The so-called “red flag” bill HB2354 would allow family members, or police, to seek an order of protection to confiscate firearms from those deemed “an immediate and present danger” to themselves or others.
HB2354 Synopsis As Introduced on the IL General Assembly website-
"Creates the Lethal Violence Order of Protection Act. Provides that a petitioner may request an emergency lethal violence order of protection by filing an affidavit or verified pleading alleging that the respondent poses an immediate and present danger of causing personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm. Provides that the petition shall also describe the type, and location of any firearm or firearms presently believed by the petitioner to be possessed or controlled by the respondent. Provides that the petitioner may be a family member of the respondent or a law enforcement officer, who files a petition alleging that the respondent poses a danger of causing personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm. Establishes factors that the court must consider before issuing a lethal violence order of protection. Provides for the issuance of ex parte orders and one year orders. Provides that if the court issues the order the respondent must: (1) refrain from having in his or her custody or control, owning, purchasing, possessing, or receiving additional firearms for the duration of the order; and (2) turn over to the local law enforcement agency any firearm, Firearm Owner's Identification Card, or concealed carry license in his or her possession. Establishes factors for renewing and terminating lethal violence orders of protection. Amends the Firearm Owners Identification Card Act and the Firearm Concealed Carry Act to make conforming changes."
This bill has been four years in the making, and its sponsor Rep. Kathleen Willis (D-Addison) has stated she expects the governor to sign this bill into law today, although the governor’s office has not commented on whether he will sign the bill or not. The Chicago Tribune posted an article today with more detailed information on the bills awaiting Governor's Rauner's signature.
IllinoisCarry spokeswoman Valinda Rowe explains further:
"We have been in conversation about this bill with some of the most knowledgeable Second Amendment attorneys and 2A experts in the nation. In their opinion this is one of, if not the best bills of its kind.
We started out with HB772 Lethal Violence Order of Protection which was an outrageous gun grab bill. We all fought with everything we had to defeat that version and then went on to fight to amend this version. At times it felt like a knockdown, drag out fight in the ring, at other times it was more like peace negotiations in the middle east - never easy. Nonetheless, we were able to change this monstrosity around and now the experts are telling us this bill is now more of an Emergency Intervention bill that addresses more of the real problems of mentally ill who are a danger, domestic abusers who are a danger, and those threatening terrorist acts. This bill could possibly set a new standard by which these emergency situations can be deescalated and lives saved, referring to the Waffle House, Parkland High School, and the like.
The attorneys seem to think the bill meets due process and constitutional muster because the order is not final until the firearm owner has their day in court, which must happen quickly.
What makes this bill exceptional compared to the gun grab bills:
1. The requirement for clear and convincing evidence is a high bar to provide and is one of the highest standards in the country.
2. The order is not final until the person has their day in court and that must happen within 14 days. This could even happen as early as that day or the next.
3. Ownership is not prohibited and the firearms can be transferred to someone the person trusts for safekeeping.
4. Property is returned without need to petition the court.
5. If the clear and convincing evidence of being a danger is indicative of a mental illness, the judge can issue an order for a mental health evaluation.
6. If the clear and convincing evidence of being a danger is indicative of a criminal act/terrorism, charges can be filed and an arrest warrant can be issued at the same time.
7. In the meantime, the firearms are removed from the scene and taken into safe keeping until the orders are dismissed or expire.
8. FOID/CCL could be suspended instead of revoked (if there are no additional circumstances that would make the person ineligible for a FOID/CCL). These would then be reinstated when the order is dismissed or expires. If you have been following the nightmare we have with FOID/CCL appeals, you know this is a HUGE win.
9. The penalty for false testimony is a felony and is another deterrent for abusing the process.
There are a few tweaks we would like to see and the sponsors have agreed to a trailer bill. We know trailer bills do not always happen but the major issues we fought for are in this bill. It's better than Indiana, better even than Florida's, in my opinion.
Where we are now - If the Gov. signs the bill as is, with the current promise for a trailer bill from the sponsors, we get a reasonable Emergency Intervention bill now with the little fixes to come in the new session.
If the Gov. vetoes or amendatory vetoes the bill, the risk is real that the whole bill will be lost and we lose all the hard work we put into getting amendments in this bill and would have to start over. In the meantime, heaven forbid if there is another killing (or worse, one in IL) - the hysteria would then drive the legislative language and it would be impossible to hold it back. If that happens, most legislators will be afraid to not support a bad bill for fear of appearing uncaring to the victims and their families.
I think most of us are very concerned about abuse of the process because we've seen what happens with regular orders of protection. In the next legislative session, I would like to see us take that issue on and increase the level of evidence for an OP to match this bill's requirement for clear and convincing evidence before an order of protection can be issued.
Unlike most all proposed bills we see, this one actually addresses an issue that needs to be addressed. During the many years my husband and I were terrorized by a mentally ill family member, had this been law, it would have been a great help to us. We can identify with potential victims and we see the real world need for an emergency intervention bill like this"
