Local Authority to Regulate Firearms in Massachusetts

Posted on Thursday, October 16th, 2014

Municipal Regulatory Authority

Massachusetts grants regulatory authority to municipalities via the Home Rule Amendment (“Amendment”), Mass. Const. amend. art. II, §§ 1-9 (as amended by Mass. Const. amend. article LXXXIX).

The Amendment provides cities and towns with broad regulatory power:

It is the intention of this article to reaffirm the customary and traditional liberties of the people with respect to the conduct of their local government, and to grant and confirm to the people of every city and town the right of self-government in local matters, subject to the provisions of this article and to such standards and requirements as the general court may establish by law in accordance with the provisions of this article.1

(Please note: the term “general court” in the Massachusetts Constitution and state statutes refers to the Massachusetts state legislature.)

The Amendment empowers cities and towns to enact local ordinances that do not conflict with the general laws of Massachusetts.2 The Amendment does not, however, permit localities to criminalize behavior legalized by the legislature.3

The substance of the Amendment is rooted in Mass. Const. amend. art. II, § 6:

Any city or town may, by the adoption, amendment, or repeal of local ordinances or by-laws, exercise any power or function which the general court has power to confer upon it, which is not inconsistent with the constitution or laws enacted by the general court in conformity with powers reserved to the general court by [Const. amend. art. II, § 8], and which is not denied, either expressly or by clear implication, to the city or town by its charter. This section shall apply to every city and town, whether or not it has adopted a charter pursuant to [Const. amend. art. II, § 3].

Massachusetts General Laws ch. 43B, § 13, which defines the parameters of a municipality’s powers, is virtually identical in substance to Mass. Const. amend. art. II, § 6.

Under the Amendment, municipal actions are presumed valid, and municipalities may undertake any action that is not inconsistent with state law.4 The Massachusetts Supreme Judicial Court has set forth the following guidelines for determining whether a municipal ordinance is inconsistent with state law:

  • If there is an express legislative intent to forbid local activity on the same subject, state law preempts local law;
  • If the local regulation would frustrate the purpose of the statute so as to warrant an inference that the Legislature intended to preempt the subject, state law preempts local law. Courts may infer that the Legislature intended to preempt the field of regulation if legislation on the subject is so comprehensive that any local enactment would frustrate the statute’s purpose; or
  • State law preempts local law if there is a “sharp conflict” between the state legislation and the local law, which happens when the legislative intent to preclude local action is clear or the purpose of the statute cannot be achieved in the face of the local law.5

In Town of Amherst v. Attorney General, 502 N.E.2d 128, 130 (Mass. 1986), the Massachusetts Supreme Judicial Court interpreted several provisions of Mass. Const. amend. art. II in the context of a firearms discharge by-law, holding that when a town exercises a right to govern locally, it “exceeds its power only when it passes a by-law inconsistent with the Constitution or laws of the Commonwealth” per Mass. Const. amend. art. II, § 6.

In Town of Amherst, the court found that a town by-law prohibiting the discharge of specified firearms within town limits under various circumstances was not inconsistent with state statutes regarding hunting and the safe use of firearms and was therefore valid.6 The Massachusetts Attorney General had disapproved of the by-law on the basis that it constituted an undue restriction of firearm use in a rural town.7

The court disagreed, stating that the existence of state law addressing the same subject a local government seeks to regulate does not necessarily result in preemption of local authority. Rather, if the state’s “legislative purpose can be achieved in the face of a local [regulation]…on the same subject, the [local regulation] … is not inconsistent with the State legislation.”8 .)) The court determined that the local law did not frustrate the purpose of state laws regarding hunting and therefore did not conflict with state substantive or procedural laws.9

Massachusetts Constitutional amendment art. II, § 7 limits cities and towns from exercising the authority granted in Mass. Const. amend. art. II, §§ 1 and 6 in specified areas unless such authority is granted by the general court as provided for in Mass. Const. amend. art. II, § 8. For example, municipalities are prohibited from providing “for the punishment of a felony or to impose imprisonment as a punishment for any violation of law.”10 In addition, Mass. Const. amend. art. II, § 7(2) prohibits cities and towns from levying, assessing or collecting taxes.

A city or town may petition the state to enact special legislation pertaining only to that city or town pursuant to Mass. Const. amend. art. II, § 8. Boston’s assault weapon ban is an example of regulation that was enacted through this process.11

Finally, under the Amendment, municipalities generally are no longer required to seek authority from the state legislature to impose controls relative to zoning.12 Chapter 40A expressly recognizes local autonomy in dealing with land use and zoning issues.13

Towns in Massachusetts may, under ch. 40, § 21, “make such ordinances and by-laws, not repugnant to law, as they may judge most conducive to their welfare, which shall be binding upon all inhabitants thereof and all persons within their limits.” Specifically, towns may enact ordinances and by-laws “[f]or directing and managing their prudential affairs, preserving peace and good order, and maintaining their internal police.”14

County Regulatory Authority

Although the Massachusetts Constitution does not grant any explicit power to counties, those counties adopting a charter under ch. 34A, § 15 have the power to “[a]dopt, amend, enforce, and repeal ordinances and resolutions notwithstanding the effect of any referendum conducted prior to the county’s adoption of its charter pursuant to” Chapter 34A.15 With respect to regulations for the general health, safety and welfare, however, “[c]ities and towns are and shall remain the broad repository of local police power in terms of the right and power to legislate” in these areas.16

  1. Mass. Const. amend. art. II, § 1. []
  2. Tri-Nel Mgmt., Inc. v. Board of Health of Barnstable, 741 N.E.2d 37, 43 (Mass. 2001). []
  3. American Motorcyclist Ass’n v. Park Comm’n of Brockton, 592 N.E.2d 1314 (Mass. 1992) (invalidating local regulation banning use of motorcycles because regulation inconsistent with statute giving persons the right to operate motor vehicle). []
  4. Connors v. City of Boston, 714 N.E.2d 335 (Mass. 1999). []
  5. Id. at 337-38. []
  6. Town of Amherst, 502 N.E.2d at 131-32. []
  7. Id. at 129. []
  8. Id. at 130 (quoting Bloom v. Worcester, 363 Mass. 136, 156 (Mass. 1973 []
  9. Id. at 131. []
  10. Mass. Const. amend. art. II, § 7(6). []
  11. 1989 Mass. Acts 596, §§ 1-7. []
  12. Baldiga v. Board of Appeals of Uxbridge, 482 N.E.2d 809, 812 n.5 (Mass. 1985). []
  13. Id. at 812, Zoning Bd. of Appeals of Wellesley v. Ardemore Apts. L.P., 767 N.E.2d 584, 593 n.22 (Mass. 2002). []
  14. Ch. 40, § 21(1). See Brown v. Town of Carlisle, 142 N.E.2d. 891 (Mass. 1957) (holding that ch. 40, § 21(1) permits a local jurisdiction to prohibit the discharge of a firearm on any private property except with the permission of the land owner or legal occupant of the land). []
  15. Ch. 34A, § 16(A)(ii). []
  16. Ch. 34A, § 16(B). []

Domestic Violence and Guns: State by State

Posted on Wednesday, October 15th, 2014

VAWA-DV

American women are particularly vulnerable to certain forms of gun violence, including homicides by domestic abusers and stalkers. More than two-thirds of those murdered by their spouses between 1980 and 2008 were killed with guns. Moreover, abused women are five times more likely to be killed by their abuser if the abuser owns a firearm. These statistics represent real people whose lives could have been saved if their abusers didn’t have access to guns.

The Law Center to Prevent Gun Violence has partnered with the Center for American Progress to develop 50 fact sheets—one for each state—summarizing current laws on domestic violence and guns and offering straightforward, real-world solutions for how smart gun laws can better protect women.

Download the Domestic Violence and Guns fact sheets to see how your state measures up.

READ MORE »

Sighting the Homemade Gun Threat

Posted on Tuesday, October 14th, 2014

3d-printed-gun

Last week, Law Center Executive Director Robyn Thomas and Michael McLively, one of our staff attorneys, published an article, “Sighting the Homemade Gun Threat” in the Daily Journal. Outlining two potential gun laws, Senate Bill 199 and Senate Bill 808, which Governor Brown signed and vetoed respectively, the article discusses the dangers of homemade guns and the impending threat of 3-D printed guns as they gain popularity. Originally published in both print and online, here is the article shared in full.

Sighting the Homemade Gun Threat

Gov. Jerry Brown made headlines last week by signing Assembly Bill 1014, a bill that will establish an innovative “Gun Violence Restraining Order” procedure in California. On the same day, two lesser-known bills, Senate Bill 199 and Senate Bill 808, were signed and vetoed by the governor, respectively, without generating much notice. Despite their relatively low profile, these bills deserve our attention as they provide interesting insights into some of the  critical gun issues we’ll be facing in California looking forward.

The Serious Danger of Homemade Guns

Last Tuesday, Brown vetoed SB 808, which was an initial attempt to regulate the serious threat posed by homemade firearms. The bill would have required all such guns to be registered with the California Department of Justice and given a serial number.

This would have been a small step in the right direction by giving state authorities a better idea of just how many homemade guns are out there, but much more needs to be done in order to effectively nip this growing menace in the bud. Brown’s veto of this bill provides an opportunity to revisit this issue afresh and to reconsider the best way to properly address this problem in 2015, before it is too late.

Homemade firearms come from two main sources: the assembly of what are known as “partial receivers,” and 3D printing. Each presents its own set of unique problems and concerns.

Partial Receivers

A partial receiver is a partially finished metal component that holds the basic mechanisms that allow a gun to operate. Partial receivers are not regulated federally or at the state level. They can be purchased without a background check and turned into a fully functioning firearm with a relatively cheap and simple mechanical process that takes only one to seven hours to complete.

Partial receivers provide a way for mass-murderers and other criminals to skirt California’s otherwise strong gun laws, including mandatory background checks and the state’s prohibition on assault weapons. Using a partial receiver allows a person to build a functional assault rifle in a matter of hours. A recent and devastating shooting in Santa Monica highlights this danger all too well. John Zawahri failed a gun-purchase background check before deciding to buy an unfinished receiver and assembling his own assault rifle, which he then used in a terrible attack that left five dead, including Zawahri.

READ MORE »

Law Center and Americans for Responsible Solutions Release Second Commonsense Solutions Toolkit on Guns and Domestic Violence

Posted on Thursday, October 9th, 2014

 

One of the most overlooked aspects of the gun debate in America is the deadly connection between guns and domestic violence. As part of our ongoing partnership with Americans for Responsible Solutions, the Law Center has developed Commonsense Solutions: State Laws to Address Gun Violence Against Women. This toolkit for legislators and advocates both documents existing laws on guns and domestic violence and offers suggestions for commonsense gun laws to better protect victims of domestic violence.

October is Domestic Violence Awareness Month, and we strongly believe that by implementing smart gun laws, we can reduce the number of domestic violence incidents that end in firearm-related deaths or injuries. While men and children can also be victims of domestic violence, women are particularly at risk.

DV-blog-graphic

READ MORE »

Private Sales in Illinois

Posted on Thursday, October 9th, 2014

See our Private Sales policy summary for a comprehensive discussion of this issue.

Any private (unlicensed) seller of a firearm who seeks to transfer a firearm to any unlicensed purchaser must, prior to transfer, contact the Department of State Police (DSP) with the transferee’s Firearm Owner’s Identification (FOID) Card number to determine the validity of the transferee’s FOID Card.1 The seller must await approval by DSP before transferring the firearm. Approvals issued by DSP for the purchase of a firearm are valid for 30 days.2

Exceptions to this requirement include: 1) transfers as a bona fide gift to the transferor’s husband, wife, son, daughter, stepson, stepdaughter, father, mother, stepfather, stepmother, brother, sister, nephew, niece, uncle, aunt, grandfather, grandmother, grandson, granddaughter, father-in-law, mother-in-law, son-in-law, or daughter-in-law;3 and 2) transfers that occur at a federally licensed firearm dealer’s place of business, if the licensed dealer conducts a background check on the prospective recipient of the firearm and follows all other applicable federal, state, and local laws as if he or she were the transferor of the firearm.4

A private seller or transferor who complies with the law by determining the validity of a purchaser’s FOID card, will not be liable for damages in any civil action arising from the use or misuse by the transferee of the firearm transferred, except for willful or wanton conduct on the part of the seller or transferor.5

DSP is tasked with developing an Internet-based system for private sellers to determine the validity of a FOID Card prior to transferring a firearm to an unlicensed purchaser.6 DSP is required to have this system operable by July 1, 2015.7

Illinois has a separate private sales background check requirement at gun shows. See the Gun Shows in Illinois section for further information.

The following Illinois laws apply to all firearm sales, regardless of whether the seller is a licensed dealer:

  • Illinois law prohibits any person from knowingly selling firearms or ammunition to individuals who are ineligible to possess a firearm or who do not hold a Firearm Owner’s Identification (“FOID”) card. It is a Class 3 felony, for example, for any person to knowingly sell or give any firearm to any person who has been convicted of a felony.8 See the Licensing of Gun Owners & Purchasers section for information about FOID cards.
  • Any person who transfers a firearm must keep records of all such transfers for a period of 10 years.9 See the Retention of Sales & Background Checks Records section for more information.
  • All firearms sellers must abide by statutory waiting periods.10 See the Waiting Periods section for more details.
  1. 430 Ill. Comp. Stat. 65/3(a-10). []
  2. Id. []
  3. 430 Ill. Comp. Stat. 65/3(a-15)(2). []
  4. 430 Ill. Comp. Stat. 65/3(a-15)(1). []
  5. 720 Ill. Comp. Stat. 5/24-3(A)(k). []
  6. 430 Ill. Comp. Stat. 65/3(a-20). []
  7. Id. []
  8. 430 Ill. Comp. Stat. 65/2(a)(1), (2); 430 Ill. Comp. Stat. 65/3(a); 430 Ill. Comp. Stat. 65/4; 720 Ill. Comp. Stat. 5/24-3(A)(d), (k), (C) (9). []
  9. 430 Ill. Comp. Stat. 65/3(b). []
  10. 720 Ill. Comp. Stat. 5/24-3(A)(g). []

Prohibited Purchasers Generally in Illinois

Posted on Thursday, October 9th, 2014

See our Prohibited Purchasers Generally policy summary for a comprehensive discussion of this issue.

Federal law prohibits certain persons from purchasing or possessing firearms, such as felons, certain domestic abusers, and certain people with a history of mental illness.

In Illinois, no person may acquire or possess any firearm or ammunition without having a valid Firearm Owner’s Identification (“FOID”) card, issued by the Illinois Department of State Police (“DSP”).1 The FOID card process is designed to identify persons who, for various reasons in the public interest, are not qualified to acquire or possess firearms or ammunition.2

The DSP may deny, or revoke and seize, a FOID card only if the DSP finds that the current or prospective card holder is (or was at the time of issuance):

  • A person under 21 years of age who has been convicted of a misdemeanor (other than a traffic offense) or adjudged delinquent, or who does not have the written consent of his or her parent or guardian to acquire and possess firearms and ammunition, or whose parent or guardian has revoked such written consent, or whose parent or guardian does not qualify to have a FOID card;
  • A person who has been convicted of a felony under the laws of Illinois or any other jurisdiction;
  • Addicted to narcotics;
  • A patient of a mental health facility within the past five years, or or a patient in a mental health facility more than 5 years ago (“patient” is defined to include an outpatient if he or she was determined to present a clear and present danger, and any inpatient3 ) who has not received certification after a mental health evaluation by a physician, clinical psychologist, or qualified examiner that he or she is not a clear and present danger to self or others;
  • A person who has been adjudicated as mentally disabled, defined in numerous ways4;
  • A person whose mental condition (meaning a state of mind manifested by violent, suicidal, threatening, or assaultive behavior) is of such a nature that it poses a clear and present danger to self, others, or the community (“Clear and present danger” means a person who: (1) communicates a serious threat of physical violence against a reasonably identifiable victim or poses a clear and imminent risk of serious physical injury to self or others; or (2) demonstrates threatening physical or verbal behavior, such as violent, suicidal, or assaultive threats, actions, or other behavior.5 See our page on Mental Health Reporting in Illinois for details about how this determination is made.);
  • A person who is intellectually disabled (defined by Illinois law as having “significantly subaverage general intellectual functioning which exists concurrently with impairment in adaptive behavior and which originates before the age of 18 years”6);
  • A person who has been found to be developmentally disabled;
  • A person involuntarily admitted into a mental health facility;
  • One who intentionally made a false statement on the FOID card application;
  • An alien unlawfully present in the United States under the laws of the United States;
  • An alien admitted to the United States under a non-immigrant visa (subject to certain exceptions, including aliens admitted to the U.S. under a non-immigrant visa for lawful hunting or sporting purposes, official representatives of foreign governments, and foreign law enforcement officers in the U.S. on official business);
  • A person convicted within the past five years of battery, assault, aggravated assault, violation of an order of protection, or a substantially similar offense in another jurisdiction, in which a firearm was used or possessed;
  • A person convicted of domestic battery, aggravated domestic battery, or a substantially similar offense in another jurisdiction;
  • Prohibited from acquiring or possessing firearms or ammunition by any Illinois state statute or federal law;
  • A minor subject to a juvenile petition alleging that he or she is a delinquent minor for the commission of an offense that if committed by an adult would be a felony; or
  • An adult who had been adjudicated a delinquent minor for the commission of an offense that if committed by an adult would be a felony.7

In addition, DSP must deny an application for, or revoke and seize, a FOID card, if DSP finds that the applicant or cardholder is or was at the time of issuance subject to an existing order of protection prohibiting possession of firearms.8

As a condition of probation or conditional discharge, Illinois law requires a person convicted of a felony or misdemeanor involving the intentional or knowing infliction or threat of bodily harm to refrain from possession of a firearm or other dangerous weapon.9 A court may, at its discretion, impose this same condition on a person convicted of a non-violent misdemeanor.10

Illinois law also restricts sales to young people.

Firearm transfers by private sellers (non-firearms dealers) are not subject to background checks in Illinois, except at gun shows (see the Gun Shows in Illinois section for further information). See the Private Sales in Illinois section.

For information on the background check process used to enforce these provisions, see the Background Checks in Illinois section.

  1. 430 Ill. Comp. Stat. 65/2(a)(1), (2). []
  2. 430 Ill. Comp. Stat. 65/1. []
  3. 430 Ill. Comp. Stat. 65/1.1. []
  4. See 430 Ill. Comp. Stat. 65/1.1. []
  5. 430 Ill. Comp. Stat. 65/1.1. []
  6. 405 Ill. Comp. Stat. 5/1-116. []
  7. 430 Ill. Comp. Stat. 65/8. []
  8. 430 Ill. Comp. Stat. 65/8.2. []
  9. 730 Ill. Comp. Stat. 5/5-6-3(a)(3). []
  10. 730 Ill. Comp. Stat. 5/5-6-3(b)(18). []

Minimum Age to Purchase & Possess in Illinois

Posted on Thursday, October 9th, 2014

Illinois prohibits any person under age 18 from possessing a handgun.1 State law also prohibits any person from knowingly transferring a handgun to any person under age 18.2 However, Illinois also prohibits any person from knowingly transferring a firearm to any person who does not hold a FOID card.3 To obtain a FOID card, an individual must be over 21 years of age or have the written consent of his or her parent or legal guardian to possess and acquire any firearms and ammunition.4 Further, the parent or legal guardian must not be prohibited from obtaining a FOID card.5 Persons under age 21 also do not qualify for a FOID card if they have been convicted of a misdemeanor (other than a traffic offense) or adjudged delinquent.6

Federal law imposes additional restrictions

See our Minimum Age to Purchase & Possess Firearms policy summary for a comprehensive discussion of this issue.

  1. 720 Ill. Comp. Stat. 5/24-3.1(a)(1). []
  2. 720 Ill. Comp. Stat. 5/24-3(A)(a). []
  3. 430 Ill. Comp. Stat. 65/3(a). []
  4. 430 Ill. Comp. Stat. 65/4(a)(2)(i). []
  5. 430 Ill. Comp. Stat. 65/4(a)(2)(i). []
  6. 430 Ill. Comp. Stat. 65/4(a)(2)(i). []

Domestic Violence & Firearms in Illinois

Posted on Thursday, October 9th, 2014

Illinois requires that a person have a Firearm Owner’s Identification (“FOID”) card to purchase or possess firearms or ammunition.1 An applicant will be denied a FOID card, and a holder of a previously-issued FOID card will have his or her card revoked and seized, if he or she:

  • Was convicted within the past five years for battery, assault, aggravated assault, violation of an order of protection, or a substantially similar offense in another jurisdiction, in which a firearm was used or possessed;2 or
  • Has ever been convicted of domestic battery or aggravated domestic battery in Illinois or a substantially similar offense in another jurisdiction.3

Under Illinois law, a person commits domestic battery if he or she knowingly, without legal justification: (1) causes bodily harm to a family or household member, or (2) makes physical contact of an insulting or provoking nature with a family or household member.4 “Family or household members” include spouses, former spouses, parents, children, stepchildren and other persons related by blood or by present or prior marriage, persons who share or formerly shared a common dwelling, persons who have or allegedly have a child in common, persons who share or allegedly share a blood relationship through a child, persons who have or have had a dating or engagement relationship, persons with disabilities and their personal assistants, and certain caregivers.5 A person commits aggravated domestic battery if, in committing domestic battery, he or she intentionally or knowingly cause great bodily harm, permanent disability, or disfigurement.6

In addition to the aforementioned prohibitions, a FOID card will be denied or revoked if the applicant or cardholder is prohibited from acquiring or possessing firearms or ammunition by federal law.7 Federal law prohibits the purchase and possession of firearms and ammunition by certain domestic violence misdemeanants. If a person is convicted of an offense in Illinois that would disqualify him or her from purchasing or possessing firearms under federal law due to a misdemeanor crime of domestic violence, the court clerk must notify the Department of State Police Firearm Owner’s Identification Card Office who will then report that determination to the FBI.8

Illinois law provides a procedure for determining whether certain misdemeanor crimes are “crimes of domestic violence,” for purposes of federal law.9 When a person is charged with a crime that might qualify, the state may serve notice on the defendant alleging that conviction would subject defendant to the prohibitions of 18 U.S.C. § 922(g)(9).10 The defendant may admit that the conviction would subject him or her to the prohibitions of 18 U.S.C. § 922(g)(9) or, if the defendant says nothing or denies the claim, the state bears the burden of proving to the court beyond a reasonable doubt that the offense is one that would constitute a “crime of domestic violence” under federal law.11

In Illinois, upon conviction of domestic battery or aggravated domestic battery, the court must advise the defendant orally or in writing that, “[a]n individual convicted of domestic battery [or aggravated domestic battery] may be subject to federal criminal penalties for possessing, transporting, shipping, or receiving any firearm or ammunition in violation of the federal Gun Control Act of 1968 (18 U.S.C. § 922(g)(8) and (9)).”12

Firearm Prohibitions for Persons Subject to Domestic Violence Restraining/Protective Orders

The Illinois Code of Criminal procedure provides that a person who is subject to an existing order of protection, interim order of protection, emergency order of protection, or plenary order of protection issued under state law may not lawfully possess weapons under the Firearm Owners Identification Card Act.13

The Illinois Domestic Violence Act also provides that a court may issue an order prohibiting a person from possessing firearms if that person is subject to a protection order meeting the following criteria:

  • was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
  • restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
  • (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.14

The Illinois Department of State Police (“DSP”) must deny an application for, or revoke and seize, a FOID card (thereby prohibiting such person from purchasing or possessing a firearm or ammunition), if DSP finds that the applicant or cardholder is or was at the time of issuance subject to an existing order of protection prohibiting possession of firearms.15

Prior to receiving a FOID card, an applicant must prove that he or she is not subject to an existing order of protection prohibiting him or her from possessing a firearm or ammunition.16

A court that is issuing a “stalking no contact order” may also prohibit the defendant from possessing firearms.17

Removal or Surrender of Firearms Upon Conviction for a Domestic Violence Misdemeanor

Domestic violence misdemeanants who fall within the federal gun prohibition and who receive probation must surrender their firearms at a time and in a location specified by the court.18

Removal or Surrender of Firearms When Domestic Violence Restraining/Protective Orders Are Issued

Domestic violence orders of protection may require that any firearms in the possession of the respondent, as well as the respondent’s FOID card, be turned over to the local law enforcement agency for safekeeping (if issued by a criminal court, firearms must be turned over to a person with a valid FOID card).19 The period of safekeeping must be equivalent to the duration of the order. The firearm or firearms and FOID card must be returned to the respondent at the expiration of the order.20

Upon expiration of the period of safekeeping, if the firearms or FOID card cannot be returned to respondent because respondent cannot be located, fails to respond to requests to retrieve the firearms, or is not lawfully eligible to possess a firearm, upon petition from the local law enforcement agency the court may order the agency to destroy the firearms, use the firearms for training purposes or for any other application as deemed appropriate by the agency, or turn the guns over to a third party lawfully eligible to possess firearms who does not reside with respondent.21

Protective orders prohibiting firearm possession are available to the following persons:

  • Any person abused by a family or household member;
  • Any high-risk adult with disabilities who is abused, neglected, or exploited by a family or household member;
  • Any minor child or dependent adult in the care of such person; and
  • Any person residing or employed at a private home or public shelter which is housing an abused family or household member.22

Removal or Surrender of Firearms at the Scene of a Domestic Violence Incident

Illinois requires law enforcement to seize and remove firearms at the scene of a domestic violence incident only if there is probable cause to believe that the particular firearms were used to commit the incident of abuse.23 A firearm must be returned to its owner when no longer needed as evidence.24

See our Domestic Violence & Firearms policy summary for a comprehensive discussion of this issue.

  1. 430 Ill. Comp. Stat. 65/2(a)(1), (2). []
  2. 430 Ill. Comp. Stat. 65/4(a)(2)(viii); 430 Ill. Comp. Stat. 65/8(k). []
  3. 430 Ill. Comp. Stat. 65/4(a)(2) (ix); 430 Ill. Comp. Stat. 65/8(l). []
  4. 720 Ill. Comp. Stat. 5/12-3.2(a)(1)(2). []
  5. 725 Ill. Comp. Stat. 5/112A-3(3). []
  6. 720 Ill. Stat. Comp. Stat. 5/12-3.3(a). []
  7. 430 Ill. Comp. Stat. 65/8(n). []
  8. 20 Ill. Comp. Stat. 2630/2.2.; 725 Ill. Comp. Stat. 5/112A-11/2. []
  9. 725 Ill. Comp. Stat. 5/112A-11.1(a)-(c). []
  10. Id. []
  11. Id. []
  12. 720 Ill. Comp. Stat. 5/12-3.2(d). A notation must be made in the court file that this admonition was given. []
  13. 725 Ill. Comp. Stat. 5/112A-14(b)(14.5)(a). []
  14. 750 Ill. Comp. Stat. 60/214(b)(14.5)(a). []
  15. 430 Ill. Comp. Stat. 65/8.2. []
  16. 430 Ill. Comp. Stat. 65/4(a)(2)(vii). []
  17. 740 Ill. Comp. Stat. 21/80(b)(4). []
  18. 730 Ill. Comp. Stat. 5/5-6-3(a)(9). []
  19. 725 Ill. Comp. Stat. 5/112A-14(b)(14.5)(a); 750 Ill. Comp. Stat. 60/214(b)(14.5)(a). []
  20. Id. []
  21. Id. []
  22. 750 Ill. Comp. Stat. 60/201(a). []
  23. 725 Ill. Comp. Stat. 5/112A-30(a)(2); 750 Ill. Comp. Stat. 60/304(a)(2). []
  24. 725 Ill. Comp. Stat. 5/112A-30(c); 750 Ill. Comp. Stat. 60/304(c). []

Disarming Prohibited Persons in Illinois

Posted on Thursday, October 9th, 2014

In Illinois, if a person is convicted of a felony and receives a sentence of probation or a conditional discharge, one of the conditions is that the person physically surrender at a time and place designated by the court his or her Firearm Owner’s Identification Card and any and all firearms in his or her possession.1

If a person is charged with certain crimes, including forcible felony, stalking, domestic battery or any violations of the Illinois Controlled Substances Act, a condition of release on bail must be that the individual surrender all firearms in his or her possession to a law enforcement officer designated by the court and surrender his or her FOID card to the clerk of the circuit court.2 The court may forego this condition if the circumstances of the case do not clearly warrant it or when its imposition would be impracticable.3 If the FOID card is confiscated, the clerk of the circuit court must mail the confiscated card to the Illinois State Police.4 All legally possessed firearms must be returned to the person upon the charges being dismissed, or if the person is found not guilty (unless found not guilty by reason of insanity).5

Domestic Violence Protective Orders

For circumstances when the surrender of firearms are required pursuant to a court’s domestic violence protective order, see the “Removal or Surrender of Firearms When Domestic Violence Restraining/Protective Orders Are Issued” subsection of the Domestic Violence & Firearms in Illinois section.

Admission to Mental Health Facilities

Any mental hospital that admits a person as an inpatient pursuant to the Mental Health and Developmental Disabilities Code must confiscate any firearms in the possession of that person at the time of admission, or at any time the firearms are discovered in the person’s possession during the course of hospitalization.6 The hospital must, as soon as possible following confiscation, transfer custody of the firearms to the appropriate law enforcement agency, and give written notice to the person from whom the firearm was confiscated of the identity and address of the law enforcement agency to which it has given the firearm. The law enforcement agency must maintain possession of any firearm it obtains pursuant to this subsection for a minimum of 90 days, and then dispose of the firearm after that period pursuant to state law.7

  1. 730 Ill. Comp. Stat. 5/5-6-3(a)(9). []
  2. 725 Ill. Comp. Stat. 5/110-10(a)(5). []
  3. Id. []
  4. Id. []
  5. Id. []
  6. 720 Ill. Comp. Stat. 5/24-6(c). []
  7. 720 Ill. Comp. Stat. 5/24-6(c). []

Background Checks in Illinois

Posted on Thursday, October 9th, 2014

See our Background Checks policy summary for a comprehensive discussion of this issue.

Federal law requires federally licensed firearms dealers (but not private sellers) to initiate a background check on the purchaser prior to sale of a firearm. Federal law provides states with the option of serving as a state “point of contact” and conducting their own background checks using state, as well as federal, records and databases, or having the checks performed by the FBI using only the federal National Instant Criminal Background Check System (“NICS”) database. (Note that state files are not always included in the federal database.)

Illinois is a point of contact state for the NICS.1 Federally licensed firearms dealers must contact the Illinois Department of State Police (“DSP”) for a background check before transferring any firearm.2 The DSP searches its criminal history record information files, the FBI and NICS databases, and the files of the Department of Human Services relating to mental health and developmental disabilities to verify that prospective purchasers are not prohibited from possessing a firearm.3 The DSP must approve the transfer or inform the dealer of the applicant’s ineligibility within the waiting periods set forth by state law, which are 24 hours for long guns and 72 hours for handguns.4

Illinois requires DSP to report to local law enforcement the name and address of a person attempting to purchase a firearm who is disqualified from doing so.5

Except at gun shows (see the Gun Shows in Illinois section for more information on background check requirements at gun shows), private firearms sellers (i.e., persons who are not federally licensed) are not required to conduct background checks in Illinois, but all sellers must be presented with a prospective purchaser’s Firearm Owner’s Identification card.6 Federal and state purchaser prohibitions also apply to private firearms transfers. See the Private Sales in Illinois section for more information on private sellers.

See our Private Sales policy summary for more on this issue.

  1. Federal Bureau of Investigation, National Instant Criminal Background Check System Participation Map, at http://www.fbi.gov/about-us/cjis/nics/general-information/participation-map. []
  2. 430 Ill. Comp. Stat. 65/3.1. []
  3. 430 Ill. Comp. Stat. 65/3.1. []
  4. 430 Ill. Comp. Stat. 65/3.1; 720 Ill. Comp. Stat. 5/24-3(A)(g). []
  5. 430 Ill. Comp. Stat. 65/3.3. []
  6. 430 Ill. Comp. Stat. 65/3(a). []