99TH GENERAL ASSEMBLY State of Illinois 2015 and 2016 SB1864

Introduced 2/20/2015, by Sen. Dan Kotowski

SYNOPSIS AS INTRODUCED:

See Index

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.

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CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

STATE MANDATES ACT MAY REQUIRE REIMBURSEMENT

A BILL FOR

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1 AN ACT concerning orders of protection.

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

3 represented in the General Assembly:

4 Section 1. Short title. This Act may be cited as the Lethal

5 Violence Order of Protection Act.

6 Section 5. Definitions.As used in this Act:

7 "Lethal violence order of protection" means an order issued

8 by the court, prohibiting and enjoining a named person from

9 having in his or her custody or control, owning, purchasing,

10 possessing, or receiving any firearms.

11 "Petitioner" means:

12 (1) a family member of the respondent as defined in

13 Section 103 of the Illinois Domestic Violence Act of 1986;

14 or

15 (2) a law enforcement officer, who files a petition

16 alleging that the respondent poses a danger of causing

17 personal injury to himself, herself, or another by having

18 in his or her custody or control, owning, purchasing,

19 possessing, or receiving a firearm.

20 "Respondent" means the person alleged in the petition to

21 pose a danger of causing personal injury to himself, herself,

22 or another by having in his or her custody or control, owning,

23 purchasing, possessing, or receiving a firearm.

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1 Section 10. Commencement of action; procedure.

2 (a) Actions for a lethal violence order of protection are

3 commenced by filing a verified petition for a lethal violence

4 order of protection in any circuit court.

5 (b) A petition for a lethal violence order of protection

6 may be filed in any county where the respondent resides.

7 (c) No fee shall be charged by the clerk for filing,

8 amending, vacating, certifying, or photocopying petitions or

9 orders; or for issuing alias summons; or for any related filing

10 service. No fee shall be charged by the sheriff for service by

11 the sheriff of a petition, rule, motion, or order in an action

12 commenced under this Section.

13 (d) The court shall provide, through the office of the

14 clerk of the court, simplified forms and clerical assistance to

15 help with the writing and filing of a petition under this

16 Section by any person not represented by counsel. In addition,

17 that assistance may be provided by the State's Attorney.

18 Section 15. Subject matter jurisdiction.Each of the

19 circuit courts shall have the power to issue lethal violence

20 orders of protection.

21 Section 20. Jurisdiction over persons.The circuit courts

22 of this State have jurisdiction to bind (1) State residents and

23 (2) non-residents having minimum contacts with this State, to

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1 the extent permitted by Section 2-209 of the Code of Civil

2 Procedure.

3 Section 25. Process.The summons shall be in the form

4 prescribed by Supreme Court Rule 101(d), except that it shall

5 require respondent to answer or appear within 7 days.

6 Attachments to the summons or notice shall include the petition

7 for the lethal violence order of protection and supporting

8 affidavits, if any, and any emergency lethal violence order of

9 protection that has been issued. The enforcement of an order

10 under Section 35 shall not be affected by the lack of service,

11 delivery, or notice, provided the requirements of subsection

12 (d) of that Section are otherwise met.

13 Section 30. Service of notice of hearings.Service of

14 notice of hearings. Except as provided in Section 25, notice of

15 hearings on petitions or motions shall be served in accordance

16 with Supreme Court Rules 11 and 12, unless notice is excused by

17 Section 35 of this Act, or by the Code of Civil Procedure,

18 Supreme Court Rules, or local rules.

19 Section 35. Ex parte orders and emergency hearings.

20 (a) A petitioner may request an emergency lethal violence

21 order of protection by filing an affidavit or verified pleading

22 alleging that the respondent poses an immediate and present

23 danger of causing personal injury to himself, herself, or

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1 another by having in his or her custody or control, owning,

2 purchasing, possessing, or receiving a firearm. The petition

3 shall also describe the type, and location of any firearm or

4 firearms presently believed by the petitioner to be possessed

5 or controlled by the respondent.

6 (b) An emergency order of protection shall be issued on an

7 ex parte basis, that is, without notice to the respondent.

8 (c) An emergency hearing held on an ex parte basis shall be

9 held the same day that the petition is filed or the next day

10 that the court is in session.

11 (d) If a circuit or associate judge finds reasonable cause

12 to believe that the respondent poses an immediate and present

13 danger of causing personal injury to himself, herself, or

14 another by having in his or her custody or control, owning,

15 purchasing, possessing, or receiving a firearm the circuit or

16 associate judge shall issue an emergency order.

17 (e) An emergency lethal violence order of protection shall

18 require:

19 (1) the respondent to refrain from having in his or her

20 custody or control, owning, purchasing, possessing, or

21 receiving additional firearms for the duration of the

22 order;

23 (2) the respondent to turn over to the local law

24 enforcement agency any Firearm Owner's Identification Card

25 and concealed cary license in his or her possession. The

26 local law enforcement agency shall immediately mail the

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1 card and concealed carry license to the Department of State

2 Police Firearm Owner's Identification Card Office for

3 safekeeping. The firearm or firearms and Firearm Owner's

4 Identification Card and concealed carry license, if

5 unexpired, shall at the respondent's request, be returned

6 to the respondent after the lethal violence order of

7 protection is terminated or expired. It is the respondent's

8 responsibility to notify the Department of State Police

9 Firearm Owner's Identification Card Office; and

10 (3) any law-enforcement agency to forthwith search for

11 and seize firearms of the respondent upon probable cause

12 that the respondent has possession of a firearm, and

13 petitioner or the court can describe, with sufficient

14 particularity, the location of the firearm or firearms.

15 (f) Upon expiration of the period of safekeeping, if the

16 firearms or Firearm Owner's Identification Card and concealed

17 carry license cannot be returned to respondent because

18 respondent cannot be located, fails to respond to requests to

19 retrieve the firearms, or is not lawfully eligible to possess a

20 firearm, upon petition from the local law enforcement agency,

21 the court may order the local law enforcement agency to destroy

22 the firearms, use the firearms for training purposes, or for

23 any other application as deemed appropriate by the local law

24 enforcement agency.

25 (g) In accordance with subsection (c) of this Section, the

26 court shall schedule a full hearing within 14 days of the

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1 issuance of an ex parte lethal violence order of protection to

2 determine if a one-year lethal violence order of protection

3 shall be issued. The court may extend an ex parte order as

4 needed, but not to exceed 30 days, to effectuate service of the

5 order or if necessary to continue protection.

6 Section 40. One-year orders.

7 (a) A petitioner may request a one-year lethal violence

8 order of protection by filing an affidavit or verified pleading

9 alleging that the respondent poses a significant danger of

10 causing personal injury to himself, herself, or another in the

11 near future by having in his or her custody or control, owning,

12 purchasing, possessing, or receiving a firearm. The petition

13 shall also describe the number, types, and locations of any

14 firearms presently believed by the petitioner to be possessed

15 or controlled by the respondent.

16 (b) Upon receipt of a petition for a one-year lethal

17 violence order of protection, the court shall order a hearing

18 within 30 days.

19 (c) In determining whether to issue a lethal violence order

20 of protection under this Section, the court shall consider

21 evidence of:

22 (1) A recent threat of violence or act of violence by

23 the respondent directed toward himself, herself, or

24 another.

25 (2) A violation of an emergency order of protection

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1 issued under Section 217 of the Illinois Domestic Violence

2 Act of 1986 or Section 112A-17 of the Code of Criminal

3 Procedure of 1963 or of an order of protection issued under

4 Section 214 of the Illinois Domestic Violence Act of 1986

5 or Section 112A-14 of the Code of Criminal Procedure of

6 1963.

7 (3) A pattern of violent acts or violent threats,

8 including, but not limited to, threats of violence or acts

9 of violence by the respondent directed toward himself,

10 herself, or another.

11 (d) In determining whether to issue a lethal violence order

12 of protection under this Section, the court may consider

13 evidence including, but not limited to, the following:

14 (1) The unlawful and reckless use, display, or

15 brandishing of a firearm by the respondent.

16 (2) The history of use, attempted use, or threatened

17 use of physical force by the respondent against another

18 person.

19 (3) Any prior arrest of the respondent for a felony

20 offense.

21 (4) Evidence of the abuse of controlled substances or

22 alcohol by the respondent.

23 (5) Evidence of recent acquisition of firearms,

24 ammunition, or other deadly weapons.

25 (e) At the hearing, the petitioner shall have the burden of

26 proving, by preponderance of the evidence, that the respondent

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1 poses a significant danger of personal injury to himself,

2 herself, or another by having in his or her custody or control,

3 owning, purchasing, possessing, or receiving a firearm.

4 (f) If the court finds that there is a preponderance of the

5 evidence to issue a lethal violence order of protection, the

6 court shall issue a lethal violence order of protection that

7 shall be in effect for one year subject to renewal under

8 Section 45 of this Act or termination under that Section.

9 (g) A one-year lethal violence order of protection shall

10 require:

11 (1) the respondent to refrain from having in his or her

12 custody or control, owning, purchasing, possessing or

13 receiving additional firearms for the duration of the

14 order;

15 (2) the respondent to turn over to the local law

16 enforcement agency any firearm or Firearm Owner's

17 Identification Card and concealed carry license in his or

18 her possession. The local law enforcement agency shall

19 immediately mail the card and concealed carry license to

20 the Department of State Police Firearm Owner's

21 Identification Card Office for safekeeping. The firearm or

22 firearms and Firearm Owner's Identification Card and

23 concealed carry license, if unexpired shall at the

24 respondent's request, be returned to the respondent after

25 the lethal violence order of protection is terminated or

26 expired. It is the respondent's responsibility to notify

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1 the Department of State Police Firearm Owner's

2 Identification Card Office; and

3 (3) any law-enforcement agency to forthwith search for

4 and seize firearms of the respondent upon probable cause

5 that the respondent has possession of a firearm, and

6 petitioner can describe, with sufficient particularity,

7 the location of the firearm or firearms.

8 (h) Upon expiration of the period of safekeeping, if the

9 firearms or Firearm Owner's Identification Card cannot be

10 returned to respondent because respondent cannot be located,

11 fails to respond to requests to retrieve the firearms, or is

12 not lawfully eligible to possess a firearm, upon petition from

13 the local law enforcement agency, the court may order the local

14 law enforcement agency to destroy the firearms, use the

15 firearms for training purposes, or for any other application as

16 deemed appropriate by the local law enforcement agency.

17 (i) If the court does not issue a lethal violence order of

18 protection at the hearing, the court shall dissolve any

19 emergency lethal violence order of protection then in effect.

20 (j) When the court issues a lethal violence order of

21 protection under this Section, the court shall inform the

22 respondent that he or she is entitled to one hearing during the

23 period of the order to request a termination of the order,

24 under Section 45 of this Act, and shall provide the respondent

25 with a form to request a hearing.

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1 Section 45. Termination and renewal.

2 (a) A person subject to a lethal violence order of

3 protection issued under this Act may submit one written request

4 at any time during the effective period of the order for a

5 hearing to terminate the order.

6 (1) The respondent shall have the burden of proving by

7 a preponderance of the evidence that the respondent does

8 not pose a danger of causing personal injury to himself,

9 herself, or another in the near future by having in his or

10 her custody or control, owning, purchasing, possessing, or

11 receiving a firearm.

12 (2) If the court finds after the hearing that the

13 respondent has met his or her burden, the court shall

14 terminate the order.

15 (b) A petitioner may request a renewal of a lethal violence

16 order of protection at any time within the 3 months before the

17 expiration of a lethal violence order of protection.

18 (1) A court shall, after notice and a hearing, renew a

19 lethal violence order of protection issued under this part

20 if the petitioner proves, by a preponderance of the

21 evidence, that the respondent continues to pose a danger of

22 causing personal injury to himself, herself, or another in

23 the near future by having in his or her custody or control,

24 owning, purchasing, possessing, or receiving a firearm.

25 (2) In determining whether to renew a lethal violence

26 order of protection issued under this Act, the court shall

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1 consider evidence of the facts identified in subsection (c)

2 of Section 40 of this Act and any other evidence of an

3 increased risk for violence, including, but not limited to,

4 evidence of any of the factors identified in subsection (d)

5 of Section 40 of this Act.

6 (3) At the hearing, the petitioner shall have the

7 burden of proving, by a preponderance of the evidence that

8 the respondent continues to pose a danger of causing

9 personal injury to himself, herself, or another in the near

10 future by having in his or her custody or control, owning,

11 purchasing, possessing, or receiving a firearm.

12 (4) The renewal of a lethal violence order of

13 protection issued under this Section shall be in effect for

14 one year, subject to termination by further order of the

15 court at a hearing held under this Section and further

16 renewal by further order of the court under this Section.

17 Section 50. Notice of orders.

18 (a) Entry and issuance. Upon issuance of any lethal

19 violence order of protection, the clerk shall immediately, or

20 on the next court day if an emergency lethal violence order of

21 protection is issued in accordance with Section 35 of this Act

22 (emergency lethal violence order of protection), (i) enter the

23 order on the record and file it in accordance with the circuit

24 court procedures and (ii) provide a file stamped copy of the

25 order to respondent, if present, and to petitioner.

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1 (b) Filing with sheriff. The clerk of the issuing judge

2 shall, or the petitioner may, on the same day that a lethal

3 violence order of protection is issued, file a certified copy

4 of that order with the sheriff or other law enforcement

5 officials charged with maintaining Department of State Police

6 records or charged with serving the order upon respondent. If

7 the order was issued in accordance with Section 35 of this Act

8 (emergency lethal violence order of protection), the clerk

9 shall on the next court day, file a certified copy of the order

10 with the sheriff or other law enforcement officials charged

11 with maintaining Department of State Police records.

12 (c) Service by sheriff. Unless respondent was present in

13 court when the order was issued, the sheriff, other law

14 enforcement official, or special process server shall promptly

15 serve that order upon respondent and file proof of the service,

16 in the manner provided for service of process in civil

17 proceedings. Instead of serving the order upon the respondent,

18 however, the sheriff, other law enforcement official, special

19 process server, or other persons defined in Section 112A-22.10

20 of the Criminal Code of 1963 may serve the respondent with a

21 short form notification as provided in that Section. If process

22 has not yet been served upon the respondent, it shall be served

23 with the order or short form notification if the service is

24 made by the sheriff, other law enforcement official, or special

25 process server. A single fee may be charged for service of an

26 order obtained in circuit court, or for service of the order

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1 together with process, unless waived or deferred under

2 subsection (c) of Section 10 of this Act.

3 (d) Any order renewing or terminating any lethal violence

4 order of protection shall be promptly recorded, issued, and

5 served as provided in this Section.

6 Section 55. Data maintenance by law enforcement agencies.

7 (a) All sheriffs shall furnish to the Department of State

8 Police, daily, in the form and detail the Department requires,

9 copies of any recorded lethal violence order of protection

10 issued by the court, and any foreign orders of protection filed

11 by the clerk of the court, and transmitted to the sheriff by

12 the clerk of the court under Section 50. Each lethal violence

13 order of protection shall be entered in the Law Enforcement

14 Agencies Data System (LEADS) on the same day it is issued by

15 the court. If an emergency lethal violence order of protection

16 was issued in accordance with Section 35 of this Act, the order

17 shall be entered in the Law Enforcement Agencies Data System

18 (LEADS) as soon as possible after receipt from the clerk.

19 (b) The Department of State Police shall maintain a

20 complete and systematic record and index of all valid and

21 recorded lethal violence orders of protection issued or filed

22 under this Act. The data shall be used to inform all

23 dispatchers and law enforcement officers at the scene of a

24 violation of lethal violence order of protection of the

25 effective dates and terms of any recorded order of protection.

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1 (c) The data, records and transmittals required under this

2 Section shall pertain to any valid emergency or one-year lethal

3 violence order of protection, whether issued in a civil or

4 criminal proceeding or authorized under the laws of another

5 state, tribe, or United States territory.

6 Section 60. Filing of a lethal violence order of protection

7 issued by another state.

8 (a) A person entitled to protection under a lethal violence

9 order of protection or similar order issued by the court of

10 another state, tribe, or United States territory may file a

11 certified copy of the lethal violence order of protection with

12 the clerk of the court in a judicial circuit in which the

13 person believes that enforcement may be necessary.

14 (b) The clerk shall:

15 (1) treat the foreign lethal violence order of

16 protection in the same manner as a judgment of the circuit

17 court for any county of this State in accordance with the

18 provisions of the Uniform Enforcement of Foreign Judgments

19 Act, except that the clerk shall not mail notice of the

20 filing of the foreign order to the respondent named in the

21 order; and

22 (2) on the same day that a foreign lethal violence

23 order of protection is filed, file a certified copy of that

24 order with the sheriff or other law enforcement officials

25 charged with maintaining Department of State Police

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1 records as set forth in Section 55 of this Act.

2 (c) Neither residence in this State nor filing of a foreign

3 lethal violence order of protection shall be required for

4 enforcement of the order by this State. Failure to file the

5 foreign order shall not be an impediment to its treatment in

6 all respects as an Illinois lethal violence order of

7 protection.

8 (d) The clerk shall not charge a fee to file a foreign

9 order of protection under this Section.

10 Section 65. Enforcement; sanctions for violation of order.

11 (a) A respondent who knowingly violates a lethal violence

12 order of protection is guilty of a Class A misdemeanor.

13 Prosecution for a violation of a lethal violence order of

14 protection shall not bar concurrent prosecution for any other

15 crime, including any crime that may have been committed at the

16 time of the violation of the lethal violence order of

17 protection.

18 (b) A petitioner who files a petition for a lethal violence

19 order of protection knowing the information in the petition to

20 be false is guilty of a Class A misdemeanor.

21 Section 70. Non-preclusion of remedies.Nothing in this Act

22 shall preclude a petitioner or law-enforcement officer from

23 removing weapons under other authority, or filing criminal

24 charges when probable cause exists.

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1 Section 135. The Firearm Owners Identification Card Act is

2 amended by changing Section 8.2 as follows:

3 (430 ILCS 65/8.2)

4 Sec. 8.2. Firearm Owner's Identification Card denial or

5 revocation. The Department of State Police shall deny an

6 application or shall revoke and seize a Firearm Owner's

7 Identification Card previously issued under this Act if the

8 Department finds that the applicant or person to whom such card

9 was issued is or was at the time of issuance subject to an

10 existing order of protection or lethal violence order of

11 protection.

12 (Source: P.A. 96-701, eff. 1-1-10.)

13 Section 140. The Firearm Concealed Carry Act is amended by

14 changing Section 70 as follows:

15 (430 ILCS 66/70)

16 Sec. 70. Violations.

17 (a) A license issued or renewed under this Act shall be

18 revoked if, at any time, the licensee is found to be ineligible

19 for a license under this Act or the licensee no longer meets

20 the eligibility requirements of the Firearm Owners

21 Identification Card Act.

22 (b) A license shall be suspended if an order of protection,

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1 including an emergency order of protection, plenary order of

2 protection, or interim order of protection under Article 112A

3 of the Code of Criminal Procedure of 1963 or under the Illinois

4 Domestic Violence Act of 1986, or if a lethal violence order of

5 protection, including an emergency lethal violence order of

6 protection, under the Lethal Violence Order of Protection Act,

7 is issued against a licensee for the duration of the order, or

8 if the Department is made aware of a similar order issued

9 against the licensee in any other jurisdiction. If an order of

10 protection is issued against a licensee, the licensee shall

11 surrender the license, as applicable, to the court at the time

12 the order is entered or to the law enforcement agency or entity

13 serving process at the time the licensee is served the order.

14 The court, law enforcement agency, or entity responsible for

15 serving the order of protection shall notify the Department

16 within 7 days and transmit the license to the Department.

17 (c) A license is invalid upon expiration of the license,

18 unless the licensee has submitted an application to renew the

19 license, and the applicant is otherwise eligible to possess a

20 license under this Act.

21 (d) A licensee shall not carry a concealed firearm while

22 under the influence of alcohol, other drug or drugs,

23 intoxicating compound or combination of compounds, or any

24 combination thereof, under the standards set forth in

25 subsection (a) of Section 11-501 of the Illinois Vehicle Code.

26 A licensee in violation of this subsection (d) shall be

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1 guilty of a Class A misdemeanor for a first or second violation

2 and a Class 4 felony for a third violation. The Department may

3 suspend a license for up to 6 months for a second violation and

4 shall permanently revoke a license for a third violation.

5 (e) Except as otherwise provided, a licensee in violation

6 of this Act shall be guilty of a Class B misdemeanor. A second

7 or subsequent violation is a Class A misdemeanor. The

8 Department may suspend a license for up to 6 months for a

9 second violation and shall permanently revoke a license for 3

10 or more violations of Section 65 of this Act. Any person

11 convicted of a violation under this Section shall pay a $150

12 fee to be deposited into the Mental Health Reporting Fund, plus

13 any applicable court costs or fees.

14 (f) A licensee convicted or found guilty of a violation of

15 this Act who has a valid license and is otherwise eligible to

16 carry a concealed firearm shall only be subject to the

17 penalties under this Section and shall not be subject to the

18 penalties under Section 21-6, paragraph (4), (8), or (10) of

19 subsection (a) of Section 24-1, or subparagraph (A-5) or (B-5)

20 of paragraph (3) of subsection (a) of Section 24-1.6 of the

21 Criminal Code of 2012. Except as otherwise provided in this

22 subsection, nothing in this subsection prohibits the licensee

23 from being subjected to penalties for violations other than

24 those specified in this Act.

25 (g) A licensee whose license is revoked, suspended, or

26 denied shall, within 48 hours of receiving notice of the

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1 revocation, suspension, or denial, surrender his or her

2 concealed carry license to the local law enforcement agency

3 where the person resides. The local law enforcement agency

4 shall provide the licensee a receipt and transmit the concealed

5 carry license to the Department of State Police. If the

6 licensee whose concealed carry license has been revoked,

7 suspended, or denied fails to comply with the requirements of

8 this subsection, the law enforcement agency where the person

9 resides may petition the circuit court to issue a warrant to

10 search for and seize the concealed carry license in the

11 possession and under the custody or control of the licensee

12 whose concealed carry license has been revoked, suspended, or

13 denied. The observation of a concealed carry license in the

14 possession of a person whose license has been revoked,

15 suspended, or denied constitutes a sufficient basis for the

16 arrest of that person for violation of this subsection. A

17 violation of this subsection is a Class A misdemeanor.

18 (h) A license issued or renewed under this Act shall be

19 revoked if, at any time, the licensee is found ineligible for a

20 Firearm Owner's Identification Card, or the licensee no longer

21 possesses a valid Firearm Owner's Identification Card. A

22 licensee whose license is revoked under this subsection (h)

23 shall surrender his or her concealed carry license as provided

24 for in subsection (g) of this Section.

25 This subsection shall not apply to a person who has filed

26 an application with the State Police for renewal of a Firearm

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1 Owner's Identification Card and who is not otherwise ineligible

2 to obtain a Firearm Owner's Identification Card.

3 (i) A certified firearms instructor who knowingly provides

4 or offers to provide a false certification that an applicant

5 has completed firearms training as required under this Act is

6 guilty of a Class A misdemeanor. A person guilty of a violation

7 of this subsection (i) is not eligible for court supervision.

8 The Department shall permanently revoke the firearms

9 instructor certification of a person convicted under this

10 subsection (i).

11 (Source: P.A. 98-63, eff. 7-9-13; 98-756, eff. 7-16-14; 98-899,

12 eff. 8-15-14.)

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INDEX

Statutes amended in order of appearance