Public Act 0645 102ND GENERAL ASSEMBLY

SB2249 Enrolled LRB102 17035 KMF 22461 b

Public Act 102-0645

AN ACT concerning criminal law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Firearm Owners Identification Card Act is amended by changing Sections 8 and 10 as follows:

(430 ILCS 65/8) (from Ch. 38, par. 83-8)

Sec. 8. Grounds for denial and revocation. The Department of State Police has authority to deny an application for or to revoke and seize a Firearm Owner's Identification Card previously issued under this Act only if the Department finds that the applicant or the person to whom such card was issued is or was at the time of issuance:

(a) A person under 21 years of age who has been convicted of a misdemeanor other than a traffic offense or adjudged delinquent;

(b) This subsection (b) applies through the 180th day following the effective date of this amendatory Act of the 101st General Assembly. A person under 21 years of age who does not have the written consent of his parent or guardian to acquire and possess firearms and firearm ammunition, or whose parent or guardian has revoked such written consent, or where such parent or guardian does not qualify to have a Firearm Owner's Identification Card;

(b-5) This subsection (b-5) applies on and after the 181st day following the effective date of this amendatory Act of the 101st General Assembly. A person under 21 years of age who is not an active duty member of the United States Armed Forces and does not have the written consent of his or her parent or guardian to acquire and possess firearms and firearm ammunition, or whose parent or guardian has revoked such written consent, or where such parent or guardian does not qualify to have a Firearm Owner's Identification Card;

(c) A person convicted of a felony under the laws of this or any other jurisdiction;

(d) A person addicted to narcotics;

(e) A person who has been a patient of a mental health facility within the past 5 years or a person who has been a patient in a mental health facility more than 5 years ago who has not received the certification required under subsection (u) of this Section. An active law enforcement officer employed by a unit of government or a Department of Corrections employee authorized to possess firearms who is denied, revoked, or has his or her Firearm Owner's Identification Card seized under this subsection (e) may obtain relief as described in subsection (c-5) of Section 10 of this Act if the officer or employee did not act in a manner threatening to the officer or employee, another person, or the public as determined by the treating clinical psychologist or physician, and the officer or employee seeks mental health treatment;

(f) A person whose mental condition is of such a nature that it poses a clear and present danger to the applicant, any other person or persons or the community;

(g) A person who has an intellectual disability;

(h) A person who intentionally makes a false statement in the Firearm Owner's Identification Card application;

(i) An alien who is unlawfully present in the United States under the laws of the United States;

(i-5) An alien who has been admitted to the United States under a non-immigrant visa (as that term is defined in Section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26))), except that this subsection (i-5) does not apply to any alien who has been lawfully admitted to the United States under a non-immigrant visa if that alien is:

(1) admitted to the United States for lawful hunting or sporting purposes;

(2) an official representative of a foreign government who is:

(A) accredited to the United States Government or the Government's mission to an international organization having its headquarters in the United States; or

(B) en route to or from another country to which that alien is accredited;

(3) an official of a foreign government or distinguished foreign visitor who has been so designated by the Department of State;

(4) a foreign law enforcement officer of a friendly foreign government entering the United States on official business; or

(5) one who has received a waiver from the Attorney General of the United States pursuant to 18 U.S.C. 922(y)(3);

(j) (Blank);

(k) A person who has been convicted within the past 5 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;

(l) A person who has been convicted of domestic battery, aggravated domestic battery, or a substantially similar offense in another jurisdiction committed before, on or after January 1, 2012 (the effective date of Public Act 97-158). If the applicant or person who has been previously issued a Firearm Owner's Identification Card under this Act knowingly and intelligently waives the right to have an offense described in this paragraph (l) tried by a jury, and by guilty plea or otherwise, results in a conviction for an offense in which a domestic relationship is not a required element of the offense but in which a determination of the applicability of 18 U.S.C. 922(g)(9) is made under Section 112A-11.1 of the Code of Criminal Procedure of 1963, an entry by the court of a judgment of conviction for that offense shall be grounds for denying an application for and for revoking and seizing a Firearm Owner's Identification Card previously issued to the person under this Act;

(m) (Blank);

(n) A person who is prohibited from acquiring or possessing firearms or firearm ammunition by any Illinois State statute or by federal law;

(o) A minor subject to a petition filed under Section 5-520 of the Juvenile Court Act of 1987 alleging that the minor is a delinquent minor for the commission of an offense that if committed by an adult would be a felony;

(p) An adult who had been adjudicated a delinquent minor under the Juvenile Court Act of 1987 for the commission of an offense that if committed by an adult would be a felony;

(q) A person who is not a resident of the State of Illinois, except as provided in subsection (a-10) of Section 4;

(r) A person who has been adjudicated as a person with a mental disability;

(s) A person who has been found to have a developmental disability;

(t) A person involuntarily admitted into a mental health facility; or

(u) A person who has had his or her Firearm Owner's Identification Card revoked or denied under subsection (e) of this Section or item (iv) of paragraph (2) of subsection (a) of Section 4 of this Act because he or she was a patient in a mental health facility as provided in subsection (e) of this Section, shall not be permitted to obtain a Firearm Owner's Identification Card, after the 5-year period has lapsed, unless he or she has received a mental health evaluation by a physician, clinical psychologist, or qualified examiner as those terms are defined in the Mental Health and Developmental Disabilities Code, and has received a certification that he or she is not a clear and present danger to himself, herself, or others. The physician, clinical psychologist, or qualified examiner making the certification and his or her employer shall not be held criminally, civilly, or professionally liable for making or not making the certification required under this subsection, except for willful or wanton misconduct. This subsection does not apply to a person whose firearm possession rights have been restored through administrative or judicial action under Section 10 or 11 of this Act.

Upon revocation of a person's Firearm Owner's Identification Card, the Department of State Police shall provide notice to the person and the person shall comply with Section 9.5 of this Act.

(Source: P.A. 101-80, eff. 7-12-19.)

(430 ILCS 65/10) (from Ch. 38, par. 83-10)

Sec. 10. Appeal to director; hearing; relief from firearm prohibitions.

(a) Whenever an application for a Firearm Owner's Identification Card is denied, whenever the Department fails to act on an application within 30 days of its receipt, or whenever such a Card is revoked or seized as provided for in Section 8 of this Act, the aggrieved party may appeal to the Director of State Police for a hearing upon such denial, revocation or seizure, unless the denial, revocation, or seizure was based upon a forcible felony, stalking, aggravated stalking, domestic battery, any violation of the Illinois Controlled Substances Act, the Methamphetamine Control and Community Protection Act, or the Cannabis Control Act that is classified as a Class 2 or greater felony, any felony violation of Article 24 of the Criminal Code of 1961 or the Criminal Code of 2012, or any adjudication as a delinquent minor for the commission of an offense that if committed by an adult would be a felony, in which case the aggrieved party may petition the circuit court in writing in the county of his or her residence for a hearing upon such denial, revocation, or seizure.

(b) At least 30 days before any hearing in the circuit court, the petitioner shall serve the relevant State's Attorney with a copy of the petition. The State's Attorney may object to the petition and present evidence. At the hearing the court shall determine whether substantial justice has been done. Should the court determine that substantial justice has not been done, the court shall issue an order directing the Department of State Police to issue a Card. However, the court shall not issue the order if the petitioner is otherwise prohibited from obtaining, possessing, or using a firearm under federal law.

(c) Any person prohibited from possessing a firearm under Sections 24-1.1 or 24-3.1 of the Criminal Code of 2012 or acquiring a Firearm Owner's Identification Card under Section 8 of this Act may apply to the Director of State Police or petition the circuit court in the county where the petitioner resides, whichever is applicable in accordance with subsection (a) of this Section, requesting relief from such prohibition and the Director or court may grant such relief if it is established by the applicant to the court's or Director's satisfaction that:

(0.05) when in the circuit court, the State's Attorney has been served with a written copy of the petition at least 30 days before any such hearing in the circuit court and at the hearing the State's Attorney was afforded an opportunity to present evidence and object to the petition;

(1) the applicant has not been convicted of a forcible felony under the laws of this State or any other jurisdiction within 20 years of the applicant's application for a Firearm Owner's Identification Card, or at least 20 years have passed since the end of any period of imprisonment imposed in relation to that conviction;

(2) the circumstances regarding a criminal conviction, where applicable, the applicant's criminal history and his reputation are such that the applicant will not be likely to act in a manner dangerous to public safety;

(3) granting relief would not be contrary to the public interest; and

(4) granting relief would not be contrary to federal law.

(c-5) (1) An active law enforcement officer employed by a unit of government or a Department of Corrections employee authorized to possess firearms , who is denied, revoked, or has his or her Firearm Owner's Identification Card seized under subsection (e) of Section 8 of this Act may apply to the Director of State Police requesting relief if the officer or employee did not act in a manner threatening to the officer or employee, another person, or the public as determined by the treating clinical psychologist or physician, and as a result of his or her work is referred by the employer for or voluntarily seeks mental health evaluation or treatment by a licensed clinical psychologist, psychiatrist, or qualified examiner, and:

(A) the officer or employee has not received treatment involuntarily at a mental health facility, regardless of the length of admission; or has not been voluntarily admitted to a mental health facility for more than 30 days and not for more than one incident within the past 5 years; and

(B) the officer or employee has not left the mental institution against medical advice.

(2) The Director of State Police shall grant expedited relief to active law enforcement officers and employees described in paragraph (1) of this subsection (c-5) upon a determination by the Director that the officer's or employee's possession of a firearm does not present a threat to themselves, others, or public safety. The Director shall act on the request for relief within 30 business days of receipt of:

(A) a notarized statement from the officer or employee in the form prescribed by the Director detailing the circumstances that led to the hospitalization;

(B) all documentation regarding the admission, evaluation, treatment and discharge from the treating licensed clinical psychologist or psychiatrist of the officer;

(C) a psychological fitness for duty evaluation of the person completed after the time of discharge; and

(D) written confirmation in the form prescribed by the Director from the treating licensed clinical psychologist or psychiatrist that the provisions set forth in paragraph (1) of this subsection (c-5) have been met, the person successfully completed treatment, and their professional opinion regarding the person's ability to possess firearms.

(3) Officers and employees eligible for the expedited relief in paragraph (2) of this subsection (c-5) have the burden of proof on eligibility and must provide all information required. The Director may not consider granting expedited relief until the proof and information is received.

(4) "Clinical psychologist", "psychiatrist", and "qualified examiner" shall have the same meaning as provided in Chapter I of the Mental Health and Developmental Disabilities Code.

(c-10) (1) An applicant, who is denied, revoked, or has his or her Firearm Owner's Identification Card seized under subsection (e) of Section 8 of this Act based upon a determination of a developmental disability or an intellectual disability may apply to the Director of State Police requesting relief.

(2) The Director shall act on the request for relief within 60 business days of receipt of written certification, in the form prescribed by the Director, from a physician or clinical psychologist, or qualified examiner, that the aggrieved party's developmental disability or intellectual disability condition is determined by a physician, clinical psychologist, or qualified to be mild. If a fact-finding conference is scheduled to obtain additional information concerning the circumstances of the denial or revocation, the 60 business days the Director has to act shall be tolled until the completion of the fact-finding conference.

(3) The Director may grant relief if the aggrieved party's developmental disability or intellectual disability is mild as determined by a physician, clinical psychologist, or qualified examiner and it is established by the applicant to the Director's satisfaction that:

(A) granting relief would not be contrary to the public interest; and

(B) granting relief would not be contrary to federal law.

(4) The Director may not grant relief if the condition is determined by a physician, clinical psychologist, or qualified examiner to be moderate, severe, or profound.

(5) The changes made to this Section by this amendatory Act of the 99th General Assembly apply to requests for relief pending on or before the effective date of this amendatory Act, except that the 60-day period for the Director to act on requests pending before the effective date shall begin on the effective date of this amendatory Act.

(d) When a minor is adjudicated delinquent for an offense which if committed by an adult would be a felony, the court shall notify the Department of State Police.

(e) The court shall review the denial of an application or the revocation of a Firearm Owner's Identification Card of a person who has been adjudicated delinquent for an offense that if committed by an adult would be a felony if an application for relief has been filed at least 10 years after the adjudication of delinquency and the court determines that the applicant should be granted relief from disability to obtain a Firearm Owner's Identification Card. If the court grants relief, the court shall notify the Department of State Police that the disability has been removed and that the applicant is eligible to obtain a Firearm Owner's Identification Card.

(f) Any person who is subject to the disabilities of 18 U.S.C. 922(d)(4) and 922(g)(4) of the federal Gun Control Act of 1968 because of an adjudication or commitment that occurred under the laws of this State or who was determined to be subject to the provisions of subsections (e), (f), or (g) of Section 8 of this Act may apply to the Department of State Police requesting relief from that prohibition. The Director shall grant the relief if it is established by a preponderance of the evidence that the person will not be likely to act in a manner dangerous to public safety and that granting relief would not be contrary to the public interest. In making this determination, the Director shall receive evidence concerning (i) the circumstances regarding the firearms disabilities from which relief is sought; (ii) the petitioner's mental health and criminal history records, if any; (iii) the petitioner's reputation, developed at a minimum through character witness statements, testimony, or other character evidence; and (iv) changes in the petitioner's condition or circumstances since the disqualifying events relevant to the relief sought. If relief is granted under this subsection or by order of a court under this Section, the Director shall as soon as practicable but in no case later than 15 business days, update, correct, modify, or remove the person's record in any database that the Department of State Police makes available to the National Instant Criminal Background Check System and notify the United States Attorney General that the basis for the record being made available no longer applies. The Department of State Police shall adopt rules for the administration of this Section.

(Source: P.A. 98-63, eff. 7-9-13; 99-29, eff. 7-10-15; 99-78, eff. 7-20-15.)

Section 10. The Unified Code of Corrections is amended by adding Section 3-2-13 as follows:

(730 ILCS 5/3-2-13 new)

Sec. 3-2-13. Possession of a Firearm Owner's Identification Card. The Department of Corrections shall not make possession of a Firearm Owner's Identification Card a condition of continued employment as a Department employee authorized to possess firearms if the employee's Firearm Owner's Identification Card is revoked or seized because the employee has been a patient of a mental health facility and the employee has not been determined to pose a clear and present danger to himself, herself, or others as determined by a physician, clinical psychologist, or qualified examiner. Nothing is this Section shall otherwise impair the Department's ability to determine an employee's fitness for duty. A collective bargaining agreement already in effect on this issue on the effective date of this amendatory Act of the 102nd General Assembly cannot be modified, but on or after the effective date of this amendatory Act of the 102nd General Assembly, the Department cannot require a Firearm Owner's Identification Card as a condition of continued employment in a collective bargaining agreement. The Department shall document if and why an employee has been determined to pose a clear and present danger. In this Section, "mental health facility" and "qualified examiner" have the meanings provided in the Mental Health and Developmental Disabilities Code.