Madison - St. Clair Record

Thursday, September 19, 2019

Fifth District reverses one of its own in challenge to FOID card licensing statutes

By Heather Isringhausen Gvillo | Apr 25, 2017

The Fifth District Appellate Court reversed Appellate Judge John Barberis’ Jr.’s ruling as a circuit judge in Madison County, which granted dismissal in a man’s lawsuit challenging the constitutionality of two state firearm licensing statutes.

Justice David Overstreet filed the Rule 23 decision on April 21 with Justices Thomas Welch and Judy Cates concurring.

The appellate court concluded that Barberis improperly dismissed plaintiff David Koshinski’s lawsuit as moot, reversing and remanding the action. The appellate court held that Koshinski's suit satisfied the public interest exception of the mootness doctrine.

Barberis became a member of the Fifth District Appellate Court in December, following his election in November.

Koshinski filed his complaint against Jessica Trame, in her official capacity as chief of the Firearms Services Bureau, challenging the constitutionality of section section 8.2 of the Firearm Owners Identification Card Act and section 70(b) of the Firearm Concealed Carry Act, “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.”

Koshinski’s case was dismissed as moot because Trame had already restored his right to possess firearms.

According to his complaint, Koshinski obtained 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 him without notice, which he says was petitioned for by his step-father-in-law after they argued on the telephone.

The Illinois State Police notified the plaintiff that his firearm licenses were temporarily revoked based on the protective order, and he was forced to surrender his gun licenses and transfer his firearms.

On June 15, 2015, Koshinski filed a complaint in the Madison County Circuit Court, challenging the constitutionality of the two statutes. 

Section 8.2 of the FOID Card Act regulates firearm possession in Illinois, requiring the state police to revoke and seize a FOID card if it finds that the card holder is subject to an existing order of protection.

According to the FOID Card Act, when a FOID card is revoked, the state police notifies the holder in writing, stating the reasons the card is revoked, and advises the holder of his rights and obligations.

The Firearm Concealed Carry Act states that a license shall be suspended if an order of protection, including an emergency order of protection, is issued against a licensee.

In his complaint, Koshinski alleged 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.

Koshinski sought a declaration that the statutes are unconstitutional and an injunction preventing Trame from suspending or revoking his gun licenses in the event an order of protection is filed against him unless he receives actual notice and has the opportunity to participate in a hearing.

He also sought attorneys’ fees and court costs.

Trame filed a motion to dismiss the plaintiff’s complaint as moot on Aug. 26, 2015, because his gun license had been reinstated.

Koshinski argued that his claims were not moot because he sought attorneys’ fees and he remained at risk of prosecution.

He further argued that his claims should be heard under the public interest.

On Sept. 18, 2015, Barberis entered an order granting Trame’s motion to dismiss and denying as moot all other pending motions.

On Sept. 22, Koshinski appealed.

“The plaintiff describes his action as a civil action for deprivation of rights, seeking to hold that portions of the Illinois gun licensing statutes violate the second and fourteenth amendments to the United States Constitution.

“The plaintiff takes issue with the statutes’ requirements to suspend, without prior notice or opportunity to be heard, his right to keep and bear arms on the basis of an ex parte order of protection,” Overstreet wrote.

The appeals court held that because Koshinski’s licenses have been reinstated, he is no longer subject to the licensing statutes he seeks to be declared as unconstitutional.

“As a result, this court cannot grant any meaningful relief to him by ruling on the constitutionality of the statutes, declaring them unconstitutional, or enjoining their enforcement,” Overstreet wrote.

Therefore, the question of the statutory provisions’ constitutionality is now moot.

However, the appeals court held that the public interest exception is satisfied.

Koshinski argued that Trame is a public employee sued in her official capacity and the question involves the constitutionality of an Illinois statute, which will recur as each ex parte order of protection is entered against a card holder.

“This issue is of sufficient breadth and has a significant effect on the public as a whole so as to satisfy the public nature criterion,” Overstreet wrote.

The appeals court further held that the absence of a conflict in law does not bar appellate review.

“Providing a definitive decision as to the statutory limits of a state’s authority to limit a citizen’s firearm ownership as a result of a trial court entering an ex parte order of protection, a common occurrence, will provide guidance to judges and prosecutors and firearm owners, in addition to public officers, including the defendant, faced with questions regarding the statutes’ validity,” Overstreet wrote.

Madison County Circuit Court case number 15-CH-362

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Illinois Fifth District Appellate Court Illinois State Police Madison County Circuit Court