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.)
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