Under Illinois’ red flag gun law, an Illinois court can remove firearms from a person who is dangerous. When the state, a family member, or a roommate files a petition for a firearms restraining order, they must prove that it is necessary. The petitioner is the party asking the court to remove the gun owner’s guns. The respondent is the gun owner or the person who may pose a danger by possessing or purchasing a firearm.
Which Burden Must the State Meet When Requesting a Firearms Restraining Order?
The state of Illinois or a qualified individual may file a petition in the county in which the respondent resides. The court must order a hearing within 30 days of receiving the petition. At the hearing, the petitioner has the burden of proving by clear and convincing evidence that the respondent poses a significant danger to himself, herself, or others by possessing, owning, or purchasing a firearm. When the court determines that clear and convincing evidence exists, it will issue a six-month firearms restraining order.
Meeting the clear and convincing evidence burden of proof is moderately difficult to prove. The “clear and convincing evidence” standard requires that the evidence shows that it is highly and substantially more likely to be true than untrue that the respondent poses a significant danger by possessing firearms.
Which Burdens Must the Gun Owner Meet to Receive His Guns Back?
All is not lost for the gun owner whose guns have been removed under Illinois’ red flag gun law. The respondent gun owner has a right to petition the court for a hearing to terminate the firearm restraining order. The gun owner must submit a written request for a hearing. At the hearing, the gun owner has the burden of proof. He or she must prove by a preponderance of the evidence that he or she does not pose a danger of causing personal injury to himself, herself, or another person in the near future by having a firearm in his possession or by purchasing a firearm.
The preponderance of the evidence burden of proof means that there is a greater than 50%chance that the gun owner does not pose a danger to himself or others in the near future by owning a gun. It is easier to meet the preponderance of the evidence burden of proof than to meet the “clear and convincing” burden of proof.
A Petitioner Can Request an Extension of the Firearms Restraining Order
It is important to note that a petitioner can petition the court to extend a six-month firearm restraining order. A petitioner may request that an Illinois court renew the firearms restraining order for another six months. The petitioner must file a petition within three months of the expiration date of the original restraining order. Once again, a petitioner must prove by clear and convincing evidence that the respondent gun owner is a danger to himself, herself, or others by possessing or purchasing guns.
We Can Help
Whether you need to petition the court to issue a firearms restraining order or you need to fight a restraining order, we can help. Contact the skilled Cook County attorneys at Glasgow & Olsson today to schedule your initial consultation.
(image courtesy of Ryan ei)