Bill Text: IL HB5849 | 2017-2018 | 100th General Assembly | Introduced

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Bill Title: 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.

Spectrum: Slight Partisan Bill (Republican 2-1)

Status: (Failed) 2019-01-08 - Session Sine Die [HB5849 Detail]

Download: Illinois-2017-HB5849-Introduced.html

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100TH GENERAL ASSEMBLY State of Illinois 2017 and 2018 HB5849 Introduced , by Rep. David McSweeney 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.
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CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY
A BILL FOR
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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

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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;

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(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,

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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

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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

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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

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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

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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

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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.
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INDEX
Statutes amended in order of appearance