Client’s Gun Rights Restored by Illinois Supreme Court (2020)
In 2020 the Illinois Supreme Court ruled in Shawna Johnson vs. Illinois State Police, allowing a person who had an old misdemeanor battery conviction (considered a “domestic” under Federal law) to be granted return of her gun rights – FOID card by a judge.
(Attorney Rebecca Blakeslee had the good fortune of being local counsel and getting to assist lead counsel, New York attorney David Jensen, in representing Ms. Johnson before the trial court in Wabash County Illinois and at the appellate level before the Illinois Supreme Court.)
The Federal Gun Control Act says that a person with a domestic battery conviction cannot have firearms. It does not matter how old the conviction is. Even if the conviction is pled as a simple battery, it is still a “domestic” as far as federal law is concerned if it meets the federal definition of domestic violence.
But Illinois law allows a person who is prohibited from having firearms under Illinois law to request a court to give them a FOID card. This created a discrepancy where people who were federally banned from owning and possessing guns could get a Firearm Owners ID card from Illinois. In 2013, the Illinois legislature changed the law so that a court could not grant return of a FOID card if it was in violation of federal law. When the FOID card act was changed in 2013, the Illinois State Police began to contest people’s petitions for restoration of their FOID cards with enthusiastic zeal on the grounds that no person with a domestic battery could seek return of their FOID card because it would always be inconsistent with federal law.
In the Johnson case, Ms. Johnson filed to have her FOID card restored in 2013. She had a very old (about 16 years) battery conviction which according to federal law was actually a domestic battery because she had been accused of hitting her spouse. She had asked for a pardon but received a form letter reply denying a pardon. Ms. Johnson had several law enforcement officers who testified at trial as to her good and responsible character. The Wabash County, Illinois, trial court Judge, Larry Dunn, decided that she should be granted return of her FOID because the judge felt that the law preventing her from having her 2nd Amendment right to her firearms was unconstitutional as applied to her. (This means that the judge did not say the law was unconstitutional in itself, but only as the law applied unfairly to Ms. Johnson.)
The Illinois State Police appealed the Wabash County court decision directly to the Illinois Supreme Court in Springfield.
The seven judges of the Illinois Supreme court unanimously decided that they did not have to consider whether Ms Johnson’s constitutional rights were violated because they could uphold Judge Dunn’s ruling another way. The federal Gun Control Act states that if a person’s domestic violence conviction has been expunged or pardoned or if the person has had had their “civil rights restored” that the federal gun ban does not apply to them. The Illinois Supreme Court said that when the Wabash County Court ordered the State Police to give Ms. Johnson her FOID card, that the Illinois court had restored her civil right to possess a firearm. Therefore, the state court judge had removed the federal firearm disability from Ms. Johnson. The Illinois Supreme Court also said that Second Amendment rights are an important civil right along with the right to serve on a jury, voting, and running for public office. (Although many people consider serving on a jury to be an obligation rather than a right!) It was noteworthy that the court made a unanimous decision as that means that all the Justices were in agreement on the case. (Judges are called “Justices” when referring to judges on an appellate court.)
This decision does not mean that a person who has a domestic battery conviction (or a simple battery conviction that is actually a domestic), can run out to the gun store and go on a shopping spree. Any Illinois resident who is interested in return of their FOID card still has to file a petition with the court and convince the court that they meet all of the qualifications set out in the Illinois FOID Act. And there still may be issues with form 4473, the Firearm Transaction Record. On a case like this, a petitioner has the right to file their own petition, but it is usually best to hire legal representation.
