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In a year's time, Illinois went from a complete ban on public carrying of firearms to a concealed carry law that's now being implemented. Here's a look at the steps an Illinois resident must take to get a concealed carry license and other aspects of this important new law.
On July 9, 2013, after much litigation and political wrangling, Illinois became the last state in the country to allow carrying firearms in public. Prior to the 2013 legislative session, legislators in both chambers from both parties had presented, but failed to pass, a concealed carry law - resulting in Illinois being the only state that completely banned the practice.
Last winter, the U.S. Court of Appeals for the Seventh Circuit struck down the Illinois law prohibiting concealed carry as unconstitutional under the Second Amendment. The court gave the legislature 180 days to craft a bill permitting individuals to carry firearms outside the home for self-defense.
The negotiations over concealed carry remained a focal point of the 2013 spring legislative session. Numerous versions of the bill were filed and debated. A law was eventually enacted after the General Assembly passed a bill on the final day of the regular spring session and overrode the Governor's amendatory veto during a special summer session. The Firearm Concealed Carry Act ("the Act") became effective on July 9, 2013, mere hours before the seventh circuit's deadline.1
This article is an overview of the new statute and process by which Illinois residents can obtain concealed carry licenses. It also looks at issues that have arisen since the law was passed and at how the legislature may amend it.
FOID card eligibility (and more) required
To carry a concealed firearm in Illinois, a person must obtain a concealed carry license ("CCL") from the Department of State Police ("the Department").2 The license permits the licensee to carry a concealed loaded or unloaded handgun on his or her person or within a vehicle.3 A CCL is valid throughout the state for five years and may be renewed for additional five-year periods upon application.
The Department must make CCL applications available to the public by January 5, 2014.4 Would-be license holders must submit an application with the required documentation and a $150 fee to the Department.
Fingerprints. An applicant is not required to submit fingerprints with the application; however, the Department has an additional 30 days to review an application that does not include fingerprints. The Department encourages applicants to submit fingerprints because the application will be easier to process, which translates to a quicker turnaround.
A 'shall issue' state. Illinois is now a "shall issue," not a "may issue" state. This means that the Department must issue a license to an applicant who meets the requirements. The issuing entity in a "may issue" state has wider discretion to decide whether to issue a license to an applicant. Within 90 days of receiving a completed application, proper documentation, and fee, the Department "shall issue" a license to any applicant who meets the statutory qualifications.5
First and foremost, an applicant must have a currently valid Firearm Owners Identification ("FOID") card and meet the requirements for the issuance of a FOID card at the time of application.6 A person who has a FOID card but should not (e.g., because he or she was convicted of one of the disqualifying offenses or has one of the disqualifying mental health issues) is ineligible for a CCL.
A person is not eligible for a FOID card, and thus not eligible for a CCL, if he or she: (1) is prohibited from possessing firearms or ammunition by any state or federal law; (2) has been convicted of a felony; (3) is addicted to narcotics; (4) has been a patient in a mental health facility in the past five years; (5) is intellectually disabled; (6) is admitted to the U.S. under a non-immigrant visa; (7) is an undocumented immigrant; (8) is subject to an order of protection prohibiting him or her from possessing a firearm; (9) has been convicted within the past five years of battery, assault, aggravated assault, or a violation of an order of protection in which a firearm was used or possessed; (10) has been convicted of domestic battery or aggravated domestic battery; (11) has been adjudicated a delinquent minor for an offense that would be a felony; (12) has been adjudicated as a mentally disabled person; (13) has been involuntarily admitted into a mental health facility; (14) is developmentally disabled; or (15) has a mental condition that poses a clear and present danger to the applicant, any other person, or persons of the community.7
Additional requirements. In addition to meeting the FOID card requirements, a CCL applicant: (1) must be at least 21; (2) must not have been convicted of a misdemeanor involving the use or threat of physical force or violence or two or more DUI violations within five years of the application; (3) must not be the subject of a pending arrest warrant, prosecution, or proceeding for an offense or action that could lead to disqualification to own or possess a firearm; (4) must not have been in residential or court-ordered treatment for alcoholism, alcohol detoxification, or drug treatment within the five years prior to application; and (5) must have successfully completed the required firearms training.8
If the Department issues a denial or fails to act on an application within 90 days of receipt, the applicant may appeal to the director of the Department for a hearing. All final decisions of the Department are subject to judicial review.
Law enforcement objections to 'danger[ous]' applicants
The Act requires the Department to maintain a database containing information about applicants and licensees available to all federal, state, and local law enforcement agencies, state's attorneys, the Attorney General, and authorized court personnel.9 No later than 10 days after receiving a license application, the Department must input the applicant's information into the database.
Within 30 days of the Department entering the applicant's information, any federal, state, or local law enforcement agency may object based on a reasonable suspicion that the applicant is a danger to himself or herself or others, or a threat to public safety. Upon receiving an objection, the Department must submit it and all relevant information about the application to the Concealed Carry Licensing Review Board.
The Board has 30 days to review the information, and the 90-day deadline for the Department to issue an application is tolled during that time. If a majority of the Board determines by a preponderance of the evidence that the applicant poses a danger or is a threat to public safety, then the Board must affirm the objection and the Department must notify the applicant of a denial. Otherwise, the Board notifies the Department that the applicant is eligible for a license and the Department must issue the license accordingly. All final administrative decisions of the Board are subject to judicial review.10
Training: beware unapproved instructors
In early September, the Department began approving firearms instructors and a searchable database of approved instructors is available on the Department's website.11 Immediately after the bill became law, individuals and entities began to falsely advertise that their courses meet the CCL training requirements, and these false claims are being investigated. Applicants should not take courses with instructors who are not listed in the Department's database, because the Department will not recognize training completed with unapproved instructors.
To satisfy the training requirements, an applicant must complete 16 hours of training in an approved course or combination of courses.12 The courses will cover: (1) firearm safety; (2) marksmanship basics; (3) care, cleaning, loading, and unloading of a concealable firearm; (4) state and federal laws relating to ownership, storage, carry, and transportation of a firearm; and (5) the lawful interaction with law enforcement while transporting or carrying a concealed firearm. The applicant must also pass a live fire exercise with a concealable firearm.
Applicants will not receive a certificate of training completion if they fail to follow the firearms instructor's orders, the instructor believes they handle a firearm in a dangerous manner, or they fail to hit the target with 70 percent of the rounds fired during testing.
The Department will recognize up to eight hours of training already completed if the course is approved by the Department and recognized by another state. The Department will grant eight hours of training as completed if the applicant is an active, retired, or honorably discharged member of the military. Individuals qualified as active law enforcement, certified by the Illinois Law Enforcement Training Standards Board, or issued a firearm control card by the Illinois Department of Financial and Professional Regulation are exempt from the training requirement.
Schools, courts, and other prohibited places
The legislature carved out a variety of sensitive places where concealed carry is prohibited. A licensee may not knowingly carry a concealed firearm into: (1) schools or child care facilities; (2) government buildings; (3) courts; (4) correctional facilities; (5) hospitals, mental health facilities, or nursing homes; (6) public transportation; (7) establishments where more than 50 percent of sales are from alcohol; (8) public gatherings or special events open to the public; (9) locations that have been issued special liquor licenses; (10) public playgrounds, parks, and athletic facilities; (10) Cook County Forest Preserve property; (11) colleges and universities; (12) gaming facilities; (13) public libraries; (15) airports; (16) amusement parks, zoos, and museums; (17) nuclear facilities; and (18) any area where firearms are prohibited under federal law.13
Clear and conspicuous signs. The Act empowers owners of private real property to prohibit concealed firearms on the property under their control. Owners of the statutorily prohibited property and private owners who choose to prohibit must post signs "clearly and conspicuously" at the entrance of their property indicating that firearms are not allowed.14 Private home owners are not required to post signs on their residences. The Department established a uniform sign design that is available for download on the Department's website.
Parking areas a safe harbor. The Act creates a "safe harbor" for licensees within their vehicles.15 A licensee who is carrying a concealed firearm and wishes to enter a prohibited place may lock the firearm in a case locked within his or her vehicle, even if the parking area itself is considered a prohibited location. A licensee may also carry a concealed firearm around the vehicle to store it in or retrieve it from the trunk, but the firearm must be unloaded before the person exits the vehicle. This "safe harbor" extends to the parking areas of all prohibited places except nuclear facilities and places where federal law prohibits firearms.
A licensee who knowingly enters a prohibited location while carrying a concealed firearm is guilty of a Class B misdemeanor for a first violation and a Class A misdemeanor for a second or subsequent violation.16 After a second violation, the Department may suspend an offender's license for up to six months and must permanently revoke the license if he or she has three or more convictions for carrying in a prohibited place.
Different treatment for nonresidents
A person who has not resided within Illinois for more than 30 days and resides in another state or territory is subject to slightly different requirements than Illinois residents.17 The Department will compile a list of states that have laws related to firearm ownership, possession, and carrying that are substantially similar to the requirements in Illinois. If a non-resident from an approved state meets the resident qualifications and training requirements, he or she may apply for a non-resident license by submitting an application to the Department.
The law allows nonresidents without an Illinois CCL to transport a concealed handgun in their vehicles as long as they are not prohibited from owning or possessing firearms under federal law and are eligible to carry firearms in their home states. Nonlicensed nonresidents may not leave the vehicle with the concealed firearm and must lock it in the vehicle if they leave the vehicle unattended.
Preempting local regulation
Preempting local firearms restrictions and the extent of control retained by home rule units was a focal point of legislative negotiations. As a result, the state preempts most firearms regulation but does allow home rule units to enact more restrictive ordinances in limited areas.
The new law completely preempts local concealed carry laws and the regulation, licensing, possession, and registration of handguns and their ammunition as applied to concealed carry licensees and FOID card holders.18 Any local entity's attempt to regulate these areas will be voided.
The Act also chips away at local control over firearms issues that are not directly related to concealed carry. The state now has exclusive authority to regulate transportation of any firearm or ammunition by FOID card holders. The state now has exclusive authority to regulate transporation of any firearm or ammunition by FOID card holders, even if they do not have a CCL.19 Thus, local entities can no longer regulate transportation of any firearm.
Also, the state has exclusive authority to regulate possession and ownership of assault weapons.20 Local ordinances regulating assault weapons enacted before July 19, 2013 remain valid and may be amended in the future. But entities that did not pass ordinances before that date are preempted from regulating assault weapons.
So to what extent do local entities retain control? The new preemption does not mention taxation and, therefore, home rule units retain authority to tax firearms. They can also regulate: (1) individuals who do not possess a valid FOID card or CCL; (2) firearms other than handguns; and (3) matters related to the sale, purchase, and storage of all firearms.21
For example, a city may maintain a database of those who have been convicted of firearms offenses. Also, a home rule unit can enact zoning ordinances affecting where a firearms dealer's business may be located.
Clearly, though, the state now has exclusive control over a majority of issues related to firearms and local units retain little room to exceed the state's restrictions.
Mental health reporting requirements strengthened, clarified
In addition to implementing a licensing scheme, the new law clarifies and strengthens the reporting requirements relating to individuals who have severe mental health problems. Ensuring that mental health issues are properly reported is essential to preventing someone who poses a public safety risk from obtaining a FOID Card - a requirement for possessing a firearm in Illinois22 and a prerequisite to obtaining a CCL.
Even before the new law, mental health treatment providers were required to inform the Department of Human Services (who shares the information with the Department of State Police) when they determined that a factor was present that would disqualify someone from possessing a firearm. However, the guidelines were unclear and many mental health determinations went unreported.
The new law clarifies terms that were already in the reporting provisions.23 It also requires professionals to report within 24 hours of making a mental health determination.
In addition, the law specifies and expands the types of professionals required to report. Physicians, clinical psychologists, and qualified examiners must report when they determine that someone poses a clear and present danger, is developmentally disabled, or may be otherwise disqualified from possessing a FOID Card.24 A new provision requires school administrators and law enforcement officials to report someone who poses a clear and present danger25 as evidenced by demonstrating "threatening physical or verbal behavior."26
Mandated reporters can be held liable for willful or wanton misconduct in providing or failing to provide the required information. However, the law provides civil, criminal, and professional immunity to mandated reporters whose actions do not rise to the level of willful or wanton misconduct.27
The passage of the Firearm Concealed Carry Act has not ended the concealed carry debate in Illinois. Shortly after the bill became law, the plaintiffs in the original federal case unsuccessfully argued that the state continued to violate the Second Amendment because applicants must wait until January to apply for a license to lawfully carry.28
In the meantime, on September 10, 2013, the Illinois Supreme Court adopted the seventh circuit's analysis that the Second Amendment protects the right to use and possess firearms outside of the home.29 Accordingly, the court overturned provisions of the aggravated unlawful use of a weapon statute that prohibit the possession and use of an operable firearm outside of the home. (See Defense attorneys challenge gun-possession convictions after high court ruling in November's LawPulse.)
The decision did not speak to the new concealed carry law. The result is that an unconstitutional statute has been superseded by a new law that allows concealed carry but will not be fully implemented until January of 2014. Questions will undoubtedly arise from gun owners, prosecutors, and judges during the interim period when those who are otherwise eligible to carry cannot obtain licenses because the process is not up and running.
Legislative action also continues. Gun control advocates have offered legislation to implement further restrictions, while gun rights activists hope to expand the list of the locations where licensees can carry firearms.
Despite the continuing debate, the Department must build a new system to make applications available by January of 2014. Immediately thereafter, it must process applications within the allotted time frames. The effects of the new law in Illinois remain to be seen, but continued discussions, litigation, and legislation over concealed carry are inevitable.
Caitlyn G. McEvoy is an assistant legal counsel to Senate President John J. Cullerton. She graduated cum laude from The John Marshall Law School in 2011.