If I Was Convicted of a Misdemeanor, Can I Possess a Firearm in Wisconsin?
Full Question:
Answer:
Please see the following WI statute to determine applicability:
941.29 Possession of a firearm.
(1) A person is subject to the requirements and penalties of this
section if he or she has been:
(a) Convicted of a felony in this state.
(b) Convicted of a crime elsewhere that would be a felony if
committed in this state.
(bm) Adjudicated delinquent for an act committed on or after April
21, 1994, that if committed by an adult in this state would be a
felony.
(c) Found not guilty of a felony in this state by reason of mental
disease or defect.
(d) Found not guilty of or not responsible for a crime elsewhere that
would be a felony in this state by reason of insanity or mental
disease, defect or illness.
(e) Committed for treatment under s. 51.20 (13) (a) and ordered not
to possess a firearm under s. 51.20 (13) (cv).
(f) Enjoined under an injunction issued under s. 813.12 or 813.122 or
under a tribal injunction, as defined in s. 813.12 (1) (e), issued by
a court established by any federally recognized Wisconsin Indian
tribe or band, except the Menominee Indian tribe of Wisconsin, that
includes notice to the respondent that he or she is subject to the
requirements and penalties under s. 941.29 and that has been filed
under s. 806.247 (3).
(g) Ordered not to possess a firearm under s. 813.125 (4m).
(2) A person specified in sub. (1) is guilty of a Class G felony if
he or she possesses a firearm under any of the following
circumstances:
(a) The person possesses a firearm subsequent to the conviction for
the felony or other crime, as specified in sub. (1) (a) or (b).
(b) The person possesses a firearm subsequent to the adjudication, as
specified in sub. (1) (bm).
(c) The person possesses a firearm subsequent to the finding of not
guilty or not responsible by reason of insanity or mental disease,
defect or illness as specified in sub. (1) (c) or (d).
(d) The person possesses a firearm while subject to the court order,
as specified in sub. (1) (e) or (g).
(e) The person possesses a firearm while the injunction, as specified
in sub. (1) (f), is in effect.
(3) Any firearm involved in an offense under sub. (2) is subject to
s. 968.20 (3).
(4) A person is concerned with the commission of a crime, as
specified in s. 939.05 (2) (b), in violation of this section if he or
she knowingly furnishes a person with a firearm in violation of sub.
(2).
(5) This section does not apply to any person specified in sub. (1)
who:
(a) Has received a pardon with respect to the crime or felony
specified in sub. (1) and has been expressly authorized to possess a
firearm under 18 USC app. 1203; or
(b) Has obtained relief from disabilities under 18 USC 925 (c).
(6) The prohibition against firearm possession under this
section does not apply to any correctional officer employed before May 1,
1982, who is required to possess a firearm as a condition of
employment. This exemption applies if the officer is eligible to
possess a firearm under any federal law and applies while the officer
is acting in an official capacity.
(7) This section does not apply to any person who has been found not
guilty or not responsible by reason of insanity or mental disease,
defect or illness if a court subsequently determines both of the
following:
(a) The person is no longer insane or no longer has a mental disease,
defect or illness.
(b) The person is not likely to act in a manner dangerous to public
safety.
(8) This section does not apply to any person specified in sub. (1)
(bm) if a court subsequently determines that the person is not likely
to act in a manner dangerous to public safety. In any action or
proceeding regarding this determination, the person has the burden of
proving by a preponderance of the evidence that he or she is not
likely to act in a manner dangerous to public safety.
(9) This section does not apply to a person specified in sub. (1) (e)
if the prohibition under s. 51.20 (13) (cv) 1. has been canceled
under s. 51.20 (13) (cv) 2. or (16) (gm).
(10) The prohibition against firearm possession under this
section does not apply to a person specified in sub. (1) (f) if the person
satisfies any of the following:
(a) The person is a peace officer and the person possesses a firearm
while in the line of duty or, if required to do so as a condition of
employment, while off duty. Notwithstanding s. 939.22 (22), for
purposes of this paragraph, peace officer does not include a
commission warden who is not a state-certified commission warden.
(b) The person is a member of the U.S. armed forces or national guard
and the person possesses a firearm while in the line of duty.
History: 1981 c. 141, 317; 1983 a. 269; 1985 a. 259; 1993 a. 195,
196, 491; 1995 a. 71, 77, 306, 417; 2001 a. 109; 2007 a. 27.
NOTE: See Chapter 141, laws of 1981, section 2, entitled "Initial
applicability."
If a defendant is willing to stipulate to being a convicted felon,
evidence of the nature of the felony is irrelevant if offered only to
support the felony conviction element. State v. McAllister,
153 Wis.2d 523, 451 N.W.2d 764 (Ct.App. 1989).
Failure to give the warning under s. 973.033 does not prevent a
conviction under this section. State v. Phillips, 172 Wis.2d 391,
493 N.W.2d 238 (Ct.App. 1992).
Retroactive application of this provision did not violate the
prohibition against ex post facto laws because the law is intended
not to punish persons for a prior crime but to protect public safety.
State v. Thiel, 188 Wis.2d 695, 524 N.W.2d 641 (1994).
A convicted felon's possession of a firearm is privileged in limited
enumerated circumstances. State v. Coleman, 206 Wis.2d 199,
556 N.W.2d 701 (1996), 95-0917.
Sub. (2m) is not in the nature of a penalty enhancer, but defines an
additional element to the crime described in sub. (2). It was proper
for the trial court to apply the general repeater statute to a
violator. State v. Gibson, 2000 WI App 207, 238 Wis.2d 547,
618 N.W.2d 248, 99-2612.
In this section, to possess means that the defendant knowingly has
control of a firearm. There is no minimum length of time the firearm
must be possessed for a violation to occur. Intention in handling a
firearm is irrelevant unless the handling is privileged under s.
939.45. State v. Black, 2001 WI 31, 242 Wis.2d 126, 624 N.W.2d 363,
99-0230.
To determine whether a person has been "convicted of a crime
elsewhere that would be a felony if committed in this state" under
sub. (1) (b), the courts must consider the underlying conduct of the
out-of-state conviction, not merely the statute that was violated.
State v. Campbell, 2002 WI App 20, 250 Wis.2d 238, 642 N.W.2d 230,
01-0758.
Article I, s. 25, of the Wisconsin constitution did not effectively
repeal this section, nor is this section unconstitutionally vague,
overbroad, or in violation of the equal protection clauses of the
United States and Wisconsin constitutions. State v. Thomas, 2004 WI
App 115, 274 Wis.2d 513, 683 N.W.2d 497, 03-1369.
While 18 U.S.C. s. 1162(b) prohibits the state from depriving any
Indian of any right, privilege, or immunity afforded under federal
treaty, defendant's claim that he was exercising tribal hunting
rights did not prevent the application of this section. Application
of this section did not make defendant's exercise of treaty hunting
rights illegal. Rather, the defendant's own actions in committing a
felony limited him from fully enjoying those rights. State v. Jacobs,
2007 WI App 155, 302 Wis.2d 675, 735 N.W.2d 535, 06-2076.
Sub. (5) (a) has been invalidated by congressional action. Pardons
granted after November 15, 1986 will give recipients the right to
receive, possess, or transport in commerce firearms unless the pardon
expressly provides otherwise. 78 Atty. Gen. 22.
