HB5424 97TH GENERAL ASSEMBLY

LRB097 18312 RLC 63538 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB5424

Introduced 2/15/2012, by Rep. Sara Feigenholtz

SYNOPSIS AS INTRODUCED:

720 ILCS 5/24-3	from Ch. 38, par. 24-3
720 ILCS 5/24-3.1A new

Amends the Criminal Code of 1961. Changes references in the statute on unlawful sale of firearms from "sell" or "give" to "transfer". Prohibits multiple sales of handguns within a 30-day period. Creates the offense of unlawful acquisition of handguns. Provides exemptions and affirmative defenses. Penalty is a Class A misdemeanor for a first offense and a Class 4 felony for a second or subsequent offense.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning criminal law.

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

Section 5. The Criminal Code of 1961 is amended by changing Section 24-3 and adding Section 24-3.1A as follows:

(720 ILCS 5/24-3) (from Ch. 38, par. 24-3)

Sec. 24-3. Unlawful transfer sale or delivery of firearms.

(A) A person commits the offense of unlawful transfer sale or delivery of firearms when he or she knowingly does any of the following:

(a) Transfers or possesses with intent to transfer Sells or gives any firearm of a size which may be concealed upon the person to any person he or she has reasonable cause to believe is under 18 years of age.

(b) Transfers or possesses with intent to transfer Sells or gives any firearm to a person under 21 years of age who has been convicted of a misdemeanor other than a traffic offense or adjudged delinquent.

(b-5) Transfers or possesses with intent to transfer any firearm to a person he or she has reasonable cause to believe is under 18 years of age.

(c) Transfers or possesses with intent to transfer Sells or gives any firearm to any person he or she has reasonable cause to believe is a narcotic addict.

(d) Transfers or possesses with intent to transfer Sells or gives any firearm to any person he or she has reasonable cause to believe who has been convicted of a felony under the laws of this or any other jurisdiction.

(e) Transfers or possesses with intent to transfer Sells or gives any firearm to any person he or she has reasonable cause to believe who has been a patient in a mental hospital within the past 5 years.

(f) Transfers or possesses with intent to transfer Sells or gives any firearms to any person he or she has reasonable cause to believe who is intellectually disabled.

(g) Knowingly transfers Delivers any firearm of a size which may be concealed upon the person, incidental to a sale, without withholding delivery of such firearm for at least 72 hours after application for its purchase has been made, or delivers any rifle, shotgun or other long gun, or a stun gun or taser, incidental to a sale, without withholding delivery of such rifle, shotgun or other long gun, or a stun gun or taser for at least 24 hours after application for its purchase has been made. However, this paragraph (g) does not apply to: (1) the sale of a firearm to a law enforcement officer if the seller of the firearm knows that the person to whom he or she is selling the firearm is a law enforcement officer or the sale of a firearm to a person who desires to purchase a firearm for use in promoting the public interest incident to his or her employment as a bank guard, armed truck guard, or other similar employment; (2) a mail order sale of a firearm to a nonresident of Illinois under which the firearm is mailed to a point outside the boundaries of Illinois; (3) the sale of a firearm to a nonresident of Illinois while at a firearm showing or display recognized by the Illinois Department of State Police; or (4) the sale of a firearm to a dealer licensed as a federal firearms dealer under Section 923 of the federal Gun Control Act of 1968 (18 U.S.C. 923). For purposes of this paragraph (g), "application" means when the buyer and seller reach an agreement to purchase a firearm.

(h) While holding any license as a dealer, importer, manufacturer or pawnbroker under the federal Gun Control Act of 1968, knowingly manufactures, sells or delivers to any unlicensed person a handgun having a barrel, slide, frame or receiver which is a die casting of zinc alloy or any other nonhomogeneous metal which will melt or deform at a temperature of less than 800 degrees Fahrenheit. For purposes of this paragraph, (1) "firearm" is defined as in the Firearm Owners Identification Card Act; and (2) "handgun" is defined as a firearm designed to be held and fired by the use of a single hand, and includes a combination of parts from which such a firearm can be assembled.

(i) Transfers or possesses with intent to transfer Sells or gives a firearm of any size to any person he or she knows or has reasonable cause to believe is under 18 years of age who does not possess a valid Firearm Owner's Identification Card.

(i-5) While holding a license under the Federal Gun Control Act of 1968, transfers or possesses with intent to transfer more than one handgun to any person within any 30-day period or transfers or possesses with intent to transfer a handgun to any person he or she knows or has reasonable cause to believe has received a handgun within the previous 30 days unless the receipt of multiple handguns is exempted under subsection (c) or (d) of Section 24-3.1A. It is an affirmative defense to a violation of this subsection that the transferor in good faith relied on the records of the Department of State Police in concluding that the transferor had not transferred a handgun within the previous 30 days or that multiple purchases were authorized by subsection (b) of Section 24-3.1A, or relied in good faith on the records of a local law enforcement agency that the transfer was authorized by subsection (c) of Section 24-3.1A.

(j) Transfers or possesses with intent to transfer Sells or gives a firearm while engaged in the business of selling firearms at wholesale or retail without being licensed as a federal firearms dealer under Section 923 of the federal Gun Control Act of 1968 (18 U.S.C. 923). In this paragraph (j):

A person "engaged in the business" means a person who devotes time, attention, and labor to engaging in the activity as a regular course of trade or business with the principal objective of livelihood and profit, but does not include a person who makes occasional repairs of firearms or who occasionally fits special barrels, stocks, or trigger mechanisms to firearms.

"With the principal objective of livelihood and profit" means that the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection; however, proof of profit shall not be required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism.

(k) Transfers Sells or transfers ownership of a firearm to a person who does not display to the seller or transferor of the firearm a currently valid Firearm Owner's Identification Card that has previously been issued in the transferee's name by the Department of State Police under the provisions of the Firearm Owners Identification Card Act. This paragraph (k) does not apply to the transfer of a firearm to a person who is exempt from the requirement of possessing a Firearm Owner's Identification Card under Section 2 of the Firearm Owners Identification Card Act. For the purposes of this Section, a currently valid Firearm Owner's Identification Card means (i) a Firearm Owner's Identification Card that has not expired or (ii) if the transferor is licensed as a federal firearms dealer under Section 923 of the federal Gun Control Act of 1968 (18 U.S.C. 923), an approval number issued in accordance with Section 3.1 of the Firearm Owners Identification Card Act shall be proof that the Firearm Owner's Identification Card was valid.

(l) Not being entitled to the possession of a firearm, delivers the firearm, knowing it to have been stolen or converted. It may be inferred that a person who possesses a firearm with knowledge that its serial number has been removed or altered has knowledge that the firearm is stolen or converted.

(B) Paragraph (h) of subsection (A) does not include firearms sold within 6 months after enactment of Public Act 78-355 (approved August 21, 1973, effective October 1, 1973), nor is any firearm legally owned or possessed by any citizen or purchased by any citizen within 6 months after the enactment of Public Act 78-355 subject to confiscation or seizure under the provisions of that Public Act. Nothing in Public Act 78-355 shall be construed to prohibit the gift or trade of any firearm if that firearm was legally held or acquired within 6 months after the enactment of that Public Act.

(B-5) As used in this Section, "transfer" means the actual or attempted transfer of a firearm or firearm ammunition, with or without consideration, but does not include the lease of a firearm, or the provision of ammunition specifically for that firearm, if the firearm and the ammunition are to be used on the lessor's premises, and does not include any transfer of possession when the transferor maintains supervision and control over the firearm or ammunition.

(B-10) It is an affirmative defense to a violation of paragraph (i-5) of subsection (A) that the transfer or possession with intent to transfer of a firearm was to a transferee who received the firearm as an heir, legatee, or beneficiary of or in a similar capacity to a deceased person who had owned the firearm. Nothing in this paragraph (B-10) makes lawful any transfer or possession with intent to transfer of a firearm, or any other possession or use of a firearm, in violation of any law, other than paragraph (i-5) of subsection (A), or in violation of any municipal or county ordinance.

(C) Sentence.

(1) Any person convicted of unlawful transfer sale or delivery of firearms in violation of paragraph (c), (e), (f), (g), or (h) of subsection (A) commits a Class 4 felony. A person convicted of a violation of subsection (i-5) of subsection (A) of this Section commits a Class A misdemeanor for a first offense and a Class 4 felony for a second or subsequent offense.

(2) Any person convicted of unlawful transfer sale or delivery of firearms in violation of paragraph (b), (b-5), or (i) of subsection (A) commits a Class 3 felony.

(3) Any person convicted of unlawful transfer sale or delivery of firearms in violation of paragraph (a) of subsection (A) commits a Class 2 felony.

(4) Any person convicted of unlawful transfer sale or delivery of firearms in violation of paragraph (a), (b), (b-5), or (i) of subsection (A) in any school, on the real property comprising a school, within 1,000 feet of the real property comprising a school, at a school related activity, or on or within 1,000 feet of any conveyance owned, leased, or contracted by a school or school district to transport students to or from school or a school related activity, regardless of the time of day or time of year at which the offense was committed, commits a Class 1 felony. Any person convicted of a second or subsequent violation of unlawful transfer sale or delivery of firearms in violation of paragraph (a), (b), (b-5), or (i) of subsection (A) in any school, on the real property comprising a school, within 1,000 feet of the real property comprising a school, at a school related activity, or on or within 1,000 feet of any conveyance owned, leased, or contracted by a school or school district to transport students to or from school or a school related activity, regardless of the time of day or time of year at which the offense was committed, commits a Class 1 felony for which the sentence shall be a term of imprisonment of no less than 5 years and no more than 15 years.

(5) Any person convicted of unlawful transfer sale or delivery of firearms in violation of paragraph (a) or (i) of subsection (A) in residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development, in a public park, in a courthouse, on residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development, on the real property comprising any public park, on the real property comprising any courthouse, or on any public way within 1,000 feet of the real property comprising any public park, courthouse, or residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development commits a Class 2 felony.

(6) Any person convicted of unlawful transfer sale or delivery of firearms in violation of paragraph (j) of subsection (A) commits a Class A misdemeanor. A second or subsequent violation is a Class 4 felony.

(7) Any person convicted of unlawful transfer sale or delivery of firearms in violation of paragraph (k) of subsection (A) commits a Class 4 felony. A third or subsequent conviction for a violation of paragraph (k) of subsection (A) is a Class 1 felony.

(8) A person 18 years of age or older convicted of unlawful transfer sale or delivery of firearms in violation of paragraph (a) or (i) of subsection (A), when the firearm that was sold or given to another person under 18 years of age was used in the commission of or attempt to commit a forcible felony, shall be fined or imprisoned, or both, not to exceed the maximum provided for the most serious forcible felony so committed or attempted by the person under 18 years of age who was sold or given the firearm.

(9) Any person convicted of unlawful transfer sale or delivery of firearms in violation of paragraph (d) of subsection (A) commits a Class 3 felony.

(10) Any person convicted of unlawful transfer sale or delivery of firearms in violation of paragraph (l) of subsection (A) commits a Class 2 felony if the delivery is of one firearm. Any person convicted of unlawful sale or delivery of firearms in violation of paragraph (l) of subsection (A) commits a Class 1 felony if the delivery is of not less than 2 and not more than 5 firearms at the same time or within a one year period. Any person convicted of unlawful transfer sale or delivery of firearms in violation of paragraph (l) of subsection (A) commits a Class X felony for which he or she shall be sentenced to a term of imprisonment of not less than 6 years and not more than 30 years if the delivery is of not less than 6 and not more than 10 firearms at the same time or within a 2 year period. Any person convicted of unlawful transfer sale or delivery of firearms in violation of paragraph (l) of subsection (A) commits a Class X felony for which he or she shall be sentenced to a term of imprisonment of not less than 6 years and not more than 40 years if the delivery is of not less than 11 and not more than 20 firearms at the same time or within a 3 year period. Any person convicted of unlawful transfer sale or delivery of firearms in violation of paragraph (l) of subsection (A) commits a Class X felony for which he or she shall be sentenced to a term of imprisonment of not less than 6 years and not more than 50 years if the delivery is of not less than 21 and not more than 30 firearms at the same time or within a 4 year period. Any person convicted of unlawful transfer sale or delivery of firearms in violation of paragraph (l) of subsection (A) commits a Class X felony for which he or she shall be sentenced to a term of imprisonment of not less than 6 years and not more than 60 years if the delivery is of 31 or more firearms at the same time or within a 5 year period.

(D) For purposes of this Section:

"School" means a public or private elementary or secondary school, community college, college, or university.

"School related activity" means any sporting, social, academic, or other activity for which students' attendance or participation is sponsored, organized, or funded in whole or in part by a school or school district.

(E) A prosecution for a violation of paragraph (k) of subsection (A) of this Section may be commenced within 6 years after the commission of the offense. A prosecution for a violation of this Section other than paragraph (g) of subsection (A) of this Section may be commenced within 5 years after the commission of the offense defined in the particular paragraph.

(Source: P.A. 96-190, eff. 1-1-10; 97-227, eff. 1-1-12; 97-347, eff. 1-1-12; revised 9-14-11.)

(720 ILCS 5/24-3.1A new)

Sec. 24-3.1A. Unlawful acquisition of handguns.

(a) Except as exempted in subsections (b) and (c), it is unlawful for any person other than a person holding a license under the Federal Gun Control Act of 1968, as amended, to acquire more than one handgun within any 30-day period.

(b) Acquisitions in excess of one handgun within a 30-day period may be made upon completion of an enhanced background check, as described in this Section, by special application to the Department of State Police listing the number and type of handguns to be acquired and transferred for lawful business or personal use, in a collector series, for collections, as a bulk purchase from estate sales, and for similar purposes. The application must be signed under oath by the applicant on forms provided by the Department of State Police, must state the purpose for the acquisition above the limit, and must require satisfactory proof of residency and identity. The application is in addition to the firearms transfer report required by the Bureau of Alcohol, Tobacco and Firearms (ATF). The Director of State Police shall adopt rules, under the Illinois Administrative Procedure Act, for the implementation of an application process for acquisitions of handguns above the limit.

Upon being satisfied that these requirements have been met, the Department of State Police must forthwith issue to the applicant a nontransferable certificate that is valid for 7 days from the date of issue. The certificate must be surrendered to the transferor by the prospective transferee before the consummation of the transfer and must be kept on file at the transferor's place of business for inspection as provided in Section 24-4. Upon request of any local law enforcement agency, and under its rules, the Department of State Police may certify the local law enforcement agency to serve as its agent to receive applications and, upon authorization by the Department of State Police, issue certificates forthwith under this Section. Applications and certificates issued under this Section must be maintained as records by the Department of State Police, and made available to local law enforcement agencies.

(c) This Section does not apply to:

(1) A law enforcement agency;

(2) State and local correctional agencies and departments;

(3) The acquisition of antique firearms as defined by paragraph (4) of Section 1.1 of the Firearm Owners Identification Card Act; or

(4) A person whose handgun is stolen or irretrievably lost who deems it essential that the handgun be replaced immediately. The person may acquire another handgun, even if the person has previously acquired a handgun within a 30-day period, if: (i) the person provides the firearms transferor with a copy of the official police report or a summary of the official police report, on forms provided by the Department of State Police, from the law enforcement agency that took the report of the lost or stolen handgun; (ii) the official police report or summary of the official police report contains the name and address of the handgun owner, the description and serial number of the handgun, the location of the loss or theft, the date of the loss or theft, and the date the loss or theft was reported to the law enforcement agency; and (iii) the date of the loss or theft as reflected on the official police report or summary of the official police report occurred within 30 days of the person's attempt to replace the handgun. The firearms transferor must attach a copy of the official police report or summary of the official police report to the original copy of the form provided by the Department of State Police completed for the transaction, retain it for the period prescribed by the Department of State Police, and forward a copy of the documents to the Department of State Police. The documents must be maintained by the Department of State Police and made available to local law enforcement agencies.

(d) For the purposes of this Section, "acquisition" does not include the exchange or replacement of a handgun by a transferor for a handgun transferred from the transferor by the same person seeking the exchange or replacement within the 30-day period immediately preceding the date of exchange or replacement.

(e) The exemptions set forth in subsections (b) and (c) are affirmative defenses to a violation of subsection (a).

(f) A violation of this Section is a Class A misdemeanor for a first offense and a Class 4 felony for a second or subsequent offense.