Firearms & FOID Cards: Practical Problems Seeking a FOID Card When
Subject to a Federal Firearms Prohibition
Certain events will result in a firearms prohibition that causes the loss
of one's FOID Card. Many times, these prohibitions will be federal
ones, as opposed to state ones. Because lifting a federal firearms prohibition
does not happen overnight and the system is not set up to really help
people with the process. Although firearms prohibitions and means of lifting
those prohibitions were discussed in other articles, this article will
specifically address certain problems that come up as a practical matter
anytime someone is seeking a FOID card or is subject to a federal firearms
prohibition. Because these problems can be quite complex, I would never
recommend anyone go it alone, and would tell anyone that the attorneys
at Johnson Law Group are here to help answer any questions anyone might have.
Even though a person could apply for his or her FOID card, petitioning
the trial court and having a hearing, there are several practical problems
that can arise when that person is subject to a federal firearms prohibition.
To begin, if the Circuit Court grants a person a FOID card when he or
she is subject to such a prohibition, the Attorney General's Office
or Department of State Police can seek leave to intervene and to vacate
that order. This obviously presents ethical concerns, as an attorney representing
someone in the Circuit Court may be fighting for a client's FOID card,
only to wind up empty-handed because there is such a prohibition, which
could have been entirely predictable. Therein lies the ethical issues
with seeking to help people regain their gun rights, because, when such
a prohibition exists, it is arguably a violation of the standards of professional
conduct to pursue the case further.
In addition, as a practical matter, even if a petition to intervene and
vacate were denied, there are still practical problems with that person
possessing a firearm. For example, when a Circuit Court orders the State
Police to issue someone a FOID card, they could issue it with a notice
on the card itself stating that it is a violation of federal law for the
person to possess a firearm[i]. As a practical matter, this individual won his FOID card, but readers
should be aware of the significant burdens this imposes. From displaying
it to be able to shoot at a firing range or even purchase ammunition,
to being able to purchase a firearm after filling out the requisite forms,
the likelihood that a range owner or seller of firearms and ammunition
would turn this person away in light of this warning is very real. In
the meantime, the process could have taken years, and the end result,
from a practical standpoint, at least, remains unchanged.
Another practical problem posed by having an Illinois court make a finding
that a federal firearms prohibition has been lifted may go without saying,
although it's important to mention, and it is the fact that this is
not a finding by a federal court. As a result, that finding may have no
bearing from a federal standpoint[ii]. Because of this, an individual may find himself possessing a firearm
in Illinois, only to wind up in contact with federal authorities because,
to those authorities, the federal firearms prohibition would still be
in effect. This obviously poses some grave risk to that person, because
possessing a firearm when it is a violation of federal law to do so inherently
risks criminal prosecution. However slight a reader may think the chances
of this are, this is an issue that must be discussed with a client in
relation to whether or not to even begin seeking a FOID card.
Finally, it is important to note that the discussion above concerning rules
3.1 and 1.16 equally apply to an attorney seeking to help a client apply
to the federal government for relief from a federal firearms prohibition
when that application will never be considered.
Copyright © 2017 by Brendan Bukalski
The information provided in this column is general in nature, and should
not be relied upon as legal advice or interpreted as creating an attorney-client
relationship. As a general rule, all specific legal problems should be
handled by an individual's attorney. All rights reserved. Any copying,
duplication, or commercial use of the information contained in this column
is strictly prohibited without prior permission.
Willis v. Macon County State's Attorney, 2016 IL.App.(4th) 150480, ___ N.E.3d ___, 2016 WL 7079562 (4th Dist.
2016) [docketing no. 4-15-0480, appeal from Macon County, Illinois, Circuit Court].
Connour, 2015 ILApp (4th) 130746 at ¶ 26.