Article updated as of 10/30/19
***2019 UPDATE:
IMPORTANT: IF YOU ARE PROHIBITED FROM POSSESSING A FIREARM UNDER FEDERAL LAW, YOU WILL NOT BE ABLE TO RESTORE YOUR FIREARM RIGHTS IN ILLINOIS UNTIL EITHER ILLINOIS AND FEDERAL LAW CHANGES.
Common prohibitions under federal law:
- You have a past felony conviction that is not eligible to be expunged. A felony conviction is defined as a conviction where the sentence exceeds 1 year in prison. For a great discussion from case decided out of the 1st Appellate District of Illinois (Chicago area) and filed on 10/28/19, see Alfred Evans, JR., v. Cook County State's Attorney and the Illinois State Police, 2019 IL App (1st) 182488. Justice Hyman took great issue describing the "statutory merry-go-round" that is our FOID statute. For more on this, see below>
- Effective on 1/1/2020, there is only one felony conviction that is eligible to be expunged in Illinois and that is Unlawful Possession of Cannabis (class 3 or 4). If you have a past felony case resolved with FIRST OFFENDER PROBATION, or some other felony where you were NOT convicted, then you would be eligible to a) file an expungement assuming the statutory requirements are met, and b) once expunged, you'd be allowed to appeal any FOID application denial or FOID card revocation.
- You have been convicted of a misdemeanor or felony where the charge you pled guilty to and were convicted of related or originated from an incident involving DOMESTIC VIOLENCE.
- Example: If you were arrested for DOMESTIC BATTERY but later pled guilty in a negotiated plea deal to simple BATTERY, the Illinois State Police will review your police reports from the incident and make a determination if the conviction originated from a crime involving domestic battery.
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At Hall, Rustom & Fritz LLC, we receive nearly 10-20 FOID inquiries per day regarding FOID revocations or denials due to the Illinois State Police discovering a prior criminal offense related to a crime of domestic violence or they discovered you have a felony conviction in the past.
If you were denied FOID privileges due to a conviction of a crime related to domestic violence in IL (or in any jurisdiction in the US), or if you have a past felony conviction, Illinois courts have expanded the Illinois Supreme Court ruling in the Coram case (discussed below) to PRECLUDE ANY LEGAL RELIEF TO REMOVE THE FEDERAL DISABILITY in order to restore one's firearm possession rights (FOID rights) in IL.
In a recent 2nd District Appellate case in IL, (People v. Frederick, 2015 IL App (2d) 140540), the appellate court effectively held that the recent 2013 amendment to IL law regarding FOID rights (adding language to the statute that the Illinois State Police (ISP) could deny FOID rights to any citizen if it was contrary to Federal Law), applied even retroactively (if you pled guilty to a crime of domestic violence prior to the 2013 amendment) and that application did not involve a "prohibited retroactive application of a new penalty; and that trial courts in IL do not have authority to override ISP's denial or disqualification of FOID rights.
In plain language, this means that the 2nd District Appellate court in the Frederick case effectively took away the last bit of argument a petitioner could assert to reinstate and remove the federal disability of not being able to legally possess a firearm. Until Congress creates a mechanism for a citizen to petition the federal government to allow an appeals process to reinstate FOID rights, ANYONE CONVICTED OF A CRIME OF DOMESTIC VIOLENCE IN ILLINOIS EFFECTIVELY FORFEITS THEIR 2ND AMENDMENT RIGHTS FOR LIFE.
IT IS RECOMMENDED THAT CITIZENS CONTACT THEIR MEMBER OF CONGRESS (HOUSE & SENATE) TO EXPRESS THEIR DISAPPOINTMENT THAT THERE IS NO FEDERAL PROCESS TO REMOVE THE FEDERAL DISABILITY THAT IS CREATED FROM A CONVICTION OF A CRIME INVOLVING DOMESTIC VIOLENCE.
Thus, we regret to inform you that if you have been convicted of a crime that originated from a domestic relationship and you've been denied FOID rights by the Illinois State Police, there isn't much you can do at this point in IL trial courts. This applies to "simple battery" convictions that were amended from a domestic battery charge and ultimately resolved as a regular "battery." ISP has requested old police reports to review the facts of the case. If the facts of your case involve a crime of domestic violence, ISP will extend a "long-arm" analysis and construe your offense to involve a "crime of domestic violence" no matter the final disposition of the case.
The below analysis preceded People v. Frederick, which was decided on 3/20/15.
If your crime did not involve domestic violence, please continue reading as you may be entitled to relief.
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In Illinois, in order for citizens to acquire or possess any firearm, stun gun, or taser within the State boundaries, they must apply for and successfully be approved for possession of a firearm owner's identification card (hereinafter FOID). The Firearm Owners Identification Act, under 430 ILCS 65, governs this area of law.
Under the Act, the Illinois Legislature specifically states what our rights are in Illinois relative to firearms and firearm ammunition. Here are some questions and answers with regards to possessing firearms and firearm ammunition in Illinois:
ARE THERE ANY EXCEPTIONS TO POSSESSING A FIREARM OR FIREARM AMMUNITION IN ILLINOIS WITHOUT A VALID FOID CARD?
YES: There are certain exceptions to this rule, under 430 ILCS 65/2. You do not need a valid FOID card to possess a firearm if you are:
- A United States Marshal, while engaged in the operation of your official duties;
- A member of the Armed Forces of the United States or the National Guard, while engaged in the operation of your official duties;
- A Federal Official required to carry a firearm, while engaged in the operation of your official duties;
- A member of a bona fide veteran's organization which receive firearms directly from the armed forces of the United States, while using the firearms for ceremonial purposes with blank ammunition.
- Nonresident hunters during hunting season, with valid nonresident hunting licenses and while in an area where hunting is permitted; however, at all other times and in all other places these persons must have their firearms unloaded and enclosed in a case;
- Those hunters exempt from obtaining a hunting license who are required to submit their Firearm Owner's Identification Card when hunting on Department of Natural Resources owned or managed sites;
- Nonresidents while on a firing or shooting range recognized by the Department of State Police; however, these persons must at all other times and in all other places have their firearms unloaded and enclosed in a case;
- Nonresidents while at a firearm showing or display recognized by the Department of State Police; however, at all other times and in all other places have their firearms unloaded and enclosed in a case;
- Nonresidents whose firearms are unloaded and enclosed in a case;
- Nonresidents who are currently licensed or registered to possess a firearm in their resident state;
- Unemancipated minors while in the custody and immediate control of their parent or legal guardian or other person in loco parentis to the minor if the parent or legal guardian or other person in loco parentis to the minor has a currently valid Firearm Owner's Identification Card;
- Color guards of bona fide veterans organizations or members of bona fide American Legion bands while using firearms for ceremonial purposes with blank ammunition;
- Nonresident hunters whose state of residence does not require them to be licensed or registered to possess a firearm and only during hunting season, with valid hunting licenses, under the Wildlife Code where hunting is permitted and controlled, but in no instance upon sites owned or managed by the Department of Natural Resources;
- Resident hunters who are properly authorized to hunt and, while accompanied by a person who possesses a valid Firearm Owner's Identification Card, hunt in an area within a commercial club licensed under the Wildlife Code where hunting is permitted and controlled;
- A person who is otherwise eligible to obtain a Firearm Owner's Identification Card under this Act and is under the direct supervision of a holder of a Firearm Owner's Identification Card who is 21 years of age or older while the person is on a firing or shooting range or is a participant in a firearms safety and training course recognized by a law enforcement agency or a national statewide shooting sports organization; and
- Competitive shooting athletes whose competition firearms are sanctioned by the International Olympic Committee, the International Paralympic Committee, the International Shooting Sport Federation, or USA Shooting in connection with such athletes' training for and participation in shooting competitions at the 2016 Olympic and Paralympic Games and sanctioned tests events leading up to the 2016 Olympic and Paralympic Games.
- Finally, law enforcement officials of this or any other jurisdiction, while engaged in the operation of their official duties are excluded.
HOW CAN MY FOID CARD BE REVOKED?
Under the Firearm Owners Identification Act, (430 ILCS 65/8), the Department of State Police has the authority to deny an application for or to revoke and seize a Firearm Owner's Identification Card previously issued under the Act only if the Department finds that the applicant or the person to whom such card was issued is or was at the time of issuance:
- (a): A person under 21 years of age who has been convicted of a misdemeanor other than a traffic offense or adjudged delinquent;
- (b): This subsection (b) applies through the 180th day following the effective date of this amendatory Act of the 101st General Assembly. A person under 21 years of age who does not have the written consent of his parent or guardian to acquire and possess firearms and firearm ammunition, or whose parent or guardian has revoked such written consent, or where such parent or guardian does not qualify to have a Firearm Owner's Identification Card;
- (b-5): This subsection (b-5) applies on and after the 181st day following the effective date of this amendatory Act of the 101st General Assembly. A person under 21 years of age who is not an active member of the United States Armed Forces and does not have the written consent of his or her parent or guardian to acquire and possess firearms and firearm ammunition, or whose parent or guardian has revoked such written consent, or where such parent or guardian does not qualify to have a Firearm Owner's Identification Card;
- (c): A person convicted of a felony under the laws of this or any other jurisdiction;
- (d): A person addicted to narcotics;
- (e): A person who has been a patient of a mental health facility within the past 5 years or a person who has been a patient in a mental health facility more than 5 years ago who has not received the certification required under subsection (u) of this Section. An active law enforcement officer employed by a unit of government who is denied, revoked, or has his or her Firearm Owner's Identification Card seized under this subsection (e) may obtain relief as described in subsection (c-5) of Section 10 of this Act if the officer did not act in a manner threatening to the officer, another person, or the public as determined by the treating clinical physiologist or physician, and the officer seeks mental health treatment;
- (f): A person whose mental condition is of such a nature that it poses a clear and present danger to the applicant, any other person or persons or the community;
- (g): A person with an intellectual disability;
- (h): A person who intentionally makes a false statement in the Firearm Owner's Identification Card application;
- (i): An alien who is unlawfully present in the United States under the laws of the United States;
- (i-5): An alien who has been admitted to the United States under a non-immigrant visa (as that term is defined in Section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26))), except that this subsection (i-5) does not apply to any alien who has been lawfully admitted to the United States under a non-immigrant visa if that alien is:
- (1)Admitted to the United States for lawful hunting or sporting purposes;
- An official representative of a foreign government who is:
- (A): Accredited to the United States Government or the Government's mission to an international organization having its headquarters in the United States; or
- (B) en route to or from another country to which that alien is accredited;
- An official of a foreign government or distinguished foreign visitor who has been so designated by the Department of State;
- A foreign law enforcement officer of a friendly foreign government entering the United States on official business; or
- One who has received a waiver from the Attorney General of the United States pursuant to 18 U.S.C. 922(y)(3)
- (j): (Blank);
- (k): A person who has been convicted within the past 5 years of battery, assault, aggravated assault, violation of any order of protection, or a substantially similar offense in another jurisdiction, in which a firearm was used or possessed;
- (1): A person who has been convicted of domestic battery, aggravated domestic battery, or a substantially similar offense in another jurisdiction committed before, on or after January 1, 2012 (the effective date of Public Act 97-158). If the applicant or person who has been previously issued a Firearm Owner's Identification Card under this Act knowingly and intelligently waives the right to have an offense described in this paragraph (1) tried by a jury, and by guilty plea or otherwise, results in a conviction for an offense in which a domestic relationship is not a required element of the offense but in which a determination of the applicability of 18 U.S.C. 922(g)(9) is made under Section 112A-11.1 of the Code of Criminal Procedure of 1963, an entry by the court of a judgment of conviction for that offense shall be grounds for denying an application for an for revoking and seizing a Firearm Owner's Identification Card previously issued to the person under this Act;
- (m): Blank
- (n): A person who is prohibited from acquiring or possessing firearms or firearm ammunition by any Illinois State statute or by federal law;
- (o): A minor subject to a petition filed under Section 5-520 of the Juvenile Court Act of 1987 alleging that the minor is a delinquent minor for the commission of an offense that if committed by an adult would be a felony;
- (p): An adult who had been adjudicated a delinquent minor under the Juvenile Court Act of 1987 for the commission of an offense that if committed by an adult would be a felony;
- (q): A person who is not a resident of the State of Illinois, except as provided in subsection (a-10) of Section 4;
- (r): A person who has been adjudicated as a person with a mental disability;
- (s): A A person who has been found to have a developmental disability;
- (t): A person involuntarily admitted into a mental health facility; or
- (u): A person who has had his or her Firearm Owner's Identification Card revoked or denied under subsection (e) of this Section or item (iv) of paragraph (2) of subsection (a) of Section 4 of this Act because he or she was a patient in a mental health facility as provided in subsection (e) of this Section, shall not be permitted to obtain a Firearm Owner's Identification Card, after the 5-year period has lapsed, unless he or she has received a mental health evaluation by a physician, clinical psychologist, or qualified examiner as those terms are defined in the Mental Health and Developmental Disabilities Code, and has received a certification that he or she is not a clear and present danger to himself, herself, or others. The physician, clinical psychologist, or qualified examiner making the certification and his or her employer shall not be held criminally, civilly, or professionally liable for making or not making the certification required under this subsection, except for willful or wanton misconduct. This subsection does not apply to a person whose firearm possession rights have been restored through administrative or judicial action under Section 10 or 11 of this Act.
- Upon revocation of a person's Firearm Owner's Identification Card, the Department of State Police shall provide notice to the person and the person shall comply with Section 9.5 of this Act.
- Source: Public Act 101-80, Effective on 7/12/19
NOTE: It is important that you consult an attorney if you are charged with any criminal offense. The criminal offense could affect your FOID card and privileges. Many times, the Illinois State Police can scour your past record and find previously overlooked offenses and then they'll send you a revocation notice. Moreover, they will sometimes misread the disposition of what happened with your criminal case and mistakenly revoke you. For example, if you were initially charged with a felony but your attorney negotiated the case as a misdemeanor plea of guilty, the Illinois State Police should not revoke your privileges unless the offense falls under one of the categories listed above (or under 430 ILCS 65/8). They have been known to mistakenly overlook the amended disposition and simply see the original felony charge. It is best to consult an attorney to assist you with this correction.
MY FOID CARD WAS REVOKED. CAN I PETITION TO REINSTATE MY FOID PRIVILEGES? IF SO, HOW LONG WILL IT TAKE?
Under 430 ILCS 65/10, a person may appeal/petition to the Director of the Department of State Police for a hearing upon such denial, revocation or seizure, unless the denial revocation, or seizure was based upon:
- A forcible felony;
- Stalking;
- Aggravated stalking;
- Domestic battery;
- Any violation of the Illinois Controlled Substances Act;
- Any violation of the Methamphetamine Control and Community Protection Act;
- Any violation of the Illinois Cannabis Control Act that is classified as a Class 2 Felony or greater felony;
- Any felony violation of Article 24 of the Criminal Code of 1961;
- Or any adjudiciation as a delinquent minor for the commission of an offense that if committed by an adult would be a felony.
In your petition, the Director (or Court) may grant such relief if it is established by the applicant to the court's or Director's satisfaction that:
- The local State's Attorney has been served with a written copy of the petition at least 30 days before any such hearing in the circuit court and at the hearing, the State's Attorney was afforded an opportunity to present evidence and object to the petition;
- The applicant has NOT been convicted of a forcible felony** under the laws of this State or any other jurisdiction within 20 years of the applicant's application for a Firearm Owner's Identification Card, or at least 20 years have passed since the end of any period of imprisonment imposed in relation to that conviction;
- The circumstances regarding a criminal conviction, where applicable, the applicant's criminal history and his reputation are such that the applicant will not be likely to act in a manner dangerous to public safety; and
- Granting relief would not be contrary to the public interest.
- Granting relief would not be contrary to federal law. <---- i="">Amendment effective 1/25/13
HOW LONG DOES IT TAKE TO PETITION AND BE REINSTATED?
It depends.
- If eligible, you can petition by submitting your appeal. However, Illinois law does not provide a time limit for the Illinois State Police Director to decide the appeal. Some clients of ours have waited 12-24 months for the decision. An easy legislative solution would be to simply add language to the statute setting a time limit. Petitioners who qualify for reinstatement should be prepared to wait a VERY LONG TIME for a response. You are encouraged to contact your State Representative to request their attention to a legislative solution to add a time limit for ISP to respond.
- If you have been admitted to a mental health facility/hospital within the last 5 years, you will have to wait until 5 years has elapsed in order to be eligible for relief under Illinois law. If you are still struggling with mental health issues and cannot obtain a letter from your psychologist or psychiatrist, then you may have to wait longer.
- If you are a law abiding citizen, have not been convicted of a forcible felony, and you've obtained enough letters of recommendation showing your affinity to peace, non-violence, and overall good character, it all depends on whether the local prosecutor or attorney general's office objects. If he/she objects, there will likely be a hearing where testimony will be heard. If a judge grants your petition, the Circuit Clerk will notify the Illinois State Police and they will have to follow the order unless they appeal the Circuit Court's ruling.
WHAT IS A FORCIBLE FELONY? NOTE: If you have been convicted of a felony in the past, you are NOT eligible to obtain a FOID card and any FOID appeal will likely be denied. See Alfred Evans, JR., v. Cook County State's Attorney and the Illinois State Police, 2019 IL App (1st) 182488
**A "forcible felony" means anyone one of the following: (See 720 ILCS 5/2-8)
- Treason
- First Degree Murder
- Second Degree Murder
- Predatory criminal sexual assault of a child
- Aggravated criminal sexual assault
- Criminal Sexual Assault
- Robbery
- Burglary
- Residential burglary
- Aggravated arson
- Arson
- Aggravated kidnapping
- Kidnapping
- Aggravated Battery resulting in Great Bodily Harm or Permanent Disability or Disfigurement
- Any other felony which involves the use or threat of physical force or violence against any individual.
If you were a minor and adjudicated delinquent for an offense which if committed by an adult would be a felony, the court shall notify the Department of State Police. The court shall review the denial of an application or the revocation of a Firearm Owner's Identification Card of a person who has been adjudicated delinquent for an offense that if committed by an adult would be a felony if an application for relief has been filed at least 10 years after the adjudication of delinquency and the court determines that the applicant should be granted relief from disability to obtain a Firearm Owner's Identification Card. If the court grants relief, the court shall notify the Department of State Police that the disability has been removed and that the applicant is eligible to obtain a Firearm Owner's Identification.
WHAT IF I'VE BEEN CONVICTED OF AN OFFENSE THAT IS NOT A FORCIBLE FELONY, BUT INSTEAD, A NON-FORCIBLE FELONY OR MISDEMEANOR DOMESTIC BATTERY (or some similar offense)? CAN I PETITION FOR REINSTATEMENT OF MY FOID PRIVILEGES IF FEDERAL LAW SAYS I CAN'T? ANSWER: NO AS OF 10/30/19.
This article has been updated on 4/4/16 to include a new ruling by the 2nd District Appellate Court in People v. Frederick, 2015 IL App (2d) 140540 that essentially makes it very difficult, if not impossible under the present state of IL and Federal law to petition for any FOID relief. Please read the brief summary at the beginning of this article for more information.
You can read the Frederick case by clicking here: PEOPLE V. FREDERICK, 2015 IL APP (2D) 140540.
Presently, it is NOT possible to seek reinstatement of your FOID privileges if you've had a previous non-Forcible felony conviction. Unfortunately, if an Illinois court grants you relief thereby "removing" the federal disability under Coram v. City of Chicago, IL (for which I discuss below in depth), it will likely be overturned on appeal as it's contrary to federal law.
If you and your attorney file the petition, the burden is on you to prove to the judge that you are no longer a danger to citizens. Second, the prosecution would be allowed to, and likely will, object to the petition and provide evidence to the court supporting that objection. Further, the prosecution would argue that reinstatement of your FOID privileges violates 430 ILCS 65/10(c)(3), in that "granting the relief would be contrary to the public interest" since 430 ILCS 65/8(n) prohibits the issuance of a FOID Card to an individual who is prohibited from possessing firearms or ammunition under federal law. Additionally, the prosecution would argue that under the new amendment from 1/25/13, (430 ILCS 65/10(c)(4)), forcing the Illinois State Police to issue a valid FOID card would be contrary to federal law. They argue, much like the dissenting opinion in the Coram case discussed below (from Justice's Theis and Justice Garman), that any domestic battery conviction (and even battery convictions if a victim involved was a "family member" but the case was not resolved as a domestic battery case) is a full, 100% lifetime ban under federal law. Draconian? Yes. A reality? Yes. Will this change? Only if you fight it all the way to the United States Supreme Court.
So remember: Be Prepared. If you are convicted of a crime involving domestic violence after January 25, 2013, the Feds and the ISP interpret federal and state law much like Justice Theis and Justice Garman -- you are disqualified forever if the federal law is never changed. The same applies to any prior felony conviction where you petition after the 2013 amendment where the Illinois General Assembly added "contrary to federal law" to the FOID statute.
If you and your attorney file the petition, the burden is on you to prove to the judge that you are no longer a danger to citizens. Second, the prosecution would be allowed to, and likely will, object to the petition and provide evidence to the court supporting that objection. Further, the prosecution would argue that reinstatement of your FOID privileges violates 430 ILCS 65/10(c)(3), in that "granting the relief would be contrary to the public interest" since 430 ILCS 65/8(n) prohibits the issuance of a FOID Card to an individual who is prohibited from possessing firearms or ammunition under federal law. Additionally, the prosecution would argue that under the new amendment from 1/25/13, (430 ILCS 65/10(c)(4)), forcing the Illinois State Police to issue a valid FOID card would be contrary to federal law. They argue, much like the dissenting opinion in the Coram case discussed below (from Justice's Theis and Justice Garman), that any domestic battery conviction (and even battery convictions if a victim involved was a "family member" but the case was not resolved as a domestic battery case) is a full, 100% lifetime ban under federal law. Draconian? Yes. A reality? Yes. Will this change? Only if you fight it all the way to the United States Supreme Court.
So remember: Be Prepared. If you are convicted of a crime involving domestic violence after January 25, 2013, the Feds and the ISP interpret federal and state law much like Justice Theis and Justice Garman -- you are disqualified forever if the federal law is never changed. The same applies to any prior felony conviction where you petition after the 2013 amendment where the Illinois General Assembly added "contrary to federal law" to the FOID statute.
Further Discussion:
NOTE: This argument is outdated. The FOID amendment in 2013 rendered this section moot.
For purposes of residents living in Illinois, the analysis can start with a 3rd District case in Illinois, Hiland v. Trent & the Illinois State Police, 373 Ill. App. 3d 582 (3rd Dist. 2007), which granted the petitioner, Larry Hiland, a FOID card over State's objection after the State argued the above. First, Larry Trent, Director of the Illinois State Police, denied Mr. Hiland's petition for reinstatement of his FOID privileges because in 1988, Hiland was convicted of multiple counts of mail fraud and one count of conspiracy to commit mail fraud. Apparently, as president of a pharmaceutical company, he put a dangerous drug on the market without FDA approval (although unknown at the time it was released, causing babies to "die," -- ouch-- ). The circuit court overruled the Director's decision and he was given a FOID card. In 1997, his FOID card expired and the ISP denied his application for renewal. A hearing was held in 2003 and the ALJ concluded that granting him a FOID would be a violation of 430 ILCS 65/10(c)(3), in that granting him a FOID would be contrary to the public interest. The Director of ISP then followed the recommendation of the ALJ and denied the application. Hiland then appealed to the circuit court. The Court then reversed the denial, holding that the Director abused his discretion by denying Hiland's FOID application.
NOTE: This argument is outdated. The FOID amendment in 2013 rendered this section moot.
For purposes of residents living in Illinois, the analysis can start with a 3rd District case in Illinois, Hiland v. Trent & the Illinois State Police, 373 Ill. App. 3d 582 (3rd Dist. 2007), which granted the petitioner, Larry Hiland, a FOID card over State's objection after the State argued the above. First, Larry Trent, Director of the Illinois State Police, denied Mr. Hiland's petition for reinstatement of his FOID privileges because in 1988, Hiland was convicted of multiple counts of mail fraud and one count of conspiracy to commit mail fraud. Apparently, as president of a pharmaceutical company, he put a dangerous drug on the market without FDA approval (although unknown at the time it was released, causing babies to "die," -- ouch-- ). The circuit court overruled the Director's decision and he was given a FOID card. In 1997, his FOID card expired and the ISP denied his application for renewal. A hearing was held in 2003 and the ALJ concluded that granting him a FOID would be a violation of 430 ILCS 65/10(c)(3), in that granting him a FOID would be contrary to the public interest. The Director of ISP then followed the recommendation of the ALJ and denied the application. Hiland then appealed to the circuit court. The Court then reversed the denial, holding that the Director abused his discretion by denying Hiland's FOID application.
On appeal, the 3rd District (Justices Lytton, Holdridge, & Carter) held that a person denied FOID privileges may petition for reinstatement under 430 ILCS 65/10(c) so long as he/she can show 1) he/she has not been convicted of a forcible felony within 20 years; 2) the circumstances surrounding his/her criminal conviction, criminal history and reputation are such that he/she will not be likely to act in a manner dangerous to the public safety, and 3) granting relief would not be contrary to the public interest.
The court then combined section 8 & 10 of the FOID Act, indicating a legislative intent that the Department has authority, in extraordinary cases, to grant a license to persons who have established their fitness to possess a gun, even though belonging to one of the enumerated classes (citing Rawlings, 73 Ill.App.3d at 276). By analyzing the Federal Law, (Section 922(g)(1) of the Federal Gun Control Act of 1968, they found that Congress had suspended funding to review individual petitions for reinstatement of federal gun privileges leaving a disqualified individual no avenue for relief from that disqualification. The Court found that the Illinois' FOID Act ONLY gives the Department the authority to deny an application for the reasons listed; however, it does not PROHIBIT the Department from issuing a FOID card to an individual precluded under federal law.
Finally, the Court described the abuse of discretion by the Director because he (Trent) ignored the overwhelming evidence establishing that Hiland had been a law-abiding citizen and productive member of his community since his convictions.
Following the Hiland case, the Illinois Supreme Court deeply analyzed federal law and congressional intent with regards to 2nd Amendment rehabilitation with each individual state. The case is Coram v. State of Illinois, as mentioned above. The Illinois Supreme Court expanded on the Hiland case and corrected the ruling. The Court determined there is a process to remove the Federal Disability from a conviction for domestic violence...you simply need a local circuit court to determine you are no longer a danger to the public, grant your petition, and order the Illinois State Police to issue you a FOID card.
When Mr. Coram filed for his FOID card in 2009, his application was denied by the Illinois State Police (ISP) stating that due to section 8(n) of the FOID Act, he was prohibited from possessing a firearm. Section 8(n) references the federal prohibition under 18 U.S.C. 922(g)(9), stating that an Illinois resident is precluded from possessing a firearm, much like Mr. Hiland in the case above, because "he was prohibited from acquiring or possessing firearms or firearm ammunition by any Illinois State statute or by federal law."
Mr. Coram then petitioned the Circuit Court for a hearing pursuant to Section 10(a) of the FOID Card Act which states in pertinent part: "the aggrieved party may petition the circuit court in writing in the county of his or her residence for a hearing upon such denial."
At the hearing, Mr. Coram had to show that:
- The circumstances regarding his conviction,
- coupled with his criminal history and his reputation, were
- such that he will not be likely to act in a manner dangerous to public safety, and
- that granting the relief requested in the petition would not be contrary to public interest.
- (After January 25, 2013, the Illinois legislature created an additional requirement: "that granting such relief requested in the petition would not be contrary to FEDERAL LAW." For Mr. Coram's purposes, the Supreme Court did not need to address this important issue that will likely cause problems for any petitioners requesting relief from federal domestic violence disability post-January 25, 2013).
The Illinois Attorney General (AG) did not like this ruling and filed a motion to intervene, in order to act on behalf of the Illinois State Police. The AG sought to vacate the Circuit Court's ruling. The Circuit Court judge did not change his mind and stood by his previous determination - that Mr. Coram should be relieved of this federal disability. The judge, relying on the case of United States v. Skoien, 614 F.3d 638 (7th Cir.2010), noted that Skoien "reserved the question of whether 922(g)(9) could survive a 2nd Amendment challenge by a 'misdemeanant who has been law abiding for an extended period.' The judge further stated that while 18 U.S.C. 922(g)(9) survived a facial challenge, the judge ruled that it (922(g)(9)) was un-constitutional as applied to Coram due to the fact that the Lautenberg Amendment did not provide an avenue to remove the federal disability for domestic violence convictions, but instead, allowed it for those who have previously checked into a mental health facility.
Sure enough, the AG's office appealed to the Illinois Supreme Court who then decided to hear the case.
Illinois Supreme Court's analysis in Coram:
In the 63 page decision, the Court analyzed many federal cases including the following landmark decisions:
- McDonald v. City of Chicago, IL, 130 S.Ct.3020 (2010)
- District of Columbia v. Heller, 554 U.S. 570 (2008)
- Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012)
- Schrader v. Holder, 704 F.3d 980 (D.C. Cir. 2013)
The Court opined that this is the same standard of review that Congress has given the states when authorizing said states in considering restoration of firearms rights for those who have previously suffered from disabling mental illness (as I discussed above). This same standard Congress established for use in federal programs for relief from federal firearms disabilities. When applying that standard with our own IL statute under section 10(c) of the Illinois' FOID Card Act, the Court determined that our own Illinois Circuit Courts, upon determining the person is no longer a danger to public safety, can REMOVE the federal firearm disability and entitles Coram to a FOID card.
Most importantly, the Illinois Supreme Court plainly states in paragraph 75 that "Relief granted pursuant to statutory review REMOVES the federal firearm disability." Therefore, if an applicant with a domestic violence conviction files a motion to remove federal disability under 922(g) of the United States Code and section 65/10 of the FOID act and the circuit court judge grants that petition, the federal disability is REMOVED and the Illinois State Police MUST issue a proper FOID Card.
But wait! Do you think a Supreme Court ruling will stop the Illinois State Police from issuing a FOID card? Think again...
The Illinois State Police, apparently showing an affinity to violate court orders, began receiving directives from circuit courts to issue FOID cards upon a showing the petitioner is no longer a danger. In response, they would issue "RED CARDS" in lieu of a proper FOID. This "red card" would have the picture of the person, with their address and identifying info, but the card was cheaply laminated, flimsy looking, and it had in bright red writing in the middle of the card the following: "This person is PROHIBITED FROM POSSESSING A FIREARM UNDER 18 U.S.C. 922(g)(9)."
Essentially, the Illinois State Police simply laminated their middle finger and mailed it to the petitioner in lieu of actually issuing a proper FOID Card. If the petitioner tried to use this card at gun shows, I see the gun show vendors rejecting the card and calling the police while accusing the petitioner of trying to purchase firearms illegally...even though it's perfectly legal.
What if an IL judge grants the motion directing the ISP to issue a FOID card? Are you protected from Federal prosecution? What about State prosecution even?
As discussed above, there is a difficult (and very present) unanswerable question as to whether the US Supreme Court would allow an IL judge to remove a federal restriction thereby protecting the IL resident from federal prosecution. It's not 100% advisable to possess a firearm even after a judge orders the ISP to issue a valid FOID; however, at least in IL, it may likely shield from state prosecution for a violation of the IL FOID card act. However, a recent amendment to the FOID act may have kept a loophole open for state prosecutions. This federal vs state matchup is much like the present showdown with Colorado/Washington state laws vs federal prohibitions against cannabis possession. In that battle, the Feds have started to back off and said they won't prosecute, yet, they still will have the legal right to prosecute and no citizen is 100% protected from prosecution in their state when a state law conflicts with federal law. Moreover, since the IL legislature amended the FOID act to prohibit issuance of a FOID if it's prohibited by federal law on January 25, 2013, any domestic violence convictions post-1/25/13 would likely deny a petitioner the same relief that Coram received.
Finally, our analysis draws a distinction between domestic violence convictions before the Illinois legislature passed the amendments to the FOID Card Act on January 25, 2013 and after. If convicted after January 25, 2013, relief under Coram is much more difficult than if convicted before - especially as far back as 1992 just like Jerry Coram.
***DISCLAIMER: AT HALL, RUSTOM & FRITZ LLC, WE WILL PURSUE ALL AVENUES FOR OUR CLIENTS TO OBTAIN AS MUCH RELIEF AS IS POSSIBLE UNDER STATE AND FEDERAL LAW; HOWEVER, AND MOST IMPORTANTLY, IF A JUDGE GRANTS YOU RELIEF AND THE ISP ISSUE YOU A VALID FOID CARD, WE DO NOT ADVISE ILLINOIS RESIDENTS TO POSSESS FIREARMS IN VIOLATION OF FEDERAL LAW.
- Jeffrey R. Hall - Updated 4/10/14
Thus, it is possible to get reinstatement but be prepared to submit as much documentation/evidence/testimony that you are a person of good moral character, you are no longer a danger to the public, you are non-violent, have not had any prior arrests or convictions (other than the disqualifying offense), etc. It is best to discuss this with an attorney experienced in these types of hearings for further advice.
WHAT IS THE PUNISHMENT/SENTENCE IF I AM CONVICTED OF THE UNLAWFUL
POSSESSION OF A FIREARM WITHOUT A VALID FIREARM OWNER'S IDENTIFICATION
CARD?
If you are arrested, charged, and found guilty of possession of a firearm without a valid FOID card, the following sentences could be imposed:
- If your FOID card was expired, but the person is not otherwise disqualified from renewing the card, it is a Class A misdemeanor.
- A second or subsequent offense for possessing a FOID card that is expired, is a Class 4 Felony.
- Possession of a Firearm when your FOID card is revoked is a Class 3 Felony.
- If your FOID card is expired and not otherwise eligible for renewal under the Act, is a Class 3 Felony.
- If you do not possess a currently valid FOID card and you are not otherwise eligible, it is a Class 3 felony.
If you have further questions, please visit our website at www.centralillinoislawyers.com and complete our online submission form. Or, you can call our office at 309-699-4691 or email us at how@howlawfirm.com.
LEGAL DISCLAIMER:
The use of the Internet or this form for communication with the firm or individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form nor should the reader rely on the information listed above as true in all circumstances. This information is provided generally and any similarity between the information listed above and an individual reader's case is purely coincidental.
The attorneys at Hall, Rustom & Fritz LLC represent clients throughout the
entire state of Illinois, including, but not limited to, the cities of
Peoria, Morton, Washington, Pekin, Eureka, East Peoria, Dunlap,
Metamora, Bartonville, Bloomington, Normal and any legal matter located
in Peoria County, Tazewell County, Woodford County, Marshall County,
Stark County, Henry County, Knox County and McLean County.
Jeff Hall is managing partner at Hall, Rustom & Fritz LLC and concentrates his law practice in Criminal Law, DUI & Traffic law, driver's license reinstatement hearings and criminal record expungements.
If you have a legal question, email Jeff Hall.
