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Illinois “Red Flag” Gun Law Explained | How to Petition to Remove Someone’s Firearm

Updated on
October 28, 2019
Article written by
Attorney Kevin O'Flaherty

In this article, we will explain the new “red flag” gun law in Illinois, including answering the questions “What is the Firearms Restraining Order Act?”, “What is a Red Flag in Illinois Law?” and “How to Remove Someone’s Firearm in Illinois”.

What is The Firearms Restraining Order Act?

In Illinois, under The Firearms Restraining Order Act, guns may be removed temporarily from those who are deemed dangerous. Effective January 1st, 2019, Illinois joins over a dozen states in passing “red flag” laws regarding firearms.  This involves a suspension of a person’s right to buy or own firearms as well as having all of the individual’s guns temporary removed from their possession.

If a person is declared to be a danger, police can temporarily remove all firearms from the possession of the individual in the interest of protecting themselves or others.  The person whose rights are suspended will then have to wait at least two weeks to petition to have their license to own firearms restored.

What is a Red Flag in Illinois Gun Law?

A “red flag” is considered to be any sign that points to a person’s potential intent or likelihood to commit an act of violence against themselves or others.  These can include threats or comments relating to violence, a history of lashing out aggressively, or social media posts and text messages relating to violence.  These red flags can also include signs of a person’s potential violence against themselves such as a history of self-harm or deep depression.

Under the Firearms Restraining Order Act, these “red flags” may serve as evidence to petition for an individual to have their firearms removed for at least two weeks.  Recognizing and noting these signs of potential violence can be vital in assuring that a petition for a temporary firearms restraining order is granted and to know that a person is protected from hurting themselves or others.

How to Remove Someone’s Firearm in Illinois

A petition can be filed by a family member, an interested third party, or by police against an individual they believe to be an immediate and present danger to themselves or others.  This petition for the temporary restraining order must be heard by a judge as soon as possible, either the same day it is filed or on the next court day.  The hearing and order can occur ex parte, meaning with or without the accused individual present and without notice to the individual.  

Proving the “immediate and present danger” involves presenting the red flags as evidence to prove to a judge beyond doubt that the person is a threat worthy of removing their firearms.  This can be a danger to others, such as threatening violence, or a danger to themselves, such as expressing suicidal thoughts.  

If the petition for the restraining order is granted, police can immediately present the order to the individual and remove all of their guns.  Their license to carry and purchase firearms will also be suspended immediately.  The restraining order will be in effect for at least two weeks.  After those two weeks, the individual must petition to appeal for the order to be revoked.  If the individual is still seen as a danger, the order will continue and they must once again wait to appeal.  If the order is revoked, the individual’s firearms will be returned and their license to carry and buy will be restored.

For related reading, see our article on Preliminary Injunctions and Temporary Restraining Orders.


Illinois “Red Flag” Gun Law Explained | How to Petition to Remove Someone’s Firearm
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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