HB5849 100TH GENERAL ASSEMBLY

LRB100 21318 SLF 37649 b

100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB5849

Introduced , by Rep. David McSweeney and Margo McDermed

SYNOPSIS AS INTRODUCED:

See Index

Creates the Gun Violence Protection Order Act. Provides that a circuit court may issue a warrant to search for and seize a firearm in the possession of a person who is believed to pose a clear and present danger to himself, herself, or to others if: (1) a law enforcement officer provides the court a sworn affidavit; (2) the affidavit specifically describes the location of the firearm; and (3) the circuit court determines that probable cause exists to believe that the person poses a clear and present danger to himself, herself, or others and is in possession of a firearm. Provides that if a law enforcement officer seizes a firearm from a person whom the law enforcement officer believes to pose a clear and present danger to himself, herself, or to others without obtaining a warrant, the law enforcement officer shall submit to the circuit court having jurisdiction over the person believed to pose a clear and present danger to himself, herself, or to others, a written statement under oath or affirmation describing the basis for the law enforcement officer's belief that the person poses a clear and present danger to himself, herself, or to others. Provides that not later than 14 days after a return is filed or a written statement is submitted, the court shall conduct a hearing to determine whether the seized firearm should be: (1) returned to the person from whom the firearm was seized; or (2) retained by the law enforcement agency having custody of the firearm. Repeals the Firearm Seizure Act on January 1, 2019. Makes other changes. Effective January 1, 2019.

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 1. Short title. This Act may be cited as the Gun Violence Protection Order Act.

Section 5. Definitions.In this Act:

"Clear and present danger" has the same meaning ascribed to the term in Section 1.1 of the Firearm Owners Identification Card Act.

"Clinical psychologist" means a person licensed by the Department of Financial and Professional Regulation under the Clinical Psychologist Licensing Act.

"Determined to pose a clear and present danger to himself, herself, or to others by the qualified examiner, psychiatrist, or clinical psychologist" means in the professional opinion of the qualified examiner, psychiatrist, or clinical psychologist a person poses a clear and present danger.

"Firearm" has the same meaning ascribed to the term in Section 1.1 of the Firearm Owners Identification Card Act.

"Qualified examiner" has the same meaning ascribed to the term in Section 1-122 of the Mental Health and Developmental Disabilities Code.

"Psychiatrist" means any person licensed by the State to practice medicine who has successfully completed a residency program in psychiatry accredited by either the Accreditation Council for Graduate Medical Education or the American Osteopathic Association.

Section 10. Issuance of warrant. A circuit court may issue a warrant to search for and seize a firearm in the possession of a person who is believed to pose a clear and present danger to himself, herself, or to others if:

(1) a law enforcement officer provides the court a sworn affidavit that:

(A) states why the law enforcement officer believes that the person poses a clear and present danger to himself, herself, or to others and is in possession of a firearm; and

(B) describes the law enforcement officer's interactions and conversations with:

(i) the person who is alleged to pose a clear and present danger to himself, herself, or to others; or

(ii) another person, if the law enforcement officer believes that information obtained from that person is credible and reliable;

that have led the law enforcement officer to believe that the person poses a clear and present danger to himself, herself, or to others and is in possession of a firearm;

(2) the affidavit specifically describes the location of the firearm; and

(3) the circuit court determines that probable cause exists to believe that the person poses a clear and present danger to himself, herself, or to others and is in possession of a firearm.

Section 15. Seizure without warrant.

(a) If a law enforcement officer seizes a firearm from a person whom the law enforcement officer believes to pose a clear and present danger to himself, herself, or to others without obtaining a warrant, the law enforcement officer shall submit to the circuit court having jurisdiction over the person believed to pose a clear and present danger to himself, herself, or to others, a written statement under oath or affirmation describing the basis for the law enforcement officer's belief that the person poses a clear and present danger to himself, herself, or to others.

(b) The court shall review the written statement submitted under subsection (a) of this Section. The court may order a mental health evaluation by a qualified examiner, psychiatrist, or clinical psychologist. If required, a certificate prepared by the qualified examiner, psychiatrist, or clinical psychologist shall indicate that the qualified examiner, psychiatrist, or clinical psychologist personally examined the person and contain the qualified examiner's, psychiatrist's, or clinical psychologist's clinical observations; other factual information relied upon in reaching a diagnosis; and a statement indicating whether the person has been determined to pose a clear and present danger to himself, herself, or to others by the qualified examiner, psychiatrist, clinical psychologist. If the court finds that probable cause exists to believe that the person poses a clear and present danger to himself, herself, or to others, the court shall order the law enforcement agency having custody of the firearm to retain the firearm. If the court finds that there is no probable cause to believe that the person poses a clear and present danger to himself, herself, or to others, the court shall order the law enforcement agency having custody of the firearm to return the firearm to the person.

(c) This Section does not authorize a law enforcement officer to perform a warrantless search or seizure if a warrant would otherwise be required.

Section 20. Service of warrant; filing of return. If a court issued a warrant to seize a firearm under this Act, the law enforcement officer who served the warrant shall, not later than 48 hours after the warrant was served, file a return with the court that:

(1) states that the warrant was served; and

(2) sets forth the time and date on which the warrant was served, the name and address of the person named in the warrant, and the quantity and identity of any firearms seized by the law enforcement officer.

Section 25. Hearing to determine whether firearm should be returned or retained.

(a) Not later than 14 days after a return is filed under Section 20 of this Act or a written statement is submitted under Section 10 of this Act, the court shall conduct a hearing to determine whether the seized firearm should be:

(1) returned to the person from whom the firearm was seized; or

(2) retained by the law enforcement agency having custody of the firearm.

(b) The court shall set the hearing date as soon as possible after the return is filed under Section 20 of this Act. The court shall inform the prosecuting attorney and the person from whom the firearm was seized of the date, time, and location of the hearing. The court may conduct the hearing at a facility or other suitable place not likely to have a harmful effect upon the person's health or well-being.

Section 30. Burden of proof; determination.

(a) In a hearing conducted under Section 25 of this Act, the State has the burden of proving all material facts by clear and convincing evidence. The court may order a mental health evaluation by a qualified examiner, psychiatrist, or clinical psychologist. If required, a certificate prepared by the qualified examiner, psychiatrist, or clinical psychologist shall indicate that the qualified examiner, psychiatrist, or clinical psychologist personally examined the person and contain the qualified examiner's, psychiatrist's, or clinical psychologist's clinical observations; other factual information relied upon in reaching a diagnosis; and a statement indicating whether the person has been determined to pose a clear and present danger to himself, herself, or to others by the qualified examiner, psychiatrist, clinical psychologist.

(b) If the court, in a hearing under Section 25 of this Act, determines that the State has proved by clear and convincing evidence that the person poses a clear and present danger to himself, herself, or to others, the court shall order that the law enforcement agency having custody of the seized firearm retain the firearm. If the court determines that the State has failed to prove that the person poses a clear and present danger to himself, herself, or to others, the court shall order the law enforcement agency having custody of the firearm to return the firearm to the person from whom it was seized. If the person has a Firearm Owner's Identification Card, the court shall revoke the Card upon the finding that the person poses a clear and present danger to himself, herself, or to others.

(c) If the court, in a hearing under Section 25 of this Act, orders a law enforcement agency to retain a firearm, the law enforcement agency shall retain the firearm until the court orders the firearm returned or otherwise disposed of.

Section 35. Return of firearm to another owner. If the court, in a hearing conducted under Section 25 of this Act, determines that: (1) the person from whom a firearm was seized poses a clear and present danger to himself, herself, or to others; and (2) the firearm seized from the person is owned by another person; the court may order the law enforcement agency having custody of the firearm to return the firearm to the owner of the firearm.

Section 40. Petition for return of firearm.

(a) At least 180 days after the date on which a court orders a law enforcement agency to retain a person's firearm under subsection (b) of Section 30 of this Act, the person may petition the court for return of the firearm. Upon receipt of a petition, the court shall: (1) enter an order setting a date for a hearing on the petition; and (2) inform the prosecuting attorney of the date, time, and location of the hearing. The prosecuting attorney shall represent the State at the hearing on a petition under this Section.

(b) In a hearing on a petition under this Section, the person: (1) may be represented by an attorney; and (2) must prove by a preponderance of the evidence that the person does not pose a clear and present danger to himself, herself, or to others. If the person is determined not determined to pose a clear and present danger to himself, herself, or to others, the court may reinstate the person's Firearm Owner's Identification Card and order the law enforcement agency having custody of the firearm to return the firearm to the person.

(c) If the court denies a person's petition under this Section, the person may not file a subsequent petition until at least 180 days after the date on which the court denied the petition.

Section 45. Destruction or disposal of firearm. If at least 5 years have passed since a court conducted the first hearing to retain a firearm under this Act, the court, after giving notice to the parties and conducting a hearing, may order the law enforcement agency having custody of the firearm to dispose of the firearm.

Section 50. Request for firearm to be auctioned.

(a) If a court has ordered a law enforcement agency to retain a person's firearm under Section 30 of this Act, the person may request the court to order the law enforcement agency to sell the firearm at auction and return the proceeds to the person.

(b) A person may make the request described in subsection (a) of this Section: (1) at the retention hearing described in Section 45 of this Act; or (2) at any time before the retention hearing described in Section 45 of this Act is held.

(c) If a person timely requests a sale of a firearm under subsection (a) of this Section, the court shall order the law enforcement agency having custody of the firearm to sell the firearm at auction, unless the serial number of the firearm has been obliterated.

(d) If the court issues an order under subsection (c) of this Section, the court's order shall require: (1) that the firearm be sold not more than one year after receipt of the order; and (2) that the proceeds of the sale be returned to the person who owns the firearm. However, the law enforcement agency may retain not more than 8% of the sale price to pay the costs of the sale, including administrative costs and the auctioneer's fee.

Section 905. The Firearm Seizure Act is amended by adding Section 95 as follows:

(725 ILCS 165/95 new)

Sec. 95. Repeal. This Act is repealed on January 1, 2019.

Section 999. Effective date. This Act takes effect January 1, 2019.