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People v. Brown - FOID ruled unconstituional in IL District Court


Molly B.

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On 8/3/2022 at 12:39 AM, Euler said:

We can only speculate, but ...

 

IL Supreme Court justices are elected.

Justices need the support of their political party.

Firearms are a sensitive topic.

It's an election year.

Punting is easy.

I think it's more than that. From any honest perspective the FOID Act is unconstitutional, but they don't want to strike it down, and under no circumstance will they do so unless a higher court steps in (or the issue is decided by the Seventh Circuit).

 

Striking down Cook County's AWB, for example, is one thing. Getting rid of the FOID would be an entirely different matter altogether, and one that would prove to be an even bigger loss for the gun control movement than any one county-level AWB.

Edited by MrTriple
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On 8/3/2022 at 10:21 AM, MrTriple said:

I think it's more than that. From any honest perspective the FOID Act is unconstitutional, but they don't want to strike it down, and under no circumstance will they do so unless a higher court steps in (or the issue is decided by the Seventh Circuit).

 

Striking down Cook County's AWB, for example, is one thing. Getting rid of the FOID would be an entirely different matter altogether, and one that would prove to be an even bigger loss for the gun control movement than any one county-level AWB.

 

The Illinois Supreme Court is the highest court in the state, which has indeed previously ruled on state arms prohibitions being unconstitutional. People v Webb (stun guns/tasers) comes to mind.

 

The only place to go with this case after the Illinois Supreme Court is the US Supreme Court. Since the IL Supreme Court keeps remanding, it's not upholding a conviction, which means Brown has nothing to appeal to the US Supreme Court. In fact, it's quite the opposite. The IL Supreme Court keeps directing the county court to dismiss the charges, saying there are (unspecified) grounds to do so.

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On 8/3/2022 at 11:47 AM, Euler said:

 

The Illinois Supreme Court is the highest court in the state, which has indeed previously ruled on state arms prohibitions being unconstitutional. People v Webb (stun guns/tasers) comes to mind.

 

The only place to go with this case after the Illinois Supreme Court is the US Supreme Court. Since the IL Supreme Court keeps remanding, it's not upholding a conviction, which means Brown has nothing to appeal to the US Supreme Court. In fact, it's quite the opposite. The IL Supreme Court keeps directing the county court to dismiss the charges, saying there are (unspecified) grounds to do so.

How can we hold them accountable and get the case in front of a court willing to answer?

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On 8/3/2022 at 10:16 AM, Jeffrey said:

How can we hold them accountable and get the case in front of a court willing to answer?

 

If the ILSC and district court keep bouncing the case between them repeatedly, I'm wondering how that is not a denial of due process by needlessly delaying the judgment.   

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On 8/3/2022 at 1:16 PM, Jeffrey said:

How can we hold them accountable and get the case in front of a court willing to answer?

 

For this case, if the county court finds her guilty, and the appeals court upholds, then the supreme court would have to put up or shut up on why the case should be dismissed. I'm not convinced that would go well, although an upheld conviction could be the basis for a civil suit in federal district court on the constitutionality of the FOID (or any licensure of a right). It would be irresponsible (like totally disbar-able) of the defense to try to get a conviction, though.

 

Edited by Euler
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On 8/3/2022 at 1:49 PM, mab22 said:

So maybe this is where Bruen comes in and the ILSC just caves, because the higher court already said so, it’s out of their hands then?
ILSC blames it on SCOTUS. 
 

That's where my head was going.  The Bruen case needs to be held high to all these municipalities attempting to unconstitutionally revoke our rights.  They need to get nervous over the idea they could be sued later.

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On 8/3/2022 at 1:40 PM, Euler said:

For this case, if the county court finds her guilty ...

On 8/3/2022 at 3:23 PM, Black Flag said:

Will they do that?

 

Based on the law as written, she's guilty, but the county court has ruled twice that the law is unconstitutional. The second time that the county court ruled, it ruled despite the IL Supreme Court directing it simply to dismiss the case. It will be interesting to see what procedural twist the county court dreams up for round #3.

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On 8/3/2022 at 11:47 AM, Euler said:

 

The Illinois Supreme Court is the highest court in the state, which has indeed previously ruled on state arms prohibitions being unconstitutional. People v Webb (stun guns/tasers) comes to mind.

 

The only place to go with this case after the Illinois Supreme Court is the US Supreme Court. Since the IL Supreme Court keeps remanding, it's not upholding a conviction, which means Brown has nothing to appeal to the US Supreme Court. In fact, it's quite the opposite. The IL Supreme Court keeps directing the county court to dismiss the charges, saying there are (unspecified) grounds to do so.

Part of the problem, is that the state won’t give up and drop the charges against brown. They don’t want the case dismissed. In once instance their the ones that appealed one decision.

 

The case would end and be over if the state dropped the charges. Their failure to do so is leaving the district court in a tough place

 

The district court refuses to convict. The state AG refuses to drop the charges.


I think there are only two ways for this (FOID act) someone to file a cival lawsuit to challenge the constitutionality of the FOID act. Or for the court to find Brown guilty and let brown appeal. So that the higher courts either have to uphold the conviction, or reverse based on constitutionality, thus backing the IL Supreme Court into a corner making them uphold the conviction or reverse it.

 

The way it’s going now. The Supreme Court keeps remanding.

 

One other thing is certain. Because this is an election year, they don’t want to rule on the constitutionality of the FOID act, or provide a means for it to go to SCOTUS.

 

I am actually surprised the GOA or FPC or NRA hasn’t stepped up to support a lawsuit to overturn the FOID. 

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On 8/3/2022 at 6:46 PM, Euler said:

 

Based on the law as written, she's guilty, but the county court has ruled twice that the law is unconstitutional. The second time that the county court ruled, it ruled despite the IL Supreme Court directing it simply to dismiss the case. It will be interesting to see what procedural twist the county court dreams up for round #3.


One option is go to trial, and let the jury find her guilty. Then she can appeal. As long as the appeals court and IL Supreme Court uphold the conviction then she can take it to SCOTUS.

 

However…. IL SC could still vacate and remand.

 

It is a mess for sure. 
 

At this point the DA should request dismissal, and the court should grant.

 

This won’t be settled with Brown. Someone needs to file a cival suit. The ILSC refuses to rule one way or the other on the FOID.

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the issue is justices will arrive at a conclusion that does NOT involve a constitutional question if they can. Wilson was remanded due to procedural issues and avoided the 2A question. 

 

They shy away from constitutional rulings where they can becuase of the downstream effect the precedent could have

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So in the failed state of Illinois, lady Justice isn’t Blindfolded anymore, and she has extra weights on one side of the scale. If they can’t just say “this is unconstitutional”, regardless of the downstream effects of the ruling, the third branch of government is useless and we have become a banana republic. 

 

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  • 4 weeks later...

The new order has been written just as the IL Supreme Court ordered . . . interesting twists and turns.  As instructed by the Illinois Supreme Court, the circuit court in White County entered the order striking the FOID card requirement down on the theory of “impossibility of performance,” which is the notion that because one cannot possess their FOID card every single minute, and because they could get charged with possessing a firearm without a FOID card any time they are in a house with a firearm while not physically possessing a FOID card, the legislature must not have intended the FOID Card Act to apply in one’s home. Based on this, the case against Ms. Brown was dismissed. That Order is attached. And we understand the state has already filed an appeal.

ORDER of 9_1_2022.pdf

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The dismissal analyzes the elements of constructive possession, so the dismissal has implication for anyone in constructive possession of a firearm, not just a FOID-holder who doesn't have a FOID on their person at every moment (for example, a family member or house guest who does not have a FOID).

 

White County Court could have just said "dismissed as ordered" and left it at that, but it didn't.

 

The logic goes like this:

  • In one's own home, it's not possible to have a FOID on one's person all the time. There will necessarily be times when one sets the FOID aside. (Imagine showering or sleeping, although the order doesn't say that explicitly. As an aside, I freely admit that I am home alone ATM and that my FOID is in another room. I'm living wild! Woo-hoo! Come and take it, bro.)
  • Nevertheless, the firearm still exists in the home, the person knows it's in the home and where it is, the person has access to the weapon, and conceivably the person is the only such person. Thus the person is in constructive possession of the firearm, but does not have a FOID on their person. As written, such possession is a violation of the FOID Act.
  • Since such a violation is ridiculous, the law cannot apply to it. (Here's the leap.) Thus anyone in possession of a firearm in one's home does not need a FOID.

 

Since the supreme court ordered the county court to dismiss, the same order applies to the appeals court. If either the appeals court or the supreme court doesn't like the reason for the dismissal, they've got less room to wiggle out of giving a reason why they don't like it. It's White County's way of playing explain-like-I'm-five.

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On 9/2/2022 at 9:33 AM, Smallbore said:

I have trouble understanding legal semantics. When I leave on vacation do I not still physically possess my home?

...

 

If you leave on vacation, you still own your home, but you do not have essentially immediate access to it (and the things inside it).

 

Edited by Euler
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I had a local PD officer tell me one time that if I left my house - even sitting outside on the back deck, and police entered the house for some reason and my girlfriend was the only person present inside the house she could be arrested for possession of firearms without a FOID.   She would be considered in possession of the firearms.  

If I read the order correctly, I agree with it, and it is just more proof that the FOID needs a void. 

Edited by Dumak_from_arfcom
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On 9/2/2022 at 3:45 PM, Dumak_from_arfcom said:

I had a local PD officer tell me one time that if I left my house - even sitting outside on the back deck, and police entered the house for some reason and my girlfriend was the only person present inside the house she could be arrested for possession of firearms without a FOID.   She would be considered in possession of the firearms.  

If I read the order correctly, I agree with it, and it is just more proof that the FOID needs a void. 

 

People have always recommended that every adult in a house get a FOID for just that reason!

 

And it's not hearsay, I witnessed it happen first hand!  The charges were eventually dropped as the case progressed, but regardless the person was charged with 'constructive possession' of a firearm because it was in the same building, the firearm was legally mine, the flippin' bill of sale was still with it, it was in my area of the business in my desk drawer they even pulled mail out of that desk/drawer and took photos of it next to the firearm showing that they knew who's it was, yet they charged another at the business for possession and worse additional charges of possession for each and every bullet that was in the magazine. and the bullets left in the box of ammo that was next to it, 51 charges in total!

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On 9/2/2022 at 4:45 PM, Dumak_from_arfcom said:

I had a local PD officer tell me one time that if I left my house - even sitting outside on the back deck, and police entered the house for some reason and my girlfriend was the only person present inside the house she could be arrested for possession of firearms without a FOID.   She would be considered in possession of the firearms.  
... 

 

If she knew where it was and had access to it (i.e., it wasn't locked, etc.), the cop was right, until maybe now. Since the state is appealing, the case isn't settled.

 

The supreme court ordered the case dismissed, so whatever happens that part isn't going to change. I suspect the state is just trying to avoid precedent.

 

Edited by Euler
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On 9/2/2022 at 3:57 PM, Flynn said:

 

People have always recommended that every adult in a house get a FOID for just that reason!

 

And it's not hearsay, I witnessed it happen first hand!  The charges were eventually dropped as the case progressed, but regardless the person was charged with 'constructive possession' of a firearm because it was in the same building, the firearm was legally mine, the flippin' bill of sale was still with it, it was in my area of the business in my desk drawer they even pulled mail out of that desk/drawer and took photos of it next to the firearm showing that they knew who's it was, yet they charged another at the business for possession and worse additional charges of possession for each and every bullet that was in the magazine. and the bullets left in the box of ammo that was next to it, 51 charges in total!

My CCL Instructor told me a similar situation, as the story goes there was ammo in the car left behind by her husband, got into an accident or something and it was in the trunk and may have fallen out, either way the officer spotted it and she had no FOID so 1 charge each round. 
 

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I know someone they went into their house with a warrant and found a bunch of pot in bags ready for distribution (this was before pot was legal) and a gun. Misdemeanor charge for the pot and they told him he needed to get a FOID and that's it.  Dupage County unencorporated Glendale Heights (a pithole). I have a DEA agent friend involved he said if it wasn't over a pound SA wouldn't consider bothering with It.  This person I would have liked see go to jail.  

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On 9/2/2022 at 4:59 PM, Euler said:

...

The supreme court ordered the case dismissed, so whatever happens that part isn't going to change. I suspect the state is just trying to avoid precedent.

 

I've been reflecting on this case a bit more, specifically why the state would want to appeal the dismissal to keep it from setting precedent.

 

Of course, it could be asserted that Raoul and the Democratic Party of Illinois are gun-grabbing culture warriors. They need no logical reason to separate firearm owners from their firearms. But wait ...

 

Suppose this case sets precedent, making it apply to all people in Illinois who have firearms in their homes. Suppose some (or all) of those people get their FOIDs revoked. Currently revocation is the legal leverage to get firearms out of their possession. But if no one needs a FOID to keep firearms at home, then people who get their FOIDs revoked could conceivably continue to keep their firearms in their homes.

 

Keeping their firearms would be at odds with 430 ILCS 65/9.5, which requires people with revoked FOIDs to dispose of their firearms, but it might also mean the unravelling of Firearm Disposition Records. Instead of FOIDs vanishing with one stoke of a pen, it happens one sentence of the FOID Act at a time.

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On 9/2/2022 at 9:14 PM, Euler said:

Suppose this case sets precedent, making it apply to all people in Illinois who have firearms in their homes. Suppose some (or all) of those people get their FOIDs revoked. Currently revocation is the legal leverage to get firearms out of their possession. But if no one needs a FOID to keep firearms at home, then people who get their FOIDs revoked could conceivably continue to keep their firearms in their homes.

 

I agree any FOID related law would now be null and void inside the house, but other state or federal prohibitions outside of FOID would still be applicable.

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On 9/2/2022 at 10:43 PM, Flynn said:

I agree any FOID related law would now be null and void inside the house, but other state or federal prohibitions outside of FOID would still be applicable.

 

If someone is (or becomes) a prohibited person with a firearm, the state would take more action than send a revocation letter and wait for voluntary compliance. But sure, the reason for the revocation could have further implications.

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On 9/2/2022 at 10:27 PM, Euler said:

 

If someone is (or becomes) a prohibited person with a firearm, the state would take more action than send a revocation letter and wait for voluntary compliance. But sure, the reason for the revocation could have further implications.

 

Nah, they don't do anything just ask the plethora of people that get restraining orders or are convicted of felonies/domestic abuse, or even people out on bail that are prohibited, even with recent changes it's still basically an honors system for those people to dispose of their firearms.

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