A split Illinois Supreme Court has ruled a subsurban man, who had been convicted on drug charges in the 1990s, may not obtain a gun permit, not because he was trapped in a limbo between federal and state gun laws, as an appeals panel determined, but because he did not show he had turned his life around since his convictions.
The Sept. 2 decision was penned by Justice Michael Burke, with concurrence from Chief Justice Anne Burke and Justices Mary Jane Theis and David Overstreet. Justice Robert Carter wrote a dissent, with agreement from Justices Rita Garman and P. Scott Neville Jr., saying a circuit court, not the state supreme court, should address whether the felon has reformed his life.
Justice Michael Burke and Chief Justice Anne Burke are not related.
Alfred Evans Jr., of suburban Bolingbrook, applied in 2018 to Illinois State Police for an Illinois Firearm Owners Identification (FOID) card, which is required in Illinois to buy and possess guns and ammunition. Evans was convicted in 1994 of two felony drug charges. The State Police denied his FOID application because of the prior convictions.
Evans went to Cook County Circuit Court to override the denial, claiming he was rehabilitated and wanted a gun for protection. He pointed out he was married, raising three children and running a business towing repossessed vehicles. However, Circuit Judge Michael Mullen found federal law prohibited Evans from possessing a gun, and Evans had not shown he had sufficiently cleaned up his act.
A divided Illinois First District Appellate Court refused to overturn the circuit judge, but was impressed with Evans' rehabilitation, saying the incongruence between state and federal laws put Evans on a "statutory merry-go-round without a way off."
Appellate Justice Michael Hyman explained the problem in the appellate opinion.
Evans’ felony record would usually bar him from possessing a gun 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 said. 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 doesn't violate federal law.
Hyman added that state legislators should clarify whether they want a felony conviction to permanently ban gun possession, and if so, they should amend the law to let state police “consider more individualized factors” when considering whether to issue a FOID card.
Evans took his case to Illinois Supreme Court, where the majority, led by Justice Michael Burke, disagreed with Hyman, saying state law does not amount to a "de facto ban," but rather still allows a felon, with restored rights, to secure a gun permit.
"The legislature clearly intended for felons to be able to obtain relief under (the) FOID Card Act. We do not believe that the legislature’s intent was to create such a right and then make it impossible for anyone to obtain relief," Burke said.
However, Burke concluded Evans still did not qualify for a FOID card, because Evans failed to present sufficient evidence it would be consistent with the "public interest" for him to have a gun.
Specifically, Burke pointed out Evans did not furnish details of his drug felonies, such as whether he abused drugs and if he underwent treatment. In addition, Evans failed to say how he would manage the "significant responsibilities" of gun ownership, Burke said.
Burke also wanted more information from the people who submitted "very brief" character references for Evans, such as the nature of their interactions with Evans and why they believed Evans could meet the demands of responsibly owning a firearm.
Burke noted an evidentiary hearing was never held in circuit court, but there is no need for one. Burke suggested Evans could file a new petition for a FOID card, now knowing what was lacking in his 2018 petition.
In dissent, Justice Carter noted he agreed with Burke that state law allows a felon to acquire a FOID card under certain circumstances. However, Carter said the question of Evans' rehabilitation should not be determined by the state supreme court, but rather should be returned to circuit court for a evidentiary hearing on the issue.
"Fundamental fairness" warrants such a hearing, so Evans may "address the concerns identified by the majority," according to Carter.
Evans was represented before the state high court by Chicago lawyer Bryant Chavez.
Illinois Assistant Attorney General Katelin Buell opposed Evans before the high court.