Federal law prohibits purchase and possession of firearms and ammunition by people who have been convicted in any court of a “misdemeanor crime of domestic violence.”1 Unfortunately, in Wisconsin, there is no “misdemeanor crime of domestic violence” so a person who commits an act of domestic violence is charged under the state law of disorderly conduct. In 2022, the Wisconsin Supreme Court ruled that disorderly conduct convictions are not the same as federally-defined misdemeanor crimes of domestic violence.2 Accordingly, federal law does not prohibit a person who has committed a criminal act of abuse against a household or family member from gun possession.
Wisconsin also has no law requiring the removal of firearms at the scene of a domestic violence incident.
Firearm Prohibitions for Persons Subject to Domestic Violence Restraining/Protective Orders
Wisconsin generally prohibits the possession of a firearm by any person enjoined under a domestic abuse or child abuse restraining order or injunction or certain tribal injunctions3, and also authorizes courts to prohibit firearm possession by respondents subject to other active restraining orders or injunctions pertaining to abuse of elderly people or vulnerable adults.4
Removal or Surrender of Firearms When Domestic Violence Restraining/Protective Orders Are Issued
In 2014, Wisconsin enacted a new law providing a process for the surrender of firearms by people subject to the restraining orders and injunctions listed above.5 The law requires a court to stay an injunction and extend a temporary restraining order for up to 48 hours during which time the respondent must complete a firearm possession form. If the respondent is not present in court, the petitioner must testify as to the respondent’s possession of firearms.6 If the court is satisfied that the respondent possesses firearms, it must issue a surrender and extend order and schedule a hearing to surrender firearms within one week.
If a surrender and extend order has been issued, the respondent has 48 hours to surrender his or her firearms to a person who is not prohibited from possessing a firearm and is approved by the court, or to a sheriff.7 At the firearm surrender hearing, the respondent must verify that he or she has already surrendered his or her firearms or surrender the firearms during the hearing.8 If the respondent fails to attend the hearing to surrender firearms, the court must issue an arrest warrant for him or her.9
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- 18 U.S.C. § 922(g)(8), (9).
- Doubek v. Kaul, 942 N.W.2d 756 (Wis. 2022).
- See Wis. Stat. §§ 813.12(1)(am), (4)(a), (4m); 813.122(5m).
- Wis. Stat. §§ 941.29(1m)(f)-(g); 813.125(4m); 813.123(5m).
- Wis. Stat. § 813.1285.
- Wis. Stat. § 813.1285 (2).
- Wis. Stat. § 813.1285(3).
- Wis. Stat. § 813.1285(4).
- Wis. Stat. § 813.1285(4).