Illinois Firearms Restraining Order Act By Steven Fagan

The Illinois House passed Amendment 2 to House Bill 2354, or the “Firearms Restraining Order Act”. This amendment, sponsored by Rep. Kathleen Willis, creates a legal means of gun confiscation with limited due process protections. It is ripe for abuse.

The law allows for a family member (as defined by the statute), or a personally threatened or endangered law enforcement officer, to file a petition with the court for a Firearms Restraining Order (FRO). There is no fee or cost to file the petition. The respondent (the person the FRO would affect) is not given notice of the initial hearing, not made aware of the proceeding or the supporting allegations, not given the Restraining Order Act opportunity to present evidence or raise objections, and is not even entitled to be present at this initial hearing. That hearing is held on the same day, or the next day after filing.

Once a temporary FRO is ordered, a respondent would then have to take steps prescribed by the law to transfer possession of their weapons to someone outside their residence, who must swear out an affidavit that he or she “shall not transfer the firearm to the respondent or to anyone residing in the same residence as the respondent.” The Court then must order a full hearing within 14 days to determine whether a 6 month FRO will enter. The statute also indicates that even if a temporary FRO is denied, a hearing for a petition for a 6 month FRO must be heard within 30 days of filing.

The law indicates the standard of proof in a FRO hearing will be “clear and convincing 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.” The “clear and convincing evidence” standard of proof is greater than the “preponderance of evidence” standard typically required in civil trials, but not as great as the “beyond a reasonable doubt” standard required in criminal proceedings. For preponderance, the judge must find the petition is more likely correct than not. For clear and convincing, the judge must have a “firm and abiding” belief the allegations are highly probable to be true. The FROs can be renewed between 3-6 months after initial entry upon petition, and requiring the same standard of proof. The respondent can seek to terminate the order once during the effective period of any FRO, and has the burden of proven he or she is not a danger by preponderance of the evidence.

Roughly the only things that could be called good news for gun owners in this law are that allegations made in an FRO petition are subject to penalties of perjury (a felony offense in Illinois), and that the standard of proof is higher than that required for standard orders of protection in Illinois. This is significant because in Illinois, emergency petitions for an order of protection are also conducted same day or next day after filing of a petition, without notice to the respondent, and without the opportunity to object or present evidence. As one might imagine given the hot topic of domestic violence, such emergency petitions are rarely denied.

There are significant potential slippery slopes here. For example, the burden of proof can be amended later to reflect a lower standard. The definition of a “family member” can be expanded either by statute or case law, as has already happened in Illinois domestic violence law. Additionally, while there is no fee for the person filing the petition, there’s no such provision for the respondent, and typical “appearance” fees currently run close to $300.00. There is also no provision in the law for the option of a jury trial even for the 6-month FRO, and of course, Judges, who are appointed or elected, have the final call on whether evidence satisfies the “clear and convincing” standard. The financial burden of challenging the Judge’s decision on appeal is on the respondent, and appellate Courts are very reluctant to second-guess the trial-level Judge, who is in the courtroom and able to see and hear the testimony first-hand. The bill is headed to the Senate. While it’s desirable to limit access to weapons for a person experiencing a serious mental health crisis rendering them dangerous to themselves or others, there are other laws in effect which should not be ignored, and this bill deserves strong opposition. For gun owners, who of course have a FOID and/or CCL, the Illinois State Police (ISP) checks for mental health admissions nightly. Family members can already involuntarily admit a family member they believe is in danger, to a mental health facility, whether or not they are gun owners. For non-owners living in a household with such a person, the owner can take their own steps to secure their weapons or move them off-site without legal intervention. The FRO law makes the strange move of including substance abuse as a basis for issuance as well, though the ISP, again, keeps an active eye for signs of legal problems arising from substance abuse.

Steven Fagan is a Chicago Area attorney and a partner at Fagan, Fagan, and Davis More information can be found at: www.MyAttorneysOnline.com

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