The Application Process. Eligibility & Ineligibility. Bases for Denial, Cancellation & Suspension/Revocation. Fun Jaw-Dropping Facts

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2 Part I: Part II: Part III: Part IV: Part V: The Application Process Eligibility & Ineligibility Bases for Denial, Cancellation & Suspension/Revocation Getting Reinstated Federal Prohibitions & Ethical Considerations Fun Jaw-Dropping Facts

3 Applying for a FOID Card (good for 10 years): Submit the Application Give them your Driver s License or ID number Submit photo showing head/shoulders (or religious exemption) Pay the fee ($10.00) ISP has 30 days to approve or deny the application Applying for a Concealed Carry License (good for 5 years): Submit the Application Firearms training course (16 hrs., but really ½ - 1 day) Submit a photograph (same as above) Have a valid FOID card Submit fingerprints (or else wait up to another 30 days) Pay the fee ($150.00) ISP has 90 days to approve or deny the application

4 Eligible for a FOID Card? (430 ILCS 65/4) Be 21 Y.O. Under 21: Clean criminal history (no misdemeanor unless traffic or delinquency petition/finding) Consent of parent/guardian who must also not be prohibited from getting FOID card Be an Illinois resident Ineligible if applicant: Is a felon (includes juvenile adjudications) Is addicted to narcotics (includes convictions in past year for use/possession of controlled substances, methamphetamine & cannabis) or is addicted under federal law/guidelines

5 Eligible for a FOID Card? (Cont d.) Ineligible if applicant: Has been a patient in a mental health facility in the past 5 years If more than 5 years, provide separate documentation Mental health facility means basically everywhere Has an intellectual disability, a mental disability or a developmental disability Is an illegal alien or alien admitted on a non-immigrant visa Is subject to an OP, No Stalking Order, or similar order Has been convicted of Battery, Assault, Aggravated Assault, or a Violation of OP or similar offense within 5 years Has ever been convicted of Domestic Battery or Aggravated Domestic Battery

6 Eligible for a Concealed Carry License? (430 ILCS 66/10 & 25) All requirements for a FOID card Be 21 Y.O. or older Completed firearms training Ineligible if: Conviction for misdemeanor involving use or threat of force or violence to a person within 5 years 2 or more DUI s within 5 years (assuming last one w/in 5 yrs) Outstanding arrest warrant for a disqualifying offense Been in residential or court-ordered treatment for substance abuse within 5 years Poses a danger to anyone, including public safety, which is determined by the Licensing Review Board Example (Young, 2016 IL App (1 st ) ): 2 prior arrests & 1 conviction for firearm-related offenses, plus prior incident involving pushing pregnant girlfriend & punching female friend who tried to intervene

7 Minor with pending petition Person under 21 Is convicted of misdemeanor Does not have parental/guardian consent Intentionally make false statement in applying Lose Illinois residency Be prohibited from possessing a firearm or ammunition for some other reason (like a court order) Become addicted to narcotics Be an illegal alien or an alien on a non-immigrant visa

8 Mental Health reasons: Become a patient at a mental health facility (applies regardless of whether or not admission was voluntary or involuntary) Have a mental condition that poses a clear and present danger to self, others, or community A person poses a clear & present danger when he or she (1) communicates a threat of physical violence against a reasonably identifiable victim or is a clear & imminent risk of serious physical harm to self or others as determined by physician, clinical psychologist, or qualified examiner; or (2) demonstrates threatening physical/verbal behavior (includes violent, suicidal, or assaultive threats, actions, or other behavior) as determined by physician, clinical psychologist, qualified examiner, school administrator, or law enforcement official

9 Have an intellectual disability Have a developmental disability Conviction for the following offenses or substantially similar offenses: Any Felony (includes juvenile offenses that would be felonies if applicant had been an adult) Battery Assault and Aggravated Assault Violation of an OP, No Stalking Order, or similar order Domestic Battery and Aggravated Domestic Battery Important Note: the denial or revocation must state the basis

10 Lose FOID Card Law Enforcement Objections to applications Basis: Agency belief that a person is a danger to self, others, or a threat to public safety Agencies can rely not just on criminal history, but arrest reports as well Example (Johnson, 2015 IL App (1 st ) ): prior arrest, among others, alleging applicant shoved girlfriend in face, grabbed throat, drug out of house, punched in mouth, and caused her head to hit a wall (appellate court upheld denial) ISP finds 5 arrests within 7 years preceding application ISP finds 3 arrests for gang-related offenses within 7 years

11 Law Enforcement Objections to applications Procedure: File objection within 30 days of applicants being entered into database. ISP then has 10 days to submit the application & objection to the Concealed Carry Licensing Review Board Tolling of 90-day time frame to issue license: 30 days if sought, unless: 30 more days if Board deems fit Indefinite period if Board requests info from applicant Unspecified period if Applicant consents to extension in writing Indefinitely if due to ISP objection based on arrests

12 Suspension Indefinite when subject to an OP, No Stalking Order, or similar order 6 month suspension for 2 nd DUI 2 nd violation of Act Revocation Lose eligibility to possess a FOID Card or a CCL 3 or more DUI s 3 or more violations for carrying in prohibited areas A Firearms Instructor who provides a false certification under the Act

13 2 Important Notes: 1. Reinstatement refers to both getting it reinstated after a suspension/revocation as well as getting it after a denial 2. Appeal is used because the statutes use these words, even though it s not an appeal within the meaning we use FOID Card Process Overview Appeal to Director of State Police Petition to the Circuit Court Appeal Circuit Court ruling Concealed Carry License Overview Informal Appeal to Director of State Police Formal Appeal to Director of State Police Petition to the Circuit Court Appeal Circuit Court Ruling

14 Appeal to the Director of ISP if denial/revocation unrelated to mental health or intellectual disability Note: this step can be bypassed when basis relates to certain specified offenses, & it applies when ISP fails to act in 30 days Burden: clear and convincing evidence Goal is a finding that: 1. Unlikely to endanger public safety (crim l history/reputation); 2. Granting relief not contrary to public interest; and 3. Granting relief would not be contrary to federal law Evidence to submit: Applicable time period (10 yr juvy & 20 yrs forcible felony) Notarized statement detailing circumstances of offense 3 notarized statements detailing suitability to possess firearms Other documentation related to eligibility If win, statute is unclear, but you get your client s FOID Card If lose, seek judicial review via the Circuit Court

15 Appeal to the Director of ISP when denial/revocation is related to mental health or intellectual disability Burden: preponderance of the evidence Goal: 1. Finding that the person is unlikely to act in dangerous manner to public safety 2. Granting relief won t be contrary to public interest Evidence to consider submitting: Notarized statement describing circumstances of admission 2 notarized statements detailing suitability to possess firearm Mental health & criminal history records Current forensic mental health evaluation Reputation (character witnesses) Change in condition/circumstances since disqualifying event If win, ISP has 15 days to correct If lose, seek judicial review via the Circuit Court

16 Appeal to the Director of ISP when law enforcement denied/revoked b/c (1) patient in mental facility less than 30 days and within 5 yrs or (2) if more than 5 yrs but 430 ILCS 65/8(u) certificate not done Note: cannot proceed if left treatment against medical advice Expedited Relief: Director has 30 days to decide Burden: preponderance of the evidence Goal: 1. finding that person is unlikely to act in dangerous manner to public safety; and 2. granting relief won t be contrary to public interest

17 Appeal to the Director when law enforcement denied/revoked b/c patient in mental facility (Cont d) Evidence to submit: Notarized statement re: circumstances of admission Letter from employer stating title & opinion on suitability to possess firearm w/any records concerning revocation of FOID Card All documentation from facility (eval, admission, treatment, & discharge) Psychological fitness for duty evaluation after discharge Written confirmation from treating professional that officer didn t act in manner threatening to self/others/public & referral made b/c of work If win, ISP has 15 days to correct If lose, seek judicial review via the Circuit Court

18 Petition to Circuit Court Venue: county of petitioner s residency Serve upon State s Attorney s Office at least 30 days before hearing Standard of Review of ISP Decision: de novo Goal: finding that substantial justice has not been done Evidence to submit: Applicable time period (10 yrs juvy & 20 yrs forcible felony); Applicant unlikely to act in manner dangerous to public safety (lack of criminal history and reputation); Granting relief not contrary to public s interest; and Granting relief not contrary to federal law If win, Order ISP to issue FOID Card If lose, appeal denial to Appellate Court

19 Informal Appeal to Director of State Police Applies when denied, suspended, revoked, or when ISP fails to act in 90 days Apply for Informal Appeal ISP will then request paperwork/documentation Fact-finding conference at ISP s discretion Burden: clear and convincing evidence Goal include finding by Director of ISP that: 1. Substantial justice hasn t been done; and 2. It is unlikely applicant or anyone else will be injured by granting relief Evidence to submit: Anything demonstrating eligibility or refutes bases of denial Reputation evidence & lack of criminal history Circumstances of disqualifying event

20 Formal Appeal to Director of State Police Applies only when Informal Appeal is denied Request formal hearing in writing A formal hearing will be scheduled and held pursuant to the Administrative Procedure Act (5 ILCS 100/10) Much of what to submit, what the goals are, etc. was covered under the Informal Appeal section Obviously, additional documents may be necessary depending on bases for denial after Informal Appeal Burden/Goal/Evidence remain the same Note: if denied, have to wait 2 years to reapply, unless judicial review overturns decision

21 Judicial Review of administrative ruling Pursue after denial through the informal/formal appeal process or when the initial denial of a license was made by the Concealed Carry Licensing Review Board itself Venue: county of applicant s residence File petition for administrative review Standard of Review: de novo Goal: finding that substantial justice has not been done Evidence to submit: Anything demonstrating eligibility or refutes bases of denial Reputation evidence & lack of criminal history Circumstances of disqualifying event

22 In the vast majority of instances in which a person can t get a Concealed Carry License, that person will also be ineligible for a FOID Card Special Problem: Federal Law Recall that to give someone a FOID card - either initially or upon seeking judicial review the petitioner must show that it would not violate federal law

23 Special Problems: Federal Law [18 USC 922(g)] Federal law prohibitions are similar to Illinois, and prohibit someone from owning a gun when: Conviction for a felony or a misdemeanor offense of domestic violence Fugitive Drug addict Illegal alien Dishonorable discharge Renounced citizenship Subject to court order restraining person from harassing, stalking, or threatening someone

24 By far, the majority of problems arise with misdemeanor offenses involving domestic violence 18 USC 921(a)(33): Domestic violence means the offense (1) (Obviously) Has to be a misdemeanor; and (2) The offense involved: (1) Either actual or attempted use of physical force or threatened use of a deadly weapon, and (2) It was committed by someone related to the victim: (a) Current/Former spouse, parent, or guardian; (b) Someone similarly situated to a spouse, parent, or guardian; (c) Currently/Formerly lived together as spouse, parent, or guardian; or (d) Shared a child in common

25 Notice: federal law does not require the offense to be called or titled Domestic anything Exceptions to Domestic Violence Offenses: Not considered convicted unless: Represented or knowingly & intelligently waived right to counsel; and There was a jury trial or knowingly & intelligently waived right to jury by guilty plea or otherwise Not a conviction if expunged, set aside, been pardoned, or had civil rights restored (unless exception stated therein) Civil rights must have been lost Civil rights include the rights to vote, hold office & serve on a jury (Logan, 552 U.S. 23) The consequence of this: any offense involving a domestic relationship with an allegation that force was even attempted or threatened the use of a deadly weapon disqualifies someone from obtaining a FOID Card or a CCL or does it?

26 Fact Scenario & ethical considerations: Factual Background: John Doe comes to you. He was charged with Domestic Battery years ago after he pushed past his wife during an argument. John Doe s PD got the charge amended to a Class C Disorderly Conduct, alleging that he pushed past his wife so as to alarm and disturb his wife and provoke a breach of the peace. Example 1: John pleaded guilty and even received supervision for the Disorderly Conduct, but John had a subsequent offense a year afterward, so he can t expunge it. 10 years later, he applies for and was denied a FOID card, and, thus, any possibility of getting a Concealed Carry License Do you take his money to petition a Circuit Court to review the denial?

27 Answer: No It qualifies as an offense of domestic violence, and doesn t fit into an exception: John had a lawyer, and pleaded guilty for supervision; It can t be expunged because of the subsequent offense; & John never lost any rights with supervision There is nothing you can do. Federal law prohibits his possessing a firearm, and the offense does not fall into an exception. Thus, the Circuit Court cannot grant the petition Note: this definition has been around since 1996 & the requirement that we prove it s not a violation of federal law has been around in Illinois since 2010

28 Why not try to attempt it anyway? Answer: There s a difference between someone you may be able to help, even though the chances of success are slim, and someone you cannot help 1 st : We re officers of the Court. Rule 3.3 requires candor toward the tribunal, and the comments make clear: a knowingly false representation of law constitutes dishonesty toward the tribunal. 2 nd : Rule 3.3(a)(2) requires us to disclose authority adverse to our position 3 rd : Rule 1.16(a)(1) requires us to decline to represent people when it would result in a violation of the Rules of Professional Conduct

29 What happens if you file it anyway, meet your burden, and everyone (the judge, the State s Attorney, etc.) misses the fact that John Doe cannot possess a firearm under federal law, and the Circuit Court orders ISP to issue John his FOID Card? Answer: the Attorney General s Office or ISP seek to intervene, and file a Motion to Vacate Result: the Circuit Court s Order will be vacated either because the Circuit Court grants it, or, if the Circuit Court denies the motion to vacate, the AG &/or ISP will appeal it and the ruling will be overturned on appeal

30 Example 2 (same background facts): John pleaded guilty, received a straight conviction, and received credit for one day served Do you take the case? Answer: No It qualifies as an offense of domestic violence, and doesn t fit into an exception: John had a lawyer, and pleaded guilty for time-served; It can t be expunged because it was a conviction; & John never lost any rights that were restored afterward because he received time-served There is nothing you can do. You will run into the same results and ethical problems as with the last example

31 Example 3 (same background facts): John pleaded guilty, received a straight conviction, but had to serve a week in jail on top of getting credit for 1 day served Do you take the case? Answer: Probably not It qualifies as an offense of domestic violence, but it falls into an exception: by having to serve jail time, John lost his right to vote, which was restored afterward Under Illinois law, a person sentenced to prison/jail loses the right to vote, which is restored upon release Under Illinois law, John s right was lost, but it was restored. You could arguably maintain an action in good faith, but success is unlikely because the law really isn t on our side

32 Recent Case Law 2013 IL Sup. Ct. decided Coram (996 N.E.2d 1057): held person can show exception to federal firearms prohibition to get a FOID Card rd Dist. decided O Neill (28 N.E.2d 1020): distinguished Coram through its plurality opinion & dicta with which not all justices agreed; & held that as a matter of first impression, federal law prohibited the petitioner from possessing a firearm 4 th Dist. decided Connour (35 N.E.3d 244): held removal of a state firearm prohibition does not automatically remove a federal prohibition

33 Recent Case Law (Cont d) th Dist. decided Baumgartner (52 N.E.3d 654): held that credit for time-served did not qualify to restore a person s rights because no rights were lost; rights are lost following a person being sentenced to serve jail. (But is the reverse true? Can a person who was sentenced to serve jail have his or her rights restored to get a FOID Card in Illinois? We don t know) 4 th Dist. decided Willis (2016 IL App (4 th ) ): distinguished Coram like O Neill had and because it addressed the FOID Act prior to 2013 amendments; & held ISP was not in contempt for issuing FOID Card with note that it was a violation of federal law for the holder to possess a firearm 3 rd Dist. decided Smith (2016 IL App (3d) ): held the FOID Act requires it not violate federal law, and petitioner was under federal firearms prohibition

34 The problem: even if an Illinois court finds that rights were restored, the federal government has not found the same The problem with getting an Illinois Court to issue a FOID Card subject to a federal firearms prohibition: The person could still have a problem buying a firearm because of waiting period and background check; and The person could face federal firearm offense

35 So what does it take to lift the federal firearms prohibition? 18 USC 925 provides a means to apply to the Attorney General The Attorney General has delegated authority to review applications to the ATF But, since 1992, the appropriations bills for the ATF specifically preclude their review of these applications Result: for the foreseeable future, people will be subject to the federal firearms prohibition

36 States that require a permit to possess long guns: Hawaii, Illinois, Massachusetts, and New Jersey Concealed Carry License program going well? Answer: Nobody knows How are we doing as a State when it comes to our FOID Card system? Answer: We really don t know, but we have an idea We don t know because little oversight has ever been done FOID Cards have been around since 1968 The 1970 Constitution created the Auditor General ISP FOID Bureau has only been audited once Results released in 2012, but covered

37 Auditor General s 2012 Report of ISP s FOID Card Program Problems with reporting to ISP: During 2010, 3 of the 102 counties submitted mental health court orders to ISP Private mental health facilities reporting did not distinguish between voluntary and involuntary admission Since 2012, there have been amendments to help make reporting easier & routine

38 Auditor General s 2012 Report of ISP s FOID Card Program Summary: We identified significant management control problems with ISP s administration of the program that impact program effectiveness. The Firearms Services Bureau did not have up-to-date policies and procedures, up-to-date administrative rules, and did not provide formal training to the Bureau staff related to the process of determining eligibility. Organizational problems: for the audit, ISP could not produce complete documentation related to the means by which they reviewed FOID Card applications. Some information was provided, which included bid proposals for the remittance, keying, and scanning. We could not find any decision documents, such as evaluation or scoring sheets, within the information provided by ISP.

39 Auditor General s 2012 Report of ISP s FOID Card Program Only 30% of applications were approved within the statutorily required 30 days On November 15, 2011, 2,043 applications that were already more than 30 days old had yet to even be processed for screening to determine eligibility 29% of denials are made outside of 30 days 85% of calls to ISP concerning FOID cards go unanswered Thousands of FOID Cards are granted, but never delivered

40 Auditor General s 2012 Report of ISP s FOID Card Program How do we go from application to card? ISP contracts with 3 companies: Illinois National Bank (INB), Boland Enterprises (BE), and Fidelity National Information Services (FNIS) INB picks applications up from the post office, determines if they are complete, and stamps them with a number that will correspond to a FOID Card number. INB then returns all the applications to ISP (ISP acts on rejects) BE (based in IN) comes to Springfield every day, picks applications up, returns to IN, scans them and keys in pertinent information, and returns the data to ISP ISP then gives the necessary info to FNIS to make the cards The cards are designed to last 2 years (the industry standard) & ISP pays a fortune every year for new readable cards to be made From , ISP paid these 3 companies nearly $2.4 million

41 Auditor General s 2012 Report of ISP s FOID Card Program Meanwhile: In a 2 year period (July 1, June 30, 2011) ISP spent $526,919 in overtime for FOID processing Of this, 3 employees accounted for 45% ($239,156), increasing these individuals pay just over 30% on average Average yearly cost of the FOID Card Program between : almost $2.4 million Actual budget for Program 2008: $300k 2009: $300k 2010: $700k

42 BRENDAN BUKALSKI Address: Johnson Law Group 115 West Front Street Bloomington, IL Phone: (309)

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