99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016
SB1864

 

Introduced 2/20/2015, by Sen. Dan Kotowski

 

SYNOPSIS AS INTRODUCED:
 
See Index

    Creates the Lethal Violence Order of Protection Act. Provides that a petitioner may request an emergency lethal violence order of protection 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, owning, purchasing, possessing, or receiving a firearm. Provides that the petition shall also describe the type, and location of any firearm or firearms presently believed by the petitioner to be possessed or controlled by the respondent. Provides that the petitioner may be a family member of the respondent or a law enforcement officer, who files a petition alleging that the respondent poses a danger of causing personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm. Establishes factors that the court must consider before issuing a lethal violence order of protection. Provides for the issuance of ex parte orders and one year orders. Provides that if the court issues the order the respondent must: (1) refrain from having in his or her custody or control, owning, purchasing, possessing, or receiving additional firearms for the duration of the order; and (2) turn over to the local law enforcement agency any firearm, Firearm Owner's Identification Card, or concealed carry license in his or her possession. Establishes factors for renewing and terminating lethal violence orders of protection. Amends the Firearm Owners Identification Card Act and the Firearm Concealed Carry Act to make conforming changes.


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CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY
FISCAL NOTE ACT MAY APPLY
STATE MANDATES ACT MAY REQUIRE REIMBURSEMENT

 

 

A BILL FOR

 

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1    AN ACT concerning orders of protection.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Short title. This Act may be cited as the Lethal
5Violence Order of Protection Act.
 
6    Section 5. Definitions. As used in this Act:
7    "Lethal violence order of protection" means an order issued
8by the court, prohibiting and enjoining a named person from
9having in his or her custody or control, owning, purchasing,
10possessing, or receiving any firearms.
11    "Petitioner" means:
12        (1) a family member of the respondent as defined in
13    Section 103 of the Illinois Domestic Violence Act of 1986;
14    or
15        (2) a law enforcement officer, who files a petition
16    alleging that the respondent poses a danger of causing
17    personal injury to himself, herself, or another by having
18    in his or her custody or control, owning, purchasing,
19    possessing, or receiving a firearm.
20    "Respondent" means the person alleged in the petition to
21pose a danger of causing personal injury to himself, herself,
22or another by having in his or her custody or control, owning,
23purchasing, possessing, or receiving a firearm.
 

 

 

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1    Section 10. Commencement of action; procedure.
2    (a) Actions for a lethal violence order of protection are
3commenced by filing a verified petition for a lethal violence
4order of protection in any circuit court.
5    (b) A petition for a lethal violence order of protection
6may be filed in any county where the respondent resides.
7    (c) No fee shall be charged by the clerk for filing,
8amending, vacating, certifying, or photocopying petitions or
9orders; or for issuing alias summons; or for any related filing
10service. No fee shall be charged by the sheriff for service by
11the sheriff of a petition, rule, motion, or order in an action
12commenced under this Section.
13    (d) The court shall provide, through the office of the
14clerk of the court, simplified forms and clerical assistance to
15help with the writing and filing of a petition under this
16Section by any person not represented by counsel. In addition,
17that assistance may be provided by the State's Attorney.
 
18    Section 15. Subject matter jurisdiction. Each of the
19circuit courts shall have the power to issue lethal violence
20orders of protection.
 
21    Section 20. Jurisdiction over persons. The circuit courts
22of this State have jurisdiction to bind (1) State residents and
23(2) non-residents having minimum contacts with this State, to

 

 

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1the extent permitted by Section 2-209 of the Code of Civil
2Procedure.
 
3    Section 25. Process. The summons shall be in the form
4prescribed by Supreme Court Rule 101(d), except that it shall
5require respondent to answer or appear within 7 days.
6Attachments to the summons or notice shall include the petition
7for the lethal violence order of protection and supporting
8affidavits, if any, and any emergency lethal violence order of
9protection that has been issued. The enforcement of an order
10under Section 35 shall not be affected by the lack of service,
11delivery, or notice, provided the requirements of subsection
12(d) of that Section are otherwise met.
 
13    Section 30. Service of notice of hearings. Service of
14notice of hearings. Except as provided in Section 25, notice of
15hearings on petitions or motions shall be served in accordance
16with Supreme Court Rules 11 and 12, unless notice is excused by
17Section 35 of this Act, or by the Code of Civil Procedure,
18Supreme Court Rules, or local rules.
 
19    Section 35. Ex parte orders and emergency hearings.
20    (a) A petitioner may request an emergency lethal violence
21order of protection by filing an affidavit or verified pleading
22alleging that the respondent poses an immediate and present
23danger of causing personal injury to himself, herself, or

 

 

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1another by having in his or her custody or control, owning,
2purchasing, possessing, or receiving a firearm. The petition
3shall also describe the type, and location of any firearm or
4firearms presently believed by the petitioner to be possessed
5or controlled by the respondent.
6    (b) An emergency order of protection shall be issued on an
7ex parte basis, that is, without notice to the respondent.
8    (c) An emergency hearing held on an ex parte basis shall be
9held the same day that the petition is filed or the next day
10that the court is in session.
11    (d) If a circuit or associate judge finds reasonable cause
12to believe that the respondent poses an immediate and present
13danger of causing personal injury to himself, herself, or
14another by having in his or her custody or control, owning,
15purchasing, possessing, or receiving a firearm the circuit or
16associate judge shall issue an emergency order.
17    (e) An emergency lethal violence order of protection shall
18require:
19        (1) the respondent to refrain from having in his or her
20    custody or control, owning, purchasing, possessing, or
21    receiving additional firearms for the duration of the
22    order;
23        (2) the respondent to turn over to the local law
24    enforcement agency any Firearm Owner's Identification Card
25    and concealed cary license in his or her possession. The
26    local law enforcement agency shall immediately mail the

 

 

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1    card and concealed carry license to the Department of State
2    Police Firearm Owner's Identification Card Office for
3    safekeeping. The firearm or firearms and Firearm Owner's
4    Identification Card and concealed carry license, if
5    unexpired, shall at the respondent's request, be returned
6    to the respondent after the lethal violence order of
7    protection is terminated or expired. It is the respondent's
8    responsibility to notify the Department of State Police
9    Firearm Owner's Identification Card Office; and
10        (3) any law-enforcement agency to forthwith search for
11    and seize firearms of the respondent upon probable cause
12    that the respondent has possession of a firearm, and
13    petitioner or the court can describe, with sufficient
14    particularity, the location of the firearm or firearms.
15    (f) Upon expiration of the period of safekeeping, if the
16firearms or Firearm Owner's Identification Card and concealed
17carry license cannot be returned to respondent because
18respondent cannot be located, fails to respond to requests to
19retrieve the firearms, or is not lawfully eligible to possess a
20firearm, upon petition from the local law enforcement agency,
21the court may order the local law enforcement agency to destroy
22the firearms, use the firearms for training purposes, or for
23any other application as deemed appropriate by the local law
24enforcement agency.
25    (g) In accordance with subsection (c) of this Section, the
26court shall schedule a full hearing within 14 days of the

 

 

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1issuance of an ex parte lethal violence order of protection to
2determine if a one-year lethal violence order of protection
3shall be issued. The court may extend an ex parte order as
4needed, but not to exceed 30 days, to effectuate service of the
5order or if necessary to continue protection.
 
6    Section 40. One-year orders.
7    (a) A petitioner may request a one-year lethal violence
8order of protection by filing an affidavit or verified pleading
9alleging that the respondent poses a significant danger of
10causing personal injury to himself, herself, or another in the
11near future by having in his or her custody or control, owning,
12purchasing, possessing, or receiving a firearm. The petition
13shall also describe the number, types, and locations of any
14firearms presently believed by the petitioner to be possessed
15or controlled by the respondent.
16    (b) Upon receipt of a petition for a one-year lethal
17violence order of protection, the court shall order a hearing
18within 30 days.
19    (c) In determining whether to issue a lethal violence order
20of protection under this Section, the court shall consider
21evidence of:
22        (1) A recent threat of violence or act of violence by
23    the respondent directed toward himself, herself, or
24    another.
25        (2) A violation of an emergency order of protection

 

 

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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        (3) 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    (d) In determining whether to issue a lethal violence order
12of protection under this Section, the court may consider
13evidence including, 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) Evidence of recent acquisition of firearms,
24    ammunition, or other deadly weapons.
25    (e) At the hearing, the petitioner shall have the burden of
26proving, by preponderance of the evidence, that the respondent

 

 

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1poses a significant danger of personal injury to himself,
2herself, or another by having in his or her custody or control,
3owning, purchasing, possessing, or receiving a firearm.
4    (f) If the court finds that there is a preponderance of the
5evidence to issue a lethal violence order of protection, the
6court shall issue a lethal violence order of protection that
7shall be in effect for one year subject to renewal under
8Section 45 of this Act or termination under that Section.
9    (g) A one-year lethal violence order of protection shall
10require:
11        (1) the respondent to refrain from having in his or her
12    custody or control, owning, purchasing, possessing or
13    receiving additional firearms for the duration of the
14    order;
15        (2) the respondent to turn over to the local law
16    enforcement agency any firearm or Firearm Owner's
17    Identification Card and concealed carry license in his or
18    her possession. The local law enforcement agency shall
19    immediately mail the card and concealed carry license to
20    the Department of State Police Firearm Owner's
21    Identification Card Office for safekeeping. The firearm or
22    firearms and Firearm Owner's Identification Card and
23    concealed carry license, if unexpired shall at the
24    respondent's request, be returned to the respondent after
25    the lethal violence order of protection is terminated or
26    expired. It is the respondent's responsibility to notify

 

 

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1    the Department of State Police Firearm Owner's
2    Identification Card Office; and
3        (3) any law-enforcement agency to forthwith search for
4    and seize firearms of the respondent upon probable cause
5    that the respondent has possession of a firearm, and
6    petitioner can describe, with sufficient particularity,
7    the location of the firearm or firearms.
8    (h) Upon expiration of the period of safekeeping, if the
9firearms or Firearm Owner's Identification Card cannot be
10returned to respondent because respondent cannot be located,
11fails to respond to requests to retrieve the firearms, or is
12not lawfully eligible to possess a firearm, upon petition from
13the local law enforcement agency, the court may order the local
14law enforcement agency to destroy the firearms, use the
15firearms for training purposes, or for any other application as
16deemed appropriate by the local law enforcement agency.
17    (i) If the court does not issue a lethal violence order of
18protection at the hearing, the court shall dissolve any
19emergency lethal violence order of protection then in effect.
20    (j) When the court issues a lethal violence order of
21protection under this Section, the court shall inform the
22respondent that he or she is entitled to one hearing during the
23period of the order to request a termination of the order,
24under Section 45 of this Act, and shall provide the respondent
25with a form to request a hearing.
 

 

 

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1    Section 45. Termination and renewal.
2    (a) A person subject to a lethal violence order of
3protection issued under this Act may submit one written request
4at any time during the effective period of the order for a
5hearing to terminate the order.
6        (1) The respondent shall have the burden of proving by
7    a preponderance of the evidence that the respondent does
8    not pose a danger of causing personal injury to himself,
9    herself, or another in the near future by having in his or
10    her custody or control, owning, purchasing, possessing, or
11    receiving a firearm.
12        (2) If the court finds after the hearing that the
13    respondent has met his or her burden, the court shall
14    terminate the order.
15    (b) A petitioner may request a renewal of a lethal violence
16order of protection at any time within the 3 months before the
17expiration of a lethal violence order of protection.
18        (1) A court shall, after notice and a hearing, renew a
19    lethal violence order of protection issued under this part
20    if the petitioner proves, by a preponderance of the
21    evidence, that the respondent continues to pose a danger of
22    causing personal injury to himself, herself, or another in
23    the near future by having in his or her custody or control,
24    owning, purchasing, possessing, or receiving a firearm.
25        (2) In determining whether to renew a lethal violence
26    order of protection issued under this Act, the court shall

 

 

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1    consider evidence of the facts identified in subsection (c)
2    of Section 40 of this Act and any other evidence of an
3    increased risk for violence, including, but not limited to,
4    evidence of any of the factors identified in subsection (d)
5    of Section 40 of this Act.
6        (3) At the hearing, the petitioner shall have the
7    burden of proving, by a preponderance of the evidence that
8    the respondent continues to pose a danger of causing
9    personal injury to himself, herself, or another in the near
10    future by having in his or her custody or control, owning,
11    purchasing, possessing, or receiving a firearm.
12        (4) The renewal of a lethal violence order of
13    protection issued under this Section shall be in effect for
14    one year, subject to termination by further order of the
15    court at a hearing held under this Section and further
16    renewal by further order of the court under this Section.
 
17    Section 50. Notice of orders.
18    (a) Entry and issuance. Upon issuance of any lethal
19violence order of protection, the clerk shall immediately, or
20on the next court day if an emergency lethal violence order of
21protection is issued in accordance with Section 35 of this Act
22(emergency lethal violence order of protection), (i) enter the
23order on the record and file it in accordance with the circuit
24court procedures and (ii) provide a file stamped copy of the
25order to respondent, if present, and to petitioner.

 

 

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1    (b) Filing with sheriff. The clerk of the issuing judge
2shall, or the petitioner may, on the same day that a lethal
3violence order of protection is issued, file a certified copy
4of that order with the sheriff or other law enforcement
5officials charged with maintaining Department of State Police
6records or charged with serving the order upon respondent. If
7the order was issued in accordance with Section 35 of this Act
8(emergency lethal violence order of protection), the clerk
9shall on the next court day, file a certified copy of the order
10with the sheriff or other law enforcement officials charged
11with maintaining Department of State Police records.
12    (c) Service by sheriff. Unless respondent was present in
13court when the order was issued, the sheriff, other law
14enforcement official, or special process server shall promptly
15serve that order upon respondent and file proof of the service,
16in the manner provided for service of process in civil
17proceedings. Instead of serving the order upon the respondent,
18however, the sheriff, other law enforcement official, special
19process server, or other persons defined in Section 112A-22.10
20of the Criminal Code of 1963 may serve the respondent with a
21short form notification as provided in that Section. If process
22has not yet been served upon the respondent, it shall be served
23with the order or short form notification if the service is
24made by the sheriff, other law enforcement official, or special
25process server. A single fee may be charged for service of an
26order obtained in circuit court, or for service of the order

 

 

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1together with process, unless waived or deferred under
2subsection (c) of Section 10 of this Act.
3    (d) Any order renewing or terminating any lethal violence
4order of protection shall be promptly recorded, issued, and
5served as provided in this Section.
 
6    Section 55. Data maintenance by law enforcement agencies.
7    (a) All sheriffs shall furnish to the Department of State
8Police, daily, in the form and detail the Department requires,
9copies of any recorded lethal violence order of protection
10issued by the court, and any foreign orders of protection filed
11by the clerk of the court, and transmitted to the sheriff by
12the clerk of the court under Section 50. Each lethal violence
13order of protection shall be entered in the Law Enforcement
14Agencies Data System (LEADS) on the same day it is issued by
15the court. If an emergency lethal violence order of protection
16was issued in accordance with Section 35 of this Act, the order
17shall be entered in the Law Enforcement Agencies Data System
18(LEADS) as soon as possible after receipt from the clerk.
19    (b) The Department of State Police shall maintain a
20complete and systematic record and index of all valid and
21recorded lethal violence orders of protection issued or filed
22under this Act. The data shall be used to inform all
23dispatchers and law enforcement officers at the scene of a
24violation of lethal violence order of protection of the
25effective dates and terms of any recorded order of protection.

 

 

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1    (c) The data, records and transmittals required under this
2Section shall pertain to any valid emergency or one-year lethal
3violence order of protection, whether issued in a civil or
4criminal proceeding or authorized under the laws of another
5state, tribe, or United States territory.
 
6    Section 60. Filing of a lethal violence order of protection
7issued by another state.
8    (a) A person entitled to protection under a lethal violence
9order of protection or similar order issued by the court of
10another state, tribe, or United States territory may file a
11certified copy of the lethal violence order of protection with
12the clerk of the court in a judicial circuit in which the
13person believes that enforcement may be necessary.
14    (b) The clerk shall:
15        (1) treat the foreign lethal violence order of
16    protection in the same manner as a judgment of the circuit
17    court for any county of this State in accordance with the
18    provisions of the Uniform Enforcement of Foreign Judgments
19    Act, except that the clerk shall not mail notice of the
20    filing of the foreign order to the respondent named in the
21    order; and
22        (2) on the same day that a foreign lethal violence
23    order of protection is filed, file a certified copy of that
24    order with the sheriff or other law enforcement officials
25    charged with maintaining Department of State Police

 

 

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1    records as set forth in Section 55 of this Act.
2    (c) Neither residence in this State nor filing of a foreign
3lethal violence order of protection shall be required for
4enforcement of the order by this State. Failure to file the
5foreign order shall not be an impediment to its treatment in
6all respects as an Illinois lethal violence order of
7protection.
8    (d) The clerk shall not charge a fee to file a foreign
9order of protection under this Section.
 
10    Section 65. Enforcement; sanctions for violation of order.
11    (a) A respondent who knowingly violates a lethal violence
12order of protection is guilty of a Class A misdemeanor.
13Prosecution for a violation of a lethal violence order of
14protection shall not bar concurrent prosecution for any other
15crime, including any crime that may have been committed at the
16time of the violation of the lethal violence order of
17protection.
18    (b) A petitioner who files a petition for a lethal violence
19order of protection knowing the information in the petition to
20be false is guilty of a Class A misdemeanor.
 
21    Section 70. Non-preclusion of remedies. Nothing in this Act
22shall preclude a petitioner or law-enforcement officer from
23removing weapons under other authority, or filing criminal
24charges when probable cause exists.
 

 

 

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1    Section 135. The Firearm Owners Identification Card Act is
2amended by changing Section 8.2 as follows:
 
3    (430 ILCS 65/8.2)
4    Sec. 8.2. Firearm Owner's Identification Card denial or
5revocation. The Department of State Police shall deny an
6application or shall revoke and seize a Firearm Owner's
7Identification Card previously issued under this Act if the
8Department finds that the applicant or person to whom such card
9was issued is or was at the time of issuance subject to an
10existing order of protection or lethal violence order of
11protection.
12(Source: P.A. 96-701, eff. 1-1-10.)
 
13    Section 140. The Firearm Concealed Carry Act is amended by
14changing Section 70 as follows:
 
15    (430 ILCS 66/70)
16    Sec. 70. Violations.
17    (a) A license issued or renewed under this Act shall be
18revoked if, at any time, the licensee is found to be ineligible
19for a license under this Act or the licensee no longer meets
20the eligibility requirements of the Firearm Owners
21Identification Card Act.
22    (b) A license shall be suspended if an order of protection,

 

 

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1including an emergency order of protection, plenary order of
2protection, or interim order of protection under Article 112A
3of the Code of Criminal Procedure of 1963 or under the Illinois
4Domestic Violence Act of 1986, or if a lethal violence order of
5protection, including an emergency lethal violence order of
6protection, under the Lethal Violence Order of Protection Act,
7is issued against a licensee for the duration of the order, or
8if the Department is made aware of a similar order issued
9against the licensee in any other jurisdiction. If an order of
10protection is issued against a licensee, the licensee shall
11surrender the license, as applicable, to the court at the time
12the order is entered or to the law enforcement agency or entity
13serving process at the time the licensee is served the order.
14The court, law enforcement agency, or entity responsible for
15serving the order of protection shall notify the Department
16within 7 days and transmit the license to the Department.
17    (c) A license is invalid upon expiration of the license,
18unless the licensee has submitted an application to renew the
19license, and the applicant is otherwise eligible to possess a
20license under this Act.
21    (d) A licensee shall not carry a concealed firearm while
22under the influence of alcohol, other drug or drugs,
23intoxicating compound or combination of compounds, or any
24combination thereof, under the standards set forth in
25subsection (a) of Section 11-501 of the Illinois Vehicle Code.
26    A licensee in violation of this subsection (d) shall be

 

 

SB1864- 18 -LRB099 09505 RLC 29713 b

1guilty of a Class A misdemeanor for a first or second violation
2and a Class 4 felony for a third violation. The Department may
3suspend a license for up to 6 months for a second violation and
4shall permanently revoke a license for a third violation.
5    (e) Except as otherwise provided, a licensee in violation
6of this Act shall be guilty of a Class B misdemeanor. A second
7or subsequent violation is a Class A misdemeanor. The
8Department may suspend a license for up to 6 months for a
9second violation and shall permanently revoke a license for 3
10or more violations of Section 65 of this Act. Any person
11convicted of a violation under this Section shall pay a $150
12fee to be deposited into the Mental Health Reporting Fund, plus
13any applicable court costs or fees.
14    (f) A licensee convicted or found guilty of a violation of
15this Act who has a valid license and is otherwise eligible to
16carry a concealed firearm shall only be subject to the
17penalties under this Section and shall not be subject to the
18penalties under Section 21-6, paragraph (4), (8), or (10) of
19subsection (a) of Section 24-1, or subparagraph (A-5) or (B-5)
20of paragraph (3) of subsection (a) of Section 24-1.6 of the
21Criminal Code of 2012. Except as otherwise provided in this
22subsection, nothing in this subsection prohibits the licensee
23from being subjected to penalties for violations other than
24those specified in this Act.
25    (g) A licensee whose license is revoked, suspended, or
26denied shall, within 48 hours of receiving notice of the

 

 

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1revocation, suspension, or denial, surrender his or her
2concealed carry license to the local law enforcement agency
3where the person resides. The local law enforcement agency
4shall provide the licensee a receipt and transmit the concealed
5carry license to the Department of State Police. If the
6licensee whose concealed carry license has been revoked,
7suspended, or denied fails to comply with the requirements of
8this subsection, the law enforcement agency where the person
9resides may petition the circuit court to issue a warrant to
10search for and seize the concealed carry license in the
11possession and under the custody or control of the licensee
12whose concealed carry license has been revoked, suspended, or
13denied. The observation of a concealed carry license in the
14possession of a person whose license has been revoked,
15suspended, or denied constitutes a sufficient basis for the
16arrest of that person for violation of this subsection. A
17violation of this subsection is a Class A misdemeanor.
18    (h) A license issued or renewed under this Act shall be
19revoked if, at any time, the licensee is found ineligible for a
20Firearm Owner's Identification Card, or the licensee no longer
21possesses a valid Firearm Owner's Identification Card. A
22licensee whose license is revoked under this subsection (h)
23shall surrender his or her concealed carry license as provided
24for in subsection (g) of this Section.
25    This subsection shall not apply to a person who has filed
26an application with the State Police for renewal of a Firearm

 

 

SB1864- 20 -LRB099 09505 RLC 29713 b

1Owner's Identification Card and who is not otherwise ineligible
2to obtain a Firearm Owner's Identification Card.
3    (i) A certified firearms instructor who knowingly provides
4or offers to provide a false certification that an applicant
5has completed firearms training as required under this Act is
6guilty of a Class A misdemeanor. A person guilty of a violation
7of this subsection (i) is not eligible for court supervision.
8The Department shall permanently revoke the firearms
9instructor certification of a person convicted under this
10subsection (i).
11(Source: P.A. 98-63, eff. 7-9-13; 98-756, eff. 7-16-14; 98-899,
12eff. 8-15-14.)

 

 

SB1864- 21 -LRB099 09505 RLC 29713 b

1 INDEX
2 Statutes amended in order of appearance
3    New Act
4    430 ILCS 65/8.2
5    430 ILCS 66/70