Connour v. Grau

FILED
2015 IL App (4th) 130746 July 7, 2015
Carla Bender
NO. 4-13-0746 4th District Appellate
Court, IL
IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

SCOTT CONNOUR, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
HIRAM GRAU, Director of State Police; and ) No. 11MR148
MICHAEL W. VORREYER, FOID Enforcement )
Manager of The Department of State Police, )
Defendants-Appellants, )
and ) Honorable
THE McLEAN COUNTY STATE'S ATTORNEY, ) Rebecca Simmons Foley,
Defendant. ) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
Presiding Justice Pope and Justice Knecht concurred in the judgment and opinion.

OPINION

¶1 In March 1999, plaintiff, Scott Connour, was convicted of misdemeanor domestic

battery and sentenced to a one-year term of conditional discharge. In February 2011, plaintiff

applied for a card under the Firearm Owners Identification Card Act (FOID Act) (430 ILCS 65/1

to 16-3 (West 2010)). In March 2011, the Illinois State Police (hereinafter, Department) denied

plaintiff's application, citing a provision of the federal Gun Control Act of 1968 (Gun Control

Act) (18 U.S.C. § 922(g)(9) (2006)) that made it unlawful for a person convicted of misdemean-

or domestic violence to possess a firearm. In May 2011, plaintiff filed a petition in the trial court

for the issuance of a FOID card pursuant to section 10 of the FOID Act (430 ILCS 65/10 (West

2010)). In July 2011, the court granted plaintiff's petition and ordered the Department to issue

plaintiff a FOID card. In August 2011, the Department issued plaintiff a FOID card that bore the
following language: "WARNING: The individual shown on this card is prohibited from posses-

sion firearms or ammunition under Federal Law 18 USC 44 922 g [sic]." (Emphasis in original.)

¶2 In May 2012, plaintiff filed a petition for writ of mandamus against the Depart-

ment—specifically, Hiram Grau (director of the Department) and Michael W. Vorreyer (FOID

enforcement manager of the Department)—seeking an order directing the Department to issue

plaintiff a valid FOID card "without any qualifiers thereon prohibiting [its] full and lawful use."

In August 2013, following a hearing, the trial court granted plaintiff's mandamus petition and

ordered the Department to (1) issue plaintiff a FOID card without any qualifying language and

(2) "report to the appropriate federal agency that [plaintiff's] rights have been restored to possess

firearms and ammunition."

¶3 The Department appeals, arguing only that the trial court erred by ordering it to

report to the appropriate federal agency that plaintiff's right to possess firearms and ammunition

had been restored. Although we affirm the court's judgment, we modify it and remand with di-

rections that the court modify its order by directing the Department to report to federal authori-

ties that plaintiff's rights to possess firearms and ammunition have been restored as a matter of

Illinois law.

¶4 I. BACKGROUND

¶5 The following facts were gleaned from the parties' pleadings, exhibits, evidence

presented at the hearings, and the trial court's orders.

¶6 Upon his March 1999 conviction for misdemeanor domestic battery, plaintiff lost

his right to possess a firearm under Illinois law (430 ILCS 65/8(l) (West 1998)) and federal law

(18 U.S.C. § 922(g)(9) (1994)). In May 2011, plaintiff initiated proceedings under section 10 of

the FOID Act, which at that time provided, in pertinent part, as follows:

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 "(a) Whenever an application for a [FOID] card is denied,

*** the aggrieved party may petition the circuit court in writing in

the county of his or her residence for a hearing upon such denial,

revocation, or seizure.

(b) At least 30 days before any hearing in the circuit court,

the petitioner shall serve the relevant State's Attorney with a copy

of the petition. The State's Attorney may object to the petition and

present evidence. At the hearing the court shall determine whether

substantial justice has been done. Should the court determine that

substantial justice has not been done, the court shall issue an order

directing the Department of State Police to issue a Card.

(c) Any person prohibited from *** acquiring a [FOID

card] under Section 8 of this Act may *** petition the circuit court

in the county where the petitioner resides, *** requesting relief

from such prohibition[,] and the *** court may grant such relief if

it is established by the applicant to the court's *** satisfaction that:

(0.05) *** the State's Attorney has been

served with a written copy of the petition at least 30

days before any such hearing in the circuit court and

at the hearing the State's Attorney was afforded an

opportunity to present evidence and object to the

petition;

(1) the applicant has not been convicted of a

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 forcible felony under the laws of this State or any

other jurisdiction within 20 years of the applicant's

application for a [FOID card], or at least 20 years

have passed since the end of any period of impris-

onment imposed in relation to that conviction;

(2) the circumstances regarding a criminal

conviction, where applicable, the applicant's crimi-

nal history and his reputation are such that the ap-

plicant will not be likely to act in a manner danger-

ous to public safety; and

(3) granting relief would not be contrary to

the public interest." 430 ILCS 65/10(a)-(c) (West

2010).

¶7 The McLean County State's Attorney, after receiving notice of plaintiff's petition

pursuant to section 10(b) of the FOID Act, raised no objection to plaintiff's petition. In July

2011, following a hearing, the trial court found "that [plaintiff] will not be likely to act in a man-

ner dangerous to public safety and granting a FOID card to [plaintiff] would not be contrary to

the public interest." Accordingly, the court granted plaintiff's petition, ordering that "the disabil-

ity preventing [plaintiff] from obtaining and possess[ing] a FOID card, specifically relating to the

prior conviction [for domestic battery], is hereby remove[d] and the [Department] shall issue a

FOID card to [plaintiff]."

¶8 As already stated, in August 2011, the Department issued plaintiff a FOID card

that bore the following language: "WARNING: The individual shown on this card is prohibited

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from possession firearms or ammunition under Federal Law 18 USC 44 922 g [sic]." (Emphasis

in original.) In the months that followed, plaintiff and his attorneys attempted, unsuccessfully, to

obtain from the Department a FOID card that did not contain qualifying language.

¶9 In May 2012, plaintiff filed a petition for writ of mandamus, alleging that defend-

ants were obligated under the trial court's July 2011 order and the FOID Act to issue plaintiff a

FOID card without qualifying language. In his prayer for relief, plaintiff sought an order "direct-

ing [defendants] to issue [plaintiff] a valid [FOID card] without any qualifiers thereon prohibit-

ing [its] full and lawful use[.]"

¶ 10 In July 2012, defendants filed a motion to dismiss plaintiff's mandamus petition

pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2012)), argu-

ing that (1) placing the warning label on plaintiff's FOID card was within the Department's dis-

cretionary powers under the FOID Act and (2) because plaintiff was prohibited from possessing

firearms under the federal Gun Control Act, (a) he had no clear right to a FOID card indicating

he could legally possess firearms and (b) defendants had no clear duty to issue such a card.

¶ 11 Following a May 2013 hearing, the trial court denied defendants' motion to dis-

miss and granted plaintiff's mandamus petition. The court explained its reasoning, as follows:

"The court does find that in July of 2011, [plaintiff's] rights were

restored, the disability was removed, and it was the intent of the

court's order that the [Department] issue a valid FOID card without

the language contained on the card that he currently has which

prevents him from using it. It makes no sense that the court would

order that they just issue a card. It was the intent of the court that a

card be issued that he could actually and validly use."

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At the conclusion of the May 2013 hearing, the court directed plaintiff to draft a written order

embodying the court's judgment and submit the proposed order to the Department for approval.

¶ 12 In July 2013, before the parties reached an agreement as to the appropriate lan-

guage to include in the order, the Department issued plaintiff a FOID card that contained no

qualifying language. Later that month, plaintiff went to a sporting-goods store to purchase a

firearm using the newly issued FOID card. At the store, the owner—who submitted an affidavit

to the trial court—used the seven-digit number contained on the FOID card to run a background

check on plaintiff to "verify his eligibility to purchase a firearm." According to the store owner's

affidavit, "[u]pon completion of the background check[,] the FOID card was denied."

¶ 13 At an August 1, 2013, hearing, plaintiff contended that the July 2013 FOID card

the Department issued to him was invalid because the Department had not reported to federal

authorities that plaintiff's rights had been restored. Plaintiff paraphrased the following provision

of the Gun Control Act:

"A person shall not be considered to have been convicted of [do-

mestic battery] for purposes of this chapter if the conviction has

been expunged or set aside, or is an offense for which the person

has been pardoned or has had civil rights restored (if the law of the

applicable jurisdiction provides for the loss of civil rights under

such an offense) unless the pardon, expungement, or restoration of

civil rights expressly provides that the person may not ship,

transport, possess, or receive firearms."

18 U.S.C. § 921(a)(33)(B)(ii) (2012).

¶ 14 Citing section 921(a)(33)(B)(ii), plaintiff contended that because the trial court

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reinstated his right to hold a FOID card pursuant to section 10 of the FOID Act, plaintiff's "civil

rights" had been "restored" within the meaning of the Gun Control Act. According to plaintiff,

the Department was responsible for reporting to the federal database (known as the National In-

stant Criminal Background Check System, or "NICS") the identities of individuals whose prior

convictions bar them from possessing a firearm under federal law. Plaintiff argued that because

the NICS database still considered him barred from possessing a firearm due to his previous do-

mestic battery conviction, the FOID card the Department issued in July 2013 was essentially

worthless. Even with the qualifying language omitted from the FOID card, plaintiff could still

not pass a federal background check due to the Department's failure to report to the NICS data-

base that his civil rights had been restored.

¶ 15 At the conclusion of the August 1, 2013, hearing, the trial court entered a written

order directing the Department to issue plaintiff, by August 22, 2013, "an unrestricted, valid[,]

and useable [FOID card] without any restrictions not authorized by Illinois law." The following

statement, written by hand, appeared at the bottom of the court's order: "[The Department] shall

report to the appropriate federal agency that [plaintiff's] rights have been restored to possess fire-

arms and ammunition."

¶ 16 This appeal followed.

¶ 17 II. ANALYSIS

¶ 18 On appeal, the Department argues only that the trial court erred by ordering it to

report to the appropriate federal agency that plaintiff's right to possess firearms and ammunition

had been restored. (The Department does not contest the court's finding that plaintiff was enti-

tled to a valid FOID card as a matter of Illinois law.) Because we conclude that the court's resto-

ration of plaintiff's right to a FOID card under the FOID Act did not automatically remove plain-

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tiff's disability to possessing a firearm under the federal Gun Control Act, we remand with direc-

tions that the court clarify its order by directing the Department to report to federal authorities

that plaintiff's rights to possess firearms and ammunition have been restored as a matter of Illi-

nois law.

¶ 19 A. The Standard of Review

¶ 20 "In order to obtain a mandamus remedy, the plaintiff must establish a clear right

to the requested relief, a clear duty of the public officer to act, and clear authority of the public

officer to comply with the order." McFatridge v. Madigan, 2013 IL 113676, ¶ 17, 989 N.E.2d

165. "A writ of mandamus is appropriate when used to compel compliance with mandatory legal

standards but not when the act in question involves the exercise of a public officer's discretion."

Id.

¶ 21 In this case, whether plaintiff was entitled to the mandamus relief at issue—

namely, the trial court's order directing the Department to inform federal authorities that plain-

tiff's right to possess firearms and ammunition had been restored—depends upon the proper in-

terpretation of the Gun Control Act. The interpretation of a statute is a question of law, which

we review de novo. People v. Simpson, 2015 IL 116512, ¶ 29, 25 N.E.3d 601.

¶ 22 B. The Gun Control Act

¶ 23 The Gun Control Act makes it unlawful for any person "who has been convicted

in any court of a misdemeanor crime of domestic violence" to "possess in or affecting commerce,

any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or

transported in interstate or foreign commerce." 18 U.S.C. § 922(g)(9) (2012). However, "[a]

person shall not be considered to have been convicted of [a misdemeanor crime of domestic vio-

lence] for purposes of this chapter if the conviction has been expunged or set aside, or is an of-

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fense for which the person has been pardoned or has had civil rights restored (if the law of the

applicable jurisdiction provides for the loss of civil rights under such an offense) unless the par-

don, expungement, or restoration of civil rights expressly provides that the person may not ship,

transport, possess, or receive firearms." (Emphasis added.) 18 U.S.C. § 921(a)(33)(B)(ii) (2012).

¶ 24 In this case, plaintiff argues that the Gun Control Act does not prohibit him from

possessing a firearm because his civil rights were restored when the trial court granted his peti-

tion for a FOID card under section 10 of the FOID Act. However, the rights restored under sec-

tion 10 of the FOID Act are not necessarily the type of "civil rights" referred to in section

921(a)(33)(B)(ii). In Logan v. United States, 552 U.S. 23, 28 (2007), the Supreme Court inter-

preted section 921(a)(20) of the Gun Control Act (18 U.S.C. § 921(a)(20) (2006))—which used

the same "civil rights restored" language as section 921(a)(33)(B)(ii)—and stated, "While

§921(a)(20) does not define the term 'civil rights,' courts have held, and petitioner agrees,

that the civil rights relevant under [§921(a)(20)] are the rights to vote, hold office, and serve on a

jury." It appears this statement was dicta because the petitioner in Logan conceded that "civil

rights" under the Gun Control Act means only those three core civil rights. It remains an open

question whether the restoration of the right to keep arms as a matter of state law constitutes the

restoration of civil rights within the meaning of the Gun Control Act.

¶ 25 The Supreme Court in Logan also held that a person who retains his civil rights

upon conviction cannot have his civil rights restored. Logan, 552 U.S. at 36-37 ("Congress ex-

plicitly distinguished between 'restored' and 'retained' in §921(a)(33)(B)(ii)."). In this case, be-

cause plaintiff did not lose his core civil rights when he was convicted of domestic battery, he

never had his core civil rights restored within the meaning of the Gun Control Act.

¶ 26 After the trial court entered its final judgment in this case, the Illinois Supreme

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Court decided Coram v. State of Illinois, 2013 IL 113867, 996 N.E.2d 1057, which controls the

outcome of this appeal. In Coram, two concurring justices and two dissenting justices—a major-

ity of the court—agreed that the restoration of FOID card rights under section 10 of the FOID

Act does not automatically remove the federal disability to the possession of firearms under the

federal Gun Control Act. See id. ¶ 103, 996 N.E.2d 1057 (Burke, J., specially concurring, joined

by Freeman, J.) ("The only thing that can be established with finality under a state regulatory

scheme such as the FOID Card Act is whether or not an applicant is compliant with state law.");

id. ¶ 118, 996 N.E.2d 1057 (Theis, J., dissenting, joined by Garman, J.) ("A section 10 hearing

cannot make it lawful for Coram to acquire or possess a firearm that he concedes he is prohibited

from possessing under federal law."); see also People v. Lampitok, 207 Ill. 2d 231, 238, 798

N.E.2d 91, 97 (2003) ("The concurring and dissenting justices agree on the resolution of some

issues so that they become the holding of the appellate court even though they are not found in

the principal order."). In other words, a majority of the supreme court in Coram held that when

an Illinois state court restores a person's right to possess firearms and ammunition for purposes

of Illinois law pursuant to section 10 of the FOID Act, such restoration does not automatically

restore the person's right to possess firearms and ammunition under the federal Gun Control Act.

¶ 27 In this case, plaintiff's principal argument—that the trial court's restoration of his

firearm rights under section 10 of the FOID Act removed his federal disability to firearm posses-

sion—rests on the three-justice plurality's holding in Coram. See Coram, 2013 IL 113867, ¶ 69,

996 N.E.2d 1057 ("Given the broad powers Congress has given the states to restore rights and

grant relief from federally imposed firearms disabilities, we believe the power to grant relief, or

restore rights, to those who have lost them as a result of state misdemeanor convictions is neces-

sarily implied."). However, a majority of the justices rejected that conclusion. See id. ¶ 105, 996

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N.E.2d 1057 (Burke, J., specially concurring, joined by Freeman, J.) ("Although this result an-

swers the question of whether Coram has established the right to possess a firearm as a matter of

state law, it remains an open question as to whether Coram is prohibited from possessing a fire-

arm as a matter of federal law. However, that is a matter to be resolved between Coram and the

federal authorities."); id. ¶ 118, 996 N.E.2d 1057 (Theis, J., dissenting, joined by Garman, J.)

("[N]othing in the FOID Act relieves Coram of the disability imposed under the federal Gun

Control Act ***.").

¶ 28 Because the trial court's restoration of plaintiff's right to a FOID card under sec-

tion 10 of the FOID Act did not automatically remove plaintiff's federal firearm disability under

the Gun Control Act, plaintiff had no clear right to have federal authorities informed—and the

Department had no clear duty to inform federal authorities—that plaintiff's "rights have been re-

stored to possess firearms and ammunition." Instead, a more accurate message would have been

that plaintiff's rights to possess firearms and ammunition have been restored as a matter of Illi-

nois law. Accordingly, we affirm the court's judgment as modified and remand with directions

that the court modify its order by directing the Department to report to federal authorities that

plaintiff's rights to possess firearms and ammunition have been restored as a matter of Illinois

law. In so doing, we recognize that plaintiff's FOID card, even if valid under Illinois law, may

be worthless to plaintiff so long as his 1999 misdemeanor conviction for domestic battery still

prevents him from passing a federal background check or otherwise legally possessing a firearm

under federal law. However, as four justices of the supreme court concluded in Coram, that is

not a matter to be resolved through state proceedings.

¶ 29 III. CONCLUSION

¶ 30 For the reasons stated, we affirm the trial court's judgment as modified and re-

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mand with directions.

¶ 31 Affirmed as modified and remanded with directions.

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