The newsletter of the ISBA’s Standing Committee on Government Lawyers
A brief review of the “Notifications to the Department of State Police” section of the Illinois Firearms Owners Identification Card Act: which government employees must notify the Illinois State Police and when must they notify them
As a result of the 2013 amendment of the Illinois Firearms Owners Identification Card (FOID) Act1 and a renewed focus on circuit clerks’ duties to report those adjudicated as mentally disabled,2 a refresher may be helpful to allow government employees to determine who is required to notify, pursuant to section 8.1 of the FOID Act’s “Notifications to the Department of State Police”3 provisions, either the Illinois State Police (ISP) or the Illinois Department of Human Services (DHS) of qualifying occurrences and when the notification is required. The following is a summary of who must notify the indicated agencies and when an individual must be reported.
• Circuit Clerks: Upon a person being adjudicated mentally disabled or upon a finding that a person has been involuntarily admitted, the circuit court is required to direct the circuit court clerk to immediately notify the ISP and forward a copy of the court’s order to ISP.4 The FOID Act defines “adjudicated as mentally disabled” to mean that a “person is the subject of a determination by a court, board, commission or other lawful authority that the person, as a result of marked subnormal intelligence, or mental illness, mental impairment, incompetency, condition, or disease”5 meets one of 13 statutory criteria, including:
• those adjudicated as a disabled person under section 11a-2 of the Probate Act;
• those found not guilty by reason of insanity;
• those found unfit to stand trial; or
• those found subject to involuntary admission to a mental health facility.6
Technically, only the circuit clerk is currently required to inform the ISP about this adjudication, so boards and commissions are not currently required to notify the ISP.
• Department of Human Services along with all public and private hospitals and mental health facilities: If a person has been a patient at a mental health facility or hospital, the hospital or facility is required to provide certain information to the ISP to determine if the person has been a patient for FOID Act purposes.7
• Physician, clinical psychologist, or qualified examiner: If a person is determined to pose a “clear and present danger” to himself, herself, or others, within 24 hours of making the determination the indicated health care professionals are required to notify DHS.8 In order to make reporting easier, the DHS has recently established the Mental Health Reporting System as an on-line system to collect the required information.9 The FOID Act references the definitions used by the Illinois Mental Health and Developmental Disabilities Code in order to determine who is a physician, clinical psychologist, and/or qualified examiner required to report.10 Note, a “qualified examiner,” under the Mental Health and Developmental Disabilities Code, can include licensed clinical social workers and some psychiatric nurses.11
• Law enforcement official or school administrator: If the person is determined to pose a clear and present danger to himself, herself, or others, within 24 hours of making the determination either the law enforcement official or school administrator is required to notify ISP.12 School administrators who are required to report include the principal of a public elementary or secondary school, or his or her designee, and the chief administrative officer of a private elementary or secondary school or of a public or private community college, college, or university, or his or her designee.13 This section mirrors language related to school administrators’ duties under the Firearm Concealed Carry Act.14 Because of the potential conflict with the Federal Family Educational Rights and Privacy Act (F.E.R.P.A.) requirements, the best practice would be to advise a school administrator to contact the school’s legal counsel before disclosure.
The “clear and present danger” standard encompasses both the person’s actions and communications. The person must have either communicated a “serious threat of physical violence against a reasonably identifiable victim or poses a clear and imminent risk of serious physical injury to himself, herself or another person” or demonstrated “threatening physical or verbal behavior, such as violent, suicidal, or assaultive threats, actions, or other behavior.”15 Thus, reporting is focused on the individual’s actions and statements and not any established diagnoses.
Section 8.1(d) does offer protection for specified government employees required to report. The physician, clinical psychologist, qualified examiner, law enforcement official, or school administrator making the determination and his or her employer “shall not be held criminally, civilly, or professionally liable for making or not making the notification required under this subsection, except for willful or wanton misconduct.”16
For further information on FOID reporting, please visit the ISP and DHS Web sites.17 ■