97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB5424

 

Introduced 2/15/2012, by Rep. Sara Feigenholtz

 

SYNOPSIS AS INTRODUCED:
 
720 ILCS 5/24-3  from Ch. 38, par. 24-3
720 ILCS 5/24-3.1A new

    Amends the Criminal Code of 1961. Changes references in the statute on unlawful sale of firearms from "sell" or "give" to "transfer". Prohibits multiple sales of handguns within a 30-day period. Creates the offense of unlawful acquisition of handguns. Provides exemptions and affirmative defenses. Penalty is a Class A misdemeanor for a first offense and a Class 4 felony for a second or subsequent offense.


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CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

 

 

A BILL FOR

 

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1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Criminal Code of 1961 is amended by changing
5Section 24-3 and adding Section 24-3.1A as follows:
 
6    (720 ILCS 5/24-3)  (from Ch. 38, par. 24-3)
7    Sec. 24-3. Unlawful transfer sale or delivery of firearms.
8    (A) A person commits the offense of unlawful transfer sale
9or delivery of firearms when he or she knowingly does any of
10the following:
11        (a) Transfers or possesses with intent to transfer
12    Sells or gives any firearm of a size which may be concealed
13    upon the person to any person he or she has reasonable
14    cause to believe is under 18 years of age.
15        (b) Transfers or possesses with intent to transfer
16    Sells or gives any firearm to a person under 21 years of
17    age who has been convicted of a misdemeanor other than a
18    traffic offense or adjudged delinquent.
19        (b-5) Transfers or possesses with intent to transfer
20    any firearm to a person he or she has reasonable cause to
21    believe is under 18 years of age.
22        (c) Transfers or possesses with intent to transfer
23    Sells or gives any firearm to any person he or she has

 

 

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1    reasonable cause to believe is a narcotic addict.
2        (d) Transfers or possesses with intent to transfer
3    Sells or gives any firearm to any person he or she has
4    reasonable cause to believe who has been convicted of a
5    felony under the laws of this or any other jurisdiction.
6        (e) Transfers or possesses with intent to transfer
7    Sells or gives any firearm to any person he or she has
8    reasonable cause to believe who has been a patient in a
9    mental hospital within the past 5 years.
10        (f) Transfers or possesses with intent to transfer
11    Sells or gives any firearms to any person he or she has
12    reasonable cause to believe who is intellectually
13    disabled.
14        (g) Knowingly transfers Delivers any firearm of a size
15    which may be concealed upon the person, incidental to a
16    sale, without withholding delivery of such firearm for at
17    least 72 hours after application for its purchase has been
18    made, or delivers any rifle, shotgun or other long gun, or
19    a stun gun or taser, incidental to a sale, without
20    withholding delivery of such rifle, shotgun or other long
21    gun, or a stun gun or taser for at least 24 hours after
22    application for its purchase has been made. However, this
23    paragraph (g) does not apply to: (1) the sale of a firearm
24    to a law enforcement officer if the seller of the firearm
25    knows that the person to whom he or she is selling the
26    firearm is a law enforcement officer or the sale of a

 

 

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1    firearm to a person who desires to purchase a firearm for
2    use in promoting the public interest incident to his or her
3    employment as a bank guard, armed truck guard, or other
4    similar employment; (2) a mail order sale of a firearm to a
5    nonresident of Illinois under which the firearm is mailed
6    to a point outside the boundaries of Illinois; (3) the sale
7    of a firearm to a nonresident of Illinois while at a
8    firearm showing or display recognized by the Illinois
9    Department of State Police; or (4) the sale of a firearm to
10    a dealer licensed as a federal firearms dealer under
11    Section 923 of the federal Gun Control Act of 1968 (18
12    U.S.C. 923). For purposes of this paragraph (g),
13    "application" means when the buyer and seller reach an
14    agreement to purchase a firearm.
15        (h) While holding any license as a dealer, importer,
16    manufacturer or pawnbroker under the federal Gun Control
17    Act of 1968, knowingly manufactures, sells or delivers to
18    any unlicensed person a handgun having a barrel, slide,
19    frame or receiver which is a die casting of zinc alloy or
20    any other nonhomogeneous metal which will melt or deform at
21    a temperature of less than 800 degrees Fahrenheit. For
22    purposes of this paragraph, (1) "firearm" is defined as in
23    the Firearm Owners Identification Card Act; and (2)
24    "handgun" is defined as a firearm designed to be held and
25    fired by the use of a single hand, and includes a
26    combination of parts from which such a firearm can be

 

 

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1    assembled.
2        (i) Transfers or possesses with intent to transfer
3    Sells or gives a firearm of any size to any person he or
4    she knows or has reasonable cause to believe is under 18
5    years of age who does not possess a valid Firearm Owner's
6    Identification Card.
7        (i-5) While holding a license under the Federal Gun
8    Control Act of 1968, transfers or possesses with intent to
9    transfer more than one handgun to any person within any
10    30-day period or transfers or possesses with intent to
11    transfer a handgun to any person he or she knows or has
12    reasonable cause to believe has received a handgun within
13    the previous 30 days unless the receipt of multiple
14    handguns is exempted under subsection (c) or (d) of Section
15    24-3.1A. It is an affirmative defense to a violation of
16    this subsection that the transferor in good faith relied on
17    the records of the Department of State Police in concluding
18    that the transferor had not transferred a handgun within
19    the previous 30 days or that multiple purchases were
20    authorized by subsection (b) of Section 24-3.1A, or relied
21    in good faith on the records of a local law enforcement
22    agency that the transfer was authorized by subsection (c)
23    of Section 24-3.1A.
24        (j) Transfers or possesses with intent to transfer
25    Sells or gives a firearm while engaged in the business of
26    selling firearms at wholesale or retail without being

 

 

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1    licensed as a federal firearms dealer under Section 923 of
2    the federal Gun Control Act of 1968 (18 U.S.C. 923). In
3    this paragraph (j):
4        A person "engaged in the business" means a person who
5    devotes time, attention, and labor to engaging in the
6    activity as a regular course of trade or business with the
7    principal objective of livelihood and profit, but does not
8    include a person who makes occasional repairs of firearms
9    or who occasionally fits special barrels, stocks, or
10    trigger mechanisms to firearms.
11        "With the principal objective of livelihood and
12    profit" means that the intent underlying the sale or
13    disposition of firearms is predominantly one of obtaining
14    livelihood and pecuniary gain, as opposed to other intents,
15    such as improving or liquidating a personal firearms
16    collection; however, proof of profit shall not be required
17    as to a person who engages in the regular and repetitive
18    purchase and disposition of firearms for criminal purposes
19    or terrorism.
20        (k) Transfers Sells or transfers ownership of a firearm
21    to a person who does not display to the seller or
22    transferor of the firearm a currently valid Firearm Owner's
23    Identification Card that has previously been issued in the
24    transferee's name by the Department of State Police under
25    the provisions of the Firearm Owners Identification Card
26    Act. This paragraph (k) does not apply to the transfer of a

 

 

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1    firearm to a person who is exempt from the requirement of
2    possessing a Firearm Owner's Identification Card under
3    Section 2 of the Firearm Owners Identification Card Act.
4    For the purposes of this Section, a currently valid Firearm
5    Owner's Identification Card means (i) a Firearm Owner's
6    Identification Card that has not expired or (ii) if the
7    transferor is licensed as a federal firearms dealer under
8    Section 923 of the federal Gun Control Act of 1968 (18
9    U.S.C. 923), an approval number issued in accordance with
10    Section 3.1 of the Firearm Owners Identification Card Act
11    shall be proof that the Firearm Owner's Identification Card
12    was valid.
13        (l) Not being entitled to the possession of a firearm,
14    delivers the firearm, knowing it to have been stolen or
15    converted. It may be inferred that a person who possesses a
16    firearm with knowledge that its serial number has been
17    removed or altered has knowledge that the firearm is stolen
18    or converted.
19    (B) Paragraph (h) of subsection (A) does not include
20firearms sold within 6 months after enactment of Public Act
2178-355 (approved August 21, 1973, effective October 1, 1973),
22nor is any firearm legally owned or possessed by any citizen or
23purchased by any citizen within 6 months after the enactment of
24Public Act 78-355 subject to confiscation or seizure under the
25provisions of that Public Act. Nothing in Public Act 78-355
26shall be construed to prohibit the gift or trade of any firearm

 

 

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1if that firearm was legally held or acquired within 6 months
2after the enactment of that Public Act.
3    (B-5) As used in this Section, "transfer" means the actual
4or attempted transfer of a firearm or firearm ammunition, with
5or without consideration, but does not include the lease of a
6firearm, or the provision of ammunition specifically for that
7firearm, if the firearm and the ammunition are to be used on
8the lessor's premises, and does not include any transfer of
9possession when the transferor maintains supervision and
10control over the firearm or ammunition.
11    (B-10) It is an affirmative defense to a violation of
12paragraph (i-5) of subsection (A) that the transfer or
13possession with intent to transfer of a firearm was to a
14transferee who received the firearm as an heir, legatee, or
15beneficiary of or in a similar capacity to a deceased person
16who had owned the firearm. Nothing in this paragraph (B-10)
17makes lawful any transfer or possession with intent to transfer
18of a firearm, or any other possession or use of a firearm, in
19violation of any law, other than paragraph (i-5) of subsection
20(A), or in violation of any municipal or county ordinance.
21    (C) Sentence.
22        (1) Any person convicted of unlawful transfer sale or
23    delivery of firearms in violation of paragraph (c), (e),
24    (f), (g), or (h) of subsection (A) commits a Class 4
25    felony. A person convicted of a violation of subsection
26    (i-5) of subsection (A) of this Section commits a Class A

 

 

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1    misdemeanor for a first offense and a Class 4 felony for a
2    second or subsequent offense.
3        (2) Any person convicted of unlawful transfer sale or
4    delivery of firearms in violation of paragraph (b), (b-5),
5    or (i) of subsection (A) commits a Class 3 felony.
6        (3) Any person convicted of unlawful transfer sale or
7    delivery of firearms in violation of paragraph (a) of
8    subsection (A) commits a Class 2 felony.
9        (4) Any person convicted of unlawful transfer sale or
10    delivery of firearms in violation of paragraph (a), (b),
11    (b-5), or (i) of subsection (A) in any school, on the real
12    property comprising a school, within 1,000 feet of the real
13    property comprising a school, at a school related activity,
14    or on or within 1,000 feet of any conveyance owned, leased,
15    or contracted by a school or school district to transport
16    students to or from school or a school related activity,
17    regardless of the time of day or time of year at which the
18    offense was committed, commits a Class 1 felony. Any person
19    convicted of a second or subsequent violation of unlawful
20    transfer sale or delivery of firearms in violation of
21    paragraph (a), (b), (b-5), or (i) of subsection (A) in any
22    school, on the real property comprising a school, within
23    1,000 feet of the real property comprising a school, at a
24    school related activity, or on or within 1,000 feet of any
25    conveyance owned, leased, or contracted by a school or
26    school district to transport students to or from school or

 

 

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1    a school related activity, regardless of the time of day or
2    time of year at which the offense was committed, commits a
3    Class 1 felony for which the sentence shall be a term of
4    imprisonment of no less than 5 years and no more than 15
5    years.
6        (5) Any person convicted of unlawful transfer sale or
7    delivery of firearms in violation of paragraph (a) or (i)
8    of subsection (A) in residential property owned, operated,
9    or managed by a public housing agency or leased by a public
10    housing agency as part of a scattered site or mixed-income
11    development, in a public park, in a courthouse, on
12    residential property owned, operated, or managed by a
13    public housing agency or leased by a public housing agency
14    as part of a scattered site or mixed-income development, on
15    the real property comprising any public park, on the real
16    property comprising any courthouse, or on any public way
17    within 1,000 feet of the real property comprising any
18    public park, courthouse, or residential property owned,
19    operated, or managed by a public housing agency or leased
20    by a public housing agency as part of a scattered site or
21    mixed-income development commits a Class 2 felony.
22        (6) Any person convicted of unlawful transfer sale or
23    delivery of firearms in violation of paragraph (j) of
24    subsection (A) commits a Class A misdemeanor. A second or
25    subsequent violation is a Class 4 felony.
26        (7) Any person convicted of unlawful transfer sale or

 

 

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1    delivery of firearms in violation of paragraph (k) of
2    subsection (A) commits a Class 4 felony. A third or
3    subsequent conviction for a violation of paragraph (k) of
4    subsection (A) is a Class 1 felony.
5        (8) A person 18 years of age or older convicted of
6    unlawful transfer sale or delivery of firearms in violation
7    of paragraph (a) or (i) of subsection (A), when the firearm
8    that was sold or given to another person under 18 years of
9    age was used in the commission of or attempt to commit a
10    forcible felony, shall be fined or imprisoned, or both, not
11    to exceed the maximum provided for the most serious
12    forcible felony so committed or attempted by the person
13    under 18 years of age who was sold or given the firearm.
14        (9) Any person convicted of unlawful transfer sale or
15    delivery of firearms in violation of paragraph (d) of
16    subsection (A) commits a Class 3 felony.
17        (10) Any person convicted of unlawful transfer sale or
18    delivery of firearms in violation of paragraph (l) of
19    subsection (A) commits a Class 2 felony if the delivery is
20    of one firearm. Any person convicted of unlawful sale or
21    delivery of firearms in violation of paragraph (l) of
22    subsection (A) commits a Class 1 felony if the delivery is
23    of not less than 2 and not more than 5 firearms at the same
24    time or within a one year period. Any person convicted of
25    unlawful transfer sale or delivery of firearms in violation
26    of paragraph (l) of subsection (A) commits a Class X felony

 

 

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1    for which he or she shall be sentenced to a term of
2    imprisonment of not less than 6 years and not more than 30
3    years if the delivery is of not less than 6 and not more
4    than 10 firearms at the same time or within a 2 year
5    period. Any person convicted of unlawful transfer sale or
6    delivery of firearms in violation of paragraph (l) of
7    subsection (A) commits a Class X felony for which he or she
8    shall be sentenced to a term of imprisonment of not less
9    than 6 years and not more than 40 years if the delivery is
10    of not less than 11 and not more than 20 firearms at the
11    same time or within a 3 year period. Any person convicted
12    of unlawful transfer sale or delivery of firearms in
13    violation of paragraph (l) of subsection (A) commits a
14    Class X felony for which he or she shall be sentenced to a
15    term of imprisonment of not less than 6 years and not more
16    than 50 years if the delivery is of not less than 21 and
17    not more than 30 firearms at the same time or within a 4
18    year period. Any person convicted of unlawful transfer sale
19    or delivery of firearms in violation of paragraph (l) of
20    subsection (A) commits a Class X felony for which he or she
21    shall be sentenced to a term of imprisonment of not less
22    than 6 years and not more than 60 years if the delivery is
23    of 31 or more firearms at the same time or within a 5 year
24    period.
25    (D) For purposes of this Section:
26    "School" means a public or private elementary or secondary

 

 

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1school, community college, college, or university.
2    "School related activity" means any sporting, social,
3academic, or other activity for which students' attendance or
4participation is sponsored, organized, or funded in whole or in
5part by a school or school district.
6    (E) A prosecution for a violation of paragraph (k) of
7subsection (A) of this Section may be commenced within 6 years
8after the commission of the offense. A prosecution for a
9violation of this Section other than paragraph (g) of
10subsection (A) of this Section may be commenced within 5 years
11after the commission of the offense defined in the particular
12paragraph.
13(Source: P.A. 96-190, eff. 1-1-10; 97-227, eff. 1-1-12; 97-347,
14eff. 1-1-12; revised 9-14-11.)
 
15    (720 ILCS 5/24-3.1A new)
16    Sec. 24-3.1A. Unlawful acquisition of handguns.
17    (a) Except as exempted in subsections (b) and (c), it is
18unlawful for any person other than a person holding a license
19under the Federal Gun Control Act of 1968, as amended, to
20acquire more than one handgun within any 30-day period.
21    (b) Acquisitions in excess of one handgun within a 30-day
22period may be made upon completion of an enhanced background
23check, as described in this Section, by special application to
24the Department of State Police listing the number and type of
25handguns to be acquired and transferred for lawful business or

 

 

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1personal use, in a collector series, for collections, as a bulk
2purchase from estate sales, and for similar purposes. The
3application must be signed under oath by the applicant on forms
4provided by the Department of State Police, must state the
5purpose for the acquisition above the limit, and must require
6satisfactory proof of residency and identity. The application
7is in addition to the firearms transfer report required by the
8Bureau of Alcohol, Tobacco and Firearms (ATF). The Director of
9State Police shall adopt rules, under the Illinois
10Administrative Procedure Act, for the implementation of an
11application process for acquisitions of handguns above the
12limit.
13    Upon being satisfied that these requirements have been met,
14the Department of State Police must forthwith issue to the
15applicant a nontransferable certificate that is valid for 7
16days from the date of issue. The certificate must be
17surrendered to the transferor by the prospective transferee
18before the consummation of the transfer and must be kept on
19file at the transferor's place of business for inspection as
20provided in Section 24-4. Upon request of any local law
21enforcement agency, and under its rules, the Department of
22State Police may certify the local law enforcement agency to
23serve as its agent to receive applications and, upon
24authorization by the Department of State Police, issue
25certificates forthwith under this Section. Applications and
26certificates issued under this Section must be maintained as

 

 

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1records by the Department of State Police, and made available
2to local law enforcement agencies.
3    (c) This Section does not apply to:
4        (1) A law enforcement agency;
5        (2) State and local correctional agencies and
6    departments;
7        (3) The acquisition of antique firearms as defined by
8    paragraph (4) of Section 1.1 of the Firearm Owners
9    Identification Card Act; or
10        (4) A person whose handgun is stolen or irretrievably
11    lost who deems it essential that the handgun be replaced
12    immediately. The person may acquire another handgun, even
13    if the person has previously acquired a handgun within a
14    30-day period, if: (i) the person provides the firearms
15    transferor with a copy of the official police report or a
16    summary of the official police report, on forms provided by
17    the Department of State Police, from the law enforcement
18    agency that took the report of the lost or stolen handgun;
19    (ii) the official police report or summary of the official
20    police report contains the name and address of the handgun
21    owner, the description and serial number of the handgun,
22    the location of the loss or theft, the date of the loss or
23    theft, and the date the loss or theft was reported to the
24    law enforcement agency; and (iii) the date of the loss or
25    theft as reflected on the official police report or summary
26    of the official police report occurred within 30 days of

 

 

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1    the person's attempt to replace the handgun. The firearms
2    transferor must attach a copy of the official police report
3    or summary of the official police report to the original
4    copy of the form provided by the Department of State Police
5    completed for the transaction, retain it for the period
6    prescribed by the Department of State Police, and forward a
7    copy of the documents to the Department of State Police.
8    The documents must be maintained by the Department of State
9    Police and made available to local law enforcement
10    agencies.
11    (d) For the purposes of this Section, "acquisition" does
12not include the exchange or replacement of a handgun by a
13transferor for a handgun transferred from the transferor by the
14same person seeking the exchange or replacement within the
1530-day period immediately preceding the date of exchange or
16replacement.
17    (e) The exemptions set forth in subsections (b) and (c) are
18affirmative defenses to a violation of subsection (a).
19    (f) A violation of this Section is a Class A misdemeanor
20for a first offense and a Class 4 felony for a second or
21subsequent offense.