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Holding guns for friend


MGK3

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A friend is going through a divorce and his ex- has gotten a restraining order. I have been asked to "hold" his firearm for the duration of the restraining order. What does the process look like for me as the holder of the firearm? Do I need to transfer ownership?

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I did it alittle different during divorce. I pulled all the firing pins and springs and left them with a friend. My ex threatened to call police saying I was going to shoot her, I laughed and told her go for it. Police showed up after some discussion, I told them all weapons could not function do to disassembly.and they where useless unless I intended to beat her with them. Officer checked them and he was p***** told her if she pulled a stunt like that again she would be in cuffs...

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Yes his FOID is still valid, ex- has a vivid imagination. Where can I get a "disposition" form and whom would you submit to? Sorry uncharted territory for me

 

MGK3

IANAL. If not revoked, I dont see a need for a disposition form. At this point you are just holding on to them for him.

 

https://www.ispfsb.com/Public/Firearms/FOID/RevokedFOIDCards.aspx

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A friend is going through a divorce and his ex- has gotten a restraining order. I have been asked to "hold" his firearm for the duration of the restraining order. What does the process look like for me as the holder of the firearm? Do I need to transfer ownership?

There are many types of restraining orders in Illinois law. While some require the respondent (your friend) to relinquish possession of their firearms, most do not. Those that don't are intended to protect joint assets, prevent harassment, and a whole variety of things unrelated to firearms.

 

He should check with his attorney for details about what is required of him in this particular case.

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A friend is going through a divorce and his ex- has gotten a restraining order. I have been asked to "hold" his firearm for the duration of the restraining order. What does the process look like for me as the holder of the firearm? Do I need to transfer ownership?

Just went through this for a friend. Transfer them like they are being sold. For all intents and purposes you will be the legal owner of those firearms and subject to all the rules associated with ownerrship. When it is time to give them back, also do it through a transfer and keep all the paperwork as the law requires.

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Rules I simple, I deal with this all the time for people.

 

One, if you have an order of protection against you, ISP will revoke your FOID and CCW until you don't, and then they will take their sweet time reinstating them. They likely will do so before you even know your female type friend got an OP, as your first notice is usually, in my experience, the letter from the ISP, not the summons from the court.

 

Once your FOID is revoked, depending on what statute your want to believe, its either immediately illegal for you to have a firearm or you have 48 hours to lose them. The truth is both, its one crime to immediately have them, its two crimes after 48 hours.

 

I encourage people, if possible, to simply take their guns out of state, at least for a temporary or interim OP. Otherwise, I tell them to leave them with a trusted friend. One of the primary reasons I got an FFL was to hold client guns in this circumstance, as doing so for pay is arguably dealing. For a "permanent" OP, its federally illegal to possess any firearm, so taking them to another state will do you do good for that.

 

As to the dispossession form, I believe that violates the 5th Amendment, for the same reason as the original NFA was declared unconstitutional in 68. Basically, in filling out the form, you have to swear that you possessed a firearm during a time it was illegal for you to do so. Thats Fifth Amendment stuff. So I tell people not to fill out the form. However, you do have to surrender your FOID and CCW, and I also tell people to go ahead and do that.

 

Hope this helps

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...

One, if you have an order of protection against you, ISP will revoke your FOID and CCW until you don't, and then they will take their sweet time reinstating them. They likely will do so before you even know your female type friend got an OP, as your first notice is usually, in my experience, the letter from the ISP, not the summons from the court.

...

That will depend entirely on the type of order. Most orders do not affect gun rights (see 750 ILCS 60/).

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Benbow

 

Thanks, yes it clarifies the whole process

Please tread carefully here.

 

If the respondent is required give up possession of his firearms, failure to provide the disposition record is a Class A misdemeanor.

 

Personally I made up my mind a long time ago that I would never comply with the "disposition record" and I had not thought of the 5th. It just didn't seem right. If it ever happens to me I will most certainly risk the misdemeanor conviction and exercise the 5th and let the court decide.

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2 points.

 

First, Mauserme, your looking at the OP statute, which itself is PROBABLY constitutional. Thats not how/why ISP revokes your FOID card, as nobody bothers with that statute. Under the FOID Act, a completely different statute, ISP revokes your FOID card for ANY OP, ex parte, interim, or plenary. I handle this issue as a lawyer about 20 times a year.

 

Second, failure to give a disposition may be a Class A misdemeanor. Actually listing a firearm on the record, and turning it it while you are under an OP, showing that you possessed a firearm while under an OP you didn't even know about, is potentially a FELONY. And out of literally scores of these cases I have handled for people, NOT ONE has been charged with not providing the disposition sheet, and when I deposed Jessica Trame, she testified that ISP does nothing if the sheet does not come in. Your mileage may vary, but I would personally rather face a Class A misd with a good 5th Amendment defense, than face a felony that they use what I have to say against me in a court of law.....

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Benbow

 

Thanks, yes it clarifies the whole process

 

Please tread carefully here.If the respondent is required give up possession of his firearms, failure to provide the disposition record is a Class A misdemeanor.

 

Return the completed form with no firearm info contained. You have complied with the process. If the transfer occurred prior to actual notice then you can certainly claim you did not record any of it.

 

This is one of those areas that will require defiance to push litigation. Just waiting for the right case to present and off to the judicial forum we go.

 

 

^ this ***

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  • 3 weeks later...

As to the code of conduct, I think it important to note that there is a fundamental difference in advocating illegal conduct, and discussing the practical effect of a given course of conduct and given options in a given scenario. Also, to suggest that something is legitimately unconstitutional is to also suggest it is not the law, as an unconstitutional statute is not and never has been the law, thus, to advocate the ignoring of an obviously unconstitutional statute is not to advocate violating the law. This does not take a law degree to understand.

 

For instance, if your car is illegally parked on another's property (i.e. criminal trespass), and it has an expired license plate (so you cannot legally drive it on the road), it is not to advocate breaking the law to explain that the fine for driving on expired plates is less than for criminal trespass in X county. Nor is it to advocate illegal activity to suggest that towing the car might be an option, even though the local municipality purports to ban tow trucks, on the grounds that hypothetically state law clearly pre-empts local regulation of tow trucks, and thus the local statute is an illegal and unenforcable statute, and thus, not a valid law. thats called a legal analysis.

 

Advocating an illegal act would be, for instance, suggesting we all hang the governor of a given state for treason without a trial. That would be advocating murder, an illegal act, and thus, not allowed under the code of conduct. But worlds different than the above.

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As to the code of conduct, I think it important to note that there is a fundamental difference in advocating illegal conduct, and discussing the practical effect of a given course of conduct and given options in a given scenario. Also, to suggest that something is legitimately unconstitutional is to also suggest it is not the law, as an unconstitutional statute is not and never has been the law, thus, to advocate the ignoring of an obviously unconstitutional statute is not to advocate violating the law. This does not take a law degree to understand.

 

For instance, if your car is illegally parked on another's property (i.e. criminal trespass), and it has an expired license plate (so you cannot legally drive it on the road), it is not to advocate breaking the law to explain that the fine for driving on expired plates is less than for criminal trespass in X county. Nor is it to advocate illegal activity to suggest that towing the car might be an option, even though the local municipality purports to ban tow trucks, on the grounds that hypothetically state law clearly pre-empts local regulation of tow trucks, and thus the local statute is an illegal and unenforcable statute, and thus, not a valid law. thats called a legal analysis.

 

Advocating an illegal act would be, for instance, suggesting we all hang the governor of a given state for treason without a trial. That would be advocating murder, an illegal act, and thus, not allowed under the code of conduct. But worlds different than the above.

 

Not only could it be a misdemeanor to not submit the firearm disposition form, I have been informed by the ISP they refuse to process a FOID appeal until the form is submitted. I believe it is perfectly acceptable for someone to place their firearms in the care of someone with a FOID card, fill out the form stating "I have no firearms or ammunition in my possession" and submit it. Without the disposition form on file with the appeal, the appeal will not be processed by ISP, at least that has been our experience to date.

 

As to our code of conduct about not openly advocating breaking the law, being an attorney your interpretation may vary, but let me clarify our stance. We do not advocate putting members at risk by intentionally leading them to break the law, we advocate challenging the law in court with litigation.

 

We all knew the ban on carrying a firearm outside the home was unconstitutional, but we did not advocate members carry anyway and risk a felony conviction. We chose to challenge the law in court.

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"Could" it be a misdemeanor not to submit the form? Sure. Maybe. It could also be a misdemeanor to walk across the street outside of a crosswalk as well, maybe. Could it be a misdemeanor to run a red light? Yes, maybe. It could also be completely legal not to submit the form, to "jaywalk" and to run a red light, depending on the facts. I can give concrete examples of each which are legal, or illegal. To discuss these situations, and the effects of each is not to advocate for anything, it is to provide information for people to discuss with their own attorneys.

 

As currently written and interpreted by the State, it a FELONY to possess firearms with a suspended FOID card, even if you don't and can't know its suspended. Most of my suspended

Ask yourself, are you admitting a FELONY if you fill out the form in such a way as to show you possessed firearms whiles under suspension, and send it in. Answer: YES.

FOID clients have the letter from ISP as being their first notice that a Order of Protection case has even been filed.

 

Could that information on the disposition form be used against you. Yes, absolutely. I have tried many criminal cases where the statements of the defendant are played, read or shown to the jury.

 

Do U.S. Citizens have a right to remain silent and not incriminate themselves? Yes. These are the easiest criminal cases to win, where the client provides no information to the state.

 

Only a fool blindly sends in that form without discussing this issue with their own attorney.

 

It is my opinion (your mileage may vary), that for the exact same reason that the U.S. Supreme Court, in Haynes. v. US, (1968) declared the original National Firearms Act unconstitutional in 1968, ultimately leading to the 1968 NFA Amnesty, and about 58000 previously unregistered NFA firearms were registered tax free, the 5th Amendment provides, in my opinion, a complete defense to not sending it in, UNLESS, they amend the statute and, like the post 1968 NFA, provide immunity for those submitting the forms. They don't. That, of course, being a bigger gamble, as NFA violations were and are felonies, unlike not sending in the form, which I think we all agree, worst case, is a misdemeanor, and may well, depending on the facts, be legal. To point out this obvious issue is not to advocate anything, except to discuss the issue with counsel.

 

I concede that this is only my opinion, and I encourage others with legal problems to discuss this with their own licensed attorney before either sending in the form, or not. I am simply pointing out issues for people to discuss with their own attorneys, and by definition, people in this situation are already having legal problems, so this is something they should discuss with their attorney, which they should already have, and not be discussing their pending case on this page.

 

I also know for an absolute fact that ISP will, in fact, process an appeal without sending in the form, as I have done it for people literally dozens of times, and gotten them back their FOID card, usually faster than the current FOID processing times. So THAT is a non issue. the problem is that the ISP had not had a hearing officer appointed to hear administrative appeals since 2016, thus, the Chief of the FSB is basically deciding on an ad hoc basis whether to grant or deny the appeal, which is not computerized, simply dumped in manila folders, and if not immediately granted, basically sits there for years with nobody looking at it. They literally don't know how many appeals they have pending.

 

As to challenging it in civil court, pray tell ,how one gets STANDING to challenge this particular issue in court, without at least not sending in the form? This is the trap non-lawyers just don't get.

 

Prior to being charged, it will likely be considered premature, and a civil case dismissed. While a criminal case is pending, the civil case will likely be stayed, pending the criminal case. After the criminal case, if you win, the civil case will be moot, and dismissed. If you lose the criminal case, the civil one will be dismissed on res judicata grounds. If you send in the form, and then sue, case dismissed as moot or not standing again. Only way to really challenge it would be to have your FOID card suspended, not to send the form in, and then file a declaratory judgment action based on the threat of prosecution, which the state will claim is still premature, and a court might go either way. I've actually got one such civil case pending. Most non-attorneys do not understand the concept of standing. the only other way to challenge it is to be criminally prosecuted. Fortunately, as only a misdemeanor (not a felony) if you don't send in the form, and unforetunately, possibly a felony if you do, depending on the facts. Talk to your attorney.

 

Like in Lawrence v. Texas, dealing with homosexual sodomy, which overruled Bowers v. Hardwck, sometimes, often, as any lawyer will tell you, in non-first amendment cases, more often than not one has to actually break a law to challenge it in court, or show some remedy a court can give in a concrete manner, of the court will dismiss it as advisory, right or wrong, thats the way it is. In Lawrence, it took criminal homosexual sodomy being criminally charged to challenge the statute. People tried for literally years in civil court, always dismissed for lack of standing. For instance, in DC v. Heller, Mr. Heller was sueing to force DC to register his firearm. Concrete results. Same in McDonald v Chicago. Had DC and Chicago not required handgun registration, likely the only way to challenge those would be in criminal court, after violating those illegal statutes, otherwise those cases would have been dismissed as advisory or premature. Welcome to real litigation.

 

Shepard v. Madigan was a fluke, one many scholars think was intended to provoke the Supreme Court into reversing it, on the basis on lack standing, which was a very probably outcome if SCOTUS took it, as Shapard was not charged with violating any statute, was not seeking to compel issuance of a license, or to register a gun under an existing licensing or registration regime. But SCOTUS did not bite on it. I do appreciate the case, but note that the State was still prosecuting people for violating the no-issue CCW IL statute, until the IL Supreme Court put an end to it, in an actual criminal prosecution case. Until them, the IL AG did not consider the 7th Cir. Case binding.

 

Again, I encourage people to discuss this matters with their own attorneys, but, pray tell, how do you challenge this issue in court without not sending the form in?

 

I'll just close with this, and post no more on the issue on this subpage, no matter what anyone says or asks. If they want to PM me, fine.

 

As a general proposition, I generally advise people to avoid felonies at all costs short of immediate loss of life or serious bodily injury (which may allow a "necessity defense"), even if it results in questionable misdemeanors that one has a good chance of being acquitted on.

 

Both in my law practice, and in my CCW classes I teach, I also explain that, at times, it may be better to risk a questionable misdemeanor charge, which can be legally fought, and even if found guilty, one is usually simply fined, than to be killed, maimed or raped ... the same as doctors often suggest removing cancerous lumps followed by chemotherapy, instead of death or losing a limb, lung, or the like.

 

Some person's risk tolerance is greater than others. Some women cut their breasts off to avoid the risk of breast cancer. Some get a lot of mammograms. Ones personal situation may make either, or neither, a good idea. But its best to be informed of both, and the reasons why.

 

Hence, the reason that, I always tell people to discuss their particular circumstances with their own attorneys.

 

If it is the policy of this board that one cannot discuss real world ramifications of given conduct, then I will comply, as this is a private board, and the first amendment does not apply as to your internal rules, no matter how poorly conceived or interpreted.

 

But when you impose that rule, you might want to also make clear that nobody is allowed to ask a legal question or give a legal answer, no matter how basic or obvious, much of which, what I read from other people, is just plain wrong.

 

Instead, you can simply tell everybody that all gun possession is always illegal, and that all persons should surrender all firearms to the police, as with the something like 20,000 different firearms laws on the books, its literally impossible to always not violate one. I guarantee that every person on this site has violated some firearm statute at some time, unless they just have never bought or possessed firearms or ammunition.

 

By the same token, we might as well all surrender to the police right now, as I remember in law school, a project of a class-mate that actually showed it was literally impossible to not technically commit about 5 felonies a week, and to live a semi normal life. And I believe that is true. All be can do is try to minimize it, and hopefully not walk into a felony that might draw unwanted attention.

 

Any while I never suggested that anyone else do it, I did, when I thought necessary, carry concealed firearms in IL years before getting an IL CCW, and did always carry a pistol to Chicago, when I had to go there, prior to it being "legal" knowing the risks and benefits of same. It turns out that all of these "statutes" I "violated" were indeed unconstitutional, and thus null and void. The fact that I personally did it, or discussed the pros, cons and ramifications of same, is not to "advocate" anything, under any plain language meaning of the word, if it simply to take my own risks with myself, and to provide education of costs, benefits and risks to others.

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