102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
SB0087

 

Introduced 2/3/2021, by Sen. Win Stoller

 

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.


LRB102 04162 RLC 14179 b

 

 

A BILL FOR

 

SB0087LRB102 04162 RLC 14179 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
5by changing 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
17respondent.
18    (b) If the respondent is alleged to pose an immediate and
19present danger of causing personal injury to an intimate
20partner, or an intimate partner is alleged to have been the
21target of a threat or act of violence by the respondent, the
22petitioner shall make a good faith effort to provide notice to
23any and all intimate partners of the respondent. The notice

 

 

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

 

 

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1associate judge shall issue an emergency order.
2    (f-5) If the court issues an emergency firearms
3restraining order, it shall, based upon written application
4filed by the State's Attorney or assistant State's Attorney
5supported by evidence submitted under oath or affirmation,
6upon a finding of probable cause that the respondent possesses
7firearms, issue a search warrant directing a law enforcement
8agency to seize the respondent's firearms. The court may, as
9part of that warrant, direct the law enforcement agency to
10search the respondent's residence and other places where the
11court finds there is probable cause to believe he or she is
12likely to possess the firearms.
13    (g) An emergency firearms restraining order shall require:
14        (1) the respondent to refrain from having in his or
15    her custody or control, purchasing, possessing, or
16    receiving additional firearms for the duration of the
17    order; and
18        (2) the respondent to turn over to the local law
19    enforcement agency any Firearm Owner's Identification Card
20    and concealed carry license in his or her possession. The
21    local law enforcement agency shall immediately mail the
22    card and concealed carry license to the Department of
23    State Police Firearm Services Bureau for safekeeping. The
24    firearm or firearms and Firearm Owner's Identification
25    Card and concealed carry license, if unexpired, shall be
26    returned to the respondent after the firearms restraining

 

 

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

 

 

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

 

 

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1service of the order or if necessary to continue protection.
2The court may extend the order for a greater length of time by
3mutual agreement of the parties.
4(Source: P.A. 100-607, eff. 1-1-19; 101-81, eff. 7-12-19.)
 
5    (430 ILCS 67/40)
6    Sec. 40. Six-month orders.
7    (a) A petitioner may request a 6-month firearms
8restraining order 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,
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) If the respondent is alleged to pose a significant
17danger of causing personal injury to an intimate partner, or
18an intimate partner is alleged to have been the target of a
19threat or act of violence by the respondent, the petitioner
20shall make a good faith effort to provide notice to any and all
21intimate partners of the respondent. The notice must include
22that the petitioner intends to petition the court for a
236-month firearms restraining order, and, if the petitioner is
24a law enforcement officer, referral to relevant domestic
25violence or stalking advocacy or counseling resources, if

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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1    custody, control, or possession and the lawful owner
2    agrees to store the firearm in a manner such that the
3    respondent does not have access to or control of the
4    firearm; and
5        (2) the firearm is not otherwise unlawfully possessed
6    by the owner.
7    The person petitioning for the return of his or her
8firearm must swear or affirm by affidavit that he or she: (i)
9is the lawful owner of the firearm; (ii) shall not transfer the
10firearm to the respondent; and (iii) will store the firearm in
11a manner that the respondent does not have access to or control
12of the firearm.
13    (j) If the court does not issue a firearms restraining
14order at the hearing, the court shall dissolve any emergency
15firearms restraining order then in effect.
16    (k) When the court issues a firearms restraining order
17under this Section, the court shall inform the respondent that
18he or she is entitled to one hearing during the period of the
19order to request a termination of the order, under Section 45
20of this Act, and shall provide the respondent with a form to
21request a hearing.
22(Source: P.A. 100-607, eff. 1-1-19; 101-81, eff. 7-12-19.)
 
23    Section 99. Effective date. This Act takes effect upon
24becoming law.