Motion to Dismiss in Illinois FOID Case is Denied

In the challenge to the Illinois FOID card brought by the Mountain States Legal Foundation, Mishaga v. Monken, Chief U.S. District Court Judge Michael P. McCuskey denied the defense’s motion to dismiss the case. His seven-page opinion was released this afternoon and orders the Illinois State Police to file an answer to the complaint by December 17th.

The Illinois Attorney General’s Office had filed a Motion to Dismiss in this case on October 15th. The motion was brought under Federal Rules of Civil Procedure Rule 12(b)(6) for a  failure to state a claim upon which relief could be granted. They contended that Ms. Mishaga did not need a FOID card as she met one of the 6 exceptions to the requirement for out of state residents. Thus, the State Police’s denial of a FOID card for her was irrelevant and the case should be dismissed.

Attorney Jim Manley of the Mountain States Legal Foundation responded with a memorandum in opposition to this motion to dismiss on October 26th. He pointed out that in the original complaint for Ms. Mishaga that she sought to be be able to possess a functional firearm. Five of the six exceptions to the FOID card of out of state residents required an unloaded and cased firearm if not actively participating in hunting or a shooting event. The sixth exception required Ms. Mishaga to be licensed or registered in her state of residence. The only problem with that is that the state of Ohio does not register or license firearms owners and actually forbids it. He said the defense had confused lawful possession with licensing or registration and that was not was the Illinois law said.

Judge McCuskey’s opinion took a very methodical approach to determining whether the plaintiff stated a claim that could be granted relief. He first restated the facts of the case and makes note that she wishes to possess a function firearm while residing in her friend’s home.  He then examined the case law regarding when it was proper to dismiss a complaint for failure to state a claim upon which relief can be granted.

Judge McCuskey first looks at whether the complaint sufficiently spelled out the facts of the case. The Federal Rules and case law require that the allegation be “simple, concise, and direct” and that it contain enough factual content so that the court can “draw the reasonable inference that the defendant is liable for the misconduct alleged.” He found that under this standard a claim had been made.

He then examined whether the Illinois FOID card requirements infringed upon her right to possess a functional firearm. He notes that Heller found the Second Amendment protected the right to possess a firearm in one’s own house for self-defense and that Illinois generally requires a FOID card. The State Police have interpreted the law to require an Illinois driver’s license and this has interfered with her right to have a weapon in her temporary residence. By asking for declaratory and injunctive relief to stop the Illinois State Police from interfering with her right to possess a firearm, he says she states a claim.

Judge McCuskey has an interesting footnote that telegraphs to the parties that he wants them to discuss the rights of a guest in a home to possess a weapon:

In this case, Mishaga is a guest in someone else’s home. The parties do not address whether Mishaga’s right to possess a weapon as a guest may be more limited than the homeowner in Heller because she is not protecting her own home and because her loaded weapon may present dangers to the permanent residents of the home or to other Illinois citizens. At some point in this proceeding, the parties may need to address the exact scope of the constitutional right of a guest to possess a weapon in the home of another person.

The judge examines the argument that Ms. Mishaga does not need a FOID card due to the six exceptions for out of state residents and that therefore they don’t infringe upon her rights:

The Court disagrees with the Director’s position. The Second
Amendment guarantees Mishaga the right to possess a weapon at her residence that she may use for personal protection in case of a confrontation. Heller, 128 S.Ct. at 2797. Five of the six exceptions cited by the Director do not allow Mishaga to possess a weapon in useable condition in her friends’ home.

The Heller Court held that a requirement to make a weapon inoperable,such as the requirement that the weapon be unloaded and enclosed in acase, violates the homeowner’s constitutional right to bear arms because therequirement makes the weapon useless for personal defense. Heller, 128S.Ct. at 2818.3 Even with these exceptions, therefore, the Act still prohibitsMishaga from possessing a useable weapon for defense in her friends’residence.

 Finally, Judge McCuskey deals with the sixth exception – being registerd or licensed to possess a firearm in Ohio – might be satisfied by the possession of an Ohio CCW permit. The complaint never states whether Ms. Mishaga possesses an Ohio CCW or not. Thus:

For purposes of the Motion, the Court must assume that she does not, and so, must assume that this exception does not apply to her. The Complaint, therefore, alleges that the Act prohibits Mishaga from possessing a weapon at her temporary residence in Illinois that she may use for personal protection in violation of her constitutional right to bear arms. Mishaga states a claim.

Given the recent electoral results in Illinois where the anti-gun rights candidate won the Governor’s Office, the outcome of this case bears watching. As it is, the arguments of the Illinois Attorney General’s Office have been found lacking and their motion to dismiss was denied.

UPDATE: Eugene Volokh examines the case here on the Volokh Conspiracy and Dave Hardy comments on the case at Of Arms and the Law. Given that both of these attorneys are leading Second Amendment scholars, I see this as recognition that Mishaga is turning out to be more important than some previously thought.


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