Full Text of SB0929 101st General Assembly
SB0929sam001 101ST GENERAL ASSEMBLY | Sen. Chuck Weaver Filed: 4/5/2019
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| 1 | | AMENDMENT TO SENATE BILL 929
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 929 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Firearms Restraining Order Act is amended | 5 | | by changing Sections 35 and 40 as follows: | 6 | | (430 ILCS 67/35)
| 7 | | Sec. 35. Ex parte orders and emergency hearings.
| 8 | | (a) A petitioner may request an emergency firearms | 9 | | restraining order by filing an affidavit or verified pleading | 10 | | alleging that the respondent poses an immediate and present | 11 | | danger of causing personal injury to himself, herself, or | 12 | | another by having in his or her custody or control, purchasing, | 13 | | possessing, or receiving a firearm. The petition shall also | 14 | | describe the type and location of any firearm or firearms | 15 | | presently believed by the petitioner to be possessed or | 16 | | controlled by the respondent.
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| 1 | | (b) If the respondent is alleged to pose an immediate and | 2 | | present danger of causing personal injury to an intimate | 3 | | partner, or an intimate partner is alleged to have been the | 4 | | target of a threat or act of violence by the respondent, the | 5 | | petitioner shall make a good faith effort to provide notice to | 6 | | any and all intimate partners of the respondent. The notice | 7 | | must include that the petitioner intends to petition the court | 8 | | for an emergency firearms restraining order, and, if the | 9 | | petitioner is a law enforcement officer, referral to relevant | 10 | | domestic violence or stalking advocacy or counseling | 11 | | resources, if appropriate. The petitioner Petitioner shall | 12 | | attest to having provided the notice in the filed affidavit or | 13 | | verified pleading. If , after making a good faith effort , the | 14 | | petitioner is unable to provide notice to any or all intimate | 15 | | partners, the affidavit or verified pleading should describe | 16 | | what efforts were made. | 17 | | (c) Every person who files a petition for an emergency | 18 | | firearms restraining order, knowing the information provided | 19 | | to the court at any hearing or in the affidavit or verified | 20 | | pleading to be false, is guilty of perjury under Section 32-2 | 21 | | of the Criminal Code of 2012.
| 22 | | (d) An emergency firearms restraining order shall be issued | 23 | | on an ex parte basis, that is, without notice to the | 24 | | respondent.
| 25 | | (e) An emergency hearing held on an ex parte basis shall be | 26 | | held the same day that the petition is filed or the next day |
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| 1 | | that the court is in session.
| 2 | | (f) If a circuit or associate judge finds probable cause to | 3 | | believe that the respondent poses an immediate and present | 4 | | danger of causing personal injury to himself, herself, or | 5 | | another by having in his or her custody or control, purchasing, | 6 | | possessing, or receiving a firearm , the circuit or associate | 7 | | judge shall issue an emergency order.
| 8 | | (f-5) If the court issues an emergency firearms restraining | 9 | | order, it shall, upon a finding of probable cause that the | 10 | | respondent possesses firearms, issue a search warrant | 11 | | directing a law enforcement agency to seize the respondent's | 12 | | firearms. The court may, as part of that warrant, direct the | 13 | | law enforcement agency to search the respondent's residence and | 14 | | other places where the court finds there is probable cause to | 15 | | believe he or she is likely to possess the firearms. | 16 | | (g) An emergency firearms restraining order shall require:
| 17 | | (1) the respondent to refrain from having in his or her | 18 | | custody or control, purchasing, possessing, or receiving | 19 | | additional firearms for the duration of the order;
and | 20 | | (2) the respondent to turn over to the local law | 21 | | enforcement agency any Firearm Owner's Identification Card | 22 | | and concealed carry license in his or her possession. The | 23 | | local law enforcement agency shall immediately mail the | 24 | | card and concealed carry license to the Department of State | 25 | | Police Firearm Services Bureau for safekeeping. The | 26 | | firearm or firearms and Firearm Owner's Identification |
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| 1 | | Card and concealed carry license, if unexpired, shall be | 2 | | returned to the respondent after the firearms restraining | 3 | | order is terminated , or expired , or not granted within 7 | 4 | | days . | 5 | | (h) Except as otherwise provided in subsection (h-5) of | 6 | | this Section, upon expiration of the period of safekeeping, if | 7 | | the firearms or Firearm Owner's Identification Card and | 8 | | concealed carry license cannot be returned to the respondent | 9 | | because the respondent cannot be located, fails to respond to | 10 | | requests to retrieve the firearms, or is not lawfully eligible | 11 | | to possess a firearm, upon petition from the local law | 12 | | enforcement agency, the court may order the local law | 13 | | enforcement agency to destroy the firearms, use the firearms | 14 | | for training purposes, or use the firearms for any other | 15 | | application as deemed appropriate by the local law enforcement | 16 | | agency.
| 17 | | (h-5) A respondent whose Firearm Owner's Identification | 18 | | Card has been revoked or suspended may petition the court, if | 19 | | the petitioner is present in court or has notice of the | 20 | | respondent's petition, to transfer the respondent's firearm to | 21 | | a person who is lawfully able to possess the firearm if the | 22 | | person does not reside at the same address as the respondent. | 23 | | Notice of the petition shall be served upon the person | 24 | | protected by the emergency firearms restraining order. While | 25 | | the order is in effect, the transferee who receives the | 26 | | respondent's firearms must swear or affirm by affidavit that he |
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| 1 | | or she shall not transfer the firearm to the respondent or to | 2 | | anyone residing in the same residence as the respondent. | 3 | | (h-6) If a person other than the respondent claims title to | 4 | | any firearms surrendered under this Section, he or she may | 5 | | petition the court, if the petitioner is present in court or | 6 | | has notice of the petition, to have the firearm returned to him | 7 | | or her. If the court determines that person to be the lawful | 8 | | owner of the firearm, the firearm shall be returned to him or | 9 | | her, provided that: | 10 | | (1) the firearm is removed from the respondent's | 11 | | custody, control, or possession and the lawful owner agrees | 12 | | to store the firearm in a manner such that the respondent | 13 | | does not have access to or control of the firearm; and | 14 | | (2) the firearm is not otherwise unlawfully possessed | 15 | | by the owner. | 16 | | The person petitioning for the return of his or her firearm | 17 | | must swear or affirm by affidavit that he or she: (i) is the | 18 | | lawful owner of the firearm; (ii) shall not transfer the | 19 | | firearm to the respondent; and (iii) will store the firearm in | 20 | | a manner that the respondent does not have access to or control | 21 | | of the firearm. | 22 | | (i) In accordance with subsection (e) of this Section, the | 23 | | court shall schedule a full hearing as soon as possible, but no | 24 | | longer than 14 days from the issuance of an ex parte firearms | 25 | | restraining order, to determine if a 6-month firearms | 26 | | restraining order shall be issued. The court may extend an ex |
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| 1 | | parte order as needed, but not to exceed 14 days, to effectuate | 2 | | service of the order or if necessary to continue protection. | 3 | | The court may extend the order for a greater length of time by | 4 | | mutual agreement of the parties.
| 5 | | (Source: P.A. 100-607, eff. 1-1-19; revised 10-2-18.) | 6 | | (430 ILCS 67/40)
| 7 | | Sec. 40. Six-month Six month orders.
| 8 | | (a) A petitioner may request a 6-month firearms restraining | 9 | | order by filing an affidavit or verified pleading alleging that | 10 | | the respondent poses a significant danger of causing personal | 11 | | injury to himself, herself, or another in the near future by | 12 | | having in his or her custody or control, purchasing, | 13 | | possessing, or receiving a firearm. The petition shall also | 14 | | describe the number, types, and locations of any firearms | 15 | | presently believed by the petitioner to be possessed or | 16 | | controlled by the respondent.
| 17 | | (b) If the respondent is alleged to pose a significant | 18 | | danger of causing personal injury to an intimate partner, or an | 19 | | intimate partner is alleged to have been the target of a threat | 20 | | or act of violence by the respondent, the petitioner shall make | 21 | | a good faith effort to provide notice to any and all intimate | 22 | | partners of the respondent. The notice must include that the | 23 | | petitioner intends to petition the court for a 6-month firearms | 24 | | restraining order, and, if the petitioner is a law enforcement | 25 | | officer, referral to relevant domestic violence or stalking |
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| 1 | | advocacy or counseling resources, if appropriate. The | 2 | | petitioner Petitioner shall attest to having provided the | 3 | | notice in the filed affidavit or verified pleading. If , after | 4 | | making a good faith effort , the petitioner is unable to provide | 5 | | notice to any or all intimate partners, the affidavit or | 6 | | verified pleading should describe what efforts were made. | 7 | | (c) Every person who files a petition for a 6-month | 8 | | firearms restraining order, knowing the information provided | 9 | | to the court at any hearing or in the affidavit or verified | 10 | | pleading to be false, is guilty of perjury under Section 32-2 | 11 | | of the Criminal Code of 2012.
| 12 | | (d) Upon receipt of a petition for a 6-month firearms | 13 | | restraining order, the court shall order a hearing within 30 | 14 | | days.
| 15 | | (e) In determining whether to issue a firearms restraining | 16 | | order under this Section, the court shall consider evidence | 17 | | including, but not limited to, the following:
| 18 | | (1) The unlawful and reckless use, display, or | 19 | | brandishing of a firearm by the respondent.
| 20 | | (2) The history of use, attempted use, or threatened | 21 | | use of physical force by the respondent against another | 22 | | person.
| 23 | | (3) Any prior arrest of the respondent for a felony | 24 | | offense. | 25 | | (4) Evidence of the abuse of controlled substances or | 26 | | alcohol by the respondent. |
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| 1 | | (5) A recent threat of violence or act of violence by | 2 | | the respondent directed toward himself, herself, or | 3 | | another. | 4 | | (6) A violation of an emergency order of protection | 5 | | issued under Section 217 of the Illinois Domestic Violence | 6 | | Act of 1986 or Section 112A-17 of the Code of Criminal | 7 | | Procedure of 1963 or of an order of protection issued under | 8 | | Section 214 of the Illinois Domestic Violence Act of 1986 | 9 | | or Section 112A-14 of the Code of Criminal Procedure of | 10 | | 1963.
| 11 | | (7) A pattern of violent acts or violent threats, | 12 | | including, but not limited to, threats of violence or acts | 13 | | of violence by the respondent directed toward himself, | 14 | | herself, or another. | 15 | | (f) At the hearing, the petitioner shall have the burden of | 16 | | proving, by clear and convincing evidence, that the respondent | 17 | | poses a significant danger of personal injury to himself, | 18 | | herself, or another by having in his or her custody or control, | 19 | | purchasing, possessing, or receiving a firearm. | 20 | | (g) If the court finds that there is clear and convincing | 21 | | evidence to issue a firearms restraining order, the court shall | 22 | | issue a firearms restraining order that shall be in effect for | 23 | | 6 months subject to renewal under Section 45 of this Act or | 24 | | termination under that Section. | 25 | | (g-5) If the court issues a 6-month firearms restraining | 26 | | order, it shall, upon a finding of probable cause that the |
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| 1 | | respondent possesses firearms, issue a search warrant | 2 | | directing a law enforcement agency to seize the respondent's | 3 | | firearms. The court may, as part of that warrant, direct the | 4 | | law enforcement agency to search the respondent's residence and | 5 | | other places where the court finds there is probable cause to | 6 | | believe he or she is likely to possess the firearms. | 7 | | (h) A 6-month firearms restraining order shall require: | 8 | | (1) the respondent to refrain from having in his or her | 9 | | custody or control, purchasing, possessing , or receiving | 10 | | additional firearms for the duration of the 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 | 23 | | this Section, upon expiration of the period of safekeeping, if | 24 | | the firearms or Firearm Owner's Identification Card cannot be | 25 | | returned to the respondent because the respondent cannot be | 26 | | located, fails to respond to requests to retrieve the firearms, |
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| 1 | | or is not lawfully eligible to possess a firearm, upon petition | 2 | | from the local law enforcement agency, the court may order the | 3 | | local law enforcement agency to destroy the firearms, use the | 4 | | firearms for training purposes, or use the firearms for any | 5 | | other application as deemed appropriate by the local law | 6 | | enforcement agency. | 7 | | (i-5) A respondent whose Firearm Owner's Identification | 8 | | Card has been revoked or suspended may petition the court, if | 9 | | the petitioner is present in court or has notice of the | 10 | | respondent's petition, to transfer the respondent's firearm to | 11 | | a person who is lawfully able to possess the firearm if the | 12 | | person does not reside at the same address as the respondent. | 13 | | Notice of the petition shall be served upon the person | 14 | | protected by the emergency firearms restraining order. While | 15 | | the order is in effect, the transferee who receives the | 16 | | respondent's firearms must swear or affirm by affidavit that he | 17 | | or she shall not transfer the firearm to the respondent or to | 18 | | anyone any one residing in the same residence as the | 19 | | respondent. | 20 | | (i-6) If a person other than the respondent claims title to | 21 | | any firearms surrendered under this Section, he or she may | 22 | | petition the court, if the petitioner is present in court or | 23 | | has notice of the petition, to have the firearm returned to him | 24 | | or her. If the court determines that person to be the lawful | 25 | | owner of the firearm, the firearm shall be returned to him or | 26 | | her, provided that: |
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| 1 | | (1) the firearm is removed from the respondent's | 2 | | custody, control, or possession and the lawful owner agrees | 3 | | to store the firearm in a manner such that the respondent | 4 | | does not have access to or control of the 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 firearm | 8 | | must swear or affirm by affidavit that he or she: (i) is the | 9 | | lawful owner of the firearm; (ii) shall not transfer the | 10 | | firearm to the respondent; and (iii) will store the firearm in | 11 | | a manner that the respondent does not have access to or control | 12 | | of the firearm. | 13 | | (j) If the court does not issue a firearms restraining | 14 | | order at the hearing, the court shall dissolve any emergency | 15 | | firearms restraining order then in effect. | 16 | | (k) When the court issues a firearms restraining order | 17 | | under this Section, the court shall inform the respondent that | 18 | | he or she is entitled to one hearing during the period of the | 19 | | order to request a termination of the order, under Section 45 | 20 | | of this Act, and shall provide the respondent with a form to | 21 | | request a hearing.
| 22 | | (Source: P.A. 100-607, eff. 1-1-19; revised 10-2-18.)
| 23 | | Section 99. Effective date. This Act takes effect upon | 24 | | becoming law.".
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