Domestic Battery and Weapons Ban

Both Illinois law and federal law prohibit those who have been convicted of a domestic related violent offense from lawfully possessing a firearm. While Illinois law prohibits those who have been convicted of Domestic battery from obtaining a FOID card (and by extension, a firearm), the federal prohibition is broader and, because federal law preempts (or “trumps”) Illinois state law, federal laws regarding a crime of domestic violence will usually play more of a factor than Illinois state law. This is because federal law prohibits anyone who has been convicted of “a crime of domestic violence” and not just Domestic Battery from possessing a firearm.

Under federal law, if a domestic related violent offense charge is changed to a non-domestic related offense, but the facts that a defendant pleads guilty to still include that the violent offense was directed towards an individual that is “similarly situated” to a class of people who fall under the “domestic” umbrella under the federal statute, such a conviction would still disqualify the individual from obtaining a firearm under federal law, even though it would not under Illinois law. So, while technically, a non-domestic related offense would not prohibit a person under Illinois law from possessing a firearm, that same non-domestic related offense can indeed prohibit an individual from possessing a firearm under federal law.

As an example, if an Illinois Domestic Battery charge is filed against a husband for punching his wife and, at a later date, the charge is changed to a regular Battery, but still contains the same allegations that the husband struck his wife, this would make the husband ineligible, under federal law, to possess a firearm. This is because under 18 U.S.C. § 921(a)(33), a crime of domestic violence is still present if the offense has an element which includes “the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.”

In the example above, even though the offense the husband pleads guilty to was not Domestic Battery under Illinois law, the victim was still a person who had a relationship with the husband that would subject the husband to the federal prohibition against firearm possession. This is why it is important to obtain an experienced criminal defense attorney anytime one is being accused of any type of domestic related offense involving violence.

Types of Protective Orders

Many individuals are aware of the existence of Illinois laws authorizing a Court to issue an Order of Protection. However, many individuals do not know that there are other types of protective orders and do not know which ones they can obtain and under which circumstances. In addition to Orders of Protection, an individual in Illinois can obtain a Stalking-No Contact Order and Civil No-Contact Order.

The most commonly known protective order in Illinois is the Order of Protection. An Order of Protection covers only individuals who currently have, or at some point had, certain types of relationships as enumerated by the Illinois Domestic Violence Act of 1986. In order to obtain an Order of Protection, the accused individual must have (or had) any of the following relationships with the accuser: blood-related family member, marriage, share a residence, have a child in common, have dated or been engaged or a relationship where the accuser is disabled and the accused is their personal assistant.

If the accuser does not have any of the above relationships with the accused, then they are not able to obtain an Order of Protection. However, they may still be able to obtain either a Stalking-No Contact Order or a Civil No-Contact Order.

A Stalking-No Contact Order can be obtained against an individual without regard to their relationship status. That is because all that is required to be proven when obtaining such an order is that the accused “stalked” the accuser. Stalking requires that the accused engaged in a course of conduct of “stalking behavior” while they know, or should have known, that this course of conduct would cause a reasonable person to fear for their safety. Under the law, “course of conduct” requires at least two or more separate acts of stalking behavior on the part of the accused.

A Civil No-Contact Order, on the other hand, is a law in place to protect those who have been sexually assaulted by individuals, without regard to “course of conduct” and/or their relationship status. Any person who has been subject to any type of non-consensual sexual conduct or non-consensual sexual penetration, even if there is just one instance of conduct or penetration, may obtain the Civil No-Contact Order.

While the above protective orders are civil in nature, they can have long-lasting and serious ramifications. For instance, anyone subject to an Order of Protection is prohibited from possessing a firearm and must surrender any firearm in their possession for the period of the Order of Protection. Additionally, a violation of any of the above protective orders can lead to criminal charges where a term of incarceration may be imposed. This is why it is important to obtain an experienced attorney in fighting any type of protective order being sought.

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James A. Payonk, Jr.

~ Attorney at Law ~

10705 W 159th St.
Orland Park, Illinois 60467

(708) 633-6005