2012 Wisconsin Statutes & Annotations
941. Crimes against public health and safety.
941.29 Possession of a firearm.


WI Stat § 941.29 (2012 through Act 45) What's This?

941.29 Possession of a firearm.

941.29(1) (1) A person is subject to the requirements and penalties of this section if he or she has been:

941.29(1)(a) (a) Convicted of a felony in this state.

941.29(1)(b) (b) Convicted of a crime elsewhere that would be a felony if committed in this state.

941.29(1)(bm) (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.

941.29(1)(c) (c) Found not guilty of a felony in this state by reason of mental disease or defect.

941.29(1)(d) (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.

941.29(1)(e) (e) Committed for treatment under s. 51.20 (13) (a) and ordered not to possess a firearm under s. 51.20 (13) (cv) 1., 2007 stats.

941.29(1)(em) (em) Ordered not to possess a firearm under s. 51.20 (13) (cv) 1., 51.45 (13) (i) 1., 54.10 (3) (f) 1., or 55.12 (10) (a).

941.29(1)(f) (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 this section and that has been filed under s. 806.247 (3).

941.29(1)(g) (g) Ordered not to possess a firearm under s. 813.125 (4m).

941.29(2) (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:

941.29(2)(a) (a) The person possesses a firearm subsequent to the conviction for the felony or other crime, as specified in sub. (1) (a) or (b).

941.29(2)(b) (b) The person possesses a firearm subsequent to the adjudication, as specified in sub. (1) (bm).

941.29(2)(c) (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).

941.29(2)(d) (d) The person possesses a firearm while subject to the court order, as specified in sub. (1) (e), (em), or (g).

941.29(2)(e) (e) The person possesses a firearm while the injunction, as specified in sub. (1) (f), is in effect.

941.29(3) (3) Any firearm involved in an offense under sub. (2) is subject to s. 968.20 (3).

941.29(4) (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).

941.29(5) (5) This section does not apply to any person specified in sub. (1) who:

941.29(5)(a) (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

941.29(5)(b) (b) Has obtained relief from disabilities under 18 USC 925 (c).

941.29(6) (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.

941.29(7) (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:

941.29(7)(a) (a) The person is no longer insane or no longer has a mental disease, defect or illness.

941.29(7)(b) (b) The person is not likely to act in a manner dangerous to public safety.

941.29(8) (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.

941.29(9) (9)

941.29(9)(a)(a) This section does not apply to a person specified in sub. (1) (e) if the prohibition under s. 51.20 (13) (cv) 1., 2007 stats., has been canceled under s. 51.20 (13) (cv) 2. or (16) (gm), 2007 stats., or under s. 51.20 (13) (cv) 1m. c.

941.29(9)(b) (b) This section does not apply to a person specified in sub. (1) (em) if the order under s. 51.20 (13) (cv) 1. is canceled under s. 51.20 (13) (cv) 1m. c., if the order under s. 51.45 (13) (i) 1. is canceled under s. 51.45 (13) (i) 2. c., if the order under s. 54.10 (3) (f) 1. is canceled under s. 54.10 (3) (f) 2. c., or if the order under s. 55.12 (10) (a) is canceled under s. 55.12 (10) (b) 3.

941.29(10) (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:

941.29(10)(a) (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.

941.29(10)(b) (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; 2009 a. 258; 2011 a. 257, 258.

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.

The ban on felons possessing firearms is constitutional, and that ban extends to all felons, including nonviolent ones. The governmental objective of public safety is an important one, and the legislature's decision to deprive a nonviolent felon of the right to possess a firearm is substantially related to this goal. State v. Pocian, 2012 WI App 58, 341 Wis. 2d 380, 814 N.W.2d 894, 11-1035.

Attempted possession of a firearm by a felon is a crime recognized under Wisconsin law. State v. Henning, 2013 WI App 15, ___ Wis. 2d ___, ___ N.W.2d ___, 10-2449.

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.

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