Pursuant
to Illinois law, 720 ILCS 5/24-3, sellers must withhold delivery of a
long gun, rifle or shotgun, for 24 hours and a handgun for 72 hours from
the time the application for purchase has been reached. Violation of
that provision is Unlawful Sale or Delivery of Firearms and is a Class 4
Felony, punishable by up to 1-3 years in the Illinois Department of
Corrections.
Illinois State Police have been fielding an increase
in requests for clarification on how to abide by the waiting period and
when it begins.
According to 720 ILCS 5/24-3(g) the waiting
period of 24 or 72 hours does not begin until after its application for
purchase has been made. The statute defines "application" as:
"For purposes of this paragraph (g), "application" means when the buyer and seller reach an agreement to purchase a firearm."
In
People vs. Hurtado, 208 Ill.App.3d 110 (2nd District, 1991), the Second
District Appellate Court took the position that "application" was a
"request". The court said:
"We therefore conclude that the
legislature intended that the term "application" have the meaning of
"request" and the statutory requirement is an informal request to
purchase a firearm. Since we believe the legislature intended that
"application" mean "request," we shall use the terms "application" and
"request" interchangeably. "
Illinois statute picks up on
the Court's reasoning in Hurtado, and formalizes that there is in fact
intent to buy a firearm by virtue of an agreement. The statute does not
spell out what needs to be in the agreement, or the manner in which it
is to be memorialized.
ISP concludes that the waiting period to
purchase a firearm as defined under state law, 720 ILCS 5/24-3(g) begins
when the buyer and seller reach the "agreement" to purchase the firearm
and that agreement may be formalized in a number of ways. As the FFL
will be required to answer any questions raised by ATF inspectors as to
how the waiting period was observed, ISP suggest that FFLs memorialize
the agreement in some form that is verifiable and consistent with each
purchaser. Here are a couple of questions that have been raised:
When a customer has a gun shipped from another FFL or out of state, when does the waiting period begin?
The waiting period starts when the agreement is reached with the
seller. It need not be the FFL making the transfer of the firearm. If
the firearm was paid for and/or shipped from another FFL, the waiting
period began prior to when the FFL conducting the transfer received the
firearm.
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Can a customer call up and order a firearm over the phone, then come in and pick up the firearm later?
The waiting period begins when the buyer and seller reach an agreement.
FFLs need to document how the waiting period was observed. The
documentation needs to be verifiable and consistent with each purchaser.
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What
happens if a customer orders a firearm, and when he comes into pick it
up, ISP issues something other than an approval on the FTIP?
The actual transfer of the firearm cannot take place until there is an
approval from the FTIP system, regardless of when the agreement was
reached. If the FFL receives a transaction number, they cannot complete
the transfer until they receive an approval.
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Do FFLs have to wait when transferring firearms between FFLs?
There is no waiting period between retail FFLs. And Curio and Relic
(C&R) FFLs are exempt from the waiting period for those firearms
that appear on the ATF&E C&R list and fall under the C&R
license.
NOTE: This is the interpretation of the
Illinois State Police. Individual FFLs may have their own policies and
procedures to observe the waiting period.