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Motion to Dismiss in Illinois FOID Case

It looks like Illinois is taking the position that the plaintiff falls under one of their exceptions, given that she can lawfully possess firearms in her home state. I’m not an expert on legal matters, by any stretch, but it seems like this motion is going to be tough to overcome. The plaintiff is saying she can’t possess a firearm in the State of Illinois. The State of Illinois is saying she can, and is arguing she’s failed to make a case.

I’m not sure it matters if they later arrest someone for possessing a loaded firearm in, say, a hotel while staying in Illinois. The person they arrest will have a case. But it’s hard to see how to defeat the state saying “Yes you can,” when you say,” No, I can’t.”  It doesn’t seem to me that the state’s interpretation of the statute is wildly implausible either.

10 Responses to “Motion to Dismiss in Illinois FOID Case”

  1. Carl from Chicago says:

    I don’t know the specifics of this case. However …

    The D of C said “yes you can” remove a trigger lock device in the case of danger, even thought their statute didn’t say that.

  2. Carl from Chicago says:

    I see this as parallel to the issue regarding trigger locks in DC. Illinois is “now” saying she can, but Illinois law says she cannot (because she’s not licensed or registered in her home state).

  3. Flighterdoc says:

    Illinois allows people who are registered and licensed in their home state to transport or possess an unloaded, cased firearm.

    The plantiff is from an adjacent state that doesn’t require licensure or registration of firearms….most states don’t, in fact.

    So, since her home state doesn’t have such a license, she can’t be licensed by the state and would be violating Illinois law if she tried. Considering how aggressive pols in Illinois are about punishing lawful gun owners, she could well be arrested and charged.

    I think Illinois has a problem – if the local courts are smart they’ll deal with it.

  4. Sebastian says:

    It’s a poorly worded statute, but it would seem that Illinois is claiming that an out of state license covers you. I think we all agree that IL has a problem, the question is whether Illinois claim is enough to dismiss the case. If someone is later arrested, that person will have a clear cut case against the State of Illinois, since the damage isn’t merely speculative.

    By my reading of the statute, if you lived in a state that issued a license to possess, you could possess a loaded firearm in Illinois. Illinois is now claiming that a license to carry would seem to be good. Actually, they seem to be claiming that merely being legal in your home state makes you good.

    The LTC issue would seem to be reasonable, given the ambiguity in the statute. I’m not sure reading it as any person legal to possess a gun in their home state falls under that exemption is likewise reasonable. But I’m not sure how much that matters to the courts.

  5. The Illinois Asst. AG could also be assuming that just because Illinois requires licensing most other states do as well. We saw that same sort of ignorance about gun laws in other states back when Obama was organizing his administration. The questionnaire for all political appointees had a question on whether you owned a firearm and whether they were properly registered.

    Of course, most states don’t require licensing of the owner or registration of firearms in order to possess a firearm.

    If she meant that if you are a legal owner in another state by that state’s laws, then you are legal to possess a functioning firearm in the State of Illinois she should have cited Illinois case law indicating that interpretation.

    As it is, her claim is akin to the claims that the Perdue administration made regarding North Carolina’s emergency powers ban after the Governor declared a state of emergency for Hurricane Earl. Bev Perdue said it wouldn’t impact possession for dove hunting. However, the law says it is illegal to possess a firearm outside of the home during any declared state of emergency. Would either claim stand up in a criminal court? I sincerely doubt it.

  6. Jake says:

    I’m not sure reading it as any person legal to possess a gun in their home state falls under that exemption is likewise reasonable.

    It’s not. The plain language of the statute is the governing factor, unless there is some court precedent that contradicts it.

    (10) Nonresidents who are currently licensed or
    registered
    to possess a firearm in their resident state;

    The statute specifies “licensed or registered.” In a state that doesn’t require or offer licensing or registration, you can never be licensed or registered so it’s impossible to meet the requirements of the exemption.

    I agree that a CHP might qualify, but given how Illinois treats its own licensees, I sure wouldn’t want to risk having to argue that in court.

    This looks like the attorney for IL knows he doesn’t have anything he can use and is grasping at straws to get it dismissed before anything truly substantial is even considered.

  7. Jake says:

    Bugger! Broken blockquote tag!

  8. Sebastian says:

    Fixed it for you.

  9. Sebastian says:

    I think you’re right he’s trying to get the case dismissed so they don’t have to litigate on it. The problem is, I think the way he’s trying to get it dismissed is going to work.

  10. Jake says:

    Thanks for fixing that! Proofreading before I hit the submit button would be a good idea, I think. :)

    The problem is, I think the way he’s trying to get it dismissed is going to work.

    If the statute said “legally able to possess” I would agree. But “licensed or registered” is pretty specific language, and is very distinct from not being required to have a license at all. That gives the Plaintiff’s attorney a pretty solid argument for standing. Since OH doesn’t have licensing or registration, she can never meet that requirement, and can therefore never legally posses a firearm in IL.

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