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People v. Frederick

Court of Appeals of Illinois, Second District

March 20, 2015

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff,
v.
DARCEY R. FREDERICK, Defendant-Appellee (The Department of State Police, Intervenor-Appellant)

Modified on denial of rehearing April 16, 2015

Appeal from the Circuit Court of Stephenson County. No. 91-CM-373. Honorable John F. Joyce, Judge, Presiding.

Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro, Solicitor General, and Timothy K. McPike, Assistant Attorney General, of counsel), for appellant.

Karla M. Niemann, of Mahoney & Hauser, Ltd., of Freeport, for appellee Darcey R. Frederick.

PRESIDING JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Zenoff and Burke concurred in the judgment and opinion.

OPINION

SCHOSTOK, PRESIDING JUSTICE

Page 64

[¶1] After the Illinois Department of State Police told Darcey Frederick that it was revoking his firearm owner's identification (FOID) card because of an earlier conviction of misdemeanor battery against his former girlfriend, he filed a petition challenging the revocation in the circuit court of Stephenson County. The circuit court ordered the Department to issue Frederick a FOID card. The Department appeals, arguing that (1) the circuit court did not have jurisdiction to hear the petition because Frederick had not properly exhausted his administrative remedies, and (2) in any event, neither the circuit court nor the Director of the Department could issue a FOID card to Frederick under the current version of the Firearm Owners Identification Card Act (FOID Act) (430 ILCS 65/1 et seq. (West 2012) (as amended by Pub. Act 97-1131, § 15 (eff. Jan. 1, 2013))), because doing so would be contrary to federal law. We reject the Department's first argument but agree with its second. We therefore reverse the judgment of the circuit court.

[¶2] I. BACKGROUND

[¶3] In April 1991, Frederick was charged with two Class A misdemeanors: domestic battery (Ill. Rev. Stat. 1991, ch. 38, ¶ 12-3.2) and criminal trespass to a residence

Page 65

(Ill. Rev. Stat. 1991, ch. 38, ¶ 19-4). Frederick does not dispute that the victim of the battery was a woman with whom he had cohabited. In August 1991, Frederick entered into a plea bargain, under which the charge of domestic battery was amended to battery (Ill. Rev. Stat. 1991, ch. 38, ¶ 12-3). Frederick pled guilty to that charge, and the charge of criminal trespass to a residence was dismissed. Frederick was sentenced to conditional discharge.

[¶4] In 2011, Frederick applied to the Department for a FOID card. At that time, the following statutes relating to the issuance of a FOID card were in effect. Section 8(n) of the FOID Act provided that the Department had authority to deny an application for a FOID card, or revoke a previously issued FOID card, if the person was " prohibited from acquiring or possessing firearms or firearm ammunition by any *** federal law." 430 ILCS 65/8(n) (West 2010). Section 922(g)(9) of the federal Gun Control Act imposed such a prohibition on anyone " convicted *** of a misdemeanor crime of domestic violence." 18 U.S.C. § 922(g)(9) (2006). However, the FOID Act also provided that, upon appeal of a denial or revocation of a FOID card, the Department's Director or the circuit court (whichever was hearing the appeal) could grant the relief requested if the petitioner established that: (1) he or she had not been convicted of or served time for a forcible felony within the last 20 years; (2) considering the petitioner's criminal history and reputation, he or she was " not *** likely to act in a manner dangerous to public safety" in the future; and (3) granting the relief " would not be contrary to the public interest." 430 ILCS 65/10(c)(1)-(3) (West 2010). If the petitioner met these requirements, courts construed the FOID Act as allowing the Director or the circuit court to override or ignore the federal prohibition against possession of a gun or ammunition. See Coram v. State of Illinois, 2013 IL 113867, ¶ 59, 996 N.E.2d 1057, 375 Ill.Dec. 1 (" Subsections (2) and (3) of section [10](c) of the 2010 version of the FOID Card Act allow a court to grant relief from the denial of a FOID card," when the denial is based on section 8(n).); Hiland v. Trent, 373 Ill.App.3d 582, 585, 868 N.E.2d 396, 311 Ill.Dec. 396 (2007) (even where section 8(n) of the FOID Act applies, Director has authority in extraordinary cases to issue FOID cards to " persons who have established their fitness to possess a gun" (internal quotation marks omitted)). The Department granted Frederick's application and issued him a FOID card.

[¶5] In 2012, the General Assembly amended section 10 of the FOID Act in two ways relevant here. Pub. Act 97-1131, § 15 (eff. Jan. 1, 2013). First, subsection (b), which allowed a circuit court to order the Department to issue a FOID card if it found that " substantial justice ha[d] not been done" in the denial or revocation of such a card, was amended to add the following restriction: " However, the court shall not issue the order if the petitioner is otherwise prohibited from obtaining, possessing, or using a firearm under federal law." Id. Second, the General Assembly added subsection (c)(4), which limited the authority of the Director and the circuit court by imposing an additional requirement: before relief could be granted, the Director or the court must find that " granting relief would not be contrary to federal law." Id. These amendments to the Act became effective on January 1, 2013.

[¶6] Thereafter, Frederick sought to buy a gun and the seller contacted the Department to see if Frederick was eligible to own the weapon. On March 13, 2013, the Department notified Frederick that it was revoking his FOID card based on his 1991 conviction. The Department's letter stated

Page 66

that it was " prohibited from issuing a [FOID] card to anyone convicted of any crime involving domestic violence." It also noted that the revocation was " in accordance with the Federal Gun Control Act of 1968, 18 U.S.C. [§ ] 922(g)(9)."

[¶7] In May 2013, Frederick filed a petition seeking the issuance of a FOID card, in the circuit court of Stephenson County. The Department filed a " non-party response" [1] to the petition, arguing that the circuit court lacked subject matter jurisdiction to hear the petition because section 10(a) of the FOID Act (430 ILCS 65/10(a) (West 2012)) provided that the sole avenue of appeal for Frederick was an administrative appeal to the Director. It also argued that the petition should be denied because Frederick was barred by the federal Gun Control Act from possessing guns and ammunition. Frederick responded that his petition was properly directed to the circuit court and that Illinois law permitted him to have a FOID card because his conviction was not for domestic battery as that term is defined under federal law.

[¶8] The hearing on the petition was held on December 12, 2013. At the close of the oral arguments, the circuit court ruled that it would grant the petition. In explaining its ruling, the circuit court began by stating that it would not apply the 2013 amendments to the FOID Act, because the Department initially granted Frederick a FOID card in 2011. A written order embodying the ruling was entered on January 8, 2014, in which the circuit court found that Frederick had not been convicted of a forcible felony within the last 20 years, he was not likely to act in a manner dangerous to public ...


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