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HB2354 Update - Firearm Restraining Order - Emergency Intervention


Molly B.

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Tribune link:

http://www.chicagotribune.com/news/local/breaking/ct-met-illinois-gun-violence-laws-orders-of-protection-20180713-story.html


Relevant details from inside the paywall:

On the other side of the issue, the Illinois State Rifle Association initially opposed the new order of protection bill but negotiated limits on the proposal that allowed the group to drop its opposition.

 

Sponsors agreed to shorten the period of gun removal from one year to six months, to provide an avenue to appeal such orders and to allow prosecutors to lodge perjury charges against anyone making false accusations. To appease gun owners’ concerns that a false accusation could haunt them, the law also provides that if the petition to take the guns is denied, the court file will be expunged, and if the order is granted, it will be sealed after three years.
The hearing and order to do so may be done ex parte, or without notice to the person who is the subject of the hearing, but the subject can petition for a hearing within two weeks. The measure serves an important goal to help to prevent suicide and has provisions to ensure due process, rifle association Executive Director Richard Pearson said, though he still worries it may be misused.

“I’m concerned that people will use this maliciously,” Pearson said. “You’ve got to be extraordinarily careful with these rights. You need a way for (those accused) to get out if they did nothing.”

Ultimately, the laws will fall on police to enforce. If a judge finds a person is a threat, the judge will issue a search warrant allowing police to seize the person’s firearms and firearm owner’s identification card.

Local police already have the right to ask the state to revoke firearm owners’ identification cards. This new proposed law would only suspend someone’s FOID card, and it would be automatically reinstated after six months unless the court finds grounds to renew the suspension.

In determining whether someone poses a danger, a judge may consider the following factors: unlawful or reckless use, display or brandishing of a firearm; history of use of force or threatened force; prior felony arrests; abuse of controlled substances or alcohol; a recent threat or act of violence; a violation of a domestic violence emergency order of protection; or a pattern of violent acts or threats.

The petitioner must prove by clear and convincing evidence that the person poses a danger to himself or herself or to someone else by having a firearm.
The person whose guns are taken may petition to give them to a friend with a firearm owner’s ID card. That person must swear not to give the firearms back without authorization.

The Illinois State Police declined comment. In a report the agency issued about the proposed legislation, state police noted that if the new law causes a lot of FOID card suspensions, the agency may have to hire additional analysts for about $100,000 a year each to process the paperwork.
rmccoppin@chicagotribune.com



and now the BAD news:

also Rauner signed SB3256. :no: :headbang1: :mad(

essentially 72 hour wait on long guns - more details to be edited in...

SB3256 (72 Hour Waiting Period/Repeals Nonresident Exemption)

Oppose

Senate Sponsor: Sims, Morrison, Collins

House Sponsor: Carroll, Connor, Skillicorn

Status: Senate/Motion to Concur with House Amendment 1

House Amendment 1 - Approved for Consideration

Replaces everything after the enacting clause. Amends the Criminal Code of 2012. Provides that a person commits the offense of unlawful sale or delivery of firearms when he or she knowingly delivers any firearm, incidental to a sale, without withholding delivery of the firearm for at least 72 hours after application for its purchase has been made (current law permits delivery of a rifle, shotgun or other long gun, or a stun gun or taser after 24 hours after application for its purchase has been made). Retains 24 hour withholding period for stun guns and tasers. Provides that a violation is a Class 4 felony. Eliminates the exemption from the waiting period requirements for 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.

On the full text page, there is an amendment 2 by Skillicorn that never made it into the bill, It would have eliminated the waiting period for valid fccl's.

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It will be interesting to see how this law is used. Should we have a stickied thread to track reported uses?

I would expect that there may be a few initial uses where friends, family, and neighbors now have a civil process where before they had to wait for a crime and the criminal process. After that, probably not so many cases that would warrant tracking them individually. Maybe periodic, depersonalized, FOIA-able statistics would be good to see if the law is being abused or ignored.

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[Executive director of the Illinois Coalition Against Domestic Violence Vickie] Smith gave a hypothetical example of a mother who gets an order of protection to take guns away from her son because he’s doing drugs and acting irrationally. She said the concern is that when police try to confiscate his guns, he could lash out angrily, creating a potentially dangerous situation.

 

"I appreciate what they're trying to do, but I don't think an order of protection is the way to go about it," Smith said. She suggested that other measures aimed at gun control would be more effective.

Wow. Somebody isn't happy that the law isn't extreme.

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Yup, even the ISRA sees where this could be misused. A neighbor or local SJW decides to snap a photo of you legally handling firearms on your own property, coupled with a statement has police knocking on your door and depriving you of your rights. All of a sudden you are having to prove you did nothing wrong.

Yes, and when said SJW finds themselves on the receiving end of a Felony charge that has every indication of sticking, they'll need a new set of shorts.

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Yup, even the ISRA sees where this could be misused. A neighbor or local SJW decides to snap a photo of you legally handling firearms on your own property, coupled with a statement has police knocking on your door and depriving you of your rights. All of a sudden you are having to prove you did nothing wrong.

A photograph of a legal activity would not constitute clear and convincing proof of dangerous intent.

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Yup, even the ISRA sees where this could be misused. A neighbor or local SJW decides to snap a photo of you legally handling firearms on your own property, coupled with a statement has police knocking on your door and depriving you of your rights. All of a sudden you are having to prove you did nothing wrong.

A photograph of a legal activity would not constitute clear and convincing proof of dangerous intent.

What if they testified that they felt threatened along with a photo of me handling a firearm? I’m not personally concerned that this will happen to me. The entire premise of this is based on compelling a judge that you are correct in your accusations of threat of harm.

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What if they testified that they felt threatened along with a photo of me handling a firearm? I’m not personally concerned that this will happen to me. The entire premise of this is based on compelling a judge that you are correct in your accusations of threat of harm.

Still not enough to meet the burden of proof.

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Yup, even the ISRA sees where this could be misused. A neighbor or local SJW decides to snap a photo of you legally handling firearms on your own property, coupled with a statement has police knocking on your door and depriving you of your rights. All of a sudden you are having to prove you did nothing wrong.

Yes, and when said SJW finds themselves on the receiving end of a Felony charge that has every indication of sticking, they'll need a new set of shorts.

 

 

Remember..SJW's are not very bright to begin with....logic/reality vs feeelings and all that...

So I dont this law would deter them..

 

And considering the state of IL can't even prevent some 'flake' from blocking a major thoroughfare or arrest those involved, I have very little confidence that an SJW would be prosecuted.

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Some questions for those who supported this:

 

1. Someone please tell me who is going to pay your legal bills when you fight such an accusation?

 

2. Does anyone think a judge hearing one of these cases is going to deny the order? Heck no. There is no way a sane judge is going to risk your going off and shooting someone if he lets you keep your guns. These things are a default "kiss your gun rights goodbye order".

 

3. Does anyone think being on the receiving end of one of these accusations won't be a blocker to your ever getting a FOID or FCCL again?

 

4. How do you prove you are not a danger?

 

5. How will this affect your career when you boss reads in the crime blotter that you had one of these orders issued against you?

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My concern here is the blurred line of what an activist judge or anti-2a LEO (Tom Dart) will consider/interpret “convincing proof” completely dismissing due process. Especially in the internet/tech age, where video and audio can be minuplated, and the lengths at which the antis are willing to go, to disarm Americans, using lies or whatever tactics needed. Dangerous path. It’s like anything I suppose, people will always look for ways to abuse the system and remove rights from others.
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Yup, even the ISRA sees where this could be misused. A neighbor or local SJW decides to snap a photo of you legally handling firearms on your own property, coupled with a statement has police knocking on your door and depriving you of your rights. All of a sudden you are having to prove you did nothing wrong.

From the Tribune article..."The so-called “red flag” bill will allow family members or police to seek an order of protection to confiscate guns from those deemed “an immediate and present danger” to themselves or others."

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Some questions for those who supported this:

 

1. Someone please tell me who is going to pay your legal bills when you fight such an accusation?

 

2. Does anyone think a judge hearing one of these cases is going to deny the order? Heck no. There is no way a sane judge is going to risk your going off and shooting someone if he lets you keep your guns. These things are a default "kiss your gun rights goodbye order".

 

3. Does anyone think being on the receiving end of one of these accusations won't be a blocker to your ever getting a FOID or FCCL again?

 

4. How do you prove you are not a danger?

 

5. How will this affect your career when you boss reads in the crime blotter that you had one of these orders issued against you?

+1
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Remember..SJW's are not very bright to begin with....logic/reality vs feeelings and all that...

So I dont this law would deter them.

The judge denying to issue an order and then ordering them arrested on a felony charge for their false report would deter them.

Their inability to foresee their own arrest is not a defense against it.

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This will most certainly be abused. Illinois wants to confiscate. Let the false accusations begin. I have 2 friends who are proof that restraining orders are abused. Both were removed from THEIR homes. In both cases, after GREAT Monetary cost to them and them alone, the allegations against them were found to be completely false. This is a bad bill.
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Some questions for those who supported this:

 

1. Someone please tell me who is going to pay your legal bills when you fight such an accusation?

 

2. Does anyone think a judge hearing one of these cases is going to deny the order? Heck no. There is no way a sane judge is going to risk your going off and shooting someone if he lets you keep your guns. These things are a default "kiss your gun rights goodbye order".

 

3. Does anyone think being on the receiving end of one of these accusations won't be a blocker to your ever getting a FOID or FCCL again?

 

4. How do you prove you are not a danger?

 

5. How will this affect your career when you boss reads in the crime blotter that you had one of these orders issued against you?

  • Initially, you do. However, this law provides the basis for a civil action, so you can file a counter-suit for the legal expenses. Some states have laws that require the loser to pay all the court and legal fees automatically. I don't know if IL is one of those states.
  • "Clear and convincing evidence" is a legal standard, far above "somebody is worried, so I better cover my butt."
  • Your record will be clear if the restraining order is vacated.
  • You prove that the case against you probably false, misconstrued, or malicious. Your burden of proof is much lighter than the one the accuser had to meet to get the order in the first place.
  • It probably depends on your employer. If the case is thrown out and the accuser is arrested for filing a false report, and if your employer still fires you, you might have a case against him.
IANAL.
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I have a pragmatic view of this. Are "red flag" laws yet another infringement, yes. Are "red flag" laws the way of the future for blue and purple states? Absolutely. The Grabbers found a way to gain some ground so they roll this concept out as best they can wherever they find traction. So if I'm going to be saddled with this type of law regardless by nature of living in a blue state, and given that I don't think RINO Rauner stands a chance in November it's probably best to appease the "red flag" pushers with a mild victory that's the least bad relative to what they wanted and where they could go with it. Better to get this now vs the total shaft later when JB wins.


I don't like it. I don't think anybody who negotiated the less bad version likes it either, but the reality of being in a blue state is we get to fight this kind of thing and getting a less bad law is always better than getting the shaft the Grabbers wanted to give us. I appreciate the effort that had to go into getting this language agreed to, which no doubt was difficult given the lack of understanding of the subject matter continually displayed by the sponsor of this bill.


Now off to donate to SAF in the sponsor's name out of spite.

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Does anyone know when HB2354 and SB3256 become effective.I have looked but can't find it.

If there's no effective date listed in the legislation, it becomes effective immediately.Since Rauner signed HB2354, it's law now.I don't know about SB3256. I haven't looked.

edit: bill status page for both shows effective Jan 1, 2019

 

I thought there were multiple ways to arrive at an effective date e.g. specified in bill, or not then no sooner than a particular date depending on when it was passed such as no sooner than 18 mo if passed in a veto session, etc. Its probably in the constitution or prior tgreads here. No doubt mauserme probably knows.

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Some questions for those who supported this:

 

1. Someone please tell me who is going to pay your legal bills when you fight such an accusation?

 

2. Does anyone think a judge hearing one of these cases is going to deny the order? Heck no. There is no way a sane judge is going to risk your going off and shooting someone if he lets you keep your guns. These things are a default "kiss your gun rights goodbye order".

 

3. Does anyone think being on the receiving end of one of these accusations won't be a blocker to your ever getting a FOID or FCCL again?

 

4. How do you prove you are not a danger?

 

5. How will this affect your career when you boss reads in the crime blotter that you had one of these orders issued against you?

  • Initially, you do. However, this law provides the basis for a civil action, so you can file a counter-suit for the legal expenses. Some states have laws that require the loser to pay all the court and legal fees automatically. I don't know if IL is one of those states.
  • "Clear and convincing evidence" is a legal standard, far above "somebody is worried, so I better cover my butt."
  • Your record will be clear if the restraining order is vacated.
  • You prove that the case against you probably false, misconstrued, or malicious. Your burden of proof is much lighter than the one the accuser had to meet to get the order in the first place.
  • It probably depends on your employer. If the case is thrown out and the accuser is arrested for filing a false report, and if your employer still fires you, you might have a case against him.
IANAL.

 

6. MOVE to a 2a friendly state.

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Remember..SJW's are not very bright to begin with....logic/reality vs feeelings and all that...

So I dont this law would deter them.

The judge denying to issue an order and then ordering them arrested on a felony charge for their false report would deter them.

Their inability to foresee their own arrest is not a defense against it.

 

That would be good but it will never happen. AND there will be judge shopping to make sure they take it to a liberal activist judge who hates guns and will sign anything. Nothing about this mess is good.

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Does anyone know when HB2354 and SB3256 become effective.I have looked but can't find it.

If there's no effective date listed in the legislation, it becomes effective immediately.Since Rauner signed HB2354, it's law now.I don't know about SB3256. I haven't looked.
edit: bill status page for both shows effective Jan 1, 2019

 

I thought there were multiple ways to arrive at an effective date e.g. specified in bill, or not then no sooner than a particular date depending on when it was passed such as no sooner than 18 mo if passed in a veto session, etc. Its probably in the constitution or prior tgreads here. No doubt mauserme probably knows.

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=80&ChapterID=2

 

(5 ILCS 75/) Effective Date of Laws Act.

(5 ILCS 75/0.01) (from Ch. 1, par. 1200)

Sec. 0.01. Short title. This Act may be cited as the Effective Date of Laws Act.

(Source: P.A. 86-1324.)

 

(5 ILCS 75/1) (from Ch. 1, par. 1201)

Sec. 1. Bills passed before June 1.

(a) A bill passed prior to June 1 of a calendar year that does not provide for an effective date in the terms of the bill shall become effective on January 1 of the following year, or upon its becoming a law, whichever is later.

(B) A bill passed prior to June 1 of a calendar year that does provide for an effective date in the terms of the bill shall become effective on that date if that date is the same as or subsequent to the date the bill becomes a law; provided that if the effective date provided in the terms of the bill is prior to the date the bill becomes a law then the date the bill becomes a law shall be the effective date.

(Source: P.A. 88-597, eff. 11-28-94.)

 

(5 ILCS 75/2) (from Ch. 1, par. 1202)

Sec. 2. Bills passed after May 31. A bill passed after May 31 of a calendar year shall become effective on June 1 of the next calendar year unless the General Assembly by a vote of three-fifths of the members elected to each house provides for an earlier effective date in the terms of the bill or unless the General Assembly provides for a later effective date in the terms of the bill; provided that if the effective date provided in the terms of the bill is prior to the date the bill becomes a law then the date the bill becomes a law shall be the effective date.

(Source: P.A. 88-597, eff. 11-28-94.)

 

(5 ILCS 75/2.1)

Sec. 2.1. Transitional provisions; bills passed in 1994.

(a) Notwithstanding Section 2, a bill passed after June 30, 1994 but before January 1, 1995 shall become effective on July 1, 1995 unless the General Assembly by a vote of three-fifths of the members elected to each house provides for an earlier effective date in the terms of the bill or unless the General Assembly provides for a later effective date in the terms of the bill; provided that if the effective date provided in the terms of the bill is prior to the date the bill becomes a law then the date the bill becomes a law shall be the effective date.

(B) Notwithstanding Section 2, a bill passed after May 31, 1994 but before July 1, 1994 that becomes a law before the effective date of this Section and does not provide for an effective date in the terms of the bill shall become effective on January 1, 1995.

Notwithstanding Section 2, a bill passed after May 31, 1994 but before July 1, 1994 that becomes a law before the effective date of this Section and provides for an effective date in the terms of the bill shall become effective on that date if that date is the same as or subsequent to the date the bill becomes a law; if the effective date provided in the terms of the bill is prior to the date the bill becomes a law then the date the bill becomes a law shall be the effective date.

Notwithstanding Section 2, a bill passed after May 31, 1994 but before July 1, 1994 that becomes law on or after the effective date of this Section shall become effective on July 1, 1995 unless the General Assembly by a vote of three-fifths of the members elected to each house provides for an earlier effective date in the terms of the bill or unless the General Assembly provides for a later effective date in the terms of the bill; provided that if the effective date provided in the terms of the bill is prior to the date the bill becomes a law then the date the bill becomes a law shall be the effective date.

(Source: P.A. 88-597, eff. 11-28-94.)

 

(5 ILCS 75/3) (from Ch. 1, par. 1203)

Sec. 3. For purposes of determining the effective dates of laws, a bill is "passed" at the time of its final legislative action prior to presentation to the Governor pursuant to paragraph (a) of Section 9 of Article IV of the Constitution.

(Source: P.A. 78-85.)

 

(5 ILCS 75/4) (from Ch. 1, par. 1204)

Sec. 4. As used in this Act, "bill" includes an item of appropriations contained in a bill, and "terms of the bill" includes effective date provisions of a bill which are applicable to items of appropriations contained in the bill.

(Source: P.A. 78-85.)

 

(5 ILCS 75/5) (from Ch. 1, par. 1205)

Sec. 5. A bill "becomes a law" pursuant to Sections 8 and 9 of Article IV of the Constitution.

(Source: P.A. 78-85.)

 

(5 ILCS 75/6) (from Ch. 1, par. 1206)

Sec. 6. As used in this Act, "Constitution" means the Constitution of the State of Illinois of 1970.

(Source: P.A. 99-78, eff. 7-20-15.)

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All I have to say after reading all the comments above is that if this is the WORST "anti-gun" stuff that happens to

us in Illinois in 2018 after the viral stirred up force 5 hurricane that hit the nation and this state as hard as it did,

we did a REALLY (expletive) OUTSTANDING JOB.

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All I have to say after reading all the comments above is that if this is the WORST "anti-gun" stuff that happens to

us in Illinois in 2018 after the viral stirred up force 5 hurricane that hit the nation and this state as hard as it did,

we did a REALLY (expletive) OUTSTANDING JOB.

 

Don't like the bill but I have to agree it could have been worse.

Still will keep fighting though.

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All I have to say after reading all the comments above is that if this is the WORST "anti-gun" stuff that happens to

us in Illinois in 2018 after the viral stirred up force 5 hurricane that hit the nation and this state as hard as it did,

we did a REALLY (expletive) OUTSTANDING JOB.

+100

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It will be interesting to see how this law is used. Should we have a stickied thread to track reported uses?

 

I believe it will be like the sticky we had to track police proning people out along the highway and guns aimed because of duty to inform. Or the list of only two places we would be able to carry concealed - our yard and our car.

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