Where a petitioner has been convicted of a felony and seeks a Firearm Owner Identification (FOID) Card, he is barred from receiving one under the federal Gun Control Act of 1968, because the applicable exception cannot be granted as the petitioner still violates the Illinois FOID Card Act, and the exception under the FOID Card Act cannot be granted as the petitioner would, until granted an exception, still be in violation of the Gun Control Act of 1968.

The 1st District Appellate Court affirmed the decision of Cook County Circuit Judge Michael T. Mullen.

Alfred Evans Jr. was convicted of two felony drug offenses in 1994 and served 4 1/2 years in prison. He was arrested for another controlled substance offense in 1999, and battery in 2008, but neither arrest led to conviction. Since then, Evans has had no contact with law enforcement. In January 2018, Evans, who now runs a business repossessing cars, applied for a Firearm Owner Identification (FOID) card from the Illinois State Police (ISP), acknowledging his previous interactions with the police and convictions in his application.

The ISP denied Evans’ petition, citing a federal law barring possession of firearms by anyone who was sentenced to more than one year in prison. Before granting a FOID card, the ISP must be satisfied that the applicant meets four criteria: he must have no forcible felony or imprisonment for such in the past 20 years, he must not be a danger to public safety, granting him the card must not be contrary to public interest and it must not be contrary to federal law. Evans sought review by the circuit court, where the Cook County state’s attorney objected, again citing the federal law. Evans, obtaining counsel, filed a response. The trial court sustained the state’s attorney’s objections and Evans appealed.

The state did not challenge that Evans had no convictions or imprisonment for a forcible felony in the prior 20 years, or that he was not a threat to public safety, but asserted that public interest and federal law weighed against granting him a FOID card. The appellate court disagreed about public policy, emphasizing that Evans’s convictions do not show any indication of violence and that since 2008 he has not had any interactions with the police and has raised three children with his wife and started a business.

The appellate court then turned to the issue of federal law. Evans acknowledged that the federal law in question, the Gun Control Act of 1968 (Gun Control Act) bars anyone convicted of a crime punishable by more than one year in prison from owning a firearm. However, Evans argued that it also contains an exception that applies, where “Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter.” Evans asserted that he had his “civil rights restored” for the purpose of this statute. The state acknowledged this clause, but emphasized that section 921(a)(20) allows a person convicted to possess a firearm if their civil rights are restored “unless such... restoration of civil rights expressly provides that the person may not... possess... firearms” meaning the affirmative provision of Illinois law bars Evans from possessing firearms under federal law.

The appellate court emphasized that this was a tricky issue, as Illinois law grants him the right to petition the director for the Department of State Police, who could grant relief — but only that permitted under federal law. The exception to the federal law was barred by an Illinois law, which contains an exception that can only be granted if it does not violate federal law. The appellate court noted that this was “statutory merry-go-round” was an unintended consequence of the law which acted to enforce a permanent ban on FOID card possession, but found that they must follow the statute as written rather than attempt to “divin[e] unexpressed legislative intent.”

The appellate court therefore affirmed the decision of the circuit court.

Alfred Evans Jr. v. Cook County State’s Attorney, et al.
2019 IL App (1st) 182488
Writing for the court: Justice Michael B. Hyman
Concurring: Justice John C. Griffin
Specifically concurring: Justice Daniel J. Pierce