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Koshinski v. Trame

Court of Appeals of Illinois, Fifth District

May 31, 2017

DAVID KOSHINSKI, Plaintiff-Appellant,
v.
JESSICA TRAME, in Her Official Capacity as Chief of the Firearms Services Bureau of the Department of State Police, Defendant-Appellee.

          Rule 23 order filed: April 21, 2017

          Motion to publish granted: May 31, 2017

         Appeal from the Circuit Court of Madison County, No. 15-CH-362; the Hon. John B. Barberis, Jr., Judge, presiding.

          Thomas G. Maag, of Maag Law Firm, LLC, of Wood River, for appellant.

          Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro, Solicitor General, and Laura Wunder, Assistant Attorney General, of counsel), for appellee.

          Panel JUSTICE OVERSTREET delivered the judgment of the court, with opinion. Justices Welch and Cates concurred in the judgment and opinion.

          OPINION

          OVERSTREET JUSTICE.

         ¶ 1 The plaintiff, David Koshinski, filed an action challenging the constitutionality of two firearm licensing statutes, section 8.2 of the Firearm Owners Identification Card Act (FOID Card Act) (430 ILCS 65/8.2 (West 2014)), and section 70(b) of the Firearm Concealed Carry Act (430 ILCS 66/70(b) (West 2014)), which temporarily revoked, without giving him notice or an opportunity to be heard, his right to possess firearms as a result of an emergency order of protection entered against him. Because the defendant, Jessica Trame, in her official capacity as chief of the Firearms Services Bureau of the Department of State Police, had restored the plaintiff's right to possess firearms prior to the hearing on his action, the circuit court dismissed the plaintiff's action as moot. For the following reasons, we reverse the circuit court's dismissal order, and we remand the cause for further proceedings.

         ¶ 2 BACKGROUND

         ¶ 3 The plaintiff owns an Illinois FOID card and an Illinois firearm concealed carry license. On May 4, 2015, the circuit court entered an ex parte emergency protective order against the plaintiff. According to the plaintiff, his stepfather-in-law had petitioned for and obtained an ex parte protective order, without notice to the plaintiff, after the two men argued on the telephone. Thereafter, the Illinois State Police notified the plaintiff that his firearm licenses were temporarily revoked based on entry of the protective order. The plaintiff alleged that he was forced to surrender his gun licenses and transfer his firearms.

         ¶ 4 On May 21, 2015, the circuit court modified the emergency protective order to a mutual stay away order, requiring the plaintiff and his stepfather-in-law to stay away from each other. The circuit court's order was entered following notice and a hearing at which the plaintiff participated. On August 6, 2015, the circuit court vacated its May 21, 2015, modified order, and therefore, the plaintiff was no longer subject to an order of protection. Thereafter, the defendant restored the plaintiff's gun licenses.

         ¶ 5 On June 15, 2015, the plaintiff filed a complaint in the circuit court challenging the constitutionality of section 8.2 of the FOID Card Act (430 ILCS 65/8.2 (West 2014)) and section 70(b) of the Firearm Concealed Carry Act (430 ILCS 66/70(b) (West 2014)). The plaintiff alleged that he was improperly denied his constitutionally protected right to bear arms, without notice or an opportunity to be heard, based on entry of the ex parte emergency protective order. Alleging violations of the second and fourteenth amendments to the United States Constitution (U.S. Const., amends. II, XIV), the plaintiff sought a declaration that the firearm licensing statutes were unconstitutional. He further sought an injunction restraining the defendant from suspending or revoking his gun licenses "in the event of an [e]mergency or other [o]rder of [p]rotection being issued against [him], unless said order was issued after a hearing of which [he] received actual notice[ ] and *** opportunity to participate." He also sought an award of "costs and attorney fees, pursuant to 42 U.S.C. [§] 1988."

         ¶ 6 On August 26, 2015, the defendant filed a motion to dismiss the plaintiff's complaint as moot because his gun licenses had been reinstated. The plaintiff contended that his claims were not moot because he sought attorney fees and because he remained at risk of prosecution. He further asserted that his claims should be heard under the public interest and capable-of-repetition-but-avoiding-review exceptions to mootness. On September 18, 2015, after a hearing, the circuit court entered an order granting the ...


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