101ST GENERAL ASSEMBLY State of Illinois 2019 and 2020 HB4450

Introduced , by Rep. Patrick Windhorst

SYNOPSIS AS INTRODUCED:

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

Amends the Firearm Owners Identification Card Act. Provides that for any appeal permitted under the Act to the Director of the Illinois State Police for failure to act on a Firearm Owner's Identification Card application within 30 days or its denial, seizure, or revocation, the Director shall either grant or deny the appeal within 60 days of the receipt of the appeal. Provides that if the appeal is granted, the Director shall return the aggrieved party's Firearm Owner's Identification Card to the aggrieved party, or issue him or her a new Firearm Owner's Identification Card, as the case may be, no later than 7 business days after the appeal is granted. Provides that if the appeal is denied, the Director shall set forth in writing the specific reasons for the denial and shall cause the written denial to be mailed to the aggrieved party no later than 7 business days after the appeal is denied. Provides that if the Director fails to either grant or deny the appeal within 60 days of the receipt of the appeal, the appeal shall be considered granted, and the Director shall return the aggrieved party's Firearm Owner's Identification Card or issue him or her a new Firearm Owner's Identification Card, as the case may be, no later than 67 days from the date that the appeal was received. Provides that a denial shall be considered a final administrative order, regardless of whether there was a formal hearing in which evidence was taken, and the aggrieved party may seek judicial review of the final administrative order in accordance with the provisions of the Administrative Review Law and the Act. Provides that if administrative review is taken and if the circuit court then finds that the Director denied the appeal without reasonable cause, the circuit court may award the aggrieved party court costs and a reasonable attorney's fee to be paid by the State. Nothing herein limits the contempt power of the circuit court. Provides that when the word "shall" appears in this provision, it shall be construed as being mandatory and not discretionary.

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A BILL FOR

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1 AN ACT concerning safety.

2 Be it enacted by the People of the State of Illinois,

3 represented in the General Assembly:

4 Section 5. The Firearm Owners Identification Card Act is

5 amended by changing Section 10 as follows:

6 (430 ILCS 65/10) (from Ch. 38, par. 83-10)

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

8 prohibitions.

9 (a) Whenever an application for a Firearm Owner's

10 Identification Card is denied, whenever the Department fails to

11 act on an application within 30 days of its receipt, or

12 whenever such a Card is revoked or seized as provided for in

13 Section 8 of this Act, the aggrieved party may appeal to the

14 Director of State Police for a hearing upon such denial,

15 revocation or seizure, unless the denial, revocation, or

16 seizure was based upon a forcible felony, stalking, aggravated

17 stalking, domestic battery, any violation of the Illinois

18 Controlled Substances Act, the Methamphetamine Control and

19 Community Protection Act, or the Cannabis Control Act that is

20 classified as a Class 2 or greater felony, any felony violation

21 of Article 24 of the Criminal Code of 1961 or the Criminal Code

22 of 2012, or any adjudication as a delinquent minor for the

23 commission of an offense that if committed by an adult would be

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1 a felony, in which case the aggrieved party may petition the

2 circuit court in writing in the county of his or her residence

3 for a hearing upon such denial, revocation, or seizure.

4 (b) At least 30 days before any hearing in the circuit

5 court, the petitioner shall serve the relevant State's Attorney

6 with a copy of the petition. The State's Attorney may object to

7 the petition and present evidence. At the hearing the court

8 shall determine whether substantial justice has been done.

9 Should the court determine that substantial justice has not

10 been done, the court shall issue an order directing the

11 Department of State Police to issue a Card. However, the court

12 shall not issue the order if the petitioner is otherwise

13 prohibited from obtaining, possessing, or using a firearm under

14 federal law.

15 (b-1) For any appeal to the Director of the Illinois State

16 Police as set forth in subsection (a), the Director shall

17 either grant or deny the appeal within 60 days of the receipt

18 of the appeal. If the appeal is granted, the Director shall

19 return the aggrieved party's Firearm Owner's Identification

20 Card to the aggrieved party, or issue him or her a new Firearm

21 Owner's Identification Card, as the case may be, no later than

22 7 business days after the appeal is granted. If the appeal is

23 denied, the Director shall set forth in writing the specific

24 reasons for the denial and shall cause the written denial to be

25 mailed to the aggrieved party no later than 7 business days

26 after the appeal is denied. If the Director fails to either

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1 grant or deny the appeal within 60 days of the receipt of the

2 appeal, the appeal shall be considered granted, and the

3 Director shall return the aggrieved party's Firearm Owner's

4 Identification Card or issue him or her a new Firearm Owner's

5 Identification Card, as the case may be, no later than 67 days

6 from the date that the appeal was received. A denial shall be

7 considered a final administrative order, regardless of whether

8 there was a formal hearing in which evidence was taken, and the

9 aggrieved party may seek judicial review of the final

10 administrative order in accordance with the provisions of the

11 Administrative Review Law and Section 11 of this Act. If

12 administrative review is taken and if the circuit court then

13 finds that the Director denied the appeal without reasonable

14 cause, the circuit court may award the aggrieved party court

15 costs and a reasonable attorney's fee to be paid by the State.

16 Nothing herein limits the contempt power of the circuit court.

17 When the word "shall" appears in this subsection (b-1), it

18 shall be construed as being mandatory and not discretionary.

19 (c) Any person prohibited from possessing a firearm under

20 Sections 24-1.1 or 24-3.1 of the Criminal Code of 2012 or

21 acquiring a Firearm Owner's Identification Card under Section 8

22 of this Act may apply to the Director of State Police or

23 petition the circuit court in the county where the petitioner

24 resides, whichever is applicable in accordance with subsection

25 (a) of this Section, requesting relief from such prohibition

26 and the Director or court may grant such relief if it is

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1 established by the applicant to the court's or Director's

2 satisfaction that:

3 (0.05) when in the circuit court, the State's Attorney

4 has been served with a written copy of the petition at

5 least 30 days before any such hearing in the circuit court

6 and at the hearing the State's Attorney was afforded an

7 opportunity to present evidence and object to the petition;

8 (1) the applicant has not been convicted of a forcible

9 felony under the laws of this State or any other

10 jurisdiction within 20 years of the applicant's

11 application for a Firearm Owner's Identification Card, or

12 at least 20 years have passed since the end of any period

13 of imprisonment imposed in relation to that conviction;

14 (2) the circumstances regarding a criminal conviction,

15 where applicable, the applicant's criminal history and his

16 reputation are such that the applicant will not be likely

17 to act in a manner dangerous to public safety;

18 (3) granting relief would not be contrary to the public

19 interest; and

20 (4) granting relief would not be contrary to federal

21 law.

22 (c-5) (1) An active law enforcement officer employed by a

23 unit of government, who is denied, revoked, or has his or her

24 Firearm Owner's Identification Card seized under subsection

25 (e) of Section 8 of this Act may apply to the Director of State

26 Police requesting relief if the officer did not act in a manner

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1 threatening to the officer, another person, or the public as

2 determined by the treating clinical psychologist or physician,

3 and as a result of his or her work is referred by the employer

4 for or voluntarily seeks mental health evaluation or treatment

5 by a licensed clinical psychologist, psychiatrist, or

6 qualified examiner, and:

7 (A) the officer has not received treatment

8 involuntarily at a mental health facility, regardless of

9 the length of admission; or has not been voluntarily

10 admitted to a mental health facility for more than 30 days

11 and not for more than one incident within the past 5 years;

12 and

13 (B) the officer has not left the mental institution

14 against medical advice.

15 (2) The Director of State Police shall grant expedited

16 relief to active law enforcement officers described in

17 paragraph (1) of this subsection (c-5) upon a determination by

18 the Director that the officer's possession of a firearm does

19 not present a threat to themselves, others, or public safety.

20 The Director shall act on the request for relief within 30

21 business days of receipt of:

22 (A) a notarized statement from the officer in the form

23 prescribed by the Director detailing the circumstances

24 that led to the hospitalization;

25 (B) all documentation regarding the admission,

26 evaluation, treatment and discharge from the treating

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1 licensed clinical psychologist or psychiatrist of the

2 officer;

3 (C) a psychological fitness for duty evaluation of the

4 person completed after the time of discharge; and

5 (D) written confirmation in the form prescribed by the

6 Director from the treating licensed clinical psychologist

7 or psychiatrist that the provisions set forth in paragraph

8 (1) of this subsection (c-5) have been met, the person

9 successfully completed treatment, and their professional

10 opinion regarding the person's ability to possess

11 firearms.

12 (3) Officers eligible for the expedited relief in paragraph

13 (2) of this subsection (c-5) have the burden of proof on

14 eligibility and must provide all information required. The

15 Director may not consider granting expedited relief until the

16 proof and information is received.

17 (4) "Clinical psychologist", "psychiatrist", and

18 "qualified examiner" shall have the same meaning as provided in

19 Chapter I of the Mental Health and Developmental Disabilities

20 Code.

21 (c-10) (1) An applicant, who is denied, revoked, or has his

22 or her Firearm Owner's Identification Card seized under

23 subsection (e) of Section 8 of this Act based upon a

24 determination of a developmental disability or an intellectual

25 disability may apply to the Director of State Police requesting

26 relief.

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1 (2) The Director shall act on the request for relief within

2 60 business days of receipt of written certification, in the

3 form prescribed by the Director, from a physician or clinical

4 psychologist, or qualified examiner, that the aggrieved

5 party's developmental disability or intellectual disability

6 condition is determined by a physician, clinical psychologist,

7 or qualified to be mild. If a fact-finding conference is

8 scheduled to obtain additional information concerning the

9 circumstances of the denial or revocation, the 60 business days

10 the Director has to act shall be tolled until the completion of

11 the fact-finding conference.

12 (3) The Director may grant relief if the aggrieved party's

13 developmental disability or intellectual disability is mild as

14 determined by a physician, clinical psychologist, or qualified

15 examiner and it is established by the applicant to the

16 Director's satisfaction that:

17 (A) granting relief would not be contrary to the public

18 interest; and

19 (B) granting relief would not be contrary to federal

20 law.

21 (4) The Director may not grant relief if the condition is

22 determined by a physician, clinical psychologist, or qualified

23 examiner to be moderate, severe, or profound.

24 (5) The changes made to this Section by this amendatory Act

25 of the 99th General Assembly apply to requests for relief

26 pending on or before the effective date of this amendatory Act,

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1 except that the 60-day period for the Director to act on

2 requests pending before the effective date shall begin on the

3 effective date of this amendatory Act.

4 (d) When a minor is adjudicated delinquent for an offense

5 which if committed by an adult would be a felony, the court

6 shall notify the Department of State Police.

7 (e) The court shall review the denial of an application or

8 the revocation of a Firearm Owner's Identification Card of a

9 person who has been adjudicated delinquent for an offense that

10 if committed by an adult would be a felony if an application

11 for relief has been filed at least 10 years after the

12 adjudication of delinquency and the court determines that the

13 applicant should be granted relief from disability to obtain a

14 Firearm Owner's Identification Card. If the court grants

15 relief, the court shall notify the Department of State Police

16 that the disability has been removed and that the applicant is

17 eligible to obtain a Firearm Owner's Identification Card.

18 (f) Any person who is subject to the disabilities of 18

19 U.S.C. 922(d)(4) and 922(g)(4) of the federal Gun Control Act

20 of 1968 because of an adjudication or commitment that occurred

21 under the laws of this State or who was determined to be

22 subject to the provisions of subsections (e), (f), or (g) of

23 Section 8 of this Act may apply to the Department of State

24 Police requesting relief from that prohibition. The Director

25 shall grant the relief if it is established by a preponderance

26 of the evidence that the person will not be likely to act in a

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1 manner dangerous to public safety and that granting relief

2 would not be contrary to the public interest. In making this

3 determination, the Director shall receive evidence concerning

4 (i) the circumstances regarding the firearms disabilities from

5 which relief is sought; (ii) the petitioner's mental health and

6 criminal history records, if any; (iii) the petitioner's

7 reputation, developed at a minimum through character witness

8 statements, testimony, or other character evidence; and (iv)

9 changes in the petitioner's condition or circumstances since

10 the disqualifying events relevant to the relief sought. If

11 relief is granted under this subsection or by order of a court

12 under this Section, the Director shall as soon as practicable

13 but in no case later than 15 business days, update, correct,

14 modify, or remove the person's record in any database that the

15 Department of State Police makes available to the National

16 Instant Criminal Background Check System and notify the United

17 States Attorney General that the basis for the record being

18 made available no longer applies. The Department of State

19 Police shall adopt rules for the administration of this

20 Section.

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

22 eff. 7-20-15.)