Certain events will result in a firearms prohibition that causes the loss
of one's FOID Card. Events that give rise to a firearm prohibition—and
the loss of one's FOID Card—are discussed in another article.
Oftentimes, just navigating the process to figure out what a person can
and cannot do after his or her FOID card is revoked can be daunting, and
people too frequently just give up. Whatever you do, do not give up. Depending
on the nature of the prohibition, there are any number of different means
by which to address a firearms prohibition, and the attorneys at Johnson
Law Group are here to help.
If someone becomes subject to an Illinois firearms prohibition, there are
limits on what can be done both from a practical and an ethical perspective,
because that person could still be subject to a federal firearms prohibition.
Obtaining a FOID card after a denial or a revocation because of a prohibition
could entail what the statute refers to as "appealing" to the
Director of the Illinois State Police, essentially having an administrative
hearing to review the efficacy of the denial or revocation[i], after which an applicant can file a formal petition in the Circuit Court
for the county of his or her residency[ii]. Under limited circumstances, an applicant can bypass the administrative
process altogether, and instead just file a petition in the trial court[iii].
Under the FOID Card Act, a person could lift an Illinois firearms prohibition,
but the Act requires an applicant to show that allowing him or her to
possess a firearm would not violate federal law. Obviously, the Act does
nothing toward helping to lift a firearms prohibition on the federal level[iv]. Even the Fourth District Appellate Court has acknowledged that a court-ordered
return of a FOID card under Illinois law could be "worthless"
to an applicant subject to a federal firearms prohibition[v].
Most people eligible to lift their Illinois firearms prohibitions, will
also be able to lift their federal firearms prohibitions. Of these, the
vast majority of people coming to speak with an attorney - and, sadly,
the vast majority of those facing the most difficulty - will be those
with felonies or crimes of domestic violence on their records.
Under the federal code, a federal firearms prohibition for these offenses
does not apply in instances in which (1) a person's conviction was
set aside or expunged, (2) a person was pardoned, (3) a person had his
or her civil rights restored; or (4) a person has successfully applied
to the federal government for that prohibition to be lifted.
Lifting Federal Firearms Prohibitions: Setting Aside or Expunging a Conviction
Certain jurisdictions provide for a conviction to be set aside, but Illinois
is not one of them. That leaves only expungement, and Illinois has a lot
of limitations on eligibility for expungement[vi]. Even in instances in which a person is eligible, the Criminal Identification
Act only provides for just that: eligibility. Whether to grant or deny
a petition to expunge is within the discretion of the courts[vii]. If a person can have his or her offense expunged, it is the best outcome,
because expungement results in the deletion of the record. However, not
every offense is eligible.
On occasion, an individual might have been sentenced to a specialized sentence,
such as First Offender Probation, that can afford him or her the opportunity
to seek expungement[viii]. By far, the vast majority of felony sentences are not eligible, and offenses
of Domestic Battery are specifically prohibited. Frequently, discussions
with persons subject to a federal firearms prohibition result in the conclusion
that they are not eligible to have their offense expunged.
Lifting Federal Firearms Prohibitions: Obtaining a Pardon
Our Constitution affords individuals the opportunity to seek pardons from
the Governor[ix]. However, our Supreme Court has found that, even after a pardon, there
is no general entitlement to expungement of the offense[x]. With that said, when a person receives a gubernatorial pardon that also
specifically authorizes expungement, there is good news. The Criminal
Identification Act provides for expungement, and forecloses the ability
of a party, whether the police or the State's Attorney, to object[xi]. This definitely helps when seeking to expunge an offense. Nonetheless,
there is still the trial court's discretion with which to deal, and
the final outcome will depend on a lot of circumstances.
As a practical matter, however, when a person walks into an attorney's
office seeking advice on what can be done for them to possess a firearm,
pardons pose practical limitations. Chief among them is the fact that
one could wait years, only to wind up being denied, or be granted just
a pardon without the ability to expunge.
Lifting Federal Firearms Prohibitions: Restoration of Civil Rights
The final way to lift a federal firearms prohibition is by restoring one's
civil rights. Doing so within the State of Illinois is automatic for the
most part, because the loss of civil rights for disqualifying offenses
is governed by statute. Civil rights refers the rights to vote, hold office,
and serve on a jury[xii]. This latter right we need not discuss, because persons convicted of crimes
can still serve on a jury in the State of Illinois[xiii].
It should go without saying that a person cannot restore rights that were
never lost. Just last year, the Fourth District Appellate Court decided
a case on this same issue[xiv]. In that case, the petitioner had sought his FOID card, and argued that
his rights were restored, so that a court could find no federal firearms
prohibition[xv]. Specifically, he had been in jail while the case was pending, and was
sentenced to time-served[xvi]. Under Illinois law, when a person is sentenced to jail, he or she will
lose the right to vote during that incarceration, but that right is restored
pursuant to statute upon his or her release[xvii]. The Appellate Court ruled that receiving credit for time already served
was not the same as actually being ordered to serve jail time, and, consequently,
ruled that the petitioner had not had any civil rights restored[xviii].
It wound stand to reason that the reverse would then be true: were someone
sentenced to be incarcerated for an offense that would give rise to a
federal firearms prohibition, then that person would have his or her civil
rights restored upon release. However, this issue has not been decided.
Even if it were, there are other arguments that representatives of the
State of Illinois could make that rights were not restored. For example,
even though Illinois law provides for restoration of the right to hold
public office upon discharge of a sentence[xix], Illinois law still prohibits anyone from holding office for a municipality
when convicted of certain offenses, including felonies[xx]. This might very well serve as a total bar to being able to prove to a
judge that a person's civil rights were restored, but this issue is
Lifting Federal Firearms Prohibitions: Applying to the Federal Government
Under the provisions of the United States Code, an individual subject to
a federal firearms prohibition may apply to lift that prohibition[xxi]. The application would be reviewed by the United States Attorney General
in tandem with the Bureau of Alcohol, Tobacco, Firearms and Explosives
(or "ATF")[xxii]. However, the appropriations bills for the ATF since 1992 have specifically
forbidden the ATF from reviewing such applications[xxiii]. The practical consequence of this is that, although a person can apply
for the prohibition to be lifted, that application will go nowhere. For
all practical purposes, no chance of success with such an application exists.
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.
Connour v. Grau, 2015 ILApp (4th) 130746, ¶ 26, 35 N.E.3d 244, 393 Ill.Dec. 852 (4th
[vi] See 20 ILCS 2630/5.2(a)(3).
People v. Carroccia, 352 Ill.App.3d 1114, 1118, 817 N.E.2d 572, 288 Ill.Dec. 214 (2nd Dist. 2004).
[viii] See 20 ILCS 2630/5.2(a)(3)(D)(iii).
[ix] Ill. Const. 1970, art. V, § 12.
People v. Howard, 233 Ill.2d 213, 218, 909 N.E.2d 724, 330 Ill.Dec. 702 (2009).
[xi] See 20 ILCS 2630/5.2(d)(5)(A).
Logan v. U.S., 552 U.S. 23, 128 S.Ct. 475, 169 L.Ed.2d 43 (2007).
Baumgartner v. Green County State's Attorney's Office, 2016 IL.App.(4th) 150035, 52 N.E.3d 654, 402 Ill.Dec. 733 (2016).
Baumgartner, 2016 IL.App.(4th) 150035 at ¶ 51.
[xix] See 730 ILCS 5/5-5-5(b).
[xx] See 65 ILCS 5/3.1-10-5(b).