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Know the Laws: Wisconsin

UPDATED October 26, 2012

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WomensLaw.org strongly recommends that you get in touch with a domestic violence advocate in your community for more information on gun laws in your area.  Go to the WI Where to Find Help page to find help.

Basic Info

back to topI am a victim of domestic violence and my abuser has a gun. Do I have legal options for getting the gun away from my abuser?

Yes. If you have a Domestic Abuse Restraining Order against your abuser, or if your abuser has been convicted of a felony or domestic violence misdemeanor, then Federal law states that it is illegal for your abuser to buy, own or have a gun in their possession. *

In addition, WI state law says that a person cannot have or buy a gun if s/he has been convicted of a felony, has been declared mentally incompetent or found not guilty of a felony by reason of insanity, or is under an active Domestic Abuse Restraining Order or Harassment Restraining Order. **

Note: There are certain requirements that your Domestic Abuse Restraining Order must meet for it to qualify under Federal law. See the next question to read more about what those requirements are.

If you are not sure if your abuser has been convicted of a domestic violence misdemeanor, see What crimes are considered domestic violence misdemeanors?

To read the definition of a felony, see What is the definition of a felony?

* 18 USC 922(g)(8), (9)
** Wis. Stat. §941.29(1)

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Guns and Domestic Abuse Restraining Orders

back to topI have a Domestic Abuse Restraining Order against my abuser. Can s/he keep a gun or buy a new gun?

No.  According to WI state and Federal law, if you have  a Domestic Abuse Restraining Order that was issued by a state civil court against your abuser and meets Federal law requirements, then your abuser cannot have a gun in his/her possession or buy a new gun.

In order for your Domestic Abuse Restraining Order to qualify under Federal law, the defendant (person who the order is against) must:

  • Be served (given) notice of the court hearing. In other words, the defendant must have been given paperwork that told him or her about the hearing.*
  • Have an opportunity to attend the court hearing.
    Note: The abuser does not have to be at the hearing, but s/he has to have the opportunity to come to the hearing.
  • Be an "intimate partner" of the victim, which includes:**
    • A current or former spouse
    • A person with whom you share a child
    • A person you live with or have lived with in the past

Note: If your Domestic Abuse Restraining Order has expired, it is no longer a valid order under Federal law, which means the firearm ban also does not apply.  The expiration date should be written at the top of the second page of your Domestic Abuse Restraining Order. 

Note: This law may not apply to law enforcement officials, military personnel, and other government employees who use guns while performing official duties.**  If your abuser is a police officer, member of the military, or someone else who uses a gun for their job, talk to your local domestic violence program about your options. See WI Where to Find Help to find a program in your area.

* 18 USC § 922 (g)(8)
** 18 USC § 921 (a)(32); Wis. Stat. § 941.29(1)(f)
** 18 USC § 925 (a)(1)

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back to topIf my abuser is not an "intimate partner" according to the Federal definition, can my abuser's gun still be taken away when I get a Domestic Abuse Restraining Order?

Yes. If your abuser is not an "intimate partner" according to the Federal definition, you can still ask the Judge to include a provision in your order that forbids your abuser to have, own or buy a gun.* Under WI state law, someone who you are dating or have dated also qualifies as an intimate partner.**

* Wis. Stat. § 813.12(1)(am)
** Benson v. Muscari 769 A.2d 1291(Vt. 200)

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back to topIs there anything I can do to make it more likely that my abuser's gun is taken away when I get a Domestic Abuse Restraining Order?

While it does not need to be written on your Domestic Abuse Restraining Order that your abuser cannot own, buy or have a gun in order for the Federal law to be enforced, it may make it easier if it is written. Wisconsin state law specifically says that a person who has a Domestic Violence Restraining Order against him/her cannot own or buy a gun.*

It is also automatically written on the bottom of the first page of a WI Domestic Violence Restraining Order that your abuser cannot have or buy a gun while the order is in effect. Underneath that provision, there is a space for the judge to write who will take your abuser’s gun(s). However, you might want to ask that the judge order that the police notify you when the guns are returned to your abuser.

* Wis. Stat. § 941.29(1)(f)

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back to topMy abuser did not show up for the Domestic Abuse Restraining Order hearing. Can his gun still be taken away?

Maybe. Your abuser does not have to come to the hearing in order for the law to apply to him, but he does have to be given notice of the hearing and an opportunity to attend.*

If no hearing is scheduled, and/or no notice is given about the Domestic Abuse Restraining Order, then the federal firearm law might not apply to your abuser.**

* United States v. Bunnell 106 F. Supp. 2d 60 (D. Me. 2000), aff'd 280 F. 3d 46 (1st Cir. 2002.)
** United States v. Spruill 292 F. 3d 207 (5th Cir. 2002.)

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back to topI have a Restraining Order against my abuser. Do I have to wait until I receive a final order before my abuser's gun is taken away?

Maybe. You can ask the Judge to write in your temporary order that your abuser cannot have a gun while you are waiting for a full court hearing. If the judge sees your abuser's firearm as a serious enough threat, the judge might decide to write this in.

However, if there is no specific mention of a firearm restriction in the temporary order, then you may have to wait until you are given a final order.

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Guns and Criminal Convictions

back to topIf my abuser has been convicted of a domestic violence misdemeanor or felony, can s/he keep or buy a gun?

No. Under Federal law, if your abuser has been convicted of a felony or a domestic violence misdemeanor, s/he cannot have or buy a gun.*  If you're not sure if your abuser has been convicted of a domestic violence misdemeanor, see What crimes are considered domestic violence misdemeanors?*

* 18 USC 922 (g) (9)

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back to topWhat crimes are considered domestic violence misdemeanors?

A crime is considered a domestic violence misdemeanor under Federal law if it:

  • Can be defined as a misdemeanor under federal or state law; and
  • Involves physical violence or force, or includes threats made with a deadly weapon; and
  • Was committed by:
    • a current or former spouse;
    • a parent or guardian of the victim;
    • a person with whom the victim shares a child;
    • a person living with the victim as a spouse, parent or guardian; or
    • a person who has a similar relationship* with a spouse, parent or guardian of the victim. *

Note: The crime does not have to specifically mention "domestic violence" in order for it to be considered a domestic violence misdemeanor, and for the federal firearm law to apply. ** The relationship that the victim has with the offender is what determines whether or not the misdemeanor is a "domestic violence" misdemeanor. ***

For example: If Bob is convicted of a misdemeanor assault against his wife, he may no longer have or buy a gun.
If Bob is convicted of a misdemeanor assault against his neighbor, he may still be able to have or buy a gun.

If you're not sure if a certain crime counts as a domestic violence misdemeanor, you can contact the National Center on Full Faith and Credit at 1-800-903-0111, ext. 2

18 USC 921 (a) (33) (A)
** United States v. Kavoukian, 315 F. 3d 139 (2d. Cir. 2002); United States v. Meade, 175 F.3d 215 (1st Cir. 1999)
*** United States v. Denis, 297 F.3d.25 (1st Cir. 2002.); United States v. Costigan, No. 009-B0H, 2000 U.S. Dist. (D. Me. June 16, 2000)

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back to topWhat is the definition of a felony?

A felony under Federal law is a crime that is punishable by a prison sentence of more than one year.*

WI state law defines a felony as a crime that is punishable by imprisonment in the WI state prisons.**

* 18 USC 227 (A) 3559
** Wis. Stat. § 939.60

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back to topIf a law enforcement officer or other government employee is convicted of a domestic violence misdemeanor or felony, can s/he have or buy a gun?

No. Law enforcement officers and other government officials who have been convicted of a domestic violence misdemeanor or felony cannot have or buy guns for any purpose, including their official duties, according to federal law. *

* 18 USC 925(a)(1)

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back to topHow can I find out if my abuser has been convicted of a domestic violence misdemeanor or felony?

Domestic violence misdemeanor and Felony records are open to the public, but they are not always easy to access. If you know the exact courthouse where your abuser may have been convicted, you can go to the courthouse and ask the clerk of court for access to those records.

Domestic violence misdemeanor and Felony records are also kept in the National Instant Criminal Background Check System (NCIS). However, no one other than law enforcement officials and licensed firearm sellers are allowed to search the NCIS. Your local police department may be willing to search NCIS for you if you ask, but they are not required to do so.

To read more about the NCIS, please see the question, What will happen if my abuser tries to purchase a gun?

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More Information and Where to Get Help

back to topIf my abuser's gun(s) is taken away, what will happen to it?

When you get your Domestic Abuse Restraining Order, the judge will order your abuser to give his/her gun to the local sheriff, the sheriff in the county where your abuser lives, or to another person that the judge has approved.  If the gun is given to a sheriff, the sheriff will give your abuser a receipt and can store the gun at the law enforcement agency or in a public warehouse at the owner’s expense. *

* Wis. Stat. §§ 813.12(4m)(a)(2); (am); (aw)

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back to topWho do I notify if I think my abuser should not have a gun?

If you think your abuser is violating the federal firearm law, you can call your local police or sheriff department, the State Police, or the Bureau of Alcohol, Tobacco and Firearms (ATF). Let them know that either you have a Domestic Abuse Restraining Order against your abuser, or your abuser has been convicted of a felony or domestic violence misdemeanor.

You can find contact information for sheriff departments in your area on our WI Sheriff Department Locations page.

There is an ATF field office located in St. Paul, Minnesota. Their contact information is:

U.S. Department of Justice
Bureau of Alcohol, Tobacco, Firearms and Explosives
St. Paul Field Division
30 East Seventh Street
Suite 1900
St. Paul, MN  55101
(651) 726-0200
http://www.atf.gov/field/stpaul/index.htm 
For reporting illegal firearm activity: 1-800-ATF-GUNS (1-800-283-4867)
There are also branch offices in Milwaukee and Madison.

A local domestic violence organization in your area may also be able to answer your questions and assist you in talking to the necessary law enforcement officials. You will find contact information for organizations in your area on our WI State and Local Programs page.

Note: Generally, your abuser does not have to have knowledge of the law in order to be arrested for violating the law. If your abuser has a gun or buys a gun in violation of the law, your abuser can be arrested, whether or not your abuser knows he/she was in violation of the law.*

* 8th Cir. 2004
** S.D. W.V. 1999
*** United States v. Lippman, 369 F. 3d 1039; United States v. Henson, 55 F. Supp. 2d 528

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back to topWhat is the penalty for violating the federal firearm law?

Anyone who owns, has or buys a gun in violation of the federal firearm law can be punished by a fine, jail time for up to 10 years, or both. *

Under WI state law, possession of a firearm in violation of a Domestic Abuse or Harassment Restraining Order is a Class G felony and can be punished by a fine of up to $25,000, jail time of up to 10 years, or both.** WI state law also says that any violation of a temporary or final Domestic Abuse Restraining Order can be punished by a fine of up to $1,000, jail time of up to 9 months, or both.***

*18 USC 924 (a) (2)
** Wis. Stat. §§ 941.29(2); 939.60(2)(g)
*** Wis. Stat. § 813.12(8)

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back to topI do not have a domestic abuse restraining order against the abuser, and s/he has not been convicted of a crime. Can s/he have a gun?

In Wisconsin, a person is not allowed to buy or have a gun if s/he has been:

  1. involuntarily committed for treatment by a court and ordered not to possess a firearm,
  2. ordered by a court not to possess a firearm due to:
    1. being a chronic alcohol-abuser or
    2. having a guardian appointed for him/her, or
    3. having protective placement or protective services ordered for him/her by a court; or
  3. found "not guilty" of a felony by reason of insanity; or
  4. if s/he was ordered not to have a gun as part of a harassment restraining order/injunction against him/her.*

If this is your situation, please talk to someone in your area about how this law is being enforced.  

If none of these situations apply, you can still make a plan for your safety. See our Staying Safe page for more information. You can also contact your local domestic violence organization for additional help. You may want to talk to them about whether leaving the area - either long term or for a little while - might help improve your safety. See our WI State and Local Programs page to find a local domestic violence organization near you.

* Wis. Stat. § 941.29(1)(c) - (em), (g)

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back to topWhat will happen if my abuser tries to purchase a gun?

Before purchasing a gun, all buyers must undergo a criminal background check that is processed through the National Instant Criminal Background Check System (NCIS). If your abuser has a qualifying Domestic Abuse Restraining Order against him, or has been convicted of a felony or domestic violence crime, those records should be in the NCIS, which should prevent your abuser from buying a gun. Not all states have automated record keeping systems, making it more difficult to process the criminal background check, and some criminals and abusers do slip through the system.

If your abuser is able to purchase a gun, you can alert the police, and ask that his/her gun be taken away. Generally, it is not a good idea to assume that because your abuser was able to buy a gun, it is legal for him to have one. The criminal background check system is not foolproof.

Note: There may also be some loopholes in the law that your abuser can take advantage of.  For more information, you can contact a local domestic violence organization in your area. Go to our WI State and Local Programs page to find an organization near you.

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back to topMy abuser uses a gun for his job. Does the law still apply?

The law might not still apply if your abuser is required to use a gun for his/her job.  Under WI state law, if your abuser is a law enforcement officer or military employee who must use a gun as part of his/her job, the court is not allowed to order that the gun be taken away.  If this is your situation, your abuser will most likely be allowed to carry his/her gun for work purposes, and s/he may be allowed to carry the gun even when s/he is off duty.*

However, if your abuser has been convicted of a felony or a domestic violence misdemeanor, then under federal law, your abuser cannot buy or have a gun, even if s/he is a police officer or a military employee.**

If you are confused or not sure whether your abuser can still use their gun for work purposes, you can talk to a domestic violence advocate in your area or call the National Center on Full Faith and Credit to find out more information: 1-800-903-0111, ext. 2

To find a domestic violence advocate in your area, please go to our WI State and Local Programs page.

* Wis. Stat. § 941.29(10)
** 18 USC 925 (a)(1)

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back to topI've read through all of this information, and I am still confused. What can I do?

Trying to understand both Federal and State law can be confusing, but there are people out there who can help you better understand the law and your rights under the law.

  • You can write to our Email Hotline.
  • You can contact a local domestic violence organization in your area (See our WI State and Local Programs page).
  • You can also contact the National Center on Full Faith and Credit to get more information about the federal firearm law and how it applies to you: 1-800-903-0111, ext. 2

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