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HB2354 Update - Firearm Restraining Order - Emergency Intervention


Molly B.

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let me see if i understand this,if i am accused my firearms will be taken from me until i get my day in court,so now i need to retain a lawyer at my expense to prove i am innocent.when i go to court and prove that i did nothing wrong and broke no law the court will let me have my firearm,s back and all it cost me was 1500 dollars for my lawyer and a days pay lost because i had to take the day off to go to court.am i expected to say that it,s ok because now the accuser will be charged with a felony.maybe i am wrong but this is not good and this law will be abused.

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let me see if i understand this,if i am accused my firearms will be taken from me until i get my day in court,so now i need to retain a lawyer at my expense to prove i am innocent.when i go to court and prove that i did nothing wrong and broke no law the court will let me have my firearm,s back and all it cost me was 1500 dollars for my lawyer and a days pay lost because i had to take the day off to go to court.am i expected to say that it,s ok because now the accuser will be charged with a felony.maybe i am wrong but this is not good and this law will be abused.

Nope, you are spot on. In addition, your FOID and CCL will be confiscated and sent to the ISP for “safe keeping” so once you jump through all the hoops, you can hope and pray that those aren’t lost. The fact that this was supported in any way by any 2A organizations is absolutely mind boggling. The “it’s better than the alternative” submissive attitude is how the fight for the 2A got to this point.

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Someone help me out here. The intro to this bill states it must be a blood or married relative. However further down, section 35...

 

(B) If the respondent is alleged to pose an immediate and present danger of causing personal injury to an intimate partner, or an intimate partner is alleged to have been the target of a threat or act of violence by the respondent, petitioner shall make a good faith effort to provide notice to any and all intimate partners of the respondent. The notice must include that the petitioner intends to petition the court for an emergency firearms restraining order, and, if petitioner is a law enforcement officer, referral to relevant domestic violence or stalking advocacy or counseling resources, if appropriate. Petitioner shall attest to having provided the notice in the filed affidavit or verified pleading. If after making a good faith effort petitioner is unable to provide notice to any or all intimate partners, the affidavit or verified pleading should describe what efforts were made.

 

 

So does that mean "intimate partners" aka ex wife, ex girlfriend/boyfriend, ex-husband etc CAN open one of these cans of worms on the respondent?

 

If so - this is the worst law ever. I can see tons of cases where a P/O'd former spouse drums stuff up. Yes, I know it needs to be proven, but as others stated - just the filing alone can be found as public record and people can be quick to judge without reading the - dismissed - part of the accusation.

 

TIA for help understanding this.

W

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Someone help me out here. The intro to this bill states it must be a blood or married relative. However further down, section 35...

 

 

(B) If the respondent is alleged to pose an immediate and

 

present danger of causing personal injury to an intimate

 

partner, or an intimate partner is alleged to have been the

 

target of a threat or act of violence by the respondent,

 

petitioner shall make a good faith effort to provide notice to

 

any and all intimate partners of the respondent. The notice

 

must include that the petitioner intends to petition the court

 

for an emergency firearms restraining order, and, if petitioner

 

is a law enforcement officer, referral to relevant domestic

 

violence or stalking advocacy or counseling resources, if

 

appropriate. Petitioner shall attest to having provided the

 

notice in the filed affidavit or verified pleading. If after

 

making a good faith effort petitioner is unable to provide

 

notice to any or all intimate partners, the affidavit or

 

verified pleading should describe what efforts were made.

 

 

 

So does that mean "intimate partners" aka ex wife, ex girlfriend/boyfriend, ex-husband etc CAN open one of these cans of worms on the respondent?

 

If so - this is the worst law ever. I can see tons of cases where a P/O'd former spouse drums stuff up. Yes, I know it needs to be proven, but as others stated - just the filing alone can be found as public record and people can be quick to judge without reading the - dismissed - part of the accusation.

 

TIA for help understanding this.

W

Yes, ex partners, neighbors, police officers, concerned citizens, and on and on and on...
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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.

 

1. I have to pay for not doing anything wrong other then pissing someone off. Then I have to pay to TRY to get back what I spent defending against the accusation. That's if some judge decides I am not a threat. I guess this is fine if you have the money to spend on lawyers.

 

2. Most judges will err on the side of defending the population at your expense. (The needs of the many...)

 

3. So what if your record is vacated? Do you really think an anti 2A LEO (think Dart) is going to give a hoot that the record is vacated? He'll know you were accused.

 

4. How many accusers do you think will be prosecuted? My bet is prosecutors in some parts of the state will thank the accuser for doing the "right" thing and possibly preventing a mass killing.

 

5. Anyone working in a professional environment where having a clean record is a condition of employment will be screwed. Also in Illinois you can be let go without being given a reason other then we don't need your services.

 

 

This law is fine for people downstate where there is a more pro gun mentality, but for those in the northern portion of the state this law has opened the door for loss of rights and gun confiscfation.

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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.

 

You are correct that restraining orders - orders of protection - are abused because there is little to no proof before an order is issued. The standard in this bill will help in getting that changed.

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Someone help me out here. The intro to this bill states it must be a blood or married relative. However further down, section 35...

 

( :cool: If the respondent is alleged to pose an immediate and present danger of causing personal injury to an intimate partner, or an intimate partner is alleged to have been the target of a threat or act of violence by the respondent, petitioner shall make a good faith effort to provide notice to any and all intimate partners of the respondent. The notice must include that the petitioner intends to petition the court for an emergency firearms restraining order, and, if petitioner is a law enforcement officer, referral to relevant domestic violence or stalking advocacy or counseling resources, if appropriate. Petitioner shall attest to having provided the notice in the filed affidavit or verified pleading. If after making a good faith effort petitioner is unable to provide notice to any or all intimate partners, the affidavit or verified pleading should describe what efforts were made.

 

 

So does that mean "intimate partners" aka ex wife, ex girlfriend/boyfriend, ex-husband etc CAN open one of these cans of worms on the respondent?

 

If so - this is the worst law ever. I can see tons of cases where a P/O'd former spouse drums stuff up. Yes, I know it needs to be proven, but as others stated - just the filing alone can be found as public record and people can be quick to judge without reading the - dismissed - part of the accusation.

 

TIA for help understanding this.

W

 

Back to the scenario where the husband has been acting crazy and announces to his wife, "I'm off to kill my sons", the wife can go to court to petition for the order without the sons' prior knowledge. As a part of the order, a good faith effort will go into contacting the sons and letting them know what is happening.

 

 

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Is it safe to assume we’ll be getting something out of this “comprise”, from the other side in good faith? Silencers, SBRs, anything? Or is it just another miner paper cut, while the other side gives nothing?
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First of all, we asked all these questions of the attorneys and other experts. I think some of you are still overlooking something here.

 

You are seeing this as a stand alone action. If someone is exhibiting clear and convincing evidence they are a danger to themselves or others, and a petition for this emergency intervention is sought, it does not preclude a court order for a psychological evaluation or a criminal arrest. The clear and convincing evidence provides for the emergency removal of firearms while these processes are going on.

 

My question was why can't law enforcement take someone into custody to stand before the judge when the petition is heard. The answer is, this is America and you can't take someone into custody like that. If a police officer encounters someone incoherent/erratic, they can transport them to the ER but they can't arrest them (hold them) if they have not committed a crime. In the case of hearings for mental competency and court ordered psychological eval., these are all drawn out legal proceedings or crop up under other circumstance that cause someone to be in court.

 

Emergency intervention that is provided in this law in the Waffle House killer case, could have provided a means to prevent the father from returning those firearms to his son. In the case of the Parkland high school killer, it would have provided the Aunt with the means to get before a judge instead of relying on failed FBI agents and failed local police dept.

 

Getting the constitutional protections that are in the final bill is a miracle - especially in this hysteria-filled political climate. For those of you who believe it is unconstitutional, we're just not going to be able to agree. Someone who is a purist and believes the Second Amendment cannot be regulated is not going to understand. In other states where bills similar to this have been in effect for sometime now, not talking about New Jersey and the like, but states like Indiana, there has been very few times the law has been used and even fewer times that it was abused.

What will happen in IL? I think we will see the same here. We stand ready to challenge any abuse of the law.

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Is it safe to assume we’ll be getting something out of this “comprise”, from the other side in good faith? Silencers, SBRs, anything? Or is it just another miner paper cut, while the other side gives nothing?

Sad to say but the other side is salavating waiting for next year when they expect Pritzker to lead the charge for every unconstitutional law they can ram through.

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5. Anyone working in a professional environment where having a clean record is a condition of employment will be screwed. Also in Illinois you can be let go without being given a reason other then we don't need your services.

 

 

 

 

 

BigJim: You have not read the bill. If the order is dismissed, it is expunged from your record. If it is issued, it will be sealed after three years.

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5. Anyone working in a professional environment where having a clean record is a condition of employment will be screwed. Also in Illinois you can be let go without being given a reason other then we don't need your services.

 

BigJim: You have not read the bill. If the order is dismissed, it is expunged from your record. If it is issued, it will be sealed after three years.

So BigJim is correct. WHEN this bill gets abused it will haunt innocent people in a negative way for 3 years following its issuance.
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Here's a question... Who is the plaintiff?

Does your accuser have the right to remain anonymous and the state becomes the plaintiff?

Remember that video that someone posted a few days back about not talking to the police. They will find you guilty of something in which case the original complainant doesn't even have to be named.

 

If that happens, good luck suing the state.

The plaintiff should be whoever petitioned the court for the firearm restraining order. The anonymous tip line got amended away. The "accuser" will be a named person.

 

The video (Duane) advised never talking to the police without a lawyer. For the hearing for a restraining order, you'll be in a courtroom, not in a police "interview" room. You can have a lawyer in the hearing.

 

So how do you think this play out if it were an "emergency firearms restraining order?"

 

(d) An emergency firearms restraining order shall be issued

on an ex parte basis, that is, without notice to the respondent.

 

That part is a "little" worrying...

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5. Anyone working in a professional environment where having a clean record is a condition of employment will be screwed. Also in Illinois you can be let go without being given a reason other then we don't need your services.

BigJim: You have not read the bill. If the order is dismissed, it is expunged from your record. If it is issued, it will be sealed after three years.

So BigJim is correct. WHEN this bill gets abused it will haunt innocent people in a negative way for 3 years following its issuance.

 

Twostarrz - tell you what, volunteer to track these cases of abused petitions where clear and convincing evidence was not provided and we'll take it to the attorneys for a challenge.

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Here's a question... Who is the plaintiff?

Does your accuser have the right to remain anonymous and the state becomes the plaintiff?

Remember that video that someone posted a few days back about not talking to the police. They will find you guilty of something in which case the original complainant doesn't even have to be named.

 

If that happens, good luck suing the state.

The plaintiff should be whoever petitioned the court for the firearm restraining order. The anonymous tip line got amended away. The "accuser" will be a named person.

 

The video (Duane) advised never talking to the police without a lawyer. For the hearing for a restraining order, you'll be in a courtroom, not in a police "interview" room. You can have a lawyer in the hearing.

 

So how do you think this play out if it were an "emergency firearms restraining order?"

 

(d) An emergency firearms restraining order shall be issued

on an ex parte basis, that is, without notice to the respondent.

 

That part is a "little" worrying...

 

 

 

But the order is not finalized until the respondent has their day in court.

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So how do you think this play out if it were an "emergency firearms restraining order?"

 

(d) An emergency firearms restraining order shall be issued

on an ex parte basis, that is, without notice to the respondent.

 

That part is a "little" worrying...

 

 

 

But the order is not finalized until the respondent has their day in court.

 

 

So what is the practical difference between having your home unwantingly searched and your firearms confiscated...and a 'finalized order' to perform the same??

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Tell you what, I’m in no way concerned that this will ever be used maliciously against me BUT I can’t sit idly by and listen to the praises being sung about a piece of legislation that is a confiscation scheme no matter how cleverly it is written. I fully understand that this year has been a real push from the left, I understand lots of people put their hearts into this to make it the least painful outcome, I understand that once you put that much of yourself into something your vision of that thing can get clouded, and I understand that this is just another crumb off of the pie of 2nd amendment. I would LOVE to see this bill be used ONLY with the best of intentions and ONLY be used against bad actors. The reality of it is that this IS ILLINOIS and things like this will be abused.
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So how do you think this play out if it were an "emergency firearms restraining order?"

 

(d) An emergency firearms restraining order shall be issued[/size]

on an ex parte basis, that is, without notice to the respondent.[/size]

 

That part is a "little" worrying...

 

 

But the order is not finalized until the respondent has their day in court.

So what is the practical difference between having your home unwantingly searched and your firearms confiscated...and a 'finalized order' to perform the same??

When the “finalized order” is dismissed, who’s responsibility is it to return your FOID, CCL, and firearms? What timeframe? What about returning your dignity? Explaining to your neighbors why the county police arrived in your driveway and left with all your guns? There are so many unintended consequences from this that the “respondent” will suffer.
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Tell you what, I’m in no way concerned that this will ever be used maliciously against me BUT I can’t sit idly by and listen to the praises being sung about a piece of legislation that is a confiscation scheme no matter how cleverly it is written. I fully understand that this year has been a real push from the left, I understand lots of people put their hearts into this to make it the least painful outcome, I understand that once you put that much of yourself into something your vision of that thing can get clouded, and I understand that this is just another crumb off of the pie of 2nd amendment. I would LOVE to see this bill be used ONLY with the best of intentions and ONLY be used against bad actors. The reality of it is that this IS ILLINOIS and things like this will be abused.

 

Twostarrz - tell you what, volunteer to track these cases of abused petitions where clear and convincing evidence was not provided and we'll take it to the attorneys for a challenge.

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I know I’m the eternal optimist - I’ve had to be to survive the last four years - but my expectation is this will not turn out to be armageddon. I may be wrong, but one thing I know I’m not wrong about is this would have been an unmitigated disaster were it not for the efforts of a group of dedicated folks who advocate for the rest of us.... (you know who you are and once again, Thank You...!!!)

 

Sometimes surviving to fight the next battle works better than falling on your sword....

 

Just my 2 cents....

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I would be happy to, unfortunately while I have found a “definition” for “clear and convincing”, I am afraid that my opinion of it will be different than everyone else’s. A sympathetic judge will require less evidence than a strict judge.

 

“Clear and convincing proof means that the evidence presented by a party during the trial must be highly and substantially more probable to be true than not and the trier of fact must have a firm belief or conviction in its factuality. In this standard, a greater degree of believability must be met than the common standard of proof in civil actions, which only requires that the facts as a threshold be more likely than not to prove the issue for which they are asserted.”

 

Here’s the link: https://en.m.wikipedia.org/wiki/Burden_of_proof_(law)

 

Clear and convincing is more stringent than “more likely to be true than to not be true” and less stringent than “beyond a reasonable doubt”.

IANAL or a judge so I guess I will just have to take the courts word that it isn’t being abused. The real proof it is being abused will be when it goes up the courts on appeal. When that happens, you won’t need to present it to your attorneys and the point will be moot.

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Tell you what, Im in no way concerned that this will ever be used maliciously against me BUT I cant sit idly by and listen to the praises being sung about a piece of legislation that is a confiscation scheme no matter how cleverly it is written. I fully understand that this year has been a real push from the left, I understand lots of people put their hearts into this to make it the least painful outcome, I understand that once you put that much of yourself into something your vision of that thing can get clouded, and I understand that this is just another crumb off of the pie of 2nd amendment. I would LOVE to see this bill be used ONLY with the best of intentions and ONLY be used against bad actors. The reality of it is that this IS ILLINOIS and things like this will be abused.

Illinois is the keyword here. Couldnt agree more. Giving away freedoms in the name of security is the oldest trick in the book. And frankly, the complete nanny state that is Illinois cannot be trusted to uphold any legislation in good faith, without abusing the power to further infringe on law abiding citizens, and the very freedom this country was built off.

 

Molly, I appreciate everything you do, and how hard you fight, I truly do, but this is a dangerous path. Another comprise in which we get shafted. A family owned bakery refused to bake a wedding cake for a gay couple because it went against their beliefs, and look how unfairly they were treated just for their religious belifes. Not to mention lawyer and court fees. Not swap that scenario with crazed anti-gunners and the lengths they will go to lie, cheat and steal theyre way to disarming Americans. Just being an admitted conservative is risky without being attacked.

 

Just because something is done with good intention, doesnt mean theyre arent those who will abuse it by any means nessecary

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BUT I can’t sit idly by and listen to the praises being sung about a piece of legislation that is a confiscation scheme no matter how cleverly it is written. I fully understand that this year has been a real push from the left, I understand lots of people put their hearts into this to make it the least painful outcome, I understand that once you put that much of yourself into something your vision of that thing can get clouded, and I understand that this is just another crumb off of the pie of 2nd amendment. I would LOVE to see this bill be used ONLY with the best of intentions and ONLY be used against bad actors. The reality of it is that this IS ILLINOIS and things like this will be abused.

You REALLY need to compare this bill to others enacted in other states. Other State's laws, (enacted in prior years) and particularly this year, are leagues worse in every regard you have concern in.

 

OOC, when this bill was going through the stages, how did you, personally fight it?

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BUT I can’t sit idly by and listen to the praises being sung about a piece of legislation that is a confiscation scheme no matter how cleverly it is written. I fully understand that this year has been a real push from the left, I understand lots of people put their hearts into this to make it the least painful outcome, I understand that once you put that much of yourself into something your vision of that thing can get clouded, and I understand that this is just another crumb off of the pie of 2nd amendment. I would LOVE to see this bill be used ONLY with the best of intentions and ONLY be used against bad actors. The reality of it is that this IS ILLINOIS and things like this will be abused.

 

You REALLY need to compare this bill to others enacted in other states. Other State's laws, (enacted in prior years) and particularly this year, are leagues worse in every regard you have concern in.

 

OOC, when this bill was going through the stages, how did you, personally fight it?

I filed witness slips, called reps, called senator, called the governor, wrote about it on social media, marched in Springfield. Did this on this bill along with every other POS that was voted on this session.
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Molly, believe me, I know you did beyond any doubt the absolute best that could be done, and I'm sure most of us appreciate -- in Illinfornia, it could have been even worse, and didn't need R votes to pass.

 

The thing that DOES concern me is that clear and convincing evidence in an ex parte "hearing" means that the complainant is the only one giving "evidence;" unrebutted, and without cross examination or the other side being presented in any way, shape or form. Therefore, a malicious complainant need only be a good liar with an ax to grind and knowing what to say to get the temporary order entered, and the subject will have absolutely no clue what is going on until he finds the police at his door demanding his firearms.

 

OMG, what Chicago does to guns ... and it is such a rarity and royal pain to get them back. A defendant would have to pray that he has someone with a FOID who could get there immediately and convince the PD to let him or her take possession of the guns. I don't see too many cops waiting around for 2 or 3 hours for the defendant to call people (if he has any) to beg them to drop everything to run over there and take possession of (and responsibility for) the firearms.

 

Again, the best that could be done, but it still sucks.

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quote " announces to his wife, "I'm off to kill my sons", SO how do you PROVE he said that ?

In an ex parte hearing? You look at the judge and say, "Your Honor, my (whomever) looked at me with a crazed look in his eyes. He was angier than I've ever seen him. He said, "I'm off to kill my sons," and I believe him, because he was so crazed and he has guns. I'm afraid for those kids!"

 

What's a judge supposed to do? If he doesn't grant the order and the kids are shot, he is going to take a lot of heat. THAT will be his primary consideration. At best, you could hope for, "You realize that you are under oath and could be charged with perjury if you are not telling the truth." How would she respond? "I lied, Your Honor, nevermind and please don't have me charged with perjury?"

 

In an actual hearing later, it's a he said she said. Whoever the judge believes, unless there is additional evidence.

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I won't go into my thoughts on the snitch law but the 72hr. wait on long guns is another we give up something and get nothing in return.

The lefties hold all the aces, and they aren't in a trading mood. I don't like it, either, but it beats 10 round magazine restrictions on handguns. I can't believe I'm saying that, but these ignorant, self-righteous, tyranical zealots are in damned-near complete control of the state, and they are pretty much free to stomp on our constitutional rights. Now, a made-up "constitutional right," like abortion or gay marriage, these loons will fight to the death to protect from any "common sense" regulation whatsoever. The hypocrisy of the left is like the bottomless cup of coffee at the local diner.

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quote " announces to his wife, "I'm off to kill my sons", SO how do you PROVE he said that ?

In an ex parte hearing? You look at the judge and say, "Your Honor, my (whomever) looked at me with a crazed look in his eyes. He was angier than I've ever seen him. He said, "I'm off to kill my sons," and I believe him, because he was so crazed and he has guns. I'm afraid for those kids!"

 

What's a judge supposed to do? If he doesn't grant the order and the kids are shot, he is going to take a lot of heat. THAT will be his primary consideration. At best, you could hope for, "You realize that you are under oath and could be charged with perjury if you are not telling the truth." How would she respond? "I lied, Your Honor, nevermind and please don't have me charged with perjury?"

 

In an actual hearing later, it's a he said she said. Whoever the judge believes, unless there is additional evidence.

 

Now i'm just spit balling because i'm not a pro at every law, or any law for that fact. But before this law, couldn't the person do the same thing previously, but instead of FOID and CCL be suspended and getting a trial in 14 days or less, they would have been revoked and not gotten a court date for months if not years?

 

I"m trying to understand the differences between previous law, this current law, and the anti's prospected law (which we all know was way worse with a toll free number). So more so pre and post HB2354.

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