101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
SB1713
 
Introduced 2/15/2019, by Sen. Chuck Weaver
 
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.



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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,

3represented in the General Assembly:



4 Section 5. The Firearms Restraining Order Act is amended by 
5changing 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 respondent.

17 (b) If the respondent is alleged to pose an immediate and 
18present danger of causing personal injury to an intimate 
19partner, or an intimate partner is alleged to have been the 
20target of a threat or act of violence by the respondent, the 
21petitioner shall make a good faith effort to provide notice to 
22any and all intimate partners of the respondent. The notice 
23must include that the petitioner intends to petition the court 
 
 
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1for an emergency firearms restraining order, and, if the 
2petitioner is a law enforcement officer, referral to relevant 
3domestic violence or stalking advocacy or counseling 
4resources, if appropriate. The petitioner Petitioner shall 
5attest to having provided the notice in the filed affidavit or 
6verified pleading. If, after making a good faith effort, the 
7petitioner is unable to provide notice to any or all intimate 
8partners, the affidavit or verified pleading should describe 
9what efforts were made.
10 (c) Every person who files a petition for an emergency 
11firearms restraining order, knowing the information provided 
12to the court at any hearing or in the affidavit or verified 
13pleading to be false, is guilty of perjury under Section 32-2 
14of the Criminal Code of 2012.

15 (d) An emergency firearms restraining order shall be issued 
16on an ex parte basis, that is, without notice to the 
17respondent.

18 (e) An emergency hearing held on an ex parte basis shall be 
19held the same day that the petition is filed or the next day 
20that the court is in session.

21 (f) If a circuit or associate judge finds probable cause to 
22believe that the respondent poses an immediate and present 
23danger of causing personal injury to himself, herself, or 
24another by having in his or her custody or control, purchasing, 
25possessing, or receiving a firearm, the circuit or associate 
26judge shall issue an emergency order.

 
 
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1 (f-5) If the court issues an emergency firearms restraining 
2order, it shall, based upon written application filed by the 
3State's Attorney or assistant State's Attorney supported by 
4evidence submitted under oath or affirmation, upon a finding of 
5probable cause that the respondent possesses firearms, issue a 
6search warrant directing a law enforcement agency to seize the 
7respondent's firearms. The court may, as part of that warrant, 
8direct the law enforcement agency to search the respondent's 
9residence and other places where the court finds there is 
10probable cause to believe he or she is likely to possess the 
11firearms.
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 for the duration of the order;
and
16  (2) the respondent to turn over to the local law 
17 enforcement agency any Firearm Owner's Identification Card 
18 and concealed carry license in his or her possession. The 
19 local law enforcement agency shall immediately mail the 
20 card and concealed carry license to the Department of State 
21 Police Firearm Services Bureau for safekeeping. The 
22 firearm or firearms and Firearm Owner's Identification 
23 Card and concealed carry license, if unexpired, shall be 
24 returned to the respondent after the firearms restraining 
25 order is terminated, or expired, or not granted within 7 
26 days.
 
 
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1 (h) Except as otherwise provided in subsection (h-5) of 
2this Section, upon expiration of the period of safekeeping, if 
3the firearms or Firearm Owner's Identification Card and 
4concealed carry license cannot be returned to the respondent 
5because the respondent cannot be located, fails to respond to 
6requests to retrieve the firearms, or is not lawfully eligible 
7to possess a firearm, upon petition from the local law 
8enforcement agency, the court may order the local law 
9enforcement agency to destroy the firearms, use the firearms 
10for training purposes, or use the firearms for any other 
11application as deemed appropriate by the local law enforcement 
12agency.

13 (h-5) A respondent whose Firearm Owner's Identification 
14Card has been revoked or suspended may petition the court, if 
15the petitioner is present in court or has notice of the 
16respondent's petition, to transfer the respondent's firearm to 
17a person who is lawfully able to possess the firearm if the 
18person does not reside at the same address as the respondent. 
19Notice of the petition shall be served upon the person 
20protected by the emergency firearms restraining order. While 
21the order is in effect, the transferee who receives the 
22respondent's firearms must swear or affirm by affidavit that he 
23or she shall not transfer the firearm to the respondent or to 
24anyone residing in the same residence as the respondent.
25 (h-6) If a person other than the respondent claims title to 
26any firearms surrendered under this Section, he or she may 
 
 
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1petition the court, if the petitioner is present in court or 
2has notice of the petition, to have the firearm returned to him 
3or her. If the court determines that person to be the lawful 
4owner of the firearm, the firearm shall be returned to him or 
5her, provided that:
6  (1) the firearm is removed from the respondent's 
7 custody, control, or possession and the lawful owner agrees 
8 to store the firearm in a manner such that the respondent 
9 does not have access to or control of the firearm; and
10  (2) the firearm is not otherwise unlawfully possessed 
11 by the owner.
12 The person petitioning for the return of his or her firearm 
13must swear or affirm by affidavit that he or she: (i) is the 
14lawful owner of the firearm; (ii) shall not transfer the 
15firearm to the respondent; and (iii) will store the firearm in 
16a manner that the respondent does not have access to or control 
17of the firearm. 
18 (i) In accordance with subsection (e) of this Section, the 
19court shall schedule a full hearing as soon as possible, but no 
20longer than 14 days from the issuance of an ex parte firearms 
21restraining order, to determine if a 6-month firearms 
22restraining order shall be issued. The court may extend an ex 
23parte order as needed, but not to exceed 14 days, to effectuate 
24service of the order or if necessary to continue protection. 
25The court may extend the order for a greater length of time by 
26mutual agreement of the parties.


 
 
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1(Source: P.A. 100-607, eff. 1-1-19; revised 10-2-18.)

2 (430 ILCS 67/40)

3 Sec. 40. Six-month Six month orders.

4 (a) A petitioner may request a 6-month firearms restraining 
5order by filing an affidavit or verified pleading alleging that 
6the respondent poses a significant danger of causing personal 
7injury to himself, herself, or another in the near future by 
8having in his or her custody or control, purchasing, 
9possessing, or receiving a firearm. The petition shall also 
10describe the number, types, and locations of any firearms 
11presently believed by the petitioner to be possessed or 
12controlled by the respondent.

13 (b) If the respondent is alleged to pose a significant 
14danger of causing personal injury to an intimate partner, or an 
15intimate partner is alleged to have been the target of a threat 
16or act of violence by the respondent, the petitioner shall make 
17a good faith effort to provide notice to any and all intimate 
18partners of the respondent. The notice must include that the 
19petitioner intends to petition the court for a 6-month firearms 
20restraining order, and, if the petitioner is a law enforcement 
21officer, referral to relevant domestic violence or stalking 
22advocacy or counseling resources, if appropriate. The 
23petitioner Petitioner shall attest to having provided the 
24notice in the filed affidavit or verified pleading. If, after 
25making a good faith effort, the petitioner is unable to provide 
 
 
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1notice to any or all intimate partners, the affidavit or 
2verified pleading should describe what efforts were made.
3 (c) Every person who files a petition for a 6-month 
4firearms restraining order, knowing the information provided 
5to the court at any hearing or in the affidavit or verified 
6pleading to be false, is guilty of perjury under Section 32-2 
7of the Criminal Code of 2012.

8 (d) Upon receipt of a petition for a 6-month firearms 
9restraining order, the court shall order a hearing within 30 
10days.

11 (e) In determining whether to issue a firearms restraining 
12order under this Section, the court shall consider evidence 
13including, 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) A recent threat of violence or act of violence by 
24 the respondent directed toward himself, herself, or 
25 another.
26  (6) 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  (7) 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 (f) At the hearing, the petitioner shall have the burden of 
12proving, by clear and convincing evidence, that the respondent 
13poses a significant danger of personal injury to himself, 
14herself, or another by having in his or her custody or control, 
15purchasing, possessing, or receiving a firearm.
16 (g) If the court finds that there is clear and convincing 
17evidence to issue a firearms restraining order, the court shall 
18issue a firearms restraining order that shall be in effect for 
196 months subject to renewal under Section 45 of this Act or 
20termination under that Section. 
21 (g-5) If the court issues a 6-month firearms restraining 
22order, it shall, upon a finding of probable cause that the 
23respondent possesses firearms, issue a search warrant 
24directing a law enforcement agency to seize the respondent's 
25firearms. The court may, as part of that warrant, direct the 
26law enforcement agency to search the respondent's residence and 
 
 
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1other places where the court finds there is probable cause to 
2believe he or she is likely to possess the firearms.
3 (h) A 6-month firearms restraining order shall require:
4  (1) the respondent to refrain from having in his or her 
5 custody or control, purchasing, possessing, or receiving 
6 additional firearms for the duration of the order; and
7  (2) the respondent to turn over to the local law 
8 enforcement agency any firearm or Firearm Owner's 
9 Identification Card and concealed carry license in his or 
10 her possession. The local law enforcement agency shall 
11 immediately mail the card and concealed carry license to 
12 the Department of State Police Firearm Services Bureau for 
13 safekeeping. The firearm or firearms and Firearm Owner's 
14 Identification Card and concealed carry license, if 
15 unexpired, shall be returned to the respondent after the 
16 firearms restraining order is terminated, or expired, or 
17 not granted within 7 days. 
18 (i) Except as otherwise provided in subsection (i-5) of 
19this Section, upon expiration of the period of safekeeping, if 
20the firearms or Firearm Owner's Identification Card cannot be 
21returned to the respondent because the respondent cannot be 
22located, fails to respond to requests to retrieve the firearms, 
23or is not lawfully eligible to possess a firearm, upon petition 
24from the local law enforcement agency, the court may order the 
25local law enforcement agency to destroy the firearms, use the 
26firearms for training purposes, or use the firearms for any 
 
 
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1other application as deemed appropriate by the local law 
2enforcement agency.
3 (i-5) A respondent whose Firearm Owner's Identification 
4Card has been revoked or suspended may petition the court, if 
5the petitioner is present in court or has notice of the 
6respondent's petition, to transfer the respondent's firearm to 
7a person who is lawfully able to possess the firearm if the 
8person does not reside at the same address as the respondent. 
9Notice of the petition shall be served upon the person 
10protected by the emergency firearms restraining order. While 
11the order is in effect, the transferee who receives the 
12respondent's firearms must swear or affirm by affidavit that he 
13or she shall not transfer the firearm to the respondent or to 
14anyone any one residing in the same residence as the 
15respondent.
16 (i-6) If a person other than the respondent claims title to 
17any firearms surrendered under this Section, he or she may 
18petition the court, if the petitioner is present in court or 
19has notice of the petition, to have the firearm returned to him 
20or her. If the court determines that person to be the lawful 
21owner of the firearm, the firearm shall be returned to him or 
22her, provided that:
23  (1) the firearm is removed from the respondent's 
24 custody, control, or possession and the lawful owner agrees 
25 to store the firearm in a manner such that the respondent 
26 does not have access to or control of the firearm; and
 
 
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1  (2) the firearm is not otherwise unlawfully possessed 
2 by the owner.
3 The person petitioning for the return of his or her firearm 
4must swear or affirm by affidavit that he or she: (i) is the 
5lawful owner of the firearm; (ii) shall not transfer the 
6firearm to the respondent; and (iii) will store the firearm in 
7a manner that the respondent does not have access to or control 
8of the firearm. 
9 (j) If the court does not issue a firearms restraining 
10order at the hearing, the court shall dissolve any emergency 
11firearms restraining order then in effect.
12 (k) When the court issues a firearms restraining order 
13under this Section, the court shall inform the respondent that 
14he or she is entitled to one hearing during the period of the 
15order to request a termination of the order, under Section 45 
16of this Act, and shall provide the respondent with a form to 
17request a hearing. 

18(Source: P.A. 100-607, eff. 1-1-19; revised 10-2-18.)


19 Section 99. Effective date. This Act takes effect upon 
20becoming law.