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Evans v. The Cook County State's Attorney

Court of Appeals of Illinois, First District, First Division

October 28, 2019

ALFRED EVANS JR., Petitioner-Appellant,
v.
THE COOK COUNTY STATE'S ATTORNEY and THE ILLINOIS STATE POLICE, Respondents-Appellees.

          Appeal from the Circuit Court of Cook County. No. 18 CH 2670 Honorable Michael Mullen, Judge, presiding.

          Attorneys for Appellant: Alfred Evans Jr., of Bolingbrook, appellant pro se.

          Attorneys for Appellee: Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Katelin B. Buell, Assistant Attorney General, of counsel), for appellees.

          JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Griffin concurred in the judgment and opinion. Justice Pierce specially concurred, with opinion.

          OPINION

          HYMAN, JUSTICE

         ¶ 1 Alfred Evans Jr., who has applied for a Firearm Owner's Identification (FOID) card, finds himself caught in a circuitous commingling of Illinois and federal laws that only the General Assembly can untangle.

         ¶ 2 In the circuit court, Evans contested the Illinois State Police's (ISP) decision to deny his FOID card application. The ISP had cited convictions for two felony drug offenses in 1994, and the related federal statute prohibiting possession of firearms by felons. The Cook County State's Attorney objected on the grounds that issuing Evans a FOID card would violate federal law as well as public interest. The circuit court agreed with the State.

         ¶ 3 We would be inclined to reverse in light of the uncontradicted evidence that Evans has turned his life around. He has had no contact-conviction, arrest, or otherwise-with the criminal justice system since 2008. He is married and active in raising his three children. He owns a business towing repossessed cars. He seeks a gun only for protection, and there is no evidence in the record that he would use a gun for any other purpose.

         ¶ 4 But, as we already have said, Evans has been snagged by an interrelated statutory web. The Firearm Owners Identification Card Act (FOID Card Act) (430 ILCS 65/10(c) (West 2018)) requires the circuit court to consider four factors before granting relief, including whether Evans's possession of a gun would violate federal law, and under ordinary circumstances, it would. Federal law prohibits persons convicted of offenses that carry a possible sentence of more than one year in prison (in Illinois, this means felonies) from possessing firearms. There is, however, a safety valve in the federal law's definition of a "conviction." A conviction does not count for the purposes of federal law when the law in the relevant jurisdiction (Illinois) has restored Evans's civil rights to him. The State concedes that Illinois has done so.

         ¶ 5 But that federal safety valve comes with a caveat. It does not apply if State law places an affirmative impediment on accessing the FOID card. This returns us to Illinois law, and Illinois law, like the federal law, prohibits firearm possession by persons convicted of felonies. 720 ILCS 5/24-1.1(a) (West 2018). Again, there is a safety valve-a felon can petition the director of ISP for relief from the possessory disability imposed by his or her felony conviction. Id. So far so good, except the safety valve conceals a fatal design flaw, namely, the reliance on the same four-factor test applied in the FOID Card Act, which, as we said, prohibits the issuance of a FOID card if doing so would violate federal law.

         ¶ 6 Sound circular? It is.

         ¶ 7 So we are back at the beginning of an unending statutory loop. We cannot rewrite Illinois law. Unless the General Assembly sees fit to intervene and fix this ill-crafted statutory scheme, the federal prohibition on Evans's possession of a firearm functions as a barricade rather than a bridge, and Evans and others in the same circumstance will never be entitled to relief under section 10(c) of the FOID Card Act. 430 ILCS 65/10(c) (West 2018). We are obligated to affirm.

         ¶ 8 Background

         ¶ 9 Throughout Evans's late teens and early 20s, he had multiple contacts with police. In 1987, when he was 17, he was arrested (but not convicted) for battery and theft. Five years later, Evans was arrested three times. One arrest, for aggravated assault, did not lead to a conviction. The other two arrests resulted in convictions for Class 2 felony possession of an unknown amount of an unknown controlled substance and Class X felony possession of more than 15 grams of a substance containing cocaine. The record shows that the court sentenced Evans to three years in the Department of Corrections for the Class 2 offense. The record does not show the sentence for the Class X offense. In 1993, while apparently on bond for the two drug cases, police arrested Evans for battery. Again, this charge did not lead to a conviction.

         ¶ 10 In a letter attached to his application for the FOID card, Evans says that he served four-and-one-half years of actual time in prison for two offenses-the State does not dispute that calculation, and nothing in the record indicates otherwise.

         ¶ 11 In 1999, Evans was arrested for various controlled substance offenses, none of those arrests ended in a conviction. Then in 2008, he was arrested for battery. That arrest, too, did not lead to a ...


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