Cook County Record

Monday, November 18, 2019

Appeals court says 'circular' Illinois FOID law is 'de facto' ban on rehabilitated felons legally owning guns

State Court

By Dan Churney | Oct 31, 2019

1280px small firearm training at an indoor firing range
By NIOSH (NIOSH) [Public domain], via Wikimedia Commons

CHICAGO – An Illinois appeals court is calling for state legislators to correct a “circular” law that ostensibly gives rehabilitated felons a chance to acquire gun permits, but in reality puts them on a "merry-go-round" between state and federal law without hope of obtaining a permit, the ruling states.

“Alfred Evans Jr., who has applied for a Firearm Owner’s Identification card, finds himself caught in a circuitous commingling of Illinois and federal laws that only the General Assembly can untangle," Justice Michael Hyman of Illinois First District Appellate Court in Chicago wrote in the Oct. 28 opinion. "Evans has been snagged by an interrelated statutory web.”

Hyman, along with Justices John Griffin and Daniel Pierce, wrote in the opinion they were “obligated to affirm” Cook County Circuit Judge Michael Mullen’s decision to bar state police from issuing a FOID card to Evans. A FOID card is needed in Illinois to buy and possess guns and ammunition.

Evans, of suburban Bolingbrook, applied for a FOID card in 2018 but was turned down because of two felony drug convictions from 1994. He went to Cook County Circuit Court to overturn the denial, but Mullen refused, finding federal law prohibited Evans from possessing a gun. 

Evans then appealed, acting as his own attorney.

The issue came down to the incongruence between state and federal gun laws in Hyman’s eyes.

Hyman explained Evans’ felony record would usually bar him from gun possession under Illinois law. Further, federal law prohibits possession for a convicted felon such as Evans. However, under the federal law, a conviction does not count when the felon’s civil rights have been restored, as have Evans’ rights.

However, the federal exception does not apply if state law places an “affirmative impediment on accessing the FOID card,” as Illinois law does by barring possession by felons, Hyman wrote. Illinois has an apparent safety valve in which a felon can ask state police to grant “relief” and issue the card, but the procedure has a “fatal design flaw,” in that state police must still abide by the state requirement that issuance of a card must not violate federal law.

“Sound circular? It is,” Hyman said. “...The current statutory scheme operates as a de facto permanent ban. And so petitioners, like Evans, are stuck on a statutory merry-go-round without a way off.”

Hyman wrote the appellate court is inclined to let Evans obtain a gun because after a number of brushes with the law, Evans has “turned his life around.” Specifically, Evans is married, raising three children and runs a business towing repossessed vehicles, according to the opinion. Hyman said Evans wants a gun for protection.

Nonetheless, Hyman concluded the court has no choice but to uphold the denial. However, Hyman invited the state legislature to take action. 

“We cannot rewrite Illinois law," Hyman wrote. "Unless the General Assembly sees fit to intervene and fix this ill-crafted statutory scheme, the federal prohibition on Evans’ possession of a firearm functions as a barricade rather than a bridge, and Evans and others in the same circumstance will never be entitled to relief.” 

Hyman said legislators should make it clear whether they want a felony conviction to permanently ban gun possession. If they do not want a ban, they should amend the law to allow state police to “consider more individualized factors” when considering whether to permit a felon to have a gun.

Pierce concurred with Hyman’s judgment, but not Hyman's opinion. Pierce did not offer his own opinion.

Lawyers from the Cook County State’s Attorney’s office opposed Evans in Circuit Court and the Illinois Attorney General’s Office opposed him on appeal.

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Illinois State PoliceIllinois First District Appellate CourtCircuit Court of Cook County

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