100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB5849

 

Introduced , by Rep. David McSweeney and Margo McDermed

 

SYNOPSIS AS INTRODUCED:
 
See Index

    Creates the Gun Violence Protection Order Act. Provides that a circuit court may issue a warrant to search for and seize a firearm in the possession of a person who is believed to pose a clear and present danger to himself, herself, or to others if: (1) a law enforcement officer provides the court a sworn affidavit; (2) the affidavit specifically describes the location of the firearm; and (3) the circuit court determines that probable cause exists to believe that the person poses a clear and present danger to himself, herself, or others and is in possession of a firearm. Provides that if a law enforcement officer seizes a firearm from a person whom the law enforcement officer believes to pose a clear and present danger to himself, herself, or to others without obtaining a warrant, the law enforcement officer shall submit to the circuit court having jurisdiction over the person believed to pose a clear and present danger to himself, herself, or to others, a written statement under oath or affirmation describing the basis for the law enforcement officer's belief that the person poses a clear and present danger to himself, herself, or to others. Provides that not later than 14 days after a return is filed or a written statement is submitted, the court shall conduct a hearing to determine whether the seized firearm should be: (1) returned to the person from whom the firearm was seized; or (2) retained by the law enforcement agency having custody of the firearm. Repeals the Firearm Seizure Act on January 1, 2019. Makes other changes. Effective January 1, 2019.


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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 1. Short title. This Act may be cited as the Gun
5Violence Protection Order Act.
 
6    Section 5. Definitions.In this Act:
7    "Clear and present danger" has the same meaning ascribed to
8the term in Section 1.1 of the Firearm Owners Identification
9Card Act.
10    "Clinical psychologist" means a person licensed by the
11Department of Financial and Professional Regulation under the
12Clinical Psychologist Licensing Act.
13    "Determined to pose a clear and present danger to himself,
14herself, or to others by the qualified examiner, psychiatrist,
15or clinical psychologist" means in the professional opinion of
16the qualified examiner, psychiatrist, or clinical psychologist
17a person poses a clear and present danger.
18    "Firearm" has the same meaning ascribed to the term in
19Section 1.1 of the Firearm Owners Identification Card Act.
20    "Qualified examiner" has the same meaning ascribed to the
21term in Section 1-122 of the Mental Health and Developmental
22Disabilities Code.
23    "Psychiatrist" means any person licensed by the State to

 

 

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1practice medicine who has successfully completed a residency
2program in psychiatry accredited by either the Accreditation
3Council for Graduate Medical Education or the American
4Osteopathic Association.
 
5    Section 10. Issuance of warrant. A circuit court may issue
6a warrant to search for and seize a firearm in the possession
7of a person who is believed to pose a clear and present danger
8to himself, herself, or to others if:
9    (1) a law enforcement officer provides the court a sworn
10affidavit that:
11        (A) states why the law enforcement officer believes
12    that the person poses a clear and present danger to
13    himself, herself, or to others and is in possession of a
14    firearm; and
15        (B) describes the law enforcement officer's
16    interactions and conversations with:
17            (i) the person who is alleged to pose a clear and
18        present danger to himself, herself, or to others; or
19            (ii) another person, if the law enforcement
20        officer believes that information obtained from that
21        person is credible and reliable;
22            that have led the law enforcement officer to
23        believe that the person poses a clear and present
24        danger to himself, herself, or to others and is in
25        possession of a firearm;

 

 

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1    (2) the affidavit specifically describes the location of
2the firearm; and
3    (3) the circuit court determines that probable cause exists
4to believe that the person poses a clear and present danger to
5himself, herself, or to others and is in possession of a
6firearm.
 
7    Section 15. Seizure without warrant.
8    (a) If a law enforcement officer seizes a firearm from a
9person whom the law enforcement officer believes to pose a
10clear and present danger to himself, herself, or to others
11without obtaining a warrant, the law enforcement officer shall
12submit to the circuit court having jurisdiction over the person
13believed to pose a clear and present danger to himself,
14herself, or to others, a written statement under oath or
15affirmation describing the basis for the law enforcement
16officer's belief that the person poses a clear and present
17danger to himself, herself, or to others.
18    (b) The court shall review the written statement submitted
19under subsection (a) of this Section. The court may order a
20mental health evaluation by a qualified examiner,
21psychiatrist, or clinical psychologist. If required, a
22certificate prepared by the qualified examiner, psychiatrist,
23or clinical psychologist shall indicate that the qualified
24examiner, psychiatrist, or clinical psychologist personally
25examined the person and contain the qualified examiner's,

 

 

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1psychiatrist's, or clinical psychologist's clinical
2observations; other factual information relied upon in
3reaching a diagnosis; and a statement indicating whether the
4person has been determined to pose a clear and present danger
5to himself, herself, or to others by the qualified examiner,
6psychiatrist, clinical psychologist. If the court finds that
7probable cause exists to believe that the person poses a clear
8and present danger to himself, herself, or to others, the court
9shall order the law enforcement agency having custody of the
10firearm to retain the firearm. If the court finds that there is
11no probable cause to believe that the person poses a clear and
12present danger to himself, herself, or to others, the court
13shall order the law enforcement agency having custody of the
14firearm to return the firearm to the person.
15    (c) This Section does not authorize a law enforcement
16officer to perform a warrantless search or seizure if a warrant
17would otherwise be required.
 
18    Section 20. Service of warrant; filing of return. If a
19court issued a warrant to seize a firearm under this Act, the
20law enforcement officer who served the warrant shall, not later
21than 48 hours after the warrant was served, file a return with
22the court that:
23    (1) states that the warrant was served; and
24    (2) sets forth the time and date on which the warrant was
25served, the name and address of the person named in the

 

 

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1warrant, and the quantity and identity of any firearms seized
2by the law enforcement officer.
 
3    Section 25. Hearing to determine whether firearm should be
4returned or retained.
5    (a) Not later than 14 days after a return is filed under
6Section 20 of this Act or a written statement is submitted
7under Section 10 of this Act, the court shall conduct a hearing
8to determine whether the seized firearm should be:
9        (1) returned to the person from whom the firearm was
10    seized; or
11        (2) retained by the law enforcement agency having
12    custody of the firearm.
13    (b) The court shall set the hearing date as soon as
14possible after the return is filed under Section 20 of this
15Act. The court shall inform the prosecuting attorney and the
16person from whom the firearm was seized of the date, time, and
17location of the hearing. The court may conduct the hearing at a
18facility or other suitable place not likely to have a harmful
19effect upon the person's health or well-being.
 
20    Section 30. Burden of proof; determination.
21    (a) In a hearing conducted under Section 25 of this Act,
22the State has the burden of proving all material facts by clear
23and convincing evidence. The court may order a mental health
24evaluation by a qualified examiner, psychiatrist, or clinical

 

 

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1psychologist. If required, a certificate prepared by the
2qualified examiner, psychiatrist, or clinical psychologist
3shall indicate that the qualified examiner, psychiatrist, or
4clinical psychologist personally examined the person and
5contain the qualified examiner's, psychiatrist's, or clinical
6psychologist's clinical observations; other factual
7information relied upon in reaching a diagnosis; and a
8statement indicating whether the person has been determined to
9pose a clear and present danger to himself, herself, or to
10others by the qualified examiner, psychiatrist, clinical
11psychologist.
12    (b) If the court, in a hearing under Section 25 of this
13Act, determines that the State has proved by clear and
14convincing evidence that the person poses a clear and present
15danger to himself, herself, or to others, the court shall order
16that the law enforcement agency having custody of the seized
17firearm retain the firearm. If the court determines that the
18State has failed to prove that the person poses a clear and
19present danger to himself, herself, or to others, the court
20shall order the law enforcement agency having custody of the
21firearm to return the firearm to the person from whom it was
22seized. If the person has a Firearm Owner's Identification
23Card, the court shall revoke the Card upon the finding that the
24person poses a clear and present danger to himself, herself, or
25to others.
26    (c) If the court, in a hearing under Section 25 of this

 

 

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1Act, orders a law enforcement agency to retain a firearm, the
2law enforcement agency shall retain the firearm until the court
3orders the firearm returned or otherwise disposed of.
 
4    Section 35. Return of firearm to another owner. If the
5court, in a hearing conducted under Section 25 of this Act,
6determines that: (1) the person from whom a firearm was seized
7poses a clear and present danger to himself, herself, or to
8others; and (2) the firearm seized from the person is owned by
9another person; the court may order the law enforcement agency
10having custody of the firearm to return the firearm to the
11owner of the firearm.
 
12    Section 40. Petition for return of firearm.
13    (a) At least 180 days after the date on which a court
14orders a law enforcement agency to retain a person's firearm
15under subsection (b) of Section 30 of this Act, the person may
16petition the court for return of the firearm. Upon receipt of a
17petition, the court shall: (1) enter an order setting a date
18for a hearing on the petition; and (2) inform the prosecuting
19attorney of the date, time, and location of the hearing. The
20prosecuting attorney shall represent the State at the hearing
21on a petition under this Section.
22    (b) In a hearing on a petition under this Section, the
23person: (1) may be represented by an attorney; and (2) must
24prove by a preponderance of the evidence that the person does

 

 

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1not pose a clear and present danger to himself, herself, or to
2others. If the person is determined not determined to pose a
3clear and present danger to himself, herself, or to others, the
4court may reinstate the person's Firearm Owner's
5Identification Card and order the law enforcement agency having
6custody of the firearm to return the firearm to the person.
7    (c) If the court denies a person's petition under this
8Section, the person may not file a subsequent petition until at
9least 180 days after the date on which the court denied the
10petition.
 
11    Section 45. Destruction or disposal of firearm. If at least
125 years have passed since a court conducted the first hearing
13to retain a firearm under this Act, the court, after giving
14notice to the parties and conducting a hearing, may order the
15law enforcement agency having custody of the firearm to dispose
16of the firearm.
 
17    Section 50. Request for firearm to be auctioned.
18    (a) If a court has ordered a law enforcement agency to
19retain a person's firearm under Section 30 of this Act, the
20person may request the court to order the law enforcement
21agency to sell the firearm at auction and return the proceeds
22to the person.
23    (b) A person may make the request described in subsection
24(a) of this Section: (1) at the retention hearing described in

 

 

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1Section 45 of this Act; or (2) at any time before the retention
2hearing described in Section 45 of this Act is held.
3    (c) If a person timely requests a sale of a firearm under
4subsection (a) of this Section, the court shall order the law
5enforcement agency having custody of the firearm to sell the
6firearm at auction, unless the serial number of the firearm has
7been obliterated.
8    (d) If the court issues an order under subsection (c) of
9this Section, the court's order shall require: (1) that the
10firearm be sold not more than one year after receipt of the
11order; and (2) that the proceeds of the sale be returned to the
12person who owns the firearm. However, the law enforcement
13agency may retain not more than 8% of the sale price to pay the
14costs of the sale, including administrative costs and the
15auctioneer's fee.
 
16    Section 905. The Firearm Seizure Act is amended by adding
17Section 95 as follows:
 
18    (725 ILCS 165/95 new)
19    Sec. 95. Repeal. This Act is repealed on January 1, 2019.
 
20    Section 999. Effective date. This Act takes effect January
211, 2019.

 

 

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1 INDEX
2 Statutes amended in order of appearance
3    New Act
4    725 ILCS 165/95 new