HB2354 100TH GENERAL ASSEMBLY

LRB100 05908 RLC 15934 b

100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB2354

Introduced , by Rep. Kathleen Willis

SYNOPSIS AS INTRODUCED:

See Index

Creates the Lethal Violence Order of Protection Act. Provides that a petitioner may request an emergency lethal violence order of protection 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, owning, purchasing, possessing, or receiving a firearm. Provides that the petition shall also describe the type, and location of any firearm or firearms presently believed by the petitioner to be possessed or controlled by the respondent. Provides that the petitioner may be a family member of the respondent or a law enforcement officer, who files a petition alleging that the respondent poses a danger of causing personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm. Establishes factors that the court must consider before issuing a lethal violence order of protection. Provides for the issuance of ex parte orders and one year orders. Provides that if the court issues the order the respondent must: (1) refrain from having in his or her custody or control, owning, purchasing, possessing, or receiving additional firearms for the duration of the order; and (2) turn over to the local law enforcement agency any firearm, Firearm Owner's Identification Card, or concealed carry license in his or her possession. Establishes factors for renewing and terminating lethal violence orders of protection. Amends the Firearm Owners Identification Card Act and the Firearm Concealed Carry Act to make conforming changes.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

STATE MANDATES ACT MAY REQUIRE REIMBURSEMENT

A BILL FOR

AN ACT concerning orders of protection.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Lethal Violence Order of Protection Act.

Section 5. Definitions. As used in this Act:

"Family member of the respondent" means a spouse, parent, child, or step-child of the respondent, any other person related by blood or present marriage to the respondent, or a person who shares a common dwelling with the respondent.

"Intimate partner" means a spouse, former spouse, a person with whom the respondent has or allegedly has a child in common, or a person with whom the respondent has or has had a dating or engagement relationship.

"Lethal violence order of protection" means an order issued by the court, prohibiting and enjoining a named person from having in his or her custody or control, owning, purchasing, possessing, or receiving any firearms.

"Petitioner" means:

(1) a family member of the respondent as defined in this Act; or

(2) a law enforcement officer, who files a petition alleging that the respondent poses a danger of causing personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm.

"Respondent" means the person alleged in the petition to pose a danger of causing personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm.

Section 10. Commencement of action; procedure.

(a) Actions for a lethal violence order of protection are commenced by filing a verified petition for a lethal violence order of protection in any circuit court.

(b) A petition for a lethal violence order of protection may be filed in any county where the respondent resides.

(c) No fee shall be charged by the clerk for filing, amending, vacating, certifying, or photocopying petitions or orders; or for issuing alias summons; or for any related filing service. No fee shall be charged by the sheriff for service by the sheriff of a petition, rule, motion, or order in an action commenced under this Section.

(d) The court shall provide, through the office of the clerk of the court, simplified forms and clerical assistance to help with the writing and filing of a petition under this Section by any person not represented by counsel. In addition, that assistance may be provided by the State's Attorney.

Section 15. Subject matter jurisdiction. Each of the circuit courts shall have the power to issue lethal violence orders of protection.

Section 20. Jurisdiction over persons. The circuit courts of this State have jurisdiction to bind (1) State residents and (2) non-residents having minimum contacts with this State, to the extent permitted by Section 2-209 of the Code of Civil Procedure.

Section 25. Process. The summons shall be in the form prescribed by Supreme Court Rule 101(d), except that it shall require respondent to answer or appear within 7 days. Attachments to the summons or notice shall include the petition for the lethal violence order of protection and supporting affidavits, if any, and any emergency lethal violence order of protection that has been issued. The enforcement of an order under Section 35 shall not be affected by the lack of service, delivery, or notice, provided the requirements of subsection (f) of that Section are otherwise met.

Section 30. Service of notice of hearings. Service of notice of hearings. Except as provided in Section 25, notice of hearings on petitions or motions shall be served in accordance with Supreme Court Rules 11 and 12, unless notice is excused by Section 35 of this Act, or by the Code of Civil Procedure, Supreme Court Rules, or local rules.

Section 35. Ex parte orders and emergency hearings.

(a) A petitioner may request an emergency lethal violence order of protection 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, owning, purchasing, possessing, or receiving a firearm. The petition shall also describe the type, and location of any firearm or firearms presently believed by the petitioner to be possessed or controlled by the respondent.

(b) If the respondent is alleged to pose an immediate and present danger of causing personal injury to an intimate partner, or an intimate partner is alleged to have been the target of a threat or act of violence by the respondent, petitioner shall make a good faith effort to provide notice to any and all intimate partners of the respondent. The notice must include that the petitioner intends to petition the court for an emergency lethal violence order, and, if petitioner is a law enforcement officer, referral to relevant domestic violence or stalking advocacy or counseling resources, if appropriate. Petitioner shall attest to having provided the notice in the filed affidavit or verified pleading. If after making a good faith effort petitioner is unable to provide notice to any or all intimate partners, the affidavit or verified pleading should describe what efforts were made.

(c) Every person who files a petition for an emergency lethal violence order, knowing the information provided to the court at any hearing or in the affidavit or verified pleading to be false, is guilty of perjury under Section 32-2 of the Criminal Code of 2012.

(d) An emergency order of protection shall be issued on an ex parte basis, that is, without notice to the respondent.

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

(f) If a circuit or associate judge finds reasonable cause to believe 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, owning, purchasing, possessing, or receiving a firearm the circuit or associate judge shall issue an emergency order.

(g) An emergency lethal violence order of protection shall require:

(1) the respondent to refrain from having in his or her custody or control, owning, purchasing, possessing, or receiving additional firearms for the duration of the order;

(2) the respondent to turn over to the local law enforcement agency any Firearm Owner's Identification Card and concealed carry license in his or her possession. The local law enforcement agency shall immediately mail the card and concealed carry license to the Department of State Police Firearm Owner's Identification Card Office for safekeeping. The firearm or firearms and Firearm Owner's Identification Card and concealed carry license, if unexpired, shall at the respondent's request, be returned to the respondent after the lethal violence order of protection is terminated or expired. It is the respondent's responsibility to notify the Department of State Police Firearm Owner's Identification Card Office; and

(3) any law-enforcement agency to forthwith search for and seize firearms of the respondent upon probable cause that the respondent has possession of a firearm, and petitioner or the court can describe, with sufficient particularity, the location of the firearm or firearms.

(h) Upon expiration of the period of safekeeping, if the firearms or Firearm Owner's Identification Card and concealed carry license cannot be returned to respondent because respondent cannot be located, fails to respond to requests to retrieve the firearms, or is not lawfully eligible to possess a firearm, upon petition from the local law enforcement agency, the court may order the local law enforcement agency to destroy the firearms, use the firearms for training purposes, or for any other application as deemed appropriate by the local law enforcement agency.

(i) In accordance with subsection (e) of this Section, the court shall schedule a full hearing within 14 days of the issuance of an ex parte lethal violence order of protection to determine if a one-year lethal violence order of protection shall be issued. The court may extend an ex parte order as needed, but not to exceed 30 days, to effectuate service of the order or if necessary to continue protection.

Section 40. One-year orders.

(a) A petitioner may request a one-year lethal violence order of protection by filing an affidavit or verified pleading alleging that the respondent poses a significant danger of causing personal injury to himself, herself, or another in the near future by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm. The petition shall also describe the number, types, and locations of any firearms presently believed by the petitioner to be possessed or controlled by the respondent.

(b) If the respondent is alleged to pose an immediate and present danger of causing personal injury to an intimate partner, or an intimate partner is alleged to have been the target of a threat or act of violence by the respondent, petitioner shall make a good faith effort to provide notice to any and all intimate partners of the respondent. The notice must include that the petitioner intends to petition the court for an emergency lethal violence order, and, if petitioner is a law enforcement officer, referral to relevant domestic violence or stalking advocacy or counseling resources, if appropriate. Petitioner shall attest to having provided the notice in the filed affidavit or verified pleading. If after making a good faith effort petitioner is unable to provide notice to any or all intimate partners, the affidavit or verified pleading should describe what efforts were made.

(c) Every person who files a petition for an emergency lethal violence order, knowing the information provided to the court at any hearing or in the affidavit or verified pleading to be false, is guilty of perjury under Section 32-2 of the Criminal Code of 2012.

(d) Upon receipt of a petition for a one-year lethal violence order of protection, the court shall order a hearing within 30 days.

(e) In determining whether to issue a lethal violence order of protection under this Section, the court shall consider evidence of:

(1) A recent threat of violence or act of violence by the respondent directed toward himself, herself, or another.

(2) A violation of an emergency order of protection issued under Section 217 of the Illinois Domestic Violence Act of 1986 or Section 112A-17 of the Code of Criminal Procedure of 1963 or of an order of protection issued under Section 214 of the Illinois Domestic Violence Act of 1986 or Section 112A-14 of the Code of Criminal Procedure of 1963.

(3) A pattern of violent acts or violent threats, including, but not limited to, threats of violence or acts of violence by the respondent directed toward himself, herself, or another.

(f) In determining whether to issue a lethal violence order of protection under this Section, the court may consider evidence including, but not limited to, the following:

(1) The unlawful and reckless use, display, or brandishing of a firearm by the respondent.

(2) The history of use, attempted use, or threatened use of physical force by the respondent against another person.

(3) Any prior arrest of the respondent for a felony offense.

(4) Evidence of the abuse of controlled substances or alcohol by the respondent.

(5) Evidence of recent acquisition of firearms, ammunition, or other deadly weapons.

(g) At the hearing, the petitioner shall have the burden of proving, by preponderance of the evidence, that the respondent poses a significant danger of personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm.

(h) If the court finds that there is a preponderance of the evidence to issue a lethal violence order of protection, the court shall issue a lethal violence order of protection that shall be in effect for one year subject to renewal under Section 45 of this Act or termination under that Section.

(i) A one-year lethal violence order of protection shall require:

(1) the respondent to refrain from having in his or her custody or control, owning, purchasing, possessing or receiving additional firearms for the duration of the order;

(2) the respondent to turn over to the local law enforcement agency any firearm or Firearm Owner's Identification Card and concealed carry license in his or her possession. The local law enforcement agency shall immediately mail the card and concealed carry license to the Department of State Police Firearm Owner's Identification Card Office for safekeeping. The firearm or firearms and Firearm Owner's Identification Card and concealed carry license, if unexpired shall at the respondent's request, be returned to the respondent after the lethal violence order of protection is terminated or expired. It is the respondent's responsibility to notify the Department of State Police Firearm Owner's Identification Card Office; and

(3) any law-enforcement agency to forthwith search for and seize firearms of the respondent upon probable cause that the respondent has possession of a firearm, and petitioner can describe, with sufficient particularity, the location of the firearm or firearms.

(j) Upon expiration of the period of safekeeping, if the firearms or Firearm Owner's Identification Card cannot be returned to respondent because respondent cannot be located, fails to respond to requests to retrieve the firearms, or is not lawfully eligible to possess a firearm, upon petition from the local law enforcement agency, the court may order the local law enforcement agency to destroy the firearms, use the firearms for training purposes, or for any other application as deemed appropriate by the local law enforcement agency.

(k) If the court does not issue a lethal violence order of protection at the hearing, the court shall dissolve any emergency lethal violence order of protection then in effect.

(l) When the court issues a lethal violence order of protection under this Section, the court shall inform the respondent that he or she is entitled to one hearing during the period of the order to request a termination of the order, under Section 45 of this Act, and shall provide the respondent with a form to request a hearing.

Section 45. Termination and renewal.

(a) A person subject to a lethal violence order of protection issued under this Act may submit one written request at any time during the effective period of the order for a hearing to terminate the order.

(1) The respondent shall have the burden of proving by a preponderance of the evidence that the respondent does not pose a danger of causing personal injury to himself, herself, or another in the near future by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm.

(2) If the court finds after the hearing that the respondent has met his or her burden, the court shall terminate the order.

(b) A petitioner may request a renewal of a lethal violence order of protection at any time within the 3 months before the expiration of a lethal violence order of protection.

(1) A court shall, after notice and a hearing, renew a lethal violence order of protection issued under this part if the petitioner proves, by a preponderance of the evidence, that the respondent continues to pose a danger of causing personal injury to himself, herself, or another in the near future by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm.

(2) In determining whether to renew a lethal violence order of protection issued under this Act, the court shall consider evidence of the facts identified in subsection (e) of Section 40 of this Act and any other evidence of an increased risk for violence, including, but not limited to, evidence of any of the factors identified in subsection (f) of Section 40 of this Act.

(3) At the hearing, the petitioner shall have the burden of proving, by a preponderance of the evidence that the respondent continues to pose a danger of causing personal injury to himself, herself, or another in the near future by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm.

(4) The renewal of a lethal violence order of protection issued under this Section shall be in effect for one year, subject to termination by further order of the court at a hearing held under this Section and further renewal by further order of the court under this Section.

Section 50. Notice of orders.

(a) Entry and issuance. Upon issuance of any lethal violence order of protection, the clerk shall immediately, or on the next court day if an emergency lethal violence order of protection is issued in accordance with Section 35 of this Act (emergency lethal violence order of protection), (i) enter the order on the record and file it in accordance with the circuit court procedures and (ii) provide a file stamped copy of the order to respondent, if present, and to petitioner.

(b) Filing with sheriff. The clerk of the issuing judge shall, or the petitioner may, on the same day that a lethal violence order of protection is issued, file a certified copy of that order with the sheriff or other law enforcement officials charged with maintaining Department of State Police records or charged with serving the order upon respondent. If the order was issued in accordance with Section 35 of this Act (emergency lethal violence order of protection), the clerk shall on the next court day, file a certified copy of the order with the sheriff or other law enforcement officials charged with maintaining Department of State Police records.

(c) Service by sheriff. Unless respondent was present in court when the order was issued, the sheriff, other law enforcement official, or special process server shall promptly serve that order upon respondent and file proof of the service, in the manner provided for service of process in civil proceedings. Instead of serving the order upon the respondent, however, the sheriff, other law enforcement official, special process server, or other persons defined in Section 112A-22.10 of the Criminal Code of 1963 may serve the respondent with a short form notification as provided in that Section. If process has not yet been served upon the respondent, it shall be served with the order or short form notification if the service is made by the sheriff, other law enforcement official, or special process server. A single fee may be charged for service of an order obtained in circuit court, or for service of the order together with process, unless waived or deferred under subsection (c) of Section 10 of this Act.

(d) Any order renewing or terminating any lethal violence order of protection shall be promptly recorded, issued, and served as provided in this Section.

Section 55. Data maintenance by law enforcement agencies.

(a) All sheriffs shall furnish to the Department of State Police, daily, in the form and detail the Department requires, copies of any recorded lethal violence order of protection issued by the court, and any foreign orders of protection filed by the clerk of the court, and transmitted to the sheriff by the clerk of the court under Section 50. Each lethal violence order of protection shall be entered in the Law Enforcement Agencies Data System (LEADS) on the same day it is issued by the court. If an emergency lethal violence order of protection was issued in accordance with Section 35 of this Act, the order shall be entered in the Law Enforcement Agencies Data System (LEADS) as soon as possible after receipt from the clerk.

(b) The Department of State Police shall maintain a complete and systematic record and index of all valid and recorded lethal violence orders of protection issued or filed under this Act. The data shall be used to inform all dispatchers and law enforcement officers at the scene of a violation of lethal violence order of protection of the effective dates and terms of any recorded order of protection.

(c) The data, records and transmittals required under this Section shall pertain to any valid emergency or one-year lethal violence order of protection, whether issued in a civil or criminal proceeding or authorized under the laws of another state, tribe, or United States territory.

Section 60. Filing of a lethal violence order of protection issued by another state.

(a) A person entitled to protection under a lethal violence order of protection or similar order issued by the court of another state, tribe, or United States territory may file a certified copy of the lethal violence order of protection with the clerk of the court in a judicial circuit in which the person believes that enforcement may be necessary.

(b) The clerk shall:

(1) treat the foreign lethal violence order of protection in the same manner as a judgment of the circuit court for any county of this State in accordance with the provisions of the Uniform Enforcement of Foreign Judgments Act, except that the clerk shall not mail notice of the filing of the foreign order to the respondent named in the order; and

(2) on the same day that a foreign lethal violence order of protection is filed, file a certified copy of that order with the sheriff or other law enforcement officials charged with maintaining Department of State Police records as set forth in Section 55 of this Act.

(c) Neither residence in this State nor filing of a foreign lethal violence order of protection shall be required for enforcement of the order by this State. Failure to file the foreign order shall not be an impediment to its treatment in all respects as an Illinois lethal violence order of protection.

(d) The clerk shall not charge a fee to file a foreign order of protection under this Section.

Section 65. Enforcement; sanctions for violation of order.

(a) A respondent who knowingly violates a lethal violence order of protection is guilty of a Class A misdemeanor. Prosecution for a violation of a lethal violence order of protection shall not bar concurrent prosecution for any other crime, including any crime that may have been committed at the time of the violation of the lethal violence order of protection.

(b) A petitioner who files a petition for a lethal violence order of protection knowing the information in the petition to be false is guilty of a Class A misdemeanor.

Section 70. Non-preclusion of remedies. Nothing in this Act shall preclude a petitioner or law-enforcement officer from removing weapons under other authority, or filing criminal charges when probable cause exists.

Section 135. The Firearm Owners Identification Card Act is amended by changing Section 8.2 as follows:

(430 ILCS 65/8.2)

Sec. 8.2. Firearm Owner's Identification Card denial or revocation. The Department of State Police shall deny an application or shall revoke and seize a Firearm Owner's Identification Card previously issued under this Act if the Department finds that the applicant or person to whom such card was issued is or was at the time of issuance subject to an existing order of protection or lethal violence order of protection.

(Source: P.A. 96-701, eff. 1-1-10.)

Section 140. The Firearm Concealed Carry Act is amended by changing Section 70 as follows:

(430 ILCS 66/70)

Sec. 70. Violations.

(a) A license issued or renewed under this Act shall be revoked if, at any time, the licensee is found to be ineligible for a license under this Act or the licensee no longer meets the eligibility requirements of the Firearm Owners Identification Card Act.

(b) A license shall be suspended if an order of protection, including an emergency order of protection, plenary order of protection, or interim order of protection under Article 112A of the Code of Criminal Procedure of 1963 or under the Illinois Domestic Violence Act of 1986, or if a lethal violence order of protection, including an emergency lethal violence order of protection, under the Lethal Violence Order of Protection Act, is issued against a licensee for the duration of the order, or if the Department is made aware of a similar order issued against the licensee in any other jurisdiction. If an order of protection is issued against a licensee, the licensee shall surrender the license, as applicable, to the court at the time the order is entered or to the law enforcement agency or entity serving process at the time the licensee is served the order. The court, law enforcement agency, or entity responsible for serving the order of protection shall notify the Department within 7 days and transmit the license to the Department.

(c) A license is invalid upon expiration of the license, unless the licensee has submitted an application to renew the license, and the applicant is otherwise eligible to possess a license under this Act.

(d) A licensee shall not carry a concealed firearm while under the influence of alcohol, other drug or drugs, intoxicating compound or combination of compounds, or any combination thereof, under the standards set forth in subsection (a) of Section 11-501 of the Illinois Vehicle Code.

A licensee in violation of this subsection (d) shall be guilty of a Class A misdemeanor for a first or second violation and a Class 4 felony for a third violation. The Department may suspend a license for up to 6 months for a second violation and shall permanently revoke a license for a third violation.

(e) Except as otherwise provided, a licensee in violation of this Act shall be guilty of a Class B misdemeanor. A second or subsequent violation is a Class A misdemeanor. The Department may suspend a license for up to 6 months for a second violation and shall permanently revoke a license for 3 or more violations of Section 65 of this Act. Any person convicted of a violation under this Section shall pay a $150 fee to be deposited into the Mental Health Reporting Fund, plus any applicable court costs or fees.

(f) A licensee convicted or found guilty of a violation of this Act who has a valid license and is otherwise eligible to carry a concealed firearm shall only be subject to the penalties under this Section and shall not be subject to the penalties under Section 21-6, paragraph (4), (8), or (10) of subsection (a) of Section 24-1, or subparagraph (A-5) or (B-5) of paragraph (3) of subsection (a) of Section 24-1.6 of the Criminal Code of 2012. Except as otherwise provided in this subsection, nothing in this subsection prohibits the licensee from being subjected to penalties for violations other than those specified in this Act.

(g) A licensee whose license is revoked, suspended, or denied shall, within 48 hours of receiving notice of the revocation, suspension, or denial, surrender his or her concealed carry license to the local law enforcement agency where the person resides. The local law enforcement agency shall provide the licensee a receipt and transmit the concealed carry license to the Department of State Police. If the licensee whose concealed carry license has been revoked, suspended, or denied fails to comply with the requirements of this subsection, the law enforcement agency where the person resides may petition the circuit court to issue a warrant to search for and seize the concealed carry license in the possession and under the custody or control of the licensee whose concealed carry license has been revoked, suspended, or denied. The observation of a concealed carry license in the possession of a person whose license has been revoked, suspended, or denied constitutes a sufficient basis for the arrest of that person for violation of this subsection. A violation of this subsection is a Class A misdemeanor.

(h) A license issued or renewed under this Act shall be revoked if, at any time, the licensee is found ineligible for a Firearm Owner's Identification Card, or the licensee no longer possesses a valid Firearm Owner's Identification Card. A licensee whose license is revoked under this subsection (h) shall surrender his or her concealed carry license as provided for in subsection (g) of this Section.

This subsection shall not apply to a person who has filed an application with the State Police for renewal of a Firearm Owner's Identification Card and who is not otherwise ineligible to obtain a Firearm Owner's Identification Card.

(i) A certified firearms instructor who knowingly provides or offers to provide a false certification that an applicant has completed firearms training as required under this Act is guilty of a Class A misdemeanor. A person guilty of a violation of this subsection (i) is not eligible for court supervision. The Department shall permanently revoke the firearms instructor certification of a person convicted under this subsection (i).

(Source: P.A. 98-63, eff. 7-9-13; 98-756, eff. 7-16-14; 98-899, eff. 8-15-14.)