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posted on 11/17/19

Illinois recently passed its own version of a Red Flag Gun Law, the Firearms Restraining Order Act. The law allows certain individuals to file a petition asking the court to remove a family member or roommate’s guns from his possession. If a judge determines that the gun owner is a significant danger to himself or others, the judge will issue an order for the removal of the guns.

In order to get his guns back, the gun owner must prove that he is not a danger to himself or others. Illinois courts implement different burdens of proof depending on who files the relevant petition. If an Illinois court has removed your firearms unjustly, we can help. Contact the Cook County attorneys at Glasgow & Olsson to schedule your free initial consultation.

The Gun Owner Seeks to Retrieve His Guns

If a court determines to remove firearms from a gun owner, the gun owner has a right to a hearing on a date and time set by the Court. The burden at the hearing date set by the Court is on the State. If the gun owner wishes to attempt to obtain the weapons before the date set by the Court, the gun owner may submit a written request at any time for a hearing to terminate the order and retrieve his guns. If the gun owner submits the request prior to the hearing set by the Court, the burden shifts and the gun owner is the one that has the burden of proof when requesting his guns back. According to Illinois law, the gun owner must prove by a preponderance of the evidence that he does not pose a danger of causing personal injury to himself or another person by possessing, purchasing, controlling, or using a firearm. If the judge determines that the gun owner met the burden of proof, the judge will terminate the firearms restraining order and the gun owner will receive his guns.

The Government or an Individual can Request an Extension of the Restraining Order

If the order is upheld by the Court, the state government, law enforcement, or certain individuals can petition a court to renew the firearms restraining order. The petition must occur within three months before the expiration of the restraining order. Petitioners requesting an extension have the burden of proof, which means they must prove by clear and convincing evidence that the gun owner continues to pose a danger of injuring himself or someone else by owning, possessing, or controlling a gun. This burden of proof is lower than the ‘beyond a reasonable doubt’ standard, but higher than the ‘preponderance of the evidence’ standard used in most civil trials

Governments can request an extension of the restraining order at any time within three months of the expiration of the firearm restraining order. The burden of proof is lower when a gun owner petitions to retrieve his guns. The preponderance of the evidence is the easiest burden of proof to meet. The state needs only prove that it is more likely than not that he is a significant danger to himself or others by possessing a gun. Thus, it is not a wise idea for the gun owner to petition the court himself in an attempt to terminate the temporary firearm restraining order. If the gun owner waits until the hearing date set by the government, then the burden upon the state will be much higher and much more difficult for them to sustain.

We Can Help

If you need assistance petitioning the court to get your access to firearms back, the attorneys at Glasgow & Olsson can help. Contact our criminal defense law firm today to schedule your free initial consultation.

(image courtesy of Quentin Kemmel)