Certain events will result in a firearms prohibition that causes the loss of one's FOID Card. Events that give rise to a firearm prohibition—and the loss of one's FOID Card—are discussed in another article. Oftentimes, just navigating the process to figure out what a person can and cannot do after his or her FOID card is revoked can be daunting, and people too frequently just give up. Whatever you do, do not give up. Depending on the nature of the prohibition, there are any number of different means by which to address a firearms prohibition, and the attorneys at Johnson Law Group are here to help.
What Disqualifies You From Getting a FOID Card?
There are a handful of reasons which disqualify a person from obtaining a FOID card, which include:
- Having two or more DUI's within the last five years
- Being a danger to others
- Mental disability
- And more
For more information regarding FOID card denial and revocation, view this blog post.
If someone becomes subject to an Illinois firearms prohibition, there are limits on what can be done both from a practical and an ethical perspective, because that person could still be subject to a federal firearms prohibition.
Obtaining a FOID card after a denial or a revocation because of a prohibition could entail what the statute refers to as "appealing" to the Director of the Illinois State Police, essentially having an administrative hearing to review the efficacy of the denial or revocation[i], after which an applicant can file a formal petition in the Circuit Court for the county of his or her residency[ii]. Under limited circumstances, an applicant can bypass the administrative process altogether, and instead just file a petition in the trial court[iii].
Under the FOID Card Act, a person could lift an Illinois firearms prohibition, but the Act requires an applicant to show that allowing him or her to possess a firearm would not violate federal law. Obviously, the Act does nothing toward helping to lift a firearms prohibition on the federal level[iv]. Even the Fourth District Appellate Court has acknowledged that a court-ordered return of a FOID card under Illinois law could be "worthless" to an applicant subject to a federal firearms prohibition[v].
Can a Felon Own a Gun in Illinois?
Most people eligible to lift their Illinois firearms prohibitions, will also be able to lift their federal firearms prohibitions. Of these, the vast majority of people coming to speak with an attorney - and facing the most difficulty - will be those with felonies or crimes of domestic violence on their records.
Under the federal code, a federal firearms prohibition for these offenses does not apply in instances in which (1) a person's conviction was set aside or expunged, (2) a person was pardoned, (3) a person had his or her civil rights restored; or (4) a person has successfully applied to the federal government for that prohibition to be lifted.
Lifting Federal Firearms Prohibitions: Setting Aside or Expunging a Conviction
Certain jurisdictions provide for a conviction to be set aside, but Illinois is not one of them. That leaves only expungement, and Illinois has a lot of limitations on eligibility for expungement[vi]. Even in instances in which a person is eligible, the Criminal Identification Act only provides for just that: eligibility. Whether to grant or deny a petition to expunge is within the discretion of the courts[vii]. If a person can have his or her offense expunged, it is the best outcome, because expungement results in the deletion of the record. However, not every offense is eligible.
On occasion, an individual might have been sentenced to a specialized sentence, such as First Offender Probation, that can afford him or her the opportunity to seek expungement[viii]. By far, the vast majority of felony sentences are not eligible, and offenses of Domestic Battery are specifically prohibited. Frequently, discussions with persons subject to a federal firearms prohibition result in the conclusion that they are not eligible to have their offense expunged.
Lifting Federal Firearms Prohibitions: Obtaining a Pardon
Our Constitution affords individuals the opportunity to seek pardons from the Governor[ix]. However, our Supreme Court has found that, even after a pardon, there is no general entitlement to expungement of the offense[x]. With that said, when a person receives a gubernatorial pardon that also specifically authorizes expungement, there is good news. The Criminal Identification Act provides for expungement, and forecloses the ability of a party, whether the police or the State's Attorney, to object[xi]. This definitely helps when seeking to expunge an offense. Nonetheless, there is still the trial court's discretion with which to deal, and the final outcome will depend on a lot of circumstances.
As a practical matter, however, when a person walks into an attorney's office seeking advice on what can be done for them to possess a firearm, pardons pose practical limitations. Chief among them is the fact that one could wait years, only to wind up being denied, or be granted just a pardon without the ability to expunge.
Lifting Federal Firearms Prohibitions: Restoration of Civil Rights
The final way to lift a federal firearms prohibition is by restoring one's civil rights. Doing so within the State of Illinois is automatic for the most part, because the loss of civil rights for disqualifying offenses is governed by statute. Civil rights refers the rights to vote, hold office, and serve on a jury[xii]. This latter right we need not discuss, because persons convicted of crimes can still serve on a jury in the State of Illinois[xiii].
It should go without saying that a person cannot restore rights that were never lost. Just last year, the Fourth District Appellate Court decided a case on this same issue[xiv]. In that case, the petitioner had sought his FOID card, and argued that his rights were restored, so that a court could find no federal firearms prohibition[xv]. Specifically, he had been in jail while the case was pending, and was sentenced to time-served[xvi]. Under Illinois law, when a person is sentenced to jail, he or she will lose the right to vote during that incarceration, but that right is restored pursuant to statute upon his or her release[xvii]. The Appellate Court ruled that receiving credit for time already served was not the same as actually being ordered to serve jail time, and, consequently, ruled that the petitioner had not had any civil rights restored[xviii].
It wound stand to reason that the reverse would then be true: were someone sentenced to be incarcerated for an offense that would give rise to a federal firearms prohibition, then that person would have his or her civil rights restored upon release. However, this issue has not been decided. Even if it were, there are other arguments that representatives of the State of Illinois could make that rights were not restored. For example, even though Illinois law provides for restoration of the right to hold public office upon discharge of a sentence[xix], Illinois law still prohibits anyone from holding office for a municipality when convicted of certain offenses, including felonies[xx]. This might very well serve as a total bar to being able to prove to a judge that a person's civil rights were restored, but this issue is also unsettled.
Lifting Federal Firearms Prohibitions: Applying to the Federal Government
Under the provisions of the United States Code, an individual subject to a federal firearms prohibition may apply to lift that prohibition[xxi]. The application would be reviewed by the United States Attorney General in tandem with the Bureau of Alcohol, Tobacco, Firearms and Explosives (or "ATF")[xxii]. However, the appropriations bills for the ATF since 1992 have specifically forbidden the ATF from reviewing such applications[xxiii]. The practical consequence of this is that, although a person can apply for the prohibition to be lifted, that application will go nowhere. For all practical purposes, no chance of success with such an application exists.
Copyright © 2017 by Brendan Bukalski
The information provided in this column is general in nature, and should not be relied upon as legal advice or interpreted as creating an attorney-client relationship. As a general rule, all specific legal problems should be handled by an individual's attorney. All rights reserved. Any copying, duplication, or commercial use of the information contained in this column is strictly prohibited without prior permission.
[i] See 430 ILCS 65/10.
[ii] See 430 ILCS 65/11.
[iii] Id.
[iv] Connour v. Grau, 2015 ILApp (4th) 130746, ¶ 26, 35 N.E.3d 244, 393 Ill.Dec. 852 (4th Dist. 2015).
[v] Id.
[vi] See 20 ILCS 2630/5.2(a)(3).
[vii] People v. Carroccia, 352 Ill.App.3d 1114, 1118, 817 N.E.2d 572, 288 Ill.Dec. 214 (2nd Dist. 2004).
[viii] See 20 ILCS 2630/5.2(a)(3)(D)(iii).
[ix] Ill. Const. 1970, art. V, § 12.
[x] People v. Howard, 233 Ill.2d 213, 218, 909 N.E.2d 724, 330 Ill.Dec. 702 (2009).
[xi] See 20 ILCS 2630/5.2(d)(5)(A).
[xii] Logan v. U.S., 552 U.S. 23, 128 S.Ct. 475, 169 L.Ed.2d 43 (2007).
[xiii] See 705 ILCS 305/2.
[xiv] Baumgartner v. Green County State's Attorney's Office, 2016 IL.App.(4th) 150035, 52 N.E.3d 654, 402 Ill.Dec. 733 (2016).
[xv] Id. at ¶ 35.
[xvi] Id. at ¶ 4.
[xvii] See 730 ILCS 5/5-1-14.
[xviii] Baumgartner, 2016 IL.App.(4th) 150035 at ¶ 51.
[xix] See 730 ILCS 5/5-5-5(b).
[xx] See 65 ILCS 5/3.1-10-5(b).
[xxi] See 18 U.S.C. 925.
[xxii] Id.
[xxiii] Logan, 552 U.S. at 28.