54 replies to this topic

[Drylok]

lockman, on 08 April 2011 - 11:37 AM, said:

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.

Osterman is

[Tvandermyde]

Osterman and Cook County SA want to undo Diggins and Holmes.

[bob]

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.

They are not your friend when they are being cops. Just the way it is, and pretty much has to be.

I am sure there are a fair number of decent Chicago cops. But, you are right that the CPD as an organization is pretty dysfunctional and in bad shape. Not really any different than the city as a whole.

[bob]

pyre400, on 08 April 2011 - 08:48 AM, said:

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.

This is a goofy decision. There is some support for not being in violation of the FOID card act for non-residents who have a home state license. But the way it is worded would technically exclude Indiana licensees since Indiana does not license mere possession. However, being as the gun was supposedly unloaded, and encased, he should be covered based under clause (9).  The courts don't have any business making this stuff up as they go, but when there is a conflict in the law such as this case where one law says something is illegal and another says it is specifically OK, it would seem appropriate for the courts to decide how to interpret it.

Deciding an out-of-state license can be a substitute for a FOID card is a bit of a stretch though, despite it being a logical thing. It just does not say that in the law.

Quote

(430 ILCS 65/2) (from Ch. 38, par. 83‑2)
    Sec. 2. Firearm Owner's Identification Card required; exceptions.
    (a) (1) No person may acquire or possess any firearm,     stun gun, or taser within this State without having in his or her possession a Firearm Owner's Identification Card previously issued in his or her name by the Department of State Police under the provisions of this Act.(10) Nonresidents who are currently licensed or     registered to possess a firearm in their resident state;

[ishmo]

lockman, on 08 April 2011 - 11:37 AM, said:

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.

In the event this bill passes I hope the anti's reading the board use your opinion as a talking point. I understand what you're saying but I don't think the IL Supreme Court will overrule it's own prior decisions regarding the definition "case" based on Osterman changing a few words.

[pyre400]

bob, on 08 April 2011 - 06:24 PM, said:

This is a goofy decision. There is some support for not being in violation of the FOID card act for non-residents who have a home state license. But the way it is worded would technically exclude Indiana licensees since Indiana does not license mere possession. However, being as the gun was supposedly unloaded, and encased, he should be covered based under clause (9). The courts don't have any business making this stuff up as they go, but when there is a conflict in the law such as this case where one law says something is illegal and another says it is specifically OK, it would seem appropriate for the courts to decide how to interpret it.

Deciding an out-of-state license can be a substitute for a FOID card is a bit of a stretch though, despite it being a logical thing. It just does not say that in the law.

Quote

(430 ILCS 65/2) (from Ch. 38, par. 83‑2)
Sec. 2. Firearm Owner's Identification Card required; exceptions.
(a) (1) No person may acquire or possess any firearm, stun gun, or taser within this State without having in his or her possession a Firearm Owner's Identification Card previously issued in his or her name by the Department of State Police under the provisions of this Act.(10) Nonresidents who are currently licensed or registered to possess a firearm in their resident state;

Thanks Bob - I agree that IL's spaghetti law is just goofy... I also agree that the encased and unloaded applies to out of state...

But I think opinion was referring to the following when they spoke about out of state FOID exceptions:

(430 ILCS 65/2) said:

Sec. 2. Firearm Owner's Identification Card required; exceptions.
======
( b ) The provisions of this Section regarding the possession of firearms, firearm ammunition, stun guns, and tasers do not apply to:
======
(10) Nonresidents who are currently licensed or registered to possess a firearm in their resident state;

As I recall, an IN Carry Permit is required for handgun transport. Holmes was licensed to "carry" and therefore licensed to posses the firearm, within his resident state of IN.

[bob]

[quote name='pyre400' date='08 April 2011 - 08:45 PM' timestamp='1302313513' post='260442']
[quote name='bob' date='08 April 2011 - 07:24 PM' timestamp='1302308680' post='260418']
This is a goofy decision. There is some support for not being in violation of the FOID card act for non-residents who have a home state license. But the way it is worded would technically exclude Indiana licensees since Indiana does not license mere possession. However, being as the gun was supposedly unloaded, and encased, he should be covered based under clause (9). The courts don't have any business making this stuff up as they go, but when there is a conflict in the law such as this case where one law says something is illegal and another says it is specifically OK, it would seem appropriate for the courts to decide how to interpret it.

Deciding an out-of-state license can be a substitute for a FOID card is a bit of a stretch though, despite it being a logical thing. It just does not say that in the law.

[quote][size="2"](430 ILCS 65/2)[/size] [size="2"](from Ch. 38, par. 83‑2)[/size]
[size="2"]Sec. 2. [/size][size="2"]Firearm Owner's Identification Card required; exceptions. [/size]
[size="2"](a) (1) No person may acquire or possess any firearm, [/size][size="2"]stun gun, or taser within this State without having in his or her possession a Firearm Owner's Identification Card previously issued in his or her name by the Department of State Police under the provisions of this Act.[/size][size="2"](10) Nonresidents who are currently licensed or [/size][size="2"]registered to possess a firearm in their resident state;[/size][/quote]
[/quote]


Thanks Bob - I agree that IL's spaghetti law is just goofy... I also agree that the encased and unloaded applies to out of state...

But I think opinion was referring to the following when they spoke about out of state FOID exceptions:

[quote name='(430 ILCS 65/2) ']
Sec. 2. Firearm Owner's Identification Card required; exceptions.
======
b ) The provisions of this Section regarding the possession of firearms, firearm ammunition, stun guns, and tasers do not apply to:
======
(10) Nonresidents who are currently licensed or registered to possess a firearm in their resident state;

[/quote]

As I recall, an IN Carry Permit is required for handgun transport. Holmes was licensed to "carry" and therefore to posses the firearm, within his resident state of IN.
[/quote]

Carry is not the same thing as possess.

[pyre400]

bob, on 08 April 2011 - 07:47 PM, said:

Carry is not the same thing as possess.

But how may you transport without having possession? And how can you be licensed to carry, without being able to lawfully own/posses a firearm?

[junglebob]

defaultdotxbe, on 08 April 2011 - 11:36 AM, said:

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

There will probably be another case involving a guy from another state without a LTC transporting a gun in a console and the state supreme court will have to rule again.  Were they saying because he was from Indiana that he had to have a LTC to transport in Illinois, since it is required in Indiana?

[richp]

Hi,

And what about folks from states where no license is required to possess or carry?

On the face of it, this was a stupid case for authorities to pursue from the start. Something else must have been going on...

FWIW.

Rich Phillips

[THE KING]

Richp4797, on 09 April 2011 - 01:10 PM, said:

Hi,

And what about folks from states where no license is required to possess or carry?On the face of it, this was a stupid case for authorities to pursue from the start. Something else must have been going on...

FWIW.

Rich Phillips

Well, I would guesss they would have to defer back to the Constitution !!

You know, that funny little document that recognizes the "Right to Keep and Bear arms"

[TomKoz]

THE KING, on 09 April 2011 - 01:28 PM, said:

Richp4797, on 09 April 2011 - 01:10 PM, said:

Hi,

And what about folks from states where no license is required to possess or carry?On the face of it, this was a stupid case for authorities to pursue from the start. Something else must have been going on...

FWIW.

Rich Phillips

Well, I would guesss they would have to defer back to the Constitution !!

You know, that funny little document that recognizes the "Right to Keep and Bear arms"

Yes THAT one.  The one the Federal government (Executive &  Legislative branches) have been stepping on and disregarding for umpteen decades!!!

[pyre400]

TomKoz, on 09 April 2011 - 02:05 PM, said:

Yes THAT one. The one the Federal government (Executive & Legislative branches) have been stepping on and disregarding for umpteen decades!!!

It would be nice if voters would throw out ANYONE who does not uphold their oath to the constitution. There should be severe penalties for not doing so.

If you dont obey the law - you go to jail. The US Constitution is the Supreme Law of the Land - if these fools in Washington disobey, they should be thrown in prison as well (or perhaps worse depending on the violation and the circumstances).

[TomKoz]

[quote name='pyre400' date='09 April 2011 - 03:50 PM' timestamp='1302382248' post='260556']
[quote name='TomKoz' date='09 April 2011 - 03:05 PM' timestamp='1302379510' post='260555']
Yes THAT one. The one the Federal government (Executive & Legislative branches) have been stepping on and disregarding for umpteen decades!!!
[/quote]

It would be nice if voters would throw out ANYONE who does not uphold their oath to the constitution. There should be severe penalties for not doing so.

If you dont obey the law - you go to jail. The US Constitution is the Supreme Law of the Land - if these fools in Washington disobey, they should be thrown in prison as well (or perhaps worse depending on the violation and the circumstances).
[/quote


Yes,  and let's start at the VERY top!

[lockman]

Richp4797, on 09 April 2011 - 01:10 PM, said:

Hi,

And what about folks from states where no license is required to possess or carry?

On the face of it, this was a stupid case for authorities to pursue from the start. Something else must have been going on...

FWIW.

Rich Phillips

After all, this is the Cook County States Attorney's office.

[Tvandermyde]

Guys --

hold up a minute. The defense argued that Holems should get an exmption from the AG UUW becuase of section 2((10) of the FOid act whcih reads:

In a special cuncurring opinion Justice Garman went farther in looking at the FOID card. She said:

"Any nonresident whose firearm is “unloaded and enclosed in a case” generally. 430 ILCS 65/2(a)(9) (West 2008). The plain language of these exceptions indicates a legislative intent to allow nonresidents to possess a firearm in Illinois whenever the weapon is unloaded and enclosed in a case without requiring them to have an Illinois FOID card."

The whole court only looked at the arguements made by defens and once they reached their conclusion there, need not go any farther. However, I think it is important to note that this was a unanimous decision with Justice Garmen going further and putting some people on notice. I see here has taking up the whole thing about non-residents being treated differently and trying to stomp on it.

So the best advise is get a lawyer that knows somehting about firearms law and how to argue it. Had I known about this, I would have had several different arguements, so there were many on appeal. Not raising them forfiets them later in the game. I also would have raised a Heller defense post 2008 since this was still in the process. But you need to find a firearms type criminal guy  and Keep his name and number handy.

5 years is a long time to be hung up on a felony for following the law. Not to mention the cash it cost.

However, NRA has told me, we see any more of these types of prosecutions, where we can show it was a legit transport, 1983 is the word of the day in Cook County. And maybe even ARDC complaints against the prosecutors that fail to dissmiss.

[THE KING]

THE KING, on 09 April 2011 - 01:28 PM, said:

Richp4797, on 09 April 2011 - 01:10 PM, said:

Hi,

And what about folks from states where no license is required to possess or carry?On the face of it, this was a stupid case for authorities to pursue from the start. Something else must have been going on...

FWIW.

Rich Phillips

Well, I would guesss they would have to defer back to the Constitution !!

You know, that funny little document that recognizes the "Right to Keep and Bear arms"

Hey Todd

I don't think anyone here is upset with the judges in this case. I believe it's great that they came to the proper conclusion and did it unanimously. Your right, Justice Garman went above and beyond and that is perfect.

But as Richp4797 asked in his previous post that I bolded and I will give somewhat of a situation here. What if a resident say from Arizona comes to Illinois possessing his firearm and is transporting in accordance with the ILCS, ( unloaded and enclosed in a case ) and he does not have a permit from his home state, ( again he can't get a FOID from Illinois ) seeing as they are Constitutional Carry. Where and how does that affect him or anyone else that may be in the same boat.

He is following the laws of his state ( Arizona ) which DOES NOT require him to have a permit. Hence, his permit / license for a lack of better terms, is the CONSTITUTION.  

Now how would someone make this argument !!

[Tvandermyde]

they can still transport a gun unloaded and enclosed in a case. The whole part about being licensed in their home state was a FU by Jim Valentino in one of his great brain farts.

The statute is clear with the exemptions for transport. Don't confuse transport with carry. And remember we are one of three states that has a licensing scheme like the FOID, so it was written from a backwards conception that others would do the same.

(430 ILCS 65/2) (from Ch. 38, par. 83‑2)
    Sec. 2. Firearm Owner's Identification Card required; exceptions.
( The provisions of this Section regarding the possession of firearms, firearm ammunition, stun guns, and tasers do not apply to:
(5) Nonresident hunters during hunting season, with     valid nonresident hunting licenses and while in an area where hunting is permitted; however, at all other times and in all other places these persons must have their firearms unloaded and enclosed in a case;(8) Nonresidents while at a firearm showing or     display recognized by the Department of State Police; however, at all other times and in all other places these persons must have their firearms unloaded and enclosed in a case;        (10) Nonresidents who are currently licensed or     <DIV align=justify>registered to possess a firearm in their resident state;

[junglebob]

defaultdotxbe, on 08 April 2011 - 11:36 AM, said:

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

Since it went to the supreme court I assume that he must have been found guilty by a lower court.  If this is true even with the Diggins decision some lower court judges can't get the law right.

[Tvandermyde]

this case is from 2005 so Diggins much less Heller we not even decided yet.

[Sigma]

seem like all of our victories will have to come through the courts

[Tvandermyde]

Sigma, on 09 April 2011 - 08:34 PM, said:

seem like all of our victories will have to come through the courts

Yes and No. I take a bit of pride with the Court recognising the language I put into the UUW and AGUUW statute of ISSUED. prior to that is was possesed. I never liked the idea of getting in trouble cuase I forgot my wallet and had something in the truck.

We write good statutes, but asswipe political people try to twist them into somehting they are not. Take the idea that only an Illinois resident could transport a gun unloaded and in a case, while the same conduct would get a non-resident a felony under AGUUW while it is clearly mentioned in the FOID statute.

I will admit to a bit of a screw up as it should have been at the beginnngof the three parts not the end, but that was being to close to it and having looked at it for months when the lawyers for the House did the final draft.

So if people like the Cook County SA followed the law, never mind the consitution, just the Illinois law, then life would be a bit easier. But we have to go to court to prove a point or wait till some poor guy gets nailed.

The good news is the turn of events now clearly shows that like Horstman, if you transport a gun unloaded and enclsed in a case, and they pop you, they got a 1983 action coming their way. And as I have talekd with NRA counsel, we will seek to file ARDC complaints against the prosecutor if their is clear evidense that no charges should have been brought.

I think we are going to kick it up a notch on them once session is over. Hell I may go sit at 26th & cal and watch the gun court for a few days. Just to see what happens.

[Gary]

Tvandermyde, on 09 April 2011 - 09:16 PM, said:

Sigma, on 09 April 2011 - 08:34 PM, said:

seem like all of our victories will have to come through the courts

Yes and No. I take a bit of pride with the Court recognising the language I put into the UUW and AGUUW statute of ISSUED. prior to that is was possesed. I never liked the idea of getting in trouble cuase I forgot my wallet and had something in the truck.

We write good statutes, but asswipe political people try to twist them into somehting they are not. Take the idea that only an Illinois resident could transport a gun unloaded and in a case, while the same conduct would get a non-resident a felony under AGUUW while it is clearly mentioned in the FOID statute.

I will admit to a bit of a screw up as it should have been at the beginnngof the three parts not the end, but that was being to close to it and having looked at it for months when the lawyers for the House did the final draft.

So if people like the Cook County SA followed the law, never mind the consitution, just the Illinois law, then life would be a bit easier. But we have to go to court to prove a point or wait till some poor guy gets nailed.

The good news is the turn of events now clearly shows that like Horstman, if you transport a gun unloaded and enclsed in a case, and they pop you, they got a 1983 action coming their way. And as I have talekd with NRA counsel, we will seek to file ARDC complaints against the prosecutor if their is clear evidense that no charges should have been brought.

I think we are going to kick it up a notch on them once session is over. Hell I may go sit at 26th & cal and watch the gun court for a few days. Just to see what happens.

Dern!
You can't see me, of course, but I just stood up and gave you a standing ovation.
I like that attitude.  (A lot)

[Federal Farmer]

Tvandermyde, on 09 April 2011 - 09:16 PM, said:

The good news is the turn of events now clearly shows that like Horstman, if you transport a gun unloaded and enclsed in a case, and they pop you, they got a 1983 action coming their way. And as I have talekd with NRA counsel, we will seek to file ARDC complaints against the prosecutor if their is clear evidense that no charges should have been brought.

I've heard anecdotally that lawyers don't like having the ARDC sicced on them.  My buddy runs a business and over the years he's had several customers who were lawyers get all "I'm a lawyer so..." and he mentions the ARDC and they shut up.

[defaultdotxbe]

Tvandermyde, on 09 April 2011 - 09:16 PM, said:

Yes and No. I take a bit of pride with the Court recognising the language I put into the UUW and AGUUW statute of ISSUED. prior to that is was possesed. I never liked the idea of getting in trouble cuase I forgot my wallet and had something in the truck.

We write good statutes, but asswipe political people try to twist them into somehting they are not. Take the idea that only an Illinois resident could transport a gun unloaded and in a case, while the same conduct would get a non-resident a felony under AGUUW while it is clearly mentioned in the FOID statute.

well thats one of the reasons we have 3 branches of government, legislative to make them, executive to enforce them, and judicial to interpret them, so when mistakes happen (after all, we are only human) the same mistake has to be made 3 times

theres a bill in the assembly now dealing with possession of stolen firearms, from reading the current law, it seems that possession of less than 30 stolen firearms is one kind of offense, while possession of more than 31 is another. technically, this means that possession of exactly 31 stolen firearms is not defined as offense (31 is not "less than 30" nor "more than 31") so legislation will change that from "more than 31" to "31 or more"

i dont know if this has become an issue at all, but my point is people make mistakes, and there is no shortages of people who intend to exploit those mistakes

junglebob, on 09 April 2011 - 08:10 PM, said:

defaultdotxbe, on 08 April 2011 - 11:36 AM, said:

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

Since it went to the supreme court I assume that he must have been found guilty by a lower court.  If this is true even with the Diggins decision some lower court judges can't get the law right.

yeah, i know he must have been convicted in a lower court, thats one of the reasons i find it sad the supreme court had to make the decision

although todd pointed out the original conviction predated diggins, so my point is somewhat moot