A married couple gets into an argument about finances. They both scream at each other and verbally attack one another. The fight intensifies, and the husband slaps the wife across the face. This is the first time that he has physically injured his wife and she is nervous because she knows there is a firearm in their house. She wants to request that a court issue an order to remove the firearm from his possession but will the allegation that he slapped her be enough to warrant the removal of his gun?
Illinois’ new Red Flag Gun Law allows judges to issue temporary firearm restraining orders. Local governments, police officers, and specific individuals may petition the court to remove gun owners’ access to firearms. The petitioner must prove by clear and convincing evidence that the gun owner is a significant threat to himself, herself, or others by owning, using, or possessing guns. The petitioner cannot merely show up to an Illinois court and request that the court take away someone else’s guns, however. He must submit evidence proving that the gun owner is actually a danger.
Clear and Convincing Evidence
Courts must hold a hearing within 14 days of the petition to evaluate the evidence and determine whether the petitioner met the burden of proof. In some instances, the court may provide an emergency hearing to determine whether or not to issue the order. The petitioner seeking the initial removal of a gun owner’s guns has the burden of proof. The petitioner must prove by clear and convincing evidence that the gun owner poses a significant danger of personal injury to himself, herself, or another person by engaging in any of the following:
- Having custody of control of a firearm
- Purchasing a firearm
- Possessing a firearm, or
- Receiving a firearm.
The clear and convincing evidence standard is a moderately difficult burden of proof. The most rigorous burden of proof is the “beyond a reasonable doubt” standard used in criminal trials. In order to succeed in securing the temporary firearms restraining order, the petitioner must show evidence that it is highly probable or probably certain that possessing a gun poses a significant threat of danger to the gun owner or others. The petitioner may use all of the following types of evidence to meet the clear and convincing burden of proof:
- Unlawful or reckless display or use of a firearm
- A history of use, attempted use, or threatened use of physical force by the gun owner
- Evidence of drug or alcohol use
- A recent act of violence against the gun owner himself or herself or someone else
- A violation of an order of an emergency order of protection
- A violation of a domestic violence order of protection
- A pattern of violent threats or violent acts directed toward the gun owner him or herself or others.
In the case of the husband who slapped his wife, the slap alone may not be enough to meet the burden of proof. However, if the wife presents additional evidence of other violent acts or threats, the court may issue the order. If you need legal assistance in an issue involving Illinois’ red flag gun law, contact the experienced attorneys at Glasgow & Olsson today.
(image courtesy of Antonia Grosz)