Full Text of SB3379 101st General Assembly
SB3379 101ST GENERAL ASSEMBLY |
| | 101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020 SB3379 Introduced 2/14/2020, by Sen. Julie A. Morrison - Ann Gillespie SYNOPSIS AS INTRODUCED: |
| 430 ILCS 67/5 | | 430 ILCS 67/10 | | 430 ILCS 67/35 | | 430 ILCS 67/40 | | 430 ILCS 67/45 | |
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Amends the Firearms Restraining Order Act. Includes a former spouse or person with a child in common in the definition of "family member of the respondent". Provides that a firearms restraining order includes the seizure of ammunition. Provides that no fee shall be charged by the clerk of the court for printing petitions or orders. Provides that the petitioner shall make a good faith effort to notify recent intimate partners (rather than intimate partners) of the respondent. Provides that a return of the search warrant for searching for the respondent's firearms and ammunition shall be filed by the law enforcement agency with the court within 7 days thereafter, setting forth the time, date, and location that the search warrant was executed and what items were seized. Effective immediately.
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| | A BILL FOR |
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| 1 | | AN ACT concerning safety.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Firearms Restraining Order Act is amended by | 5 | | changing Sections 5, 10, 35, 40, and 45 as follows: | 6 | | (430 ILCS 67/5)
| 7 | | Sec. 5. Definitions.
As used in this Act: | 8 | | "Family member of the respondent" means a spouse, former | 9 | | spouse, parent, child, or step-child of the respondent, person | 10 | | with a child in common and any other person related by blood or | 11 | | present marriage to the respondent, or a person who shares a | 12 | | common dwelling with the respondent. | 13 | | "Firearms restraining order" means an order issued by the | 14 | | court, prohibiting and enjoining a named person from having in | 15 | | his or her custody or control, purchasing, possessing, or | 16 | | receiving any firearms and ammunition .
| 17 | | "Intimate partner" means a spouse, former spouse, a person | 18 | | with whom the respondent has or allegedly has a child in | 19 | | common, or a person with whom the respondent has or has had a | 20 | | dating or engagement relationship. | 21 | | "Petitioner" means: | 22 | | (1) a family member of the respondent as defined in | 23 | | this Act; or
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| 1 | | (2) a law enforcement officer
who files a petition | 2 | | alleging that the respondent poses a danger of causing | 3 | | personal injury to himself, herself, or another by having | 4 | | in his or her custody or control, purchasing, possessing, | 5 | | or receiving a firearm and ammunition . | 6 | | "Respondent" means the person alleged in the petition to | 7 | | pose a danger of causing personal injury to himself, herself, | 8 | | or another by having in his or her custody or control, | 9 | | purchasing, possessing, or receiving a firearm and ammunition .
| 10 | | (Source: P.A. 100-607, eff. 1-1-19; 101-81, eff. 7-12-19.) | 11 | | (430 ILCS 67/10)
| 12 | | Sec. 10. Commencement of action; procedure.
| 13 | | (a) An action for a firearms restraining order is commenced | 14 | | by filing a verified petition for a firearms restraining order | 15 | | in any circuit court.
| 16 | | (b) A petition for a firearms restraining order may be | 17 | | filed in any county where the respondent resides.
| 18 | | (c) No fee shall be charged by the clerk for filing, | 19 | | amending, vacating, certifying, printing, or photocopying | 20 | | petitions or orders; or for issuing alias summons; or for any | 21 | | related filing service. No fee shall be charged by the sheriff | 22 | | or other law enforcement for service by the sheriff or other | 23 | | law enforcement of a petition, rule, motion, or order in an | 24 | | action commenced under this Section. | 25 | | (d) The court shall provide, through the office of the |
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| 1 | | clerk of the court, simplified forms and clerical assistance to | 2 | | help with the writing and filing of a petition under this | 3 | | Section by any person not represented by counsel. In addition, | 4 | | that assistance may be provided by the State's Attorney.
| 5 | | (Source: P.A. 100-607, eff. 1-1-19; 101-81, eff. 7-12-19.) | 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 and ammunition . The petition | 14 | | shall also describe the type and location of any firearm or | 15 | | firearms and ammunition presently believed by the petitioner to | 16 | | be possessed or controlled by the respondent.
| 17 | | (b) If the respondent is alleged to pose an immediate and | 18 | | present danger of causing personal injury to an intimate | 19 | | partner, or an intimate partner is alleged to have been the | 20 | | target of a threat or act of violence by the respondent, the | 21 | | petitioner shall make a good faith effort to provide notice to | 22 | | any and all recent intimate partners of the respondent. The | 23 | | notice must include that the petitioner intends to petition the | 24 | | court for an emergency firearms restraining order, and, if the | 25 | | petitioner is a law enforcement officer, referral to relevant |
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| 1 | | domestic violence or stalking advocacy or counseling | 2 | | resources, if appropriate. The petitioner shall attest to | 3 | | having provided the notice in the filed affidavit or verified | 4 | | pleading. If, after making a good faith effort, the petitioner | 5 | | is unable to provide notice to any or all recent intimate | 6 | | partners, the affidavit or verified pleading should describe | 7 | | what efforts were made. | 8 | | (c) Every person who files a petition for an emergency | 9 | | firearms restraining order, knowing the information provided | 10 | | to the court at any hearing or in the affidavit or verified | 11 | | pleading to be false, is guilty of perjury under Section 32-2 | 12 | | of the Criminal Code of 2012.
| 13 | | (d) An emergency firearms restraining order shall be issued | 14 | | on an ex parte basis, that is, without notice to the | 15 | | respondent.
| 16 | | (e) An emergency hearing held on an ex parte basis shall be | 17 | | held the same day that the petition is filed or the next day | 18 | | that the court is in session.
| 19 | | (f) If a circuit or associate judge finds probable cause to | 20 | | believe that the respondent poses an immediate and present | 21 | | danger of causing personal injury to himself, herself, or | 22 | | another by having in his or her custody or control, purchasing, | 23 | | possessing, or receiving a firearm and ammunition , the circuit | 24 | | or associate judge shall issue an emergency order.
| 25 | | (f-5) If the court issues an emergency firearms restraining | 26 | | order, it shall, upon a finding of probable cause that the |
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| 1 | | respondent possesses firearms and ammunition , issue a search | 2 | | warrant directing a law enforcement agency to seize the | 3 | | respondent's firearms and ammunition . The court may, as part of | 4 | | that warrant, direct the law enforcement agency to search the | 5 | | respondent's residence and other places where the court finds | 6 | | there is probable cause to believe he or she is likely to | 7 | | possess the firearms and ammunition. A return of the search | 8 | | warrant shall be filed by the law enforcement agency with the | 9 | | court within 7 days thereafter, setting forth the time, date, | 10 | | and location that the search warrant was executed and what | 11 | | items were seized . | 12 | | (g) An emergency firearms restraining order shall require:
| 13 | | (1) the respondent to refrain from having in his or her | 14 | | custody or control, purchasing, possessing, or receiving | 15 | | additional firearms and ammunition for the duration of the | 16 | | order;
and | 17 | | (2) the respondent to turn over to the local law | 18 | | enforcement agency any Firearm Owner's Identification Card | 19 | | and concealed carry license in his or her possession. The | 20 | | local law enforcement agency shall immediately mail the | 21 | | card and concealed carry license to the Department of State | 22 | | Police Firearm Services Bureau for safekeeping. The | 23 | | firearm or firearms , ammunition, and Firearm Owner's | 24 | | Identification Card and concealed carry license, if | 25 | | unexpired, shall be returned to the respondent after the | 26 | | firearms restraining order is terminated or expired. |
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| 1 | | (h) Except as otherwise provided in subsection (h-5) of | 2 | | this Section, upon expiration of the period of safekeeping, if | 3 | | the firearms or Firearm Owner's Identification Card , | 4 | | ammunition, and concealed carry license cannot be returned to | 5 | | the respondent because the respondent cannot be located, fails | 6 | | to respond to requests to retrieve the firearms and ammunition , | 7 | | or is not lawfully eligible to possess a firearm and | 8 | | ammunition , upon petition from the local law enforcement | 9 | | agency, the court may order the local law enforcement agency to | 10 | | destroy the firearms and ammunition , use the firearms and | 11 | | ammunition for training purposes, or use the firearms and | 12 | | ammunition for any other application as deemed appropriate by | 13 | | the local law enforcement agency.
| 14 | | (h-5) A respondent whose Firearm Owner's Identification | 15 | | Card has been revoked or suspended may petition the court, if | 16 | | the petitioner is present in court or has notice of the | 17 | | respondent's petition, to transfer the respondent's firearm | 18 | | and ammunition to a person who is lawfully able to possess the | 19 | | firearm and ammunition if the person does not reside at the | 20 | | same address as the respondent. Notice of the petition shall be | 21 | | served upon the person protected by the emergency firearms | 22 | | restraining order. While the order is in effect, the transferee | 23 | | who receives the respondent's firearms and ammunition must | 24 | | swear or affirm by affidavit that he or she shall not transfer | 25 | | the firearm and ammunition to the respondent or to anyone | 26 | | residing in the same residence as the respondent. |
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| 1 | | (h-6) If a person other than the respondent claims title to | 2 | | any firearms surrendered under this Section, he or she may | 3 | | petition the court, if the petitioner is present in court or | 4 | | has notice of the petition, to have the firearm returned to him | 5 | | or her. If the court determines that person to be the lawful | 6 | | owner of the firearm, the firearm shall be returned to him or | 7 | | her, provided that: | 8 | | (1) the firearm is removed from the respondent's | 9 | | custody, control, or possession and the lawful owner agrees | 10 | | to store the firearm in a manner such that the respondent | 11 | | does not have access to or control of the firearm; and | 12 | | (2) the firearm is not otherwise unlawfully possessed | 13 | | by the owner. | 14 | | The person petitioning for the return of his or her firearm | 15 | | must swear or affirm by affidavit that he or she: (i) is the | 16 | | lawful owner of the firearm; (ii) shall not transfer the | 17 | | firearm to the respondent; and (iii) will store the firearm in | 18 | | a manner that the respondent does not have access to or control | 19 | | of the firearm. | 20 | | (i) In accordance with subsection (e) of this Section, the | 21 | | court shall schedule a full hearing as soon as possible, but no | 22 | | longer than 14 days from the issuance of an ex parte firearms | 23 | | restraining order, to determine if a 6-month firearms | 24 | | restraining order shall be issued. The court may extend an ex | 25 | | parte order as needed, but not to exceed 14 days, to effectuate | 26 | | service of the order or if necessary to continue protection. |
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| 1 | | The court may extend the order for a greater length of time by | 2 | | mutual agreement of the parties.
| 3 | | (Source: P.A. 100-607, eff. 1-1-19; 101-81, eff. 7-12-19.) | 4 | | (430 ILCS 67/40)
| 5 | | Sec. 40. Six-month orders.
| 6 | | (a) A petitioner may request a 6-month firearms restraining | 7 | | order by filing an affidavit or verified pleading alleging that | 8 | | the respondent poses a significant danger of causing personal | 9 | | injury to himself, herself, or another in the near future by | 10 | | having in his or her custody or control, purchasing, | 11 | | possessing, or receiving a firearm and ammunition . The petition | 12 | | shall also describe the number, types, and locations of any | 13 | | firearms and ammunition presently believed by the petitioner to | 14 | | be possessed or controlled by the respondent.
| 15 | | (b) If the respondent is alleged to pose a significant | 16 | | danger of causing personal injury to an intimate partner, or an | 17 | | intimate partner is alleged to have been the target of a threat | 18 | | or act of violence by the respondent, the petitioner shall make | 19 | | a good faith effort to provide notice to any and all recent | 20 | | intimate partners of the respondent. The notice must include | 21 | | that the petitioner intends to petition the court for a 6-month | 22 | | firearms restraining order, and, if the petitioner is a law | 23 | | enforcement officer, referral to relevant domestic violence or | 24 | | stalking advocacy or counseling resources, if appropriate. The | 25 | | petitioner shall attest to having provided the notice in the |
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| 1 | | filed affidavit or verified pleading. If, after making a good | 2 | | faith effort, the petitioner is unable to provide notice to any | 3 | | or all recent intimate partners, the affidavit or verified | 4 | | pleading should describe what efforts were made. | 5 | | (c) Every person who files a petition for a 6-month | 6 | | firearms restraining order, knowing the information provided | 7 | | to the court at any hearing or in the affidavit or verified | 8 | | pleading to be false, is guilty of perjury under Section 32-2 | 9 | | of the Criminal Code of 2012.
| 10 | | (d) Upon receipt of a petition for a 6-month firearms | 11 | | restraining order, the court shall order a hearing within 30 | 12 | | days.
| 13 | | (e) In determining whether to issue a firearms restraining | 14 | | order under this Section, the court shall consider evidence | 15 | | including, but not limited to, the following:
| 16 | | (1) The unlawful and reckless use, display, or | 17 | | brandishing of a firearm by the respondent.
| 18 | | (2) The history of use, attempted use, or threatened | 19 | | use of physical force by the respondent against another | 20 | | person.
| 21 | | (3) Any prior arrest of the respondent for a felony | 22 | | offense. | 23 | | (4) Evidence of the abuse of controlled substances or | 24 | | alcohol by the respondent. | 25 | | (5) A recent threat of violence or act of violence by | 26 | | the respondent directed toward himself, herself, or |
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| 1 | | another. | 2 | | (6) A violation of an emergency order of protection | 3 | | issued under Section 217 of the Illinois Domestic Violence | 4 | | Act of 1986 or Section 112A-17 of the Code of Criminal | 5 | | Procedure of 1963 or of an order of protection issued under | 6 | | Section 214 of the Illinois Domestic Violence Act of 1986 | 7 | | or Section 112A-14 of the Code of Criminal Procedure of | 8 | | 1963.
| 9 | | (7) A pattern of violent acts or violent threats, | 10 | | including, but not limited to, threats of violence or acts | 11 | | of violence by the respondent directed toward himself, | 12 | | herself, or another. | 13 | | (f) At the hearing, the petitioner shall have the burden of | 14 | | proving, by clear and convincing evidence, that the respondent | 15 | | poses a significant danger of personal injury to himself, | 16 | | herself, or another by having in his or her custody or control, | 17 | | purchasing, possessing, or receiving a firearm and ammunition . | 18 | | (g) If the court finds that there is clear and convincing | 19 | | evidence to issue a firearms restraining order, the court shall | 20 | | issue a firearms restraining order that shall be in effect for | 21 | | 6 months subject to renewal under Section 45 of this Act or | 22 | | termination under that Section. | 23 | | (g-5) If the court issues a 6-month firearms restraining | 24 | | order, it shall, upon a finding of probable cause that the | 25 | | respondent possesses firearms, issue a search warrant | 26 | | directing a law enforcement agency to seize the respondent's |
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| 1 | | firearms and ammunition . The court may, as part of that | 2 | | warrant, direct the law enforcement agency to search the | 3 | | respondent's residence and other places where the court finds | 4 | | there is probable cause to believe he or she is likely to | 5 | | possess the firearms and ammunition. A return of the search | 6 | | warrant shall be filed by the law enforcement agency with the | 7 | | court within 7 days thereafter, setting forth the time, date, | 8 | | and location that the search warrant was executed and what | 9 | | items were seized . | 10 | | (h) A 6-month firearms restraining order shall require: | 11 | | (1) the respondent to refrain from having in his or her | 12 | | custody or control, purchasing, possessing, or receiving | 13 | | additional firearms and ammunition for the duration of the | 14 | | order; and | 15 | | (2) the respondent to turn over to the local law | 16 | | enforcement agency any firearm , ammunition, or Firearm | 17 | | Owner's Identification Card , and concealed carry license | 18 | | in his or her possession. The local law enforcement agency | 19 | | shall immediately mail the card and concealed carry license | 20 | | to the Department of State Police Firearm Services Bureau | 21 | | for safekeeping. The firearm or firearms , ammunition, and | 22 | | Firearm Owner's Identification Card and concealed carry | 23 | | license, if unexpired, shall be returned to the respondent | 24 | | after the firearms restraining order is terminated or | 25 | | expired. | 26 | | (i) Except as otherwise provided in subsection (i-5) of |
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| 1 | | this Section, upon expiration of the period of safekeeping, if | 2 | | the firearms , ammunition, or Firearm Owner's Identification | 3 | | Card cannot be returned to the respondent because the | 4 | | respondent cannot be located, fails to respond to requests to | 5 | | retrieve the firearms and ammunition , or is not lawfully | 6 | | eligible to possess a firearm and ammunition , upon petition | 7 | | from the local law enforcement agency, the court may order the | 8 | | local law enforcement agency to destroy the firearms and | 9 | | ammunition , use the firearms and ammunition for training | 10 | | purposes, or use the firearms and ammunition for any other | 11 | | application as deemed appropriate by the local law enforcement | 12 | | agency. | 13 | | (i-5) A respondent whose Firearm Owner's Identification | 14 | | Card has been revoked or suspended may petition the court, if | 15 | | the petitioner is present in court or has notice of the | 16 | | respondent's petition, to transfer the respondent's firearm | 17 | | and ammunition to a person who is lawfully able to possess the | 18 | | firearm and ammunition if the person does not reside at the | 19 | | same address as the respondent. Notice of the petition shall be | 20 | | served upon the person protected by the emergency firearms | 21 | | restraining order. While the order is in effect, the transferee | 22 | | who receives the respondent's firearms and ammunition must | 23 | | swear or affirm by affidavit that he or she shall not transfer | 24 | | the firearm and ammunition to the respondent or to anyone | 25 | | residing in the same residence as the respondent. | 26 | | (i-6) If a person other than the respondent claims title to |
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| 1 | | any firearms surrendered under this Section, he or she may | 2 | | petition the court, if the petitioner is present in court or | 3 | | has notice of the petition, to have the firearm returned to him | 4 | | or her. If the court determines that person to be the lawful | 5 | | owner of the firearm, the firearm shall be returned to him or | 6 | | her, provided that: | 7 | | (1) the firearm is removed from the respondent's | 8 | | custody, control, or possession and the lawful owner agrees | 9 | | to store the firearm in a manner such that the respondent | 10 | | does not have access to or control of the firearm; and | 11 | | (2) the firearm is not otherwise unlawfully possessed | 12 | | by the owner. | 13 | | The person petitioning for the return of his or her firearm | 14 | | must swear or affirm by affidavit that he or she: (i) is the | 15 | | lawful owner of the firearm; (ii) shall not transfer the | 16 | | firearm to the respondent; and (iii) will store the firearm in | 17 | | a manner that the respondent does not have access to or control | 18 | | of the firearm. | 19 | | (j) If the court does not issue a firearms restraining | 20 | | order at the hearing, the court shall dissolve any emergency | 21 | | firearms restraining order then in effect. | 22 | | (k) When the court issues a firearms restraining order | 23 | | under this Section, the court shall inform the respondent that | 24 | | he or she is entitled to one hearing during the period of the | 25 | | order to request a termination of the order, under Section 45 | 26 | | of this Act, and shall provide the respondent with a form to |
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| 1 | | request a hearing.
| 2 | | (Source: P.A. 100-607, eff. 1-1-19; 101-81, eff. 7-12-19.) | 3 | | (430 ILCS 67/45)
| 4 | | Sec. 45. Termination and renewal.
| 5 | | (a) A person subject to a firearms restraining order issued | 6 | | under this Act may submit one written request at any time | 7 | | during the effective period of the order for a hearing to | 8 | | terminate the order. | 9 | | (1) The respondent shall have the burden of proving by | 10 | | a preponderance of the evidence that the respondent does | 11 | | not pose a danger of causing personal injury to himself, | 12 | | herself, or another in the near future by having in his or | 13 | | her custody or control, purchasing, possessing, or | 14 | | receiving a firearm and ammunition . | 15 | | (2) If the court finds after the hearing that the | 16 | | respondent has met his or her burden, the court shall | 17 | | terminate the order.
| 18 | | (b) A petitioner may request a renewal of a firearms | 19 | | restraining order at any time within the 3 months before the | 20 | | expiration of a firearms restraining order. | 21 | | (1) A court shall, after notice and a hearing, renew a | 22 | | firearms restraining order issued under this part if the | 23 | | petitioner proves, by clear and convincing evidence, that | 24 | | the respondent continues to pose a danger of causing | 25 | | personal injury to himself, herself, or another in the near |
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| 1 | | future by having in his or her custody or control, | 2 | | purchasing, possessing, or receiving a firearm and | 3 | | ammunition . | 4 | | (2) In determining whether to renew a firearms | 5 | | restraining order issued under this Act, the court shall | 6 | | consider evidence of the facts identified in subsection (e) | 7 | | of Section 40 of this Act and any other evidence of an | 8 | | increased risk for violence. | 9 | | (3) At the hearing, the petitioner shall have the | 10 | | burden of proving by clear and convincing evidence that the | 11 | | respondent continues to pose a danger of causing personal | 12 | | injury to himself, herself, or another in the near future | 13 | | by having in his or her custody or control, purchasing, | 14 | | possessing, or receiving a firearm and ammunition . | 15 | | (4) The renewal of a firearms restraining order issued | 16 | | under this Section shall be in effect for 6 months, subject | 17 | | to termination by further order of the court at a hearing | 18 | | held under this Section and further renewal by further | 19 | | order of the court under this Section.
| 20 | | (Source: P.A. 100-607, eff. 1-1-19; 101-81, eff. 7-12-19.)
| 21 | | Section 99. Effective date. This Act takes effect upon | 22 | | becoming law.
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