondent does possess a firearm:

1)  The court issues the injunction but stays it for up to 48 hours and continues the TRO.  This is done to give the respondent an opportunity to surrender the firearm.  After the expiration of the 48 hours, the injunction goes into effect.

2)  The court clerk fills out an Order for Respondent to Surrender Firearms and Notice of Firearms Surrender Hearing  (CV-803).

3)  A Firearms Surrender Hearing is set on the Judge's calendar within one week of the injunction hearing.  In Milwaukee County, it will be the Civil Daytime Duty Judge's calendar.

4)  The respondent is instructed to surrender all firearms within 48 hours and attend the hearing if the respondent does not timely surrender all firearms in respondent's possession.

8)  Order that the respondent may possess firearms only for the purposes of surrend.

9)  Respondent must surrender all firearms even if respondent will seek a de novo review of the initial decision to issue the injunction.

10)  Respondent is admonished regarding no firearm possession during the pendency of the injunction.

11)  If the respondent wants to surrender firearms to a third party, the respondent and third party must attend the Firearms Surrender Hearing and receive consent of the court.

12)  If firearms are timely surrendered to the Sheriff and a receipt of same is filed with the court before the hearing, the hearing can be canceled.

13)  If firearms are surrendered to any other police agency, the respondent must appear at the hearing the a receipt from that law enforcement agency.

INJUNCTION HEARING - RESPONDENT NOT PRESENT

INJUNCTION GRANTED

     If the respondent was served with the Petition and TRO and is not present at the injunction hearing and an injunction is to be issued and the court determines that the respondent does not possess a firearm:

1)  The court will issue the injunction forthwith.

2)  The Sheriff will serve the injunction upon the respondent.

3)  No Firearms Surrender Hearing will be set.

     If the respondent was served with the Petition and TRO and is not present at the injunction hearing and an injunction is to be issued, and the court determines that the respondent does possess a firearm:

1)  The court issues the injunction but stays it for up to 48 hours and continues the TRO.  This is done to give the respondent an opportunity to surrender the firearm.  After the expiration of the 48 hours, the injunction goes into effect.

2)  Once again, the court clerk fills out form CV-803.

3)  A Firearms Surrender Hearing is set on the Judge's calendar within one week of the injunction hearing.  In Milwaukee County, it will be the Civil Daytime Duty Judge's calendar.

4)  The Sheriff will serve all of the orders and documents generated by the court on the respondent.

     If the respondent was served with the Petition and TRO and is not present at the injunction hearing and the court is uncertain about whether the respondent possesses a firearm:

1)  The court will issues the injunction forthwith.

2)  The clerk will fill out a Notice of Firearms Surrender Hearing - Respondent Not Present at Injunction Hearing  (CV-802)

3)  Sheriff will serve all of the orders and documents generated by the court on the respondent.

FIREARMS SURRENDER HEARING

RESPONDENT PRESENT

     If the respondent does not surrender the firearms to the Sheriff or file a receipt of same with the court, respondent must appear at the Firearms Surrender Hearing.

    If the respondent appears at the Firearms Surrender Hearing and has not surrendered firearms and the court determines that respondent does possess a firearm:

1)  The court should set a deadline for the respondent to surrender the firearms to the Sheriff and, if firearms not timely surrendered, direct the Sheriff to follow p and take possession of firearms.

2)  The court should stay the injunction once again and reinstate the TRO for up to 48 hours to give the respondent time to surrender firearms.

3)  After 48 hours, the injunction is reinstated.

FIREARMS SURRENDER HEARING

RESPONDENT NOT PRESENT

     If respondent was served with notice of the Firearms Surrender Hearing but does not appear and the court determines that respondent has a firearm, the court shall issue a Civil Arrest Warrant with remand to the Civil Daytime Duty Judge upon arrest.

     If respondent was not served and does not appear at the Firearms Surrender Hearing: 

1)  The court should adjourn the hearing for one week to that week's Civil Daytime Duty Judge's calendar --- OR

2)  Refer the matter for immediate follow up investigation.

CONCLUSION

          Injunction circumstances are very volatile and can pose great danger.  It is incumbent on a court dealing with injunction hearings and firearms surrender hearings to take great care in following statutory mandates and procedures.

(All of the forms referenced above, which were created by the Court's Records Management Committee, are available for review and download at the Wisconsin Court's website:  www.wicourts.gov.)

PERSONAL JURISDICTION OVER AN INSURANCE COMPANY IN A PERSONAL INJURY NEGLIGENCE LAWSUIT

Hon. John J. DiMotto

INTRODUCTION

      In many personal injury automobile accident negligence cases that are filed by a plaintiff, the driver of the car who is alleged to be negligent and responsible for the accident has coverage from an insurance company. When the action is filed, an insurance company for an insured can be made a party to the lawsuit in one of two ways:

1)  Where the insured is a party to the lawsuit.

2)   If the conditions precedent for Direct Action against the insurance company are present regardless of whether the insured is a party to the lawsuit.

INSURED IS A PARTY TO THE LAWSUIT

     When an insured is named as a party to a personal injury lawsuit and the court obtains personal jurisdiction over the insured, based on the insurance policy, the insurer is a proper party to the lawsuit and the court obtains personal jurisdiction over the insurer once service of process on the insurer is effectuated. It does not matter whether the insurer issued or delivered the policy in Wisconsin.  It does not matter to what extent, if any, the insurer has its own contacts with the State of Wisconsin.  By virtue of the insurance policy -- the contract of insurance between the insured and the insurer -- the insurer is "tethered" to the insured.  However, what if the insured is not a party to the lawsuit?

DIRECT ACTION AGAINST AN INSURER

     Regardless of whether an insured is made a party to a personal injury lawsuit, an insurer may be made a party to a personal injury lawsuit if:

1)  The insurance policy was delivered or issued for delivery Wisconsin, or

2)   Although the insurance policy was not delivered or issued for delivery in Wisconsin, the accident, injury or negligence occurred in Wisconsin.

Insurance Policy Delivered or Issued for Delivery in Wisconsin

     Chapters 631 and 632 set forth the law in Wisconsin with respect to Insurance Contracts Generally (Ch. 631) and with respect to Insurance Contracts in Specific Lines (Ch. 632).  

     Section 631.01: application of statutes, provides in subsection (1):

This chapter and ch. 632 apply to all insurance policies and group certificates delivered or issued for delivery in this state...

     Section 632.24: direct action against insurer, provides:

  Any bond or policy of insurance covering liability to others for negligence makes the insurer liable, up to the amounts stated in the bond or policy, to the persons entitled to recover against the insured for the death or any person or for injury to persons or property, irrespective of whether the liability is presently established or is contingent and to become fixed or certain by final judgment against the insured.

     At first glance, one might believe that Section 632.24 is limited by Section 631.01(1) and requires that the policy must be delivered or issued for delivery in Wisconsin in order to allow direct action against an insurance company regardless of whether the insured is a party to the lawsuit.  However, that is not the case. 

     In Casper v. Am. Int'l Ins. Co., 336 Wis2d 267,301 (2011)  the Court set forth:

  ...we hold ... that Wis. Stat. 632.24 applies to any policy of insurance covering liability, irrespective of whether that policy was delivered or issued for delivery in Wisconsin, so long as the accident or injury occurs in this state. 

In a footnote they stated that Wis. Stat. 632.24 has the same reach as 803.04(2).  As a result of this decision, the delivery or issuance of a policy for delivery in Wisconsin is not the exclusive way to bring a Direct Action suit against an insurer.  

Accident, Injury or Negligence Occurred in Wisconsin

     Not only does 632.24 allow for direct action against an insurer if the policy was delivered or issued for delivery in Wisconsin but it also allows for direct action if the accident, injury or negligence occurred in Wisconsin.

     Section 803.04, which discusses permissive joinder of parties, addresses negligence actions with respect to insurers in subsection (2)(a).  This subsection provides:

In any action for damages caused by negligence, any insurer which has an interest in the outcome of such controversy adverse to the plaintiff ... is by this section made a proper party defendant in any action brought by plaintiff in this state on account of any claim against the insured.  If the policy of  insurance was issued or delivered outside this state, the insurer is by this paragraph made a proper party defendant only if the accident, injury or negligence occurred in this state.  

While Section 632.24 is a substantive right, Section 803.04(2)(a) is a procedural right.

CONCLUSION

     While in most personal injury negligence cases, the court obtains personal jurisdiction over the insured by virtue of the fact that the plaintiff specifically brings the insured into the lawsuit as a defendant, in those cases where the insured is not a party to the lawsuit, the insurer can be made a proper party if the policy was delivered or issued for delivery in Wisconsin or if the accident, injury or negligence occurred in Wisconsin.