54 replies to this topic

[pyre400]

A good acquaintance/friend of mine, whom I'd met on IC, has made me aware of an opinion that will be out this week.

I recall reading of this case on this site, but I regret that I've not been able to find the original post. Mods, please feel free to merge if you have better luck.

Here are the oral arguments from Nov '10:
audio video

This case seems to test many issues that are of great interest to us:
The AUUW statute, the FOID-Act, license reciprocity, and the diggins "case definition".

The opinion should be available here on Thursday, but this link to the pdf may work after Thursday.

I also want to add that this information came from a good source, but that someone no longer posts here... Its a bummer too...
Its not my intention to point fingers at any individual(s) - as John says, we're all friends here.
I just wanted to let some of our headstrong friends (I include myself in this category) that when you sense your wheels spinning in a thread, just shut'r down...
Not every pull is a full pull, and its ok to disagree without getting pi$$ed off... Besides there's enough "stuff" going on now days, that most topics seem to have a very short "shelf life" anyway.

[TTIN]

I got a solution for 'em....do away with the FOID act.

[pyre400]

TTIN, on 05 April 2011 - 09:54 PM, said:

I got a solution for 'em....do away with the FOID act.

I was thinking those same thoughts, while listening to the arguments.

At the very least, we'll see how diggins tests out... Hopefully that will not matter with the passage of 148.

[TomKoz]

IMHO, as a layman, this seems like a slam-dunk case in favor of Holmes and ALL gun owners!!!!!

[Tvandermyde]

Does someone have a copy ofmthe appealate decision

[pyre400]

Tvandermyde, on 06 April 2011 - 09:18 AM, said:

Does someone have a copy ofmthe appealate decision

I dont think it was published.

[pyre400]

Here's the anticipated opinion announcement: http://www.state.il....Antop040711.pdf

[bob]

I tried to listen to the oral arguments but quickly lost interest. You would think an experienced appellate attorney could at the very least make a cogent argument about the facts. This one just danced around a bit and never really bothered to make an argument at all. I hope her written stuff made more sense or the guy is doomed.  Are the briefs available somewhere?

It appears like Diggins will deal with the first count. It's interesting that from the evidence it is unclear if the gun was loaded or not. That tells you a lot. It seems most likely this was another CPD setup. NEVER trust any cop. They are not your friends. They serve an important and useful function in society, but that does not mean they will not screw you over if they get a chance.  Getting a felony conviction so some copper can get a few brownie points is not in your best interest.  

Her attempt to equate the FOID card with an out of state LTC is not likely to go anywhere IMO. It just does not seem relevant to the case at hand.

[Tvandermyde]

I am at the court

Opinion delivered, both counts tossed out UUW act must be read in tandem with the FOID act

More to follow as i read

Both appelate qnd trail courts reversed and remanded since conflicting evidense asnto ifnthe back seat console was closed



Back seat armrest  which containedna cover and latch falls within the meaning of case

[pyre400]

bob, on 07 April 2011 - 06:28 AM, said:

Her attempt to equate the FOID card with an out of state LTC is not likely to go anywhere IMO. It just does not seem relevant to the case at hand.

Later on in the argument the state's attorney was asked if there are other records of out of state licensure being recognized by the state of IL. Her response was out of state driver's licenses... Whether that's telling or not, who knows, but it was interesting to me. One other thing was how the justice asked the SA if it seemed absurd that the law says anyone with a gun MUST have a foid, yet a core requirement for the foid is residence.

The opinion should be posted later today, or tomorrow at the latest.

[Tvandermyde]

my typing from my ipad when in a hurry sucks


My language about only having been issued a FOID is upheld for UUW statute.

Remanded for the isues of misdemeanor uuw as to weather the gun was loaded and immediately accessible

Unanimous ruling w / special concurance by Justice Garman

Special concurance dives deeper into foid as it does not apply to non residents

Solid ruling vehicular compartments are cases

[pyre400]

Opinion link now works

ETA

Out of state, non-foid transport....

<snip>
Reading these statutes together, as we must, we find that the
exception identified in section 2( b )( 10 ) of the FOID Card Act can be
applied to the unlawful use of weapons statute and, therefore, a valid
permit or license from another state can substitute for the FOID card
requirement in section 24–1.6. Accordingly, we hold that the
exception contained in section 2( b )( 10 ) must be incorporated in the
unlawful use of weapons act.
</snip>


"Console transport....

<snip>
Because the firearm was enclosed in a case, the State failed to
prove every element of the offense of aggravated unlawful use of a
weapon as outlined in section 24–1.6(a)(1)(3)(A). Accordingly, a
conviction for aggravated unlawful use of a weapon, as charged in
count I, cannot stand.
</snip>

[TTIN]

So do we have to have our FOID on us when we have a firearm and/or ammo in our possession? Or does the FOID only have to be issued to us?

[pyre400]

TTIN, on 07 April 2011 - 01:46 PM, said:

So do we have to have our FOID on us when we have a firearm and/or ammo in our possession? Or does the FOID only have to be issued to us?

Disclaimer: I'm not a lawyer, and the following should not be considered legal advice...

I've always understood that you are to always have a foid whenever in possession of a firearm or ammo - whether that be transporting, or in your home. I've even heard of extreme cases where if a firearm is left out at a home, and resident (non-foid holder) of the household is the only one present - that the non-foid holder would be in violation of the law. Someone with more chops can verify, but that's what I understand... Always keep your "stuff" locked up.

[Tvandermyde]

two different issues.

you need only to have been issued a FOID to take advantage of the UUW expemptions.

Not having a FOID on your person is a seperate violation under the FOID act

[TTIN]

Thanks Todd,I knew you'd have the straight skinny.

[Davey]

Can someone explain in plain english what happened here?  Is the guy conviction free now, will there be a retrial?

I understand what the issue was but not the opinion.

[Tvandermyde]

The felonies were tossed out. The case was sent back to the trial court for consideration on the misdemeanor charge of uuw. If smart, but they aint, they would drop the case

[lilguy]

How does this effect RTC in Ill? Does this change anything for Ill.FOID holders or is this for out of state visitors?

[Gary]

lilguy, on 07 April 2011 - 05:22 PM, said:

How does this effect RTC in Ill? Does this change anything for Ill.FOID holders or is this for out of state visitors?

It reaffirms Diggins.  A compartment that is a part of the vehicle (a console)is a case or container as required in Article 24.
(I am not a lawyer )

[Uncle Harley]

bob, on 07 April 2011 - 06:28 AM, said:

I tried to listen to the oral arguments but quickly lost interest. You would think an experienced appellate attorney could at the very least make a cogent argument about the facts. This one just danced around a bit and never really bothered to make an argument at all. I hope her written stuff made more sense or the guy is doomed.  Are the briefs available somewhere?

It appears like Diggins will deal with the first count. It's interesting that from the evidence it is unclear if the gun was loaded or not. That tells you a lot. It seems most likely this was another CPD setup. NEVER trust any cop. They are not your friends. They serve an important and useful function in society, but that does not mean they will not screw you over if they get a chance.  Getting a felony conviction so some copper can get a few brownie points is not in your best interest.  

Her attempt to equate the FOID card with an out of state LTC is not likely to go anywhere IMO. It just does not seem relevant to the case at hand.

I think this should be edited to never trust a CHICAGO COP  LOL  I have plenty of cop friends  here  downstate.

[pyre400]

Uncle Harley, on 07 April 2011 - 10:46 PM, said:

I think this should be edited to never trust a CHICAGO COP LOL I have plenty of cop friends here downstate.

Trust a cop? Well, nobody has a higher stake in your best interests than you do. An officer is almost always going to side with the law - its their job.
This is nothing new, and its why we have the 4th, 5th, and 6th amendments...

That being said, I know quite a few LEO's, have one in my family - its a thankless job, where you get exposed to more of the negative examples of man. The majority of police out there have my absolute respect.

[junglebob]

Tvandermyde, on 07 April 2011 - 02:13 PM, said:

two different issues.

you need only to have been issued a FOID to take advantage of the UUW expemptions.

Not having a FOID on your person is a seperate violation under the FOID act

Todd, is not having the FOID in your possession, though issued it, a misdeamenor or what?  I had my wife get a FOID card, though she doesn't own any firearms just in case she was ever stopped and ammo was found in the car.  Her FOID is now expired and she's waiting on the new one.  Now I have to be sure not to leave any in the car.

[Drylok]

Do the dumb asses that charged him even know that not only is a non resident not required to have a foid, they couldn't get one even if they wanted???

[THE KING]

Drylok, on 08 April 2011 - 08:01 AM, said:

Do the dumb asses that charged him even know that not only is a non resident not required to have a foid, they couldn't get one even if they wanted???

Apparently not.

What also surprised me after reading the written opinion, is that the Justices make no mention that a non-resident can't acquire a FOID card either.  

[pyre400]

THE KING, on 08 April 2011 - 08:33 AM, said:

Drylok, on 08 April 2011 - 08:01 AM, said:

Do the dumb asses that charged him even know that not only is a non resident not required to have a foid, they couldn't get one even if they wanted???

Apparently not.

What also surprised me after reading the written opinion, is that the Justices make no mention that a non-resident can't acquire a FOID card either.

I could be wrong, but I think its implied via the references to code/statute. If I recall correctly, it was covered during the oral arguments, and was termed as "absurd". The opinion states that an out of state license will substitute for a foid.

[Druid]

http://isra.org/vic_...lmes_case.shtml

and

http://www.state.il....pril/109130.pdf

[ishmo]

Druid, on 08 April 2011 - 10:48 AM, said:

http://isra.org/vic_...lmes_case.shtml

and

http://www.state.il....pril/109130.pdf

I wonder how Osterman is going to justify the new language in HB3634 with 2 IL Supreme Court decisions on the definition of a case on the record. It will be even more interesting to see if the House tries to overturn the judiciary decisions by passing this bill.

[defaultdotxbe]

ah, BACKSEAT console, i was wondering how this case was any different from Diggins

kindof sad that the SC is needed to make these points

[lockman]

ishmo, on 08 April 2011 - 11:33 AM, said:

Druid, on 08 April 2011 - 10:48 AM, said:

http://isra.org/vic_...lmes_case.shtml

and

http://www.state.il....pril/109130.pdf

I wonder how Osterman is going to justify the new language in HB3634 with 2 IL Supreme Court decisions on the definition of a case on the record. It will be even more interesting to see if the House tries to overturn the judiciary decisions by passing this bill.

Osterman would not have to justify anything. His legislative change would render the Illinois Supreme Court decision moot concerning what constitutes a case.