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Pistol confiscated by St Charles Police


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#1 Illinois Sucks

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Posted 14 February 2018 - 05:07 PM

Ex coworker could not get a FOID due to a mental health referral after a car accident years ago.  He moved out of Illinois to Colorado where he was legal to purchase a gun and picked up a pistol.  A year later, he ended up moving back to Illinois and brought his pistol with him.  His anti mother called the cops on him when she found out he brought it back and had it in her home.  St Charles Police came out and confiscated the pistol and his ammo.  He is unsure how long or if he will be able to secure a FOID card.  Rather than just let St Charles Police hang onto his pistol and ammo indefinitely, he figured he could sell the pistol and the new owner could go to the police station with him and pick it up.  He called St Charles today and they told him that he could not sell the gun because in order to sell it, he would have to have possession of it.

 

Thoughts?  Is he just screwed till he can get a FOID?


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#2 lawman

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Posted 14 February 2018 - 05:25 PM

First thought that comes to mind is how can he sell it?  Under the FOID act, the purchaser needs to keep record of the transaction, including the Seller's FOID number, for 10 years.  If no FOID . . . . . . .   unless there is some way around this by selling to an FFL.  I'm sure an FFL here will chime in eventually.



#3 mic6010

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Posted 14 February 2018 - 05:36 PM

I believe he needs to get evaluated and cleared by a mental health professional and then with that recommendation he can apply/appeal to get his FOID card and get his property back eventually.

Time is wasting so tell him he better get on it. 

 

IMO, I don't think hes getting that pistol back until hes legally able to posses it in the state of IL.  But that's a question better asked to an attorney that has experience dealing with these types of cases and not an internet forum. And even if you could get it back or get permission to sell it through legal means, how long is that gonna take and how much money is that gonna cost for one pistol ? Unless we are talking about the pistol Jesse James just made for Donald Trump I would have to think its not worth it.


Edited by mic6010, 14 February 2018 - 05:39 PM.

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#4 borgranta

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Posted 14 February 2018 - 05:40 PM

The cops are in violation of the takings clause by confiscating property without just compensation. Perhaps a lawyer could file a lawsuit demanding full retail value and court costs to be paid by the police department. Alternatively a lawyer could cite the SVOTUS case in which SCOTUS ruled that another person whose firearms were confiscated had every right to sell them with the cops acting as a proxy.
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#5 hgmeyer

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Posted 14 February 2018 - 05:42 PM

He does not have to have possession to sell it. FOID is required to possess a firearm. He still "owns the pistol. There is even a similar case floating around. Problem is that this is not going to be worth the $$$ for a lawyer.

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#6 lockman

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Posted 14 February 2018 - 06:00 PM

Did he have legal IL residency at the time? If he was still a colorado resident, dl not switched or here less that few months he may have possessed it legally as a non resident.

 

As for the sale, I would go for it if you can find somebody to go along with it just to make waves.


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#7 gangrel

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Posted 14 February 2018 - 06:15 PM

First thought that comes to mind is how can he sell it?  Under the FOID act, the purchaser needs to keep record of the transaction, including the Seller's FOID number, for 10 years.  If no FOID . . . . . . .   unless there is some way around this by selling to an FFL.  I'm sure an FFL here will chime in eventually.

You have that all backward. The SELLER must maintain a record of the transaction for 10 years, including the BUYER'S FOID number. The BUYER is not legally required to keep any record of the transaction, though many do.

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#8 Illinois Sucks

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Posted 14 February 2018 - 06:52 PM

Did he have legal IL residency at the time? If he was still a colorado resident, dl not switched or here less that few months he may have possessed it legally as a non resident.

 

As for the sale, I would go for it if you can find somebody to go along with it just to make waves.

 

He still has a Colorado license. Has been back in Illinois less than 30 days.  Was staying with his mom while he was looking for a place to live.  What establishes legal residency?


"If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government... The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair."     Alexander Hamilton


#9 Illinois Sucks

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Posted 14 February 2018 - 06:58 PM

Also...  he has a Colorado concealed carry permit.


"If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government... The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair."     Alexander Hamilton


#10 gregivq

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Posted 14 February 2018 - 07:30 PM

I can chime in on how to sell it. You can put a listing somewhere and have your buyer go to St Charles police. The police there will be able to show the 'evidence' and process firearm transfer forms. It's actually very easy.



#11 Mr. Fife

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Posted 14 February 2018 - 07:36 PM

He should have kept the gun in his car. Illinois doesn't respect CO CCL unless he carries in the car, or unloaded cased. Was his gun uncased?
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#12 Illinois Sucks

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Posted 14 February 2018 - 07:55 PM

He should have kept the gun in his car. Illinois doesn't respect CO CCL unless he carries in the car, or unloaded cased. Was his gun uncased?

 

He did not have the gun on him.  It was in his mother's house in his room where he had been staying.


"If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government... The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair."     Alexander Hamilton


#13 Illinois Sucks

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Posted 14 February 2018 - 07:59 PM

430 ILCS 65/2( d ) says:

 

"(d) Any person who becomes a resident of this State, who is not otherwise prohibited from obtaining, possessing, or using a firearm or firearm ammunition, shall not be required to have a Firearm Owner's Identification Card to possess firearms or firearms ammunition until 60 calendar days after he or she obtains an Illinois driver's license or Illinois Identification Card."

 

Would he have been "otherwise prohibited from owning, possessing, or using a firearm" because he had been denied a FOID in the past when he was previously a resident of Illinois?  If not, seems to me that they illegally seized his firearm and ammunition.


"If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government... The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair."     Alexander Hamilton


#14 biggun 1

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Posted 14 February 2018 - 08:01 PM

 

First thought that comes to mind is how can he sell it?  Under the FOID act, the purchaser needs to keep record of the transaction, including the Seller's FOID number, for 10 years.  If no FOID . . . . . . .   unless there is some way around this by selling to an FFL.  I'm sure an FFL here will chime in eventually.

You have that all backward. The SELLER must maintain a record of the transaction for 10 years, including the BUYER'S FOID number. The BUYER is not legally required to keep any record of the transaction, though many do.

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i think the buyer must also keep record of the purchase in illinois.



#15 Indigo

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Posted 14 February 2018 - 08:22 PM

 

 

First thought that comes to mind is how can he sell it?  Under the FOID act, the purchaser needs to keep record of the transaction, including the Seller's FOID number, for 10 years.  If no FOID . . . . . . .   unless there is some way around this by selling to an FFL.  I'm sure an FFL here will chime in eventually.

You have that all backward. The SELLER must maintain a record of the transaction for 10 years, including the BUYER'S FOID number. The BUYER is not legally required to keep any record of the transaction, though many do.

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i think the buyer must also keep record of the purchase in illinois.

 

Nope.  It's a good idea, but not required.


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#16 ragsbo

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Posted 14 February 2018 - 09:17 PM

Sounds like he should get a lawyer and sue the department for illegally confiscating the weapon. If the facts are what has been presented, I think they messed up.



#17 hgmeyer

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Posted 14 February 2018 - 09:48 PM

Sort of a black hole.... Mom's house, she does not want it in the house, the police "probably ok removing it. But, then I think they went down the hole when they did not surrender to the owners person. However, it gets murky when a Colorado resident tries to "sell it across a state line to an Illinois resident(?, IANAL). But, if he is a Colorado resident, he should not need a FOID,(unless he stated his intention to become an Illinois resident). Looks like a murky situation all around)

Edited by hgmeyer, 14 February 2018 - 09:49 PM.

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#18 mic6010

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Posted 14 February 2018 - 10:18 PM

Sounds like he should get a lawyer and sue the department for illegally confiscating the weapon. If the facts are what has been presented, I think they messed up.

Yeah but you understand attorneys cost money right ? They aren't even gonna get out of bed and send off a letter until you pay them at least what the pistols worth. Assuming its not a collectable and its just some garden variety Glock like pistol. Its not worth it. Sometimes you just have to admit you messed up and let things go. This is one of those times imo.

Don't bring no more guns around mama. Lesson learned.


Edited by mic6010, 14 February 2018 - 10:20 PM.

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#19 cope

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Posted 14 February 2018 - 10:35 PM

I think everyone is overlooking the important part of the story "mental health referral" ... residency or otherwise plays no part whatsoever. He is not legally eligible to possess or own a firearm until he gets that mental health issue released.

 

He should actually consider himself fortunate that no charges were filed, and all they did was confiscate the evidence.

 

No judgement, but who gets a mental health referral after a car accident unless they are mentally jacked? My guess is this played out exactly like it should have, no offense to you or your friend.



#20 Gamma

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Posted 15 February 2018 - 12:27 AM

Just because someone was referred to an evaluation or something like that does not mean they are a prohibited person, at least outside of Illinois.

There is also a SCOTUS (I think) case that determined that even a prohibited person still has property rights in their firearms; their firearms are not contraband and can be sold or disposed of at the direction of the owner, they are not just forfeited to the police.

If he still has a Colorado DL, have it shipped to a Colorado FFL and pick it back up.

Advise he stay away from anti-gun mom, if she's willing to have him arrested due to her political beliefs.
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#21 Gamma

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Posted 15 February 2018 - 01:05 AM

Unanimous 2015 Supreme Court decision:
see
https://blog.princel...firearms-conta/

Edited by Gamma, 15 February 2018 - 01:05 AM.

Illinois' FCCA is a prime example of the maxim that sufficiently advanced incompetence is indistinguishable from malice.

#22 Smallbore

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Posted 15 February 2018 - 09:00 AM

I think the main problem is he had a gun on private oropeety without permission.
What does the Illinois statute and case law declare as the penalty?

#23 BigJim

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Posted 15 February 2018 - 10:03 AM

He still has a Colorado license. Has been back in Illinois less than 30 days. 

 

 

he has a Colorado concealed carry permit.

 

Sounds to me like he's still a CO resident and eligible to own firearms in CO.  I would find a CO FFL and ask the St Charles PD to transfer the firearm to the CO FFL.  I don't see how the St. Charles PD can have override CO state law and deny the the transfer to CO.  He could then either arrange to store the gun in CO or sell it there to someone who could legally buy it.


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#24 IH8IL

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Posted 15 February 2018 - 10:13 AM

I think the main problem is he had a gun on private oropeety without permission.
What does the Illinois statute and case law declare as the penalty?

I’m pretty sure if he has a room, that legally is his abode. Unless I’m wrong but remember reading something like that.

#25 lockman

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Posted 15 February 2018 - 11:07 AM

I think the main problem is he had a gun on private oropeety without permission.
What does the Illinois statute and case law declare as the penalty?

 

No offense for a non-resident. Once notified he would have to remove it. Valid in his home state, in state less than 30 days, at that point a Colorado resident, St. Chas overreach under this fact set.


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#26 vito

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Posted 15 February 2018 - 11:25 AM

Lucky guy. His own Mom brings this grief on him. Getting his gun back might be the least of his problems. 


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#27 civilone

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Posted 15 February 2018 - 01:26 PM

Based on what the OP presented it would seem like there would have be more than just a referral if I read the FOID Act correctly.  The FOID Act talks about an involuntary admission to a mental health facility among other scenarios. Is there a lot of daylight between a referral and an admission?   Additionally, probably not wise to bring a gun into anyone's house where you will be living without really thinking through if it is legal, whether you should let the owner know, etc. 

 

FOID Act does state that its provisions do not apply to:

(430 ILCS 65/2) (from Ch. 38, par. 83-2) 
    Sec. 2. Firearm Owner's Identification Card required; exceptions.

(9) Nonresidents whose firearms are unloaded and enclosed in a case;
(10) Nonresidents who are currently licensed or registered to possess a firearm in their resident state.
 
and for the definition of an Illinois resident:
 
(d) Any person who becomes a resident of this State, who is not otherwise prohibited from obtaining, possessing, or using a firearm or firearm ammunition, shall not be required to have a Firearm Owner's Identification Card to possess firearms or firearms ammunition until 60 calendar days after he or she obtains an Illinois driver's license or Illinois Identification Card
   
It would seem his rights have been violated.  Attorney time?


#28 cope

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Posted 15 February 2018 - 07:36 PM

Admittedly there are a lot of facts missing here and I dont know them. However, it seems to me more than one person is the problem here. Not picking a fight and admins delete if you feel this post is unwarranted. Those looking for a loophole or a way around this situation are part of the bigger problem we face.

 

Everyone wants to cry and scream when they say common sense gun laws.... everyone wants to say mental health issues are the problem.

 

We should be preventing those with mental health issues from having guns..... not the innocent law abiding citizens.

 

Here we have everyone knowing theres a mental health issue trying to figure out a way to get this guys gun back.

 

Seems a bit hypocritical. Guns dont kill people, people with mental illness kill people. Please lets find a way to make sure someone with a mental issue gets his gun back.

 

If he wants his gun back its pretty simple. Do not look for a loophole.... go see a doctor... get proof that you are not mentally ill... then apply to get your gun back.

 

the shame of it all..... and I will leave the thread on that note



#29 Illinois Sucks

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Posted 15 February 2018 - 08:17 PM

From what he has told me, he had a single car accident in his teen years and rolled a car.  In the hospital somehow they got the impression he was trying to kill himself.  He got referred to a mental health clinic.  Doesn't really sound like a mental illness issue.

 

He moved from Colorado (where he legally owned the pistol and had his concealed carry license) to Illinois where he is guilty until proven innocent over the mental health referral.  Simply crossing a state line makes him ineligible to possess a firearm?  National reciprocity would make him legal to carry here in Illinois.  Isn't that something that we are all wanting?

 

His pistol and ammo was illegally confiscated by the police.  He is not looking for a loophole, just a way to sell his gun rather than let it sit in lockup at some police station.

 

As it turns out, he went to the police station this morning armed with 430 ILCS 65/2 and discussed things with them.  They have agreed to release the gun to the person he is selling it to on Tuesday.


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#30 Dog1

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Posted 15 February 2018 - 09:15 PM

Beleive it is a federal offense to transfer a firearm to an individual across state lines.




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