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.



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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.