101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
SB1713

 

Introduced 2/15/2019, by Sen. Chuck Weaver

 

SYNOPSIS AS INTRODUCED:
 
430 ILCS 67/35
430 ILCS 67/40

    Amends the Firearms Restraining Order Act. Provides that a State's Attorney or assistant State's Attorney (rather than a petitioner) may request an emergency firearms restraining order by filing an affidavit or verified pleading alleging that the respondent poses an immediate and present danger of causing personal injury to himself, herself, or another by having in his or her custody or control, purchasing, possessing, or receiving a firearm. Provides that if the court issues an emergency firearms restraining order, it shall, based upon written application filed by the State's Attorney or assistant State's Attorney supported by evidence submitted under oath or affirmation, upon a finding of probable cause that the respondent possesses firearms, issue a search warrant directing a law enforcement agency to seize the respondent's firearms. Provides that an emergency firearms restraining order and a 6-month firearms restraining order shall require the firearm or firearms and Firearm Owner's Identification Card and concealed carry license, if unexpired, to be returned to the respondent if the firearms restraining order is not granted within 7 days. Effective immediately.


LRB101 06776 SLF 51803 b

 

 

A BILL FOR

 

SB1713LRB101 06776 SLF 51803 b

1    AN ACT concerning safety.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Firearms Restraining Order Act is amended by
5changing Sections 35 and 40 as follows:
 
6    (430 ILCS 67/35)
7    Sec. 35. Ex parte orders and emergency hearings.
8    (a) A State's Attorney or assistant State's Attorney
9petitioner may request an emergency firearms restraining order
10by filing an affidavit or verified pleading alleging that the
11respondent poses an immediate and present danger of causing
12personal injury to himself, herself, or another by having in
13his or her custody or control, purchasing, possessing, or
14receiving a firearm. The petition shall also describe the type
15and location of any firearm or firearms presently believed by
16the petitioner to be possessed or controlled by the respondent.
17    (b) If the respondent is alleged to pose an immediate and
18present danger of causing personal injury to an intimate
19partner, or an intimate partner is alleged to have been the
20target of a threat or act of violence by the respondent, the
21petitioner shall make a good faith effort to provide notice to
22any and all intimate partners of the respondent. The notice
23must include that the petitioner intends to petition the court

 

 

SB1713- 2 -LRB101 06776 SLF 51803 b

1for an emergency firearms restraining order, and, if the
2petitioner is a law enforcement officer, referral to relevant
3domestic violence or stalking advocacy or counseling
4resources, if appropriate. The petitioner Petitioner shall
5attest to having provided the notice in the filed affidavit or
6verified pleading. If, after making a good faith effort, the
7petitioner is unable to provide notice to any or all intimate
8partners, the affidavit or verified pleading should describe
9what efforts were made.
10    (c) Every person who files a petition for an emergency
11firearms restraining order, knowing the information provided
12to the court at any hearing or in the affidavit or verified
13pleading to be false, is guilty of perjury under Section 32-2
14of the Criminal Code of 2012.
15    (d) An emergency firearms restraining order shall be issued
16on an ex parte basis, that is, without notice to the
17respondent.
18    (e) An emergency hearing held on an ex parte basis shall be
19held the same day that the petition is filed or the next day
20that the court is in session.
21    (f) If a circuit or associate judge finds probable cause to
22believe that the respondent poses an immediate and present
23danger of causing personal injury to himself, herself, or
24another by having in his or her custody or control, purchasing,
25possessing, or receiving a firearm, the circuit or associate
26judge shall issue an emergency order.

 

 

SB1713- 3 -LRB101 06776 SLF 51803 b

1    (f-5) If the court issues an emergency firearms restraining
2order, it shall, based upon written application filed by the
3State's Attorney or assistant State's Attorney supported by
4evidence submitted under oath or affirmation, upon a finding of
5probable cause that the respondent possesses firearms, issue a
6search warrant directing a law enforcement agency to seize the
7respondent's firearms. The court may, as part of that warrant,
8direct the law enforcement agency to search the respondent's
9residence and other places where the court finds there is
10probable cause to believe he or she is likely to possess the
11firearms.
12    (g) An emergency firearms restraining order shall require:
13        (1) the respondent to refrain from having in his or her
14    custody or control, purchasing, possessing, or receiving
15    additional firearms for the duration of the order; and
16        (2) the respondent to turn over to the local law
17    enforcement agency any Firearm Owner's Identification Card
18    and concealed carry license in his or her possession. The
19    local law enforcement agency shall immediately mail the
20    card and concealed carry license to the Department of State
21    Police Firearm Services Bureau for safekeeping. The
22    firearm or firearms and Firearm Owner's Identification
23    Card and concealed carry license, if unexpired, shall be
24    returned to the respondent after the firearms restraining
25    order is terminated, or expired, or not granted within 7
26    days.

 

 

SB1713- 4 -LRB101 06776 SLF 51803 b

1    (h) Except as otherwise provided in subsection (h-5) of
2this Section, upon expiration of the period of safekeeping, if
3the firearms or Firearm Owner's Identification Card and
4concealed carry license cannot be returned to the respondent
5because the respondent cannot be located, fails to respond to
6requests to retrieve the firearms, or is not lawfully eligible
7to possess a firearm, upon petition from the local law
8enforcement agency, the court may order the local law
9enforcement agency to destroy the firearms, use the firearms
10for training purposes, or use the firearms for any other
11application as deemed appropriate by the local law enforcement
12agency.
13    (h-5) A respondent whose Firearm Owner's Identification
14Card has been revoked or suspended may petition the court, if
15the petitioner is present in court or has notice of the
16respondent's petition, to transfer the respondent's firearm to
17a person who is lawfully able to possess the firearm if the
18person does not reside at the same address as the respondent.
19Notice of the petition shall be served upon the person
20protected by the emergency firearms restraining order. While
21the order is in effect, the transferee who receives the
22respondent's firearms must swear or affirm by affidavit that he
23or she shall not transfer the firearm to the respondent or to
24anyone residing in the same residence as the respondent.
25    (h-6) If a person other than the respondent claims title to
26any firearms surrendered under this Section, he or she may

 

 

SB1713- 5 -LRB101 06776 SLF 51803 b

1petition the court, if the petitioner is present in court or
2has notice of the petition, to have the firearm returned to him
3or her. If the court determines that person to be the lawful
4owner of the firearm, the firearm shall be returned to him or
5her, provided that:
6        (1) the firearm is removed from the respondent's
7    custody, control, or possession and the lawful owner agrees
8    to store the firearm in a manner such that the respondent
9    does not have access to or control of the firearm; and
10        (2) the firearm is not otherwise unlawfully possessed
11    by the owner.
12    The person petitioning for the return of his or her firearm
13must swear or affirm by affidavit that he or she: (i) is the
14lawful owner of the firearm; (ii) shall not transfer the
15firearm to the respondent; and (iii) will store the firearm in
16a manner that the respondent does not have access to or control
17of the firearm.
18    (i) In accordance with subsection (e) of this Section, the
19court shall schedule a full hearing as soon as possible, but no
20longer than 14 days from the issuance of an ex parte firearms
21restraining order, to determine if a 6-month firearms
22restraining order shall be issued. The court may extend an ex
23parte order as needed, but not to exceed 14 days, to effectuate
24service of the order or if necessary to continue protection.
25The court may extend the order for a greater length of time by
26mutual agreement of the parties.

 

 

SB1713- 6 -LRB101 06776 SLF 51803 b

1(Source: P.A. 100-607, eff. 1-1-19; revised 10-2-18.)
 
2    (430 ILCS 67/40)
3    Sec. 40. Six-month Six month orders.
4    (a) A petitioner may request a 6-month firearms restraining
5order by filing an affidavit or verified pleading alleging that
6the respondent poses a significant danger of causing personal
7injury to himself, herself, or another in the near future by
8having in his or her custody or control, purchasing,
9possessing, or receiving a firearm. The petition shall also
10describe the number, types, and locations of any firearms
11presently believed by the petitioner to be possessed or
12controlled by the respondent.
13    (b) If the respondent is alleged to pose a significant
14danger of causing personal injury to an intimate partner, or an
15intimate partner is alleged to have been the target of a threat
16or act of violence by the respondent, the petitioner shall make
17a good faith effort to provide notice to any and all intimate
18partners of the respondent. The notice must include that the
19petitioner intends to petition the court for a 6-month firearms
20restraining order, and, if the petitioner is a law enforcement
21officer, referral to relevant domestic violence or stalking
22advocacy or counseling resources, if appropriate. The
23petitioner Petitioner shall attest to having provided the
24notice in the filed affidavit or verified pleading. If, after
25making a good faith effort, the petitioner is unable to provide

 

 

SB1713- 7 -LRB101 06776 SLF 51803 b

1notice to any or all intimate partners, the affidavit or
2verified pleading should describe what efforts were made.
3    (c) Every person who files a petition for a 6-month
4firearms restraining order, knowing the information provided
5to the court at any hearing or in the affidavit or verified
6pleading to be false, is guilty of perjury under Section 32-2
7of the Criminal Code of 2012.
8    (d) Upon receipt of a petition for a 6-month firearms
9restraining order, the court shall order a hearing within 30
10days.
11    (e) In determining whether to issue a firearms restraining
12order under this Section, the court shall consider evidence
13including, but not limited to, the following:
14        (1) The unlawful and reckless use, display, or
15    brandishing of a firearm by the respondent.
16        (2) The history of use, attempted use, or threatened
17    use of physical force by the respondent against another
18    person.
19        (3) Any prior arrest of the respondent for a felony
20    offense.
21        (4) Evidence of the abuse of controlled substances or
22    alcohol by the respondent.
23        (5) A recent threat of violence or act of violence by
24    the respondent directed toward himself, herself, or
25    another.
26        (6) A violation of an emergency order of protection

 

 

SB1713- 8 -LRB101 06776 SLF 51803 b

1    issued under Section 217 of the Illinois Domestic Violence
2    Act of 1986 or Section 112A-17 of the Code of Criminal
3    Procedure of 1963 or of an order of protection issued under
4    Section 214 of the Illinois Domestic Violence Act of 1986
5    or Section 112A-14 of the Code of Criminal Procedure of
6    1963.
7        (7) A pattern of violent acts or violent threats,
8    including, but not limited to, threats of violence or acts
9    of violence by the respondent directed toward himself,
10    herself, or another.
11    (f) At the hearing, the petitioner shall have the burden of
12proving, by clear and convincing evidence, that the respondent
13poses a significant danger of personal injury to himself,
14herself, or another by having in his or her custody or control,
15purchasing, possessing, or receiving a firearm.
16    (g) If the court finds that there is clear and convincing
17evidence to issue a firearms restraining order, the court shall
18issue a firearms restraining order that shall be in effect for
196 months subject to renewal under Section 45 of this Act or
20termination under that Section.
21    (g-5) If the court issues a 6-month firearms restraining
22order, it shall, upon a finding of probable cause that the
23respondent possesses firearms, issue a search warrant
24directing a law enforcement agency to seize the respondent's
25firearms. The court may, as part of that warrant, direct the
26law enforcement agency to search the respondent's residence and

 

 

SB1713- 9 -LRB101 06776 SLF 51803 b

1other places where the court finds there is probable cause to
2believe he or she is likely to possess the firearms.
3    (h) A 6-month firearms restraining order shall require:
4        (1) the respondent to refrain from having in his or her
5    custody or control, purchasing, possessing, or receiving
6    additional firearms for the duration of the order; and
7        (2) the respondent to turn over to the local law
8    enforcement agency any firearm or Firearm Owner's
9    Identification Card and concealed carry license in his or
10    her possession. The local law enforcement agency shall
11    immediately mail the card and concealed carry license to
12    the Department of State Police Firearm Services Bureau for
13    safekeeping. The firearm or firearms and Firearm Owner's
14    Identification Card and concealed carry license, if
15    unexpired, shall be returned to the respondent after the
16    firearms restraining order is terminated, or expired, or
17    not granted within 7 days.
18    (i) Except as otherwise provided in subsection (i-5) of
19this Section, upon expiration of the period of safekeeping, if
20the firearms or Firearm Owner's Identification Card cannot be
21returned to the respondent because the respondent cannot be
22located, fails to respond to requests to retrieve the firearms,
23or is not lawfully eligible to possess a firearm, upon petition
24from the local law enforcement agency, the court may order the
25local law enforcement agency to destroy the firearms, use the
26firearms for training purposes, or use the firearms for any

 

 

SB1713- 10 -LRB101 06776 SLF 51803 b

1other application as deemed appropriate by the local law
2enforcement agency.
3    (i-5) A respondent whose Firearm Owner's Identification
4Card has been revoked or suspended may petition the court, if
5the petitioner is present in court or has notice of the
6respondent's petition, to transfer the respondent's firearm to
7a person who is lawfully able to possess the firearm if the
8person does not reside at the same address as the respondent.
9Notice of the petition shall be served upon the person
10protected by the emergency firearms restraining order. While
11the order is in effect, the transferee who receives the
12respondent's firearms must swear or affirm by affidavit that he
13or she shall not transfer the firearm to the respondent or to
14anyone any one residing in the same residence as the
15respondent.
16    (i-6) If a person other than the respondent claims title to
17any firearms surrendered under this Section, he or she may
18petition the court, if the petitioner is present in court or
19has notice of the petition, to have the firearm returned to him
20or her. If the court determines that person to be the lawful
21owner of the firearm, the firearm shall be returned to him or
22her, provided that:
23        (1) the firearm is removed from the respondent's
24    custody, control, or possession and the lawful owner agrees
25    to store the firearm in a manner such that the respondent
26    does not have access to or control of the firearm; and

 

 

SB1713- 11 -LRB101 06776 SLF 51803 b

1        (2) the firearm is not otherwise unlawfully possessed
2    by the owner.
3    The person petitioning for the return of his or her firearm
4must swear or affirm by affidavit that he or she: (i) is the
5lawful owner of the firearm; (ii) shall not transfer the
6firearm to the respondent; and (iii) will store the firearm in
7a manner that the respondent does not have access to or control
8of the firearm.
9    (j) If the court does not issue a firearms restraining
10order at the hearing, the court shall dissolve any emergency
11firearms restraining order then in effect.
12    (k) When the court issues a firearms restraining order
13under this Section, the court shall inform the respondent that
14he or she is entitled to one hearing during the period of the
15order to request a termination of the order, under Section 45
16of this Act, and shall provide the respondent with a form to
17request a hearing.
18(Source: P.A. 100-607, eff. 1-1-19; revised 10-2-18.)
 
19    Section 99. Effective date. This Act takes effect upon
20becoming law.