Law Allows Law Enforcement to Petition for Emergency Firearms Restraining Orders

November 29, 2018

Public Act 100-0607, the Firearms Restraining Order Act (the “Act”), goes into effect January 1, 2019 and allows law enforcement, or a family member, to petition the court to issue an emergency firearms restraining order against an individual who poses an “immediate and present danger to himself, herself or another.” If the court issues such an order, the court can order law enforcement to search for and seize any firearms reasonably believed to be in the individual’s possession.

The Act provides that a petitioner may request an emergency order by filing an affidavit or verified pleading in the circuit court in which the individual resides, if the individual poses an “immediate and present danger of causing personal injury to himself, herself, or another by having in his or her custody or control, purchasing, possessing, or receiving a firearm.” The petition must describe the type and location of any firearms the individual is believed to possess. Emergency orders are issued on an ex parte basis, meaning, without notice to the individual and the hearing for an ex parte order will be held the same day the petition is filed or the next day the court is in session.
If the emergency firearms restraining order is issued, it shall require that the individual:

• “refrain from having in his or her custody or control, purchasing, possessing, or receiving additional firearms for the duration of the order; and
• turn over to the local law enforcement agency any firearm, Firearm Owner’s Identification Card, or concealed carry license in his or her possession.”

To effectuate these terms, the court will issue a search warrant directing law enforcement to immediately seize the individual’s firearms. As part of the search warrant, the court may also direct law enforcement to search the individual’s residence or other places there is probable cause to believe he or she is likely to possess firearms.

After an ex parte emergency order is issued, the court is to schedule a full hearing no more than 14 days from the issuance of the emergency order to determine if a plenary 6-month firearms restraining order is appropriate. An ex parte order may be extended to exceed 14 days, to effectuate service of the order, if necessary to continue protection, or by agreement of the parties.

When petitioning for emergency and 6-month firearm restraining orders, if the individual is alleged to pose an immediate threat to an intimate partner, or if an intimate partner is alleged to be the target of a threat by the individual, the “petitioner shall make a good faith effort” to provide notice of the full hearing date to any and all intimate partners. If law enforcement is seeking the order, the notice must include referral to relevant domestic violence, stalking advocacy, or counseling services. Provision of this notice, or the inability to provide notice (with the reasons that attempted notice was unsuccessful) must be included in the affidavit or verified pleading.

Finally, the Act articulates a list of factors that the court must consider before issuing, renewing, or terminating a 6-month firearms restraining order, including but not limited to evidence of unlawful use or display of firearms, history of the use of physical force, prior felony arrests, substance abuse, recent or pattern of threats of violence, and violations of orders of protection.

Municipal Police Departments should be familiar with the requirements of this Act should such an emergency situation arise.