Jump to content

Pritzker executive order regarding FOID


Xwing
 Share

Recommended Posts

I see that the dictator-in-chief has spit out a new possibly unconstitutional executive order:  https://www.foxnews.com/us/gov-pritzker-overhauls-illinois-gun-rules-highland-park-massacre-critics-warn-2nd-amendment-breach

 

Interested to see how ISP will redefine "clear and present danger" per this emergency rule change.  I haven't seen the exact text of it though.  Hopefully there is still stringent due process before denying someone their rights...  I don't think anyone minds if the likes of Crimo are denied, but government usually has a tendency to over-reach and deny many times more rightful owners than those who should actually be...

 

 

Link to comment
Share on other sites

On 7/21/2022 at 8:28 AM, Xwing said:

I see that the dictator-in-chief has spit out a new possibly unconstitutional executive order:  https://www.foxnews.com/us/gov-pritzker-overhauls-illinois-gun-rules-highland-park-massacre-critics-warn-2nd-amendment-breach

 

Interested to see how ISP will redefine "clear and present danger" per this emergency rule change.  I haven't seen the exact text of it though.  Hopefully there is still stringent due process before denying someone their rights...  I don't think anyone minds if the likes of Crimo are denied, but government usually has a tendency to over-reach and deny many times more rightful owners than those who should actually be...

 

 

I have two points of disagreement with your post:

 

1) There is not currently due process. It is impossible for the new rule to “still” have due process.

 

2) Crimo is an evil POS, but I refuse to accept that a prior restraint like the FOID is acceptable. It has to exist for for someone like him to be denied one. 
 

Our mental health and penal systems are hopelessly broken. We need to get to the point where people are either capable of participating in society or they are not.

 

I’ll proactively admit that I’m an extremist before anyone hits me with a ‘what about felons’ argument or something similar. If they are too dangerous  to release as full participants in society than the government should keep them locked up. Crimo should have been locked in an insane asylum, but instead we had the local PD send a form to the state.

Link to comment
Share on other sites

On 7/21/2022 at 10:37 AM, NakPPI said:

Read between the lines. He doesn't have the votes for a ban in an election year. He needs to do "something" in response to Highland Park. His answer is an administrative change, which doesn't require a super majority vote. Politics is all theater. 

I agree. The other question is how closely his staff are watching these 2nd amendment cases nationwide. They want stricter laws, but not ones that'll get struck down by the courts.

 

I don't like Pritzker, he's been a disaster for the state, but he isn't stupid. He's probably smart enough to realize that the legal environment isn't amenable to gun control.

Edited by MrTriple
Link to comment
Share on other sites

It's an emergency rule.  I don't think it's been published yet.

 

Here's the press release everyone seems to reference:

 

Illinois State Police File Emergency Rule Change to Broaden the Use of Clear and Present Danger Reports in FOID Card Applications

Springfield—The Illinois State Police (ISP), under the direction of Governor Pritzker, submitted an emergency rule change to the Illinois Secretary of State’s Office implementing broader use of clear and present danger reports that can bar applicants from receiving a Firearm Owners Identification (FOID) card or revoke a current FOID card. The rule change allows for the use and maintenance of historic clear and present danger information even if the subject was not actively seeking or holding a FOID card at the time a Clear and Present Danger report was made and allows for use of these reports in possible future evaluations.
 
Since 2013, administrative rules have unnecessarily limited and complicated the ability of the Illinois State Police to consider Clear and Present Danger information over time. For example, the former administrative rule required a Clear and Present Danger to be “impending”, “imminent”, “substantial” or “significant.” Clear and Present Danger under state law however is more broadly defined requiring “physical or verbal behavior, such as violent, suicidal, or assaultive threats, actions, or other behavior…” This emergency rule will now allow the Illinois State Police to consider a broader range of information by simply applying the statutory definition of Clear and Present Danger. These emergency rules also will clarify ISP’s authority to use and retain Clear and Present Danger reports to the fullest extent allowed by state and federal law.
 
“For the sake of public safety, any FOID applicant with prior clear and present danger information needs to have that considered when having their application processed,” said Governor JB Pritzker. “These changes will immediately allow ISP to see a fuller picture of an applicant’s history and keep the people of Illinois safe from those who should not be in possession of firearms. I want to thank the members of the Joint Committee and Director Kelly for taking up this important issue and protecting Illinoisans.”
 
“These modifications to administrative law will immediately give the ISP the legal authority to consider more evidence when determining whether to issue or revoke a FOID card and will strengthen the ISP’s ability to keep firearms out of the hands of dangerous individuals,” said Illinois State Police Director Brendan Kelly.
 
Emergency rules may be submitted to the Secretary of State for consideration by the Joint Committee on Administrative Rules (JCAR) when an agency determines a threat to public interest, safety, or welfare requires rules to be adopted in less time than would be needed to complete the full proposed rule process. Emergency rules go into effect within ten days of filing but remain in effect for no more than 150 days. The Illinois State Police plans to submit these changes under the JCAR proposed rule process as well, with the intention of making these amendments permanent.
 
Clear and present danger reports are made by physicians, clinical psychologists, qualified examiners, school administrators, and law enforcement. This law is distinct from the Firearms Restraining Order. The Firearms Restraining Order is a court ordered restriction on firearms possession. Clear and Present Danger status is only one of many factors that can result in the revocation and denial of a FOID card. Other factors can include criminal records, mental health prohibitors, and other orders of protection.
 
 
Link to comment
Share on other sites

The pertinent part of the Press Release:

 

Quote

Emergency rules go into effect within ten days of filing but remain in effect for no more than 150 days. The Illinois State Police plans to submit these changes under the JCAR proposed rule process as well, with the intention of making these amendments permanent.

 

 

I imagine something will be published after some form of the Emergency Rule becomes permanent.

 

 

 

Edited by soundguy
Link to comment
Share on other sites

On 7/26/2022 at 5:29 PM, soundguy said:

...

I imagine something will be published after some form of the EO becomes permanent.

 

The Illinois Register should have the proposed rules, maybe this coming Friday. JCAR should have them when they go into effect, with some notation of their impermanence.

 

FWIW, back when it happened, JB proclaimed a (30-day) disaster just for the shooting. Disasters give the governor the ability to make emergency rules (among other things).

Link to comment
Share on other sites

This is exactly why this fat little Napoleon needs to be defeated at the polls come election time.  He thinks Illinois and it’s residents lives are his personal playground…look no further than the mask mandates, and Covid restrictions.  And just think…he wants to be President! This p.o.s. needs to melt back into the Chicago underworld from where he came.

Link to comment
Share on other sites

Here's the proposed rule change, from the ISP and formatted for inclusion into the Illinois Register. The actual amendment is on pages 8 and 9.

 

There are two functional changes:

  1. The definition of "clear and present danger" would refer to the definition in 430 ILCS 65/1.1. (Currently JCAR has its own definition.)
  2. The ISP would keep a copy of all reports forever. (Currently ISP only keeps records on people who have had their FOID revoked.)

 

Notably, there is no proposed change to who can file a report. Changing who can file a report would require a change to the law.

 

430 ILCS 65/1.1 said:

...

"Clear and present danger" means a person who:

(1) communicates a serious threat of physical violence against a reasonably identifiable victim or poses a clear and imminent risk of serious physical injury to himself, herself, or another person as determined by a physician, clinical psychologist, or qualified examiner; or

(2) demonstrates threatening physical or verbal behavior, such as violent, suicidal, or assaultive threats, actions, or other behavior, as determined by a physician, clinical psychologist, qualified examiner, school administrator, or law enforcement official.

...

Edited by Euler
Link to comment
Share on other sites

On 7/26/2022 at 5:09 PM, carry205 said:

This is exactly why this fat little Napoleon needs to be defeated at the polls come election time.  He thinks Illinois and it’s residents lives are his personal playground…look no further than the mask mandates, and Covid restrictions.  And just think…he wants to be President! This p.o.s. needs to melt back into the Chicago underworld from where he came.

Reminded me of this:

oJ2kQp1.jpg

Edited by Jeffrey
Link to comment
Share on other sites

Fox 32 Chicago

Fox 32 said:

Police in Aurora shared an example Tuesday of clear and present danger reports working, and their department being proactive.

 

Just last month, a threatening phone call came into the department.

...

Aurora police took the threat seriously, investigated the same day, and was able to make contact with the man, who willingly handed over his gun and ammunition.

 

They also filled out a clear and present danger form with Illinois State Police. Three days later, the man's firearm owner's identification card revoked.

...

The man who made the call in Aurora still doesn't have his FOID card, but is not facing any charges.

 

Clear & Present Danger reports are not Firearms Restraining Orders ("red flags"). Red flags need a judge to issue the order. Cops (or school administrators, physicians, and mental health professionals) can file danger reports and seize firearms (or have them seized) without any judge or court filing at all.

Link to comment
Share on other sites

I been looking around outside Illinois. Illinois appears to be the only state with a wholly extra-judicial statutory/regulatory process (i.e., clear and present danger reporting) to suspend someone's 2A civil liberties. The phrase "clear and present danger" comes from a Supreme Court case in the early 20th century distinguishing between someone's 1A civil liberty to make violent statements and the government's requirement to take action against a threat.

 

Middle TN State University, 1A Encyclopedia

MTSU said:

...

Justice Oliver Wendell Holmes Jr. delivered the classic statement of the clear and present danger test in Schenck v. United States (1919): "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. ..."

 

In Schenck, Justice Holmes clearly distinguished the clear and present danger test from the bad tendency test -- which was predominant in English common law ... -- when he stated that "in time of peace," the pamphleteer and co-defendants "would have been within their constitutional rights."

...

Justice Holmes ultimately found the clear and present danger test as articulated in Schenck insufficient to protect basic constitutional rights. Thus, in his dissent later in the year in Abrams v. United States (1919) he wrote that "we should be eternally vigilant against attempts to check the expression of opinions ... unless they so imminently threaten immediate interference with the lawful and pressing purpose of the law that an immediate check is required ..."

 

Thus, he elevated the danger requirement from "clear" to "imminent" interference with legal action.

 

Justice Louis D. Brandeis further elaborated upon the test in his concurring opinion (which Holmes joined) in Whitney v. California (1927), when he argued that the "evil apprehended" as a result of expression should be "so substantial as to justify the stringent restriction apprehended by the legislature."

...

Justice William J. Brennan Jr. redrafted the per curiam opinion [in Brandenburg v. Ohio (1969)], substituting for clear and present danger a new standard: "The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

 

The imminent lawless action test has largely supplanted the clear and present danger test. The clear and present danger remains, however, the standard for assessing constitutional protection for speech in the military courts.

 

In all these cases, when someone's speech is deemed "dangerous," it results in arrest, which necessarily leads to a trial. Illinois' clear and present danger statute suspends a person's 2A civil liberties without a trial, possibly without even an arrest.

 

Summary:

  • Clear and present danger - Federal version (1919-1969)
    1. The expression must pose a threat of substantive evil; and
    2. The threat must be imminent.
  • Imminent lawless action (1969-current)
    1. The expression must be directed to inciting or producing imminent lawless action; and
    2. Such imminent lawless action is likely to occur.
  • Clear and present danger - Illinois version (430 ILCS 65/1.1)
    1. The expression is a serious threat of physical violence against a reasonably identifiable victim; or
    2. The expression must pose a clear and imminent risk of serious physical injury to himself, herself, or another person; or
    3. The expression demonstrates threatening physical or verbal behavior, such as violent, suicidal, or assaultive threats, actions, or other behavior.
  • Clear and present danger - Illinois version (JCAR Title 20, Section 1230.120)
    1. The person must pose an actual, impending, or imminent threat of substantial bodily harm to themselves or another person that is articulable and significant; or
    2. The person must be likely to act in a manner dangerous to public safety or contrary to the public interest.

 

The federal tests are about insurrection or sedition (e.g., violent protest), but they seem better defined to me and still applicable to general public safety. I personally won't miss "the person must be likely to act in a manner ... contrary to the public interest" when JCAR gets amended.

 

TL;DR: The Illinois statute is unconstitutional on its face, both for lack of due process and for vagueness.

Link to comment
Share on other sites

On 7/27/2022 at 9:50 PM, Euler said:

I been looking around outside Illinois. Illinois appears to be the only state with a wholly extra-judicial statutory/regulatory process (i.e., clear and present danger reporting) to suspend someone's 2A civil liberties. The phrase "clear and present danger" comes from a Supreme Court case in the early 20th century distinguishing between someone's 1A civil liberty to make violent statements and the government's requirement to take action against a threat.

 

Middle TN State University, 1A Encyclopedia

 

In all these cases, when someone's speech is deemed "dangerous," it results in arrest, which necessarily leads to a trial. Illinois' clear and present danger statute suspends a person's 2A civil liberties without a trial, possibly without even an arrest.

 

Summary:

  • Clear and present danger - Federal version (1919-1969)
    1. The expression must pose a threat of substantive evil; and
    2. The threat must be imminent.
  • Imminent lawless action (1969-current)
    1. The expression must be directed to inciting or producing imminent lawless action; and
    2. Such imminent lawless action is likely to occur.
  • Clear and present danger - Illinois version (430 ILCS 65/1.1)
    1. The expression is a serious threat of physical violence against a reasonably identifiable victim; or
    2. The expression must pose a clear and imminent risk of serious physical injury to himself, herself, or another person; or
    3. The expression demonstrates threatening physical or verbal behavior, such as violent, suicidal, or assaultive threats, actions, or other behavior.
  • Clear and present danger - Illinois version (JCAR Title 20, Section 1230.120)
    1. The person must pose an actual, impending, or imminent threat of substantial bodily harm to themselves or another person that is articulable and significant; or
    2. The person must be likely to act in a manner dangerous to public safety or contrary to the public interest.

 

The federal tests are about insurrection or sedition (e.g., violent protest), but they seem better defined to me and still applicable to general public safety. I personally won't miss "the person must be likely to act in a manner ... contrary to the public interest" when JCAR gets amended.

 

TL;DR: The Illinois statute is unconstitutional on its face, both for lack of due process and for vagueness.

Sooooo when is our state 2A orgs gonna sue? Or is the ISRA too busy writing their Thursday email and talking about useless facts that have nothing to do with the 2a, or too worried that it’ll look bad after Highland Park and hurt the feelings of gun grabbers......

Link to comment
Share on other sites

On 8/1/2022 at 9:58 PM, steveTA84 said:

Sooooo when is our state 2A orgs gonna sue? Or is the ISRA too busy writing their Thursday email and talking about useless facts that have nothing to do with the 2a, or too worried that it’ll look bad after Highland Park and hurt the feelings of gun grabbers......

 

I don't know about state 2A organizations, but I do think we'd have to wait a long time for national 2A organizations to help. Danger reports are Illinois-only, but red flag laws are all over and spreading. Then there are transport bans, mag bans, AWBs, etc. Those issue have much more national impact, thus being more relevant to an organization with a national scope.

Link to comment
Share on other sites

On 7/21/2022 at 9:09 AM, Rmac702 said:

Wow, I wouldn't be surprised if thousands of FOID cards get revoked with this new order.

Mine just was, no idea what i did but got a call from local pd this morning I needed to come surrender my cards and firearms to them.

It's wild to think if a subject really was a clear danger, why would they willingly surrender their firearms?

 

Link to comment
Share on other sites

On 8/2/2022 at 11:44 AM, somezero said:

Mine just was, no idea what i did but got a call from local pd this morning I needed to come surrender my cards and firearms to them.

It's wild to think if a subject really was a clear danger, why would they willingly surrender their firearms?

 

Piss off an ex wife or ex girlfriend who knows you have guns?  This is going to get the same abuse that orders of protection get from spouses looking to get an early advantage in divorce/custody proceedings.  

Link to comment
Share on other sites

I wish that would make more sense. 

Only run in I've had with the law in the past 10 years was when i was arrested for disorderly conduct. Because i caught a thug creeping around my garage windows and when i called out to him to get off my property i announced i was armed and even though i never drew my pistol i "knowingly exposed a holstered handgun in my waste" I untucked my shirt to clear my AIWB holster but never drew the weapon because the punk went from charging me while screaming to running away when he caught a glimpse of the gun in my waste band. 

 

15 minutes later house is swarmed with cops and I am being taken into custody. I went before the judge and got court supervision and community service. I had it all completed and discharged within 6 months. But now  year later i have to think it is this incident coming back to haunt me. 

 

Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
 Share

  • Recently Browsing   0 members

    • No registered users viewing this page.
×
×
  • Create New...