MEMO: California’s New Gun Violence Restraining Order Law

Posted on Thursday, October 30th, 2014

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Introduction
On September 30, 2014, Governor Jerry Brown signed into law AB 1014, a bill to allow concerned family members or law enforcement officers to petition a court for a Gun Violence Restraining Order (GVRO). In situations where there is sufficient evidence for a judge to believe that an individual poses a danger to self or others, the GVRO will temporarily prohibit the individual from purchasing or possessing firearms or ammunition and allow law enforcement to remove any firearms or ammunition already in the individual’s possession. The new law, modeled after California’s existing domestic violence restraining order laws, goes into effect on January 1, 2016.1

AB1014 was introduced in response to the tragic shooting in Isla Vista in May 2014. The shooter there had exhibited warning signs of impending violence, yet no legal mechanism was available to his parents or law enforcement to take preventive action. Under California law, a variety of dangerous people are prohibited from purchasing or possessing firearms or ammunition, including domestic abusers, as well as persons who have been involuntarily committed to a mental health facility “as a result of a mental health disorder” which makes them a danger to themselves or others. AB 1014 expands these protections by restricting access to firearms or ammunition by persons who exhibit dangerous or threatening behaviors, but who are not otherwise prohibited from possessing them.

Overview of the Three Types of GVROs
AB 1014 establishes three types of GVRO: a temporary emergency GVRO, an ex parte GVRO and a GVRO issued after notice and hearing. The law requires the Judicial Council to prescribe the form of the petitions, orders, and other relevant documents, and promulgate instructions for applying for all GVROs. When bringing a petition for any type of GVRO, the petitioner must describe in the petition the number, types, and locations of any firearms and ammunition presently believed to be in the subject of the petition’s possession or control. When any GVRO is issued, the presiding court is authorized—but not required—to issue a warrant instructing law enforcement to search and remove all firearms in the individual’s possession.

  • Temporary Emergency GVRO: Only a law enforcement officer may seek a temporary emergency GVRO by submitting a written petition to or calling a judicial officer to request an order at any time of day or night.
    • Standard for Issuing a Temporary Emergency GVRO: A temporary emergency GVRO may be issued if a law enforcement officer asserts, and a judicial officer finds, there is reasonable cause to believe that a person poses an immediate and present danger of injury to self or others by having a firearm in his or her possession and less restrictive alternatives have been ineffective, inadequate, or inappropriate.
    • Duration of a Temporary Emergency GVRO:  A temporary emergency GVRO is effective for 21 days from the date of issuance. A law enforcement officer may bring a petition for either an ex parte GVRO or more permanent GVRO (issued after notice and hearing) if he or she believes an extended restriction on a person’s access to firearms and ammunition is warranted.
  • Ex Parte GVRO: An immediate family member2 or law enforcement officer may request an ex parte GVRO.  Unlike a temporary emergency GVRO, a petition for an ex parte GVRO may only be brought during normal court hours.
    • Search of Firearm Ownership Records: Before a hearing to issue an ex parte GVRO, the court must ensure that a search of available databases and records is conducted to determine if the subject of the order owns a firearm.
    • Evidence for the Court’s Determination:The affidavit supporting a petition for the order must set forth the facts establishing the grounds for the petition. The court may consider the testimony from the petitioner and any witness for the petitioner before issuing the ex parte order.The court must consider the following types of evidence to determine whether to issue an ex parte GVRO:
      • Recent3 threat of violence or act of violence directed at another
      • Recent threat or act of violence directed toward himself or herself
      • Recent violation of a protective order of any kind
      • A conviction of a violent offense
      • A pattern of violent acts or threats within the past 12 months
      A court may also consider any other evidence of an increased risk for violence, including, but not limited to, evidence of any of the following:
      • The unlawful and reckless use, display, or brandishing of a firearm
      • The history of use, attempted use, or threatened use of physical force against another person
      • Any prior arrest for a felony offense
      • Any history of a violation of any protective order
      • Documentary evidence, including, but not limited to, police reports and records of convictions, of either recent criminal offenses that involve controlled substances or alcohol, or ongoing abuse of controlled substances or alcohol
      • Evidence of recent acquisition of firearms, ammunition, or other deadly weapons
    • Standard for Issuing an Ex Parte GVRO: A court may issue an ex parte GVRO against a person if the petitioner shows good cause to believe there is a substantial likelihood that the subject of the petition will, in the near future, cause personal injury to self or others by owning or possessing a firearm, and an ex parte GVRO is necessary to prevent such injury because less restrictive alternatives have been deemed ineffective, inadequate, or inappropriate.
    • Duration and Hearing for an Ex Parte GVRO: An ex parte GVRO may be ordered without a hearing and remains effective for 21 days. The court must provide a hearing for the restrained person within the 21-day effective period to determine whether a more permanent GVRO is warranted or if the order is no longer necessary and the firearms should be returned to the subject of the order.
  • GVRO after Notice and Hearing: At the hearing subsequent to issuing the ex parte GVRO, the court may consider further evidence and testimony from the restrained person seeking to terminate the order, the petitioner who sought the ex parte GVRO, and any witnesses produced by the petitioner to determine whether to issue a GVRO for one year. The evidentiary requirements and standard of review are similar to those required for an ex parte GVRO.
  • Surrender of Guns for all GVROs: A person who is served with a GVRO is required to immediately surrender all firearms and ammunition in his or her possession. If a law enforcement officer is serving the order, all firearms and ammunition in the restrained person’s possession must be immediately surrendered to the law enforcement officer. The law enforcement officer must also take custody of any firearm or other deadly weapon in plain sight. If someone other than a law enforcement officer is serving the order, the respondent must either surrender his or her firearms to the local law enforcement agency or sell them to a federally licensed firearms dealer within 24 hours of receiving the order.
  • Search Warrant for all GVROs: A court issuing any kind of GVRO is authorized to issue a search warrant instructing law enforcement officers to perform a search for any firearms or ammunition in the person’s possession.
  • Reporting Requirements for all GVROs: The court must electronically notify the California Department of Justice (DOJ) and local district attorney within one court day of issuing a GVRO. The court must notify DOJ when the GVRO has been dissolved or terminated within five court days. DOJ must then note the updated status of any GVRO within fifteen days of receiving notice. The court must also notify the district attorney of the jurisdiction when a GVRO has been issued as well as when it has been dissolved or terminated.
  • Protections for Cohabitants:  Firearms and ammunition may not be seized pursuant to a warrant if they are owned by someone other than the subject of the GVRO and stored so that the subject doesn’t have access to them.  Also, a gun safe owned solely by someone else may not be searched without the owner’s consent.
  • Return of firearms after any GVRO Terminates or Expires: If the restrained person’s firearms are surrendered to law enforcement (instead of being sold to a dealer), law enforcement must retain the firearms or ammunition for the duration of the order and return them to the restrained person when the order expires, terminates, or dissolves.
  • Penalty for False Petitions:  The bill creates a misdemeanor penalty for any person who files a petition for a GVRO that contains statements the person knows are false, or with intent to harass the subject of the petition.

Legal Issues

  • Second Amendment: The GVRO process does not violate the Second Amendment. In the landmark case District of Columbia v. Heller, the Supreme Court determined that the Second Amendment guarantees the right of law-abiding, responsible citizens to keep a firearm in the home for self-defense. 554 U.S. 570, 679 (2008). However, the Supreme Court stated that the Second Amendment is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” and  made clear that a variety of laws are permissible under the Second Amendment, including those prohibiting firearm possession by felons and the mentally ill. Id. at626.
    In California, the courts have specifically held that “the state may ensure that firearms are not in the hands of someone who may use them dangerously” and dangerous people may be prohibited from possessing firearms consistent with their Second Amendment rights, as long as they are afforded adequate due process. See City of San Diego v. Boggess, 216 Cal. App. 4th 1494 (2013); People v. Jason K., 188 Cal. App. 4th 1545 (2010). In 2013, an Indiana Court of Appeals upheld a similar gun violence restraining order law against a Second Amendment challenge and ruled that the state may restrict access to firearms by dangerous persons in the interest of public safety and welfare. Redington v. Indiana, 992 N.E.2d 823 (Ind. Ct. App. 2013). AB 1014 provides a mechanism to do exactly that&mdsash;keep deadly firearms out of the hands of dangerous persons in the interest of public safety and welfare.
  • Due Process: The procedures for obtaining temporary emergency and ex parte GVROs provide sufficient due process to protect Californians’ important constitutional rights. The law provides for a temporary (21 day) or a more permanent GVRO, which is effective for one year. However, the more permanent (one year) GVRO will only be issued after a full hearing before a judge. At this hearing, the burden is on the person bringing the petition for the order to prove by clear and convincing evidence that the named person poses a substantial likelihood of causing harm to self or others by possessing firearms or ammunition. If this burden is not met, the person may then regain the right to possess firearms or ammunition. In addition, the named individual may seek another hearing to terminate the order during the one-year period of its duration. Similar procedures are in place in the domestic violence restraining order context and courts across the nation have uniformly upheld these procedures. See, e.g., Nollet v. Justices of the Trial Court, 83 F. Supp. 2d 204 (D.C. Mass. 2000); Blazel v. Bradley, 698 F. Supp. 756 (W.D. Wis. 1988); Baker v. Baker, 494 N.W.2d 282 (Minn. 1992).

 

Nothing contained in this document is intended as legal advice to any person or entity and should not be regarded as such. The Law Center to Prevent Gun Violence and its attorneys provide general information about gun laws to interested groups, individuals and legislators. Law Center attorneys do not represent clients and do not form attorney-client relationships. You should not consider communications with the Law Center or its attorneys to be confidential unless we have agreed to such confidentiality.

Copyright 2014 by the Law Center to Prevent Gun Violence.

All rights reserved. Unauthorized use or distribution is prohibited.

  1. Connecticut and Indiana have enacted similar laws; however, in those states, only law enforcement may seek to remove firearms from dangerous individuals. California is the first state to adopt a law enabling immediate family members to bring a petition for a GVRO. []
  2. “Immediate family member” is defined as “any spouse, whether by marriage or not, domestic partner, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.” Cal. Pen. Code § 422.4. []
  3. “Recent” is defined as within six months prior to the date the petition is filed. []

Marysville School Shooting Highlights Importance of Universal Background Checks Ballot Initiative in Washington State

Posted on Friday, October 24th, 2014

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Today’s tragic shooting at Marysville-Pilchuck High School elicits the sadness and outrage that every story of gun violence at our schools does. And it’s magnified by the horrific fact that school shootings have become so common in America, with 87 since Newtown alone.

While it is not yet known how the Marysville shooter obtained the handgun used to attack his fellow students, the incident raises the important question of how access to firearms is regulated in the United States. After Newtown, Congress failed to pass a universal background checks bill, and the gun violence prevention movement shifted its focus to enacting smart gun laws at the state level.

In Washington State, where Marysville-Pilchuck High School is located, two competing initiatives are on the ballot this November that deal with background checks. One initiative, I-594, requires private sellers to conduct background checks on private purchasers of firearms. The Law Center is proud to have offered guidance to the group that drafted the bill, the Washington Alliance for Gun Responsibility, by providing them with our model law and sharing research and legal analysis.

If passed, Washington’s new law (I-594) will:

  • Require unlicensed sellers to conduct a sale through a licensed firearms dealer who will perform a background check on the buyer
  • Ensure that a licensed dealer keeps a record of the private transaction

READ MORE »

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

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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

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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.

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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). []