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


Molly B.

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I curious about how the IL SC would rule on this situation. A mother has a FOID card and owns several firearms. Her son gets released from prison and is now a prohibited person. Mom leaves the house to get groceries and leaves the guns at home. The son is at the home. Is the son now constructively in possession of a firearm as a prohibited person and he is now committing a crime while he sits at home watching a football game?

 

I think this situation is where the constitutionality of the FOID card becomes really murky.

 

I'm not an attorney, but I envision this situation exists in many homes right now.

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I curious about how the IL SC would rule on this situation. A mother has a FOID card and owns several firearms. Her son gets released from prison and is now a prohibited person. Mom leaves the house to get groceries and leaves the guns at home. The son is at the home. Is the son now constructively in possession of a firearm as a prohibited person and he is now committing a crime while he sits at home watching a football game?

 

I think this situation is where the constitutionality of the FOID card becomes really murky.

 

I'm not an attorney, but I envision this situation exists in many homes right now.

As long as they are locked up in a way he doesn't have access to them it is fine. If she leaves one out he's taking a ride.

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I curious about how the IL SC would rule on this situation. A mother has a FOID card and owns several firearms. Her son gets released from prison and is now a prohibited person. Mom leaves the house to get groceries and leaves the guns at home. The son is at the home. Is the son now constructively in possession of a firearm as a prohibited person and he is now committing a crime while he sits at home watching a football game?

 

I think this situation is where the constitutionality of the FOID card becomes really murky.

 

I'm not an attorney, but I envision this situation exists in many homes right now.

As long as they are locked up in a way he doesn't have access to them it is fine. If she leaves one out he's taking a ride.

 

Being in the same household as a firearm is not in itself possession, locked up or not.

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I curious about how the IL SC would rule on this situation. A mother has a FOID card and owns several firearms. Her son gets released from prison and is now a prohibited person. Mom leaves the house to get groceries and leaves the guns at home. The son is at the home. Is the son now constructively in possession of a firearm as a prohibited person and he is now committing a crime while he sits at home watching a football game?

 

I think this situation is where the constitutionality of the FOID card becomes really murky.

 

I'm not an attorney, but I envision this situation exists in many homes right now.

As long as they are locked up in a way he doesn't have access to them it is fine. If she leaves one out he's taking a ride.

 

Being in the same household as a firearm is not in itself possession, locked up or not.

 

 

If he is the only resident of the house that is home he is in control of the house and its contents. Some states require that you know the firearm is there but I don't think Illinois is one of them.

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I curious about how the IL SC would rule on this situation. A mother has a FOID card and owns several firearms. Her son gets released from prison and is now a prohibited person. Mom leaves the house to get groceries and leaves the guns at home. The son is at the home. Is the son now constructively in possession of a firearm as a prohibited person and he is now committing a crime while he sits at home watching a football game?

 

I think this situation is where the constitutionality of the FOID card becomes really murky.

 

I'm not an attorney, but I envision this situation exists in many homes right now.

 

I actually have experience with this, they will likely charge the prohibited person with constructive possession if the firearm is in the same building and not locked away where said prohibited person couldn't readilly readily gain access. Same with any bullets at the location. In my case the individual was not only charged with constructive possession of my firearm they were also charged with of constructive possession for each and every bullet in the magazine and in the box of ammo in the drawer. And of course my lawfully owned firearm was confiscated. In the end all the constructive possession charges ended up getting dropped in a plea and my firearm was eventually returned but I had to go to court and fight to get it returned even though the charges were dropped and it should have just been given back.

Edited by Flynn
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I curious about how the IL SC would rule on this situation. A mother has a FOID card and owns several firearms. Her son gets released from prison and is now a prohibited person. Mom leaves the house to get groceries and leaves the guns at home. The son is at the home. Is the son now constructively in possession of a firearm as a prohibited person and he is now committing a crime while he sits at home watching a football game?

 

I think this situation is where the constitutionality of the FOID card becomes really murky.

 

I'm not an attorney, but I envision this situation exists in many homes right now.

 

I actually have experience with this, they will likely charge the prohibited person with constructive possession if the firearm is in the same building and not locked away where said prohibited person couldn't readilly readily gain access. Same with any bullets at the location. In my case the individual was not only charged with constructive possession of my firearm they were also charged with of constructive possession for each and every bullet in the magazine and in the box of ammo in the drawer. And of course my lawfully owned firearm was confiscated. In the end all the constructive possession charges ended up getting dropped in a plea and my firearm was eventually returned but I had to go to court and fight to get it returned even though the charges were dropped and it should have just been given back.

 

We were taught that in the CCL course. That's why I had my wife get a FOID, just in case any ammunition falls out of a range bag, or I pick some ammo up and forget I left it in the trunk when I got home and she had to borrow the car for what ever reason.

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So if she is simply found not guilty, can she have her firearm back without a FOID and will they have to give it back to her without her applying for or possessing a FOID card?

 

I am guessing that the case just does not simply end in a not guilty...

 

 

Yep. Separate trips to court and legal fees to get the firearm back. Sounds like having a nice firearm could make it worse as I've heard a few stories of confiscated guns having to be retrieved from the chief's house.

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So if she is simply found not guilty, can she have her firearm back without a FOID and will they have to give it back to her without her applying for or possessing a FOID card?

 

I am guessing that the case just does not simply end in a not guilty...

 

 

 

 

Yep. Separate trips to court and legal fees to get the firearm back. Sounds like having a nice firearm could make it worse as I've heard a few stories of confiscated guns having to be retrieved from the chief's house.

 

Nope, simple, she can pick up the firearm at her convenience. All she has to do is show a valid FOID because, you know, an Illinois citizen transporting a firearm in Illinois without a FOID is illegal.

 

No, we cannot release the firearm to anyone else, sorry.

 

No, she doesnât need one to possess the firearm in her house.

 

Catch 22 but hey, thatâs another issue for another court case....

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So if she is simply found not guilty, can she have her firearm back without a FOID and will they have to give it back to her without her applying for or possessing a FOID card?

 

I am guessing that the case just does not simply end in a not guilty...

 

 

 

 

Yep. Separate trips to court and legal fees to get the firearm back. Sounds like having a nice firearm could make it worse as I've heard a few stories of confiscated guns having to be retrieved from the chief's house.

Nope, simple, she can pick up the firearm at her convenience. All she has to do is show a valid FOID because, you know, an Illinois citizen transporting a firearm in Illinois without a FOID is illegal.

 

No, we cannot release the firearm to anyone else, sorry.

 

No, she doesnât need one to possess the firearm in her house.

 

Catch 22 but hey, thatâs another issue for another court case....

 

 

What if someone with a FOID is with her when she goes to retrieve it? The rifle would be released to her. Couldn't the FOID holder then transport her and the rifle to her residence?

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  • 2 months later...

This case was remanded back to the 2nd Judicial District Court in White County. The new Motion to Find Statute Unconstitutional has been filed by the attorney for the defendant:

 

Motion to Find Statute Unconstitutional 2.pdf

 

 

 

The Second Amendment to the United States Constitution provides as follows:

A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The Second Amendment protects the right to keep and bear arms for the purpose of self-defense and is fully applicable against the States. McDonald v. Chicago, 561 U.S. 712, 749 (2010).

McDonald, quoting District of Columbia v. Heller, 554 U.S. 570 (2008), stated as follows:

Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is ‘the central component’ of the Second Amendment right… (stating that the ‘inherent right of self-defense of self, family, and property is most acute’ in the home…). McDonald v. Chicago, 561 U.S. at 767.

 

A person cannot be compelled to purchase, through a license fee or a license tax, a privilege freely granted by the constitution. Murdock v. Pennsylvania, 319 U.S. 105, 114 (1943); City of Blue Island v. Kozul, 379 Ill. 511, 41 N.E.2d 515, 519 (1942). Thus, a person exercising their right to keep and bear arms in their own home for self-defense should not be made to pur-chase a card or obtain a license to exercise a right guaranteed by the Constitution.

A government entity may enact regulations in the interest of public safety, health, welfare or convenience, within the limits permitted by law, but in every case this power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the freedom protected by the Constitution. City of Blue Island at 520.

The FOID card Act requires individuals to pay a fee and obtain a license to enjoy a right that is protected by the Constitution, even in the individual’s own home. Even if the fee is nominal (i.e., $10.00) the entire process suppresses a fundamental right that is recognized to be enjoyed in the most private of areas, such as the home. No other fundamental right as guaran-teed by the Bill of Rights requires a fee and/or a license to exercise.

Moreover, it is important to keep in mind that in the instant case the Illinois law in ques-tion is not about registering guns but, instead, about registering people. Likewise, the instant case is about a long gun kept in the home for self-defense – not a handgun.

It is axiomatic that in American and English jurisprudence the home is a special place – a place where one can retreat from the world (one’s castle) and a place that is accorded special consideration in our laws. For instance, Illinois has a statute regarding using force in defense of a dwelling (720 ILCS 5/7-2) and stating that the force used can be deadly if:

(1) The entry is made or attempted in a violent, riotous, or tumul-tuous manner and that the person reasonably believes that such for-ce is necessary to prevent an assault upon, or offer of personal vio-lence to, him or another then in the dwelling, or (2) He reasonably believes that such force is necessary to prevent the commission of a felony in the dwelling.

 

No other Illinois statute gives a person such rights when another structure is concerned. Further, other Illinois statutes give special protection to the home. For example, Home Invasion is a class X felony (720 ILCS 5/19-6) and Criminal Trespass to a Residence is a class 4 felony when the person entering knows or has reason to know that someone is inside the residence(720 ILCS 5/19-4(2)). .

Having the right to defend your home, even by using deadly force, is virtually a useless right if you can’t have a gun in the home (e.g., if someone breaks into your house armed with a gun and all you have is a knife or ball bat, what chance do you have to successfully defend yourself or your family?).

Griswold v. Connecticut, 381 U.S. 479 (1965), invalidated a law banning contraception, finding a right to marital privacy – a right to protection from government intrusion and estab-lishing the right of privacy with respect to intimate practices. Griswold also discussed zones of privacy created by several fundamental constitutional guarantees, specifically the first, third, fourth, fifth and ninth Amendments (Griswold at p. 485), stating that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” (Griswold at p. 484). Although Griswold did not mention the Second Amendment, there is no reason why that Amendment should not be included, for if there is any place that a zone of privacy should apply it would be to the home.

Griswold found the government’s intrusion into the marital relationship as repulsive to the notions of privacy surrounding the marriage relationship, stating (Griswold at p. 485):

Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.

Illinois has a Bill of Rights in its Constitution (Article 1), and among those rights is a right of privacy – a right to be protected from invasions of privacy (Section 6). This right is included in the same paragraph that states “The people have the right to be secure in their… houses… against unreasonable searches and seizures.”

There cannot be any more basic right than the right to prevent violence in your own home – to be safe in your own home and defend its sanctity. The government should not be able to control a citizen’s right to defend himself in his own home and should not require a citizen to pay a fee and obtain a card to exercise that right, especially as in the instant case, where the person is not otherwise disqualified from possessing a gun.

Despite all the rhetoric to the contrary about regulating guns, the Second Amendment to the United States Constitution is crystal clear and protects the right to keep and bear arms for the purpose of self-defense. Further, it is fully applicable against the States. McDonald at p. 749.

 

CONCLUSION

Vivian Claudine Brown, the defendant in the above-entitled cause, by her attorney, Alan C. Downen, requests this court, for the foregoing reasons, to find The Firearm Owners Identifi-cation Card Act (430 ILCS 65/0.01 et seq.) unconstitutional as applied to the defendant for the reasons set forth above.

 

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  • 9 months later...

ILSC opinion: http://www.illinoiscourts.gov/Opinions/SupremeCourt/2020/124100.pdf

 

 

Defendant, Vivian Brown, was charged by information with possessing a firearm without a Firearm Owners Identification (FOID) card in violation of section 2(a)(1) of the Illinois Firearm Owners Identification Card Act (FOID Card Act) (430 ILCS 65/2(a)(1) (West 2016)). The circuit court of White County dismissed the charge, finding that, as applied to the facts of this case, section 2(a)(1) was unconstitutional under the second amendment to the United States Constitution (U.S. Const., amend. II) and article I, section 22, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 22). Direct appeal was taken to this court. Ill. S. Ct. R. 603 (eff. Feb. 6, 2013). For the reasons that follow, we determine that the circuit court unnecessarily reached defendant’s constitutional challenge. We therefore remand this cause with directions.

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So as I understand after reading that back and forth mess..... and correct me as Im sure Im misinterpreting............

 

They are saying the circuit cannot rule on the constitutionality because they also ruled an alternative which is that FOID does not apply inside the home

 

This has been remanded for re-entry by the circuit who has been directed to rule that FOID does not apply inside the home and dismiss the case

 

Which leaves IL off the hook because they will not appeal that decision, therefore there is no precedence

 

So other than this defendant getting off the hook nothing changes at all

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So other than this defendant getting off the hook nothing changes at all

 

If they rule FOID doesn't imply inside the home, a lot changes actually and also keeps open a door for a future constitutional challenge as to why your right disappears when you exit your house.

 

The FOID no applicable inside the house is a huge change in itself, and could really open up a big can of worms when search warrants are executed where the person isn't a prohibited person and firearms are found for example.

 

We really need to see the scope of the to come final ruling, before we jump to any real conclusions.

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  • 3 weeks later...

The (new) circuit court Judge in Vivian Brown’s case has re-issued an Order declaring the FOID Card Act unconstitutional and dismissing the charges against Ms. Brown. This will hopefully give a direct path back to the Illinois Supreme Court.''

 

 

 

 

Order of 042621 (On Defendant's Motion to Find Statute Unconstitutional).pdf

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The (new) circuit court Judge in Vivian Brown’s case has re-issued an Order declaring the FOID Card Act unconstitutional and dismissing the charges against Ms. Brown. This will hopefully give a direct path back to the Illinois Supreme Court.

Except the IL Supreme Court already said the circuit court didn't have a basis to rule on the FOID's constitutionality. It's still the same case, so I would expect the appeals court to send it back as "not following instructions."

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