California law, U.S. Constitution at center of FOID case before Illinois Supreme Court

[September 18, 2021]  By JERRY NOWICKI
Capitol News Illinois
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SPRINGFIELD – The Illinois Supreme Court is being asked to consider the laws of the state of California and the U.S. Constitution in ruling on one man’s eligibility to be issued a Firearm Owners Identification card by the Illinois State Police.

The high court heard oral arguments Thursday morning in Springfield in Thomas Brown v. the Illinois State Police, a case in which Brown is seeking to have his FOID rights restored so that he can participate in target shooting, hunting and be able to defend himself, according to a court filing.

Brown was a FOID cardholder for several years, most recently applying for and being granted renewal in 2013. But in 2016, he tried to purchase a gun at a federal firearm licensee, leading the Illinois State Police to conduct a background check. That unearthed a 2001 conviction in California on a “misdemeanor offense of inflicting corporal injury on a spouse” that he did not disclose on his FOID application, according to a filing before the Supreme Court.

In that case, Brown and his then-wife had an argument in a parking lot, after which Brown picked her up, according to the court filing, and she ended up “crawling down his back” and sustaining “minor road rash,” for which she did not seek medical attention.

After Brown spent three days in jail, he eventually pleaded guilty and paid an approximately $500 fine because, according to the court filing, “otherwise it would have cost him $5,000 to bail out of jail so that he could fight the case and he was advised by the company that he worked for at the time to take the plea bargain.”

While Brown’s lawyer questioned whether he knew the arrangement would affect his gun rights, the conviction ultimately qualified as a misdemeanor crime of domestic violence, prohibiting Brown from possessing a firearm under federal law. Because Illinois’ FOID Act states that a card may not be issued “contrary to federal law,” the State Police revoked his card upon the failed background check.

Federal law does, however, allow exceptions for gun ownership if a person convicted of a domestic violence misdemeanor has had their “civil rights restored” in the jurisdiction that convicted them – in this case, California.

In a 2020 case, Johnson v. the Illinois State Police, the Illinois Supreme Court ruled gun ownership is a “civil right” in terms of the federal provision, a precedent cited heavily in Brown’s court filings.

Brown’s attorney, James R. Angel of Princeton’s May, May, Angel & Harris, is primarily asking the Illinois Supreme Court to interpret whether a specific California law constitutes a restoration of civil rights.

Brown’s legal team specifically noted that California only penalizes gun possession for 10 years following a misdemeanor conviction. That means, they argue, Brown had his civil rights restored under California law in 2011, qualifying him for the federal exception which would in turn qualify him for a FOID card.

“If California has a problem with Mr. Brown being able to possess a firearm, California can change its very clear statute,” Angel argued before the court.

But Katelin Buell, a lawyer for the attorney general’s office which represents the Illinois State Police, said California’s 10-year window is “a matter of forbearance, not forgiveness.”

It prevents prosecutors from charging someone convicted of a misdemeanor after 10 years but does not satisfy the “civil rights restored” exception in federal law, meaning it is “not a substitute for an affirmative statement of restoration and forgiveness,” according to Buell.

“The convicting jurisdiction of California employs a different restoration process for civil rights, including firearm rights, than in Illinois, and California would not grant Brown this relief without him first seeking a pardon, which he has not done,” Buell argued.

If the Supreme Court does not determine that the California law equates to a restoration of civil rights, Brown’s lawyers have asked it to consider the case through the lens of the U.S. Constitution.

The Illinois Supreme Court is pictured in Springfield this week as they hear oral arguments on a number of cases to be decided this term. (Credit: Blueroomstream.com)

Specifically, Angel asserted that requiring a person who “poses no risk to the general public” to successfully seek a pardon for a misdemeanor before they can own a firearm is an unconstitutional “perpetual ban” on gun ownership.

The state argued the constitutional question is “premature” because Brown hasn’t even attempted all non-constitutional alternatives for rectifying the denial, including seeking pardon or expungement.

“If a pardon’s denied, to the best of my knowledge, you can always apply again,” Angel said. “So hypothetically that remedy is never met.”

But the state also argued the Supreme Court can avoid the constitutional question altogether by applying the legal principles of the FOID Act, which says ISP can deny a FOID if issuing it would be against the public interest.

In court documents, the state cited Brown’s 2001 arrest, a 2005 DUI conviction in Bureau County, a 2005 arrest for battery in LaSalle County that did not lead to criminal charges, and a 1997 conviction for misdemeanor assault that occurred when he was a minor.

But Brown’s lawyers cited testimony from his current wife, who said he always practiced firearm safety, and a letter sent by his ex-wife, which stated “she did not believe he was a danger to himself or others,” after the 2001 incident, “and that she believed he was not likely to act in a manner dangerous to public safety if his FOID card was restored,” according to the court filing.

Even considering that, Buell said, Brown omitted the 2001 conviction from his FOID application, which is reason enough for a denial.

“In this case, Brown lied on his FOID card application by omitting from that application a misdemeanor crime of domestic violence, or MCDV, conviction,” Buell said, later claiming a circuit court that ruled in Brown’s favor ignored “the severity and break in public trust that occurs when an individual lies on a FOID card application.”
 

According to court documents, Brown said he did not divulge the 2001 conviction because he thought he had received court supervision rather than a conviction.

Brown’s case originated in Putnam County, where the court awarded him the FOID card and stated he had met the qualifications in the FOID statute. Angel said that decision was made in part as a response to the positive letter from Brown’s ex-wife and because Brown’s current wife has guns in their home with a court’s permission, indicating a lack of danger because no incidents have occurred.

The state appealed to the 3rd District Appellate Court, which reversed the Putnam County decision in a 2-1 vote.

Justice Robert Carter, who currently sits on the Supreme Court after being appointed to replace Justice Thomas Kilbride in December, wrote the opinion reversing the Putnam County order, which focused on the “civil rights restored” component rather than the constitutional argument.

“The exception (to federal law) cannot apply in this case, however, because Brown's California conviction was never expunged or set aside, Brown was never pardoned for that conviction, and Brown never had his civil rights revoked and restored in California as a result of that conviction,” he wrote.

Carter has recused himself from the Supreme Court’s decision on the case, due to his involvement at the appellate level.

The court only heard arguments in the case, with opinions expected later this month or in October.

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government and distributed to more than 400 newspapers statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.