Firearm Prohibitions for Domestic Violence Criminal Convictions
Illinois requires a person to have a valid Firearm Owner’s Identification (“FOID”) card in order to lawfully 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
A FOID card will also be denied or revoked if the applicant or cardholder is prohibited from acquiring or possessing firearms or ammunition by federal law.7Federal law prohibits the purchase and possession of firearms and ammunition by anyone convicted of a “misdemeanor crime of domestic violence.”8 Illinois law provides a procedure for determining whether certain crimes qualify as “misdemeanor crimes of domestic violence” for purposes of federal law.9 When a person is charged with a crime that may qualify, the state may serve notice on the defendant alleging that a conviction would subject defendant to the federal firearm prohibitions.10 The defendant may admit that the conviction would subject him or her to the federal prohibitions 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 “misdemeanor crime of domestic violence” under federal law.11
If, under the procedures outlined above, a court determines that a person has been convicted of a “misdemeanor crime of domestic violence” that would disqualify him or her from purchasing or possessing firearms under federal law, then 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.12
In Illinois, when a person is convicted 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)).”13
Firearm Prohibitions for Domestic Violence Restraining/Protective Orders
Illinois law 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 the Code of Criminal Procedure may not lawfully possess weapons under the Firearm Owners Identification Card Act.14
In addition, a court may issue a civil order under the Illinois Domestic Violence Act prohibiting a person from possessing firearms if that person is subject to a protection order meeting the following criteria:
- the order was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
- the order 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
- the order (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.15
However, a court may issue a civil emergency protective order prohibiting a person from possessing firearms without giving notice to the subject of the order if the court determines that the harm posed by the subject’s continued possession of firearms would be likely to occur if the subject was given notice of the petitioner’s efforts to obtain judicial relief.16
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.17 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.18
A court that is issuing a “stalking no contact order” may also prohibit the defendant from possessing a FOID card or from possessing or purchasing firearms.19 In such a situation, the court must confiscate the subject’s FOID card and immediately return the card to DSP.20
Removal or Surrender of Firearms Upon Conviction for a Domestic Violence Misdemeanor
A person convicted of a crime that qualifies, pursuant to the procedures established by Illinois law,21 as a “misdemeanor crime of domestic violence” under federal law must physically surrender his or her FOID card and any and all firearms in his or her possession at a time and place designated by the court. The court must return the person’s FOID card to DSP.22
Removal or Surrender of Firearms When Domestic Violence Restraining/Protective Orders Are Issued
If a domestic violence protection order issued under the Illinois Domestic Violence Act prohibits a respondent from possessing firearms, any FOID card in the respondent’s possession must be ordered by the court to be turned over to a local law enforcement agency, which must then mail the FOID card to DSP for safekeeping. The court must also issue a warrant for the seizure of any firearm in respondent’s possession, to be kept by local law enforcement for safekeeping.23 If the protective order is issued pursuant to the Illinois Code of Criminal Procedure, the court must order that any firearms in respondent’s possession be turned over to a person with a valid FOID card.24 Removal and surrender procedures under the Illinois Code of Criminal Procedure are otherwise identical to those contained in the Illinois Domestic Violence Act. The period of safekeeping must be equivalent to the duration of the order and any firearms and respondent’s FOID card, if unexpired, must be returned to the respondent at the time the order of protection expires.25
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.26
Protective orders prohibiting firearm possession under the Illinois Domestic Violence Act 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.27
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.28 A firearm must be returned to its owner when no longer needed as evidence.29
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- 430 Ill. Comp. Stat. 65/2(a)(1), (2).
- 430 Ill. Comp. Stat. 65/4(a)(2)(viii); 430 Ill. Comp. Stat. 65/8(k).
- 430 Ill. Comp. Stat. 65/4(a)(2) (ix); 430 Ill. Comp. Stat. 65/8(l).
- 720 Ill. Comp. Stat. 5/12-3.2(a)(1)(2).
- 725 Ill. Comp. Stat. 5/112A-3(3).
- 720 Ill. Stat. Comp. Stat. 5/12-3.3(a).
- 430 Ill. Comp. Stat. 65/8(n).
- 18 U.S.C. § 922(g)(9).
- 725 Ill. Comp. Stat. 5/112A-11.1(a)-(c).
- 20 Ill. Comp. Stat. 2630/2.2; 725 Ill. Comp. Stat. 5/112A-11.2.
- 720 Ill. Comp. Stat. 5/12-3.2(d). A notation must be made in the court file that this admonition was given.
- 725 Ill. Comp. Stat. 5/112A-14(b)(14.5)(A).
- 750 Ill. Comp. Stat. 60/214(b)(14).
- 750 Ill. Comp. Stat. 60/217(3)(i).
- 430 Ill. Comp. Stat. 65/8.2.
- 430 Ill. Comp. Stat. 65/4(a)(2)(vii).
- 740 Ill. Comp. Stat. 21/80(b)(4).
- 740 Ill. Comp. Stat. 21/80(e).
- 725 Ill. Comp. Stat. 5/112A-11.1(a)-(c).
- 730 Ill. Comp. Stat. 5/5-6-3(a)(9).
- 750 Ill. Comp. Stat. 60/214(b)(14)(a).
- 725 Ill. Comp. Stat. 5/112A-14(b)(14.5)(B).
- 725 Ill. Comp. Stat. 5/112A-14(b)(14.5)(D); 750 Ill. Comp. Stat. 60/214(b)(14)(c).
- 725 Ill. Comp. Stat. 5-112A-4; 750 Ill. Comp. Stat. 60/201(a).
- 725 Ill. Comp. Stat. 5/112A-30(a)(2); 750 Ill. Comp. Stat. 60/304(a)(2).
- 725 Ill. Comp. Stat. 5/112A-30(c); 750 Ill. Comp. Stat. 60/304(c).