New Judge For Challenge To Illinois FOID Card

Mishaga v. Monken, the challenge to Illinois’s FOID Card regulation brought by the Mountain States Legal Foundation, has been reassigned from Chief District Court Judge Michael McCuskey to newly confirmed District Court Judge Sue E. Myersclough. It is a common occurance for new judges to have cases reassigned to them.

I am not sure how this will impact the case. If you will remember, back in November Judge McCuskey denied the state’s motion to dismiss the case. His decison seemed to portend good things for this case as it went to trial.

Judge Myersclough served from 1998 until her confirmation as a judge on the Illinois Appellate Court, Fourth District. From 1990 to 1998, Myersclough was a Circuit Judge for the Circuit Court of Illinois, Seventh Judicial Circuit. Both of these courts meet in Springfield. She was nominated by President Obama in July 2010 and confirmed by the Senate in February 2011. Myersclough was nominated back in 1995 by President Bill Clinton for a District Court Judgeship but was not confirmed.

Myersclough is a graduate of Southern Illinois University taking her B.A. from there in 1973 and her J.D. from its law school in 1980. According to the public questionnaire submitted to the Senate Judiciary Committee, she also did graduate study at both Southern Illinois and the University of Chicago before attending law school.

As to her political leanings, she is a Democrat as would be expected. She had won a few awards from state and local Democratic committees for service over the years. She did run – but lost – for the Illinois Supreme Court back in 2002.

The important thing for us is how she would deal with Second Amendment rights. She did get a couple of questions for the record on Second Amendment issues from Senator Jeff Sessions (R-AL) and Senator Tom Coburn (R-OK).

From Sessions with her response:

Do you believe that the Second Amendment is an individual right or a collective right? Please explain your answer.
Response: The Supreme Court decisions in District of Columbia v. Heller, 128 S. Ct. 2783 (2008) and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) hold that the Second Amendment confers an individual right.

a. What standard of scrutiny do you believe is appropriate in a Second Amendment challenge against a Federal or State gun law?
Response: In Heller and McDonald, the Supreme Court found a right under the
Second Amendment must be treated in the same manner as any fundamental right identified in the Bill of Rights. The Second Amendment right to bear arms should therefore not be treated as a “watered down right” subject to “judicial interest balancing.” See Heller, 128 S. C. at 2821; McDonald, 130 S. Ct. at 3047.

From Coburn with her response:

What limitations remain on the individual Second Amendment right now that it has been incorporated against the States?
Response: What limits remain on the Second Amendment remain open but for those limits expressly set forth by the Supreme Court as presumptively lawful regulations in District of Columbia v. Heller, 128 S. Ct. 2783 (2008). “[N]othing in our opinion should be taken to cast doubt on the longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Heller, 128 S. Ct. at 2816-17.

a. Is it limited only to possession of a handgun for self-defense in the home, since both Heller and McDonald involved cases of handgun possession for self-defense in the home?
Response: Both Heller and McDonald specifically found city ordinances unconstitutional that prohibited handgun possession in the home. The Supreme Court has left open for future evaluations examples of other limits on the Second Amendment. But the Supreme Court made clear that core protections are conferred by the Second Amendment. “In Heller, however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing, [citation] and this Court decades ago abandoned ‘the notion that the Fourteenth Amendment applies to the States only a watereddown, subjective version of the individual guarantees of the Bill of Rights.’[Citation.]” McDonald, 130 S. Ct. at 3047.

I guess that is the best one could hope to hear from any nominee for a District Court judgeship. She does note that it is a “fundamental right”.

Now that she has taken over Mishaga, Myersclough has set the Final Pretrial Conference for December 19, 2011 and the Bench Trial is set to start January 3, 2012. I’m sure both of these dates could change over the coming months. In any event, it will be almost a year before any decision is rendered on whether the denial of Ellen Mishaga’s application for a FOID Card is unconstitutional or not.

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.

Illinois FOID Challenge – Plaintiffs Respond to Motion to Dismiss

As I posted a little more than a week ago, the State of Illinois sought to have the case brought by the Mountain States Legal Foundation on behalf of Ellen Mishaga challenging the state’s FOID requirements dismissed. They maintained that the FOID Card Act provided exceptions for out-of-state residents and thus they had not abridged her constitutional right to keep and bear arms nor her right to travel freely.

Attorney Jim Manley filed a reply in opposition to the defendant’s motion to dismiss yesterday. He gives a two-fold argument as to why the court should not dismiss this case: standard of review and that no FOID Act exceptions apply to Ms. Mishaga’s claims.

Courts, when reviewing motions to dismiss for failure to state a claim, must view the initial complaint in such a way as to be most favorable to the plaintiff. This includes accepting as true all factual allegations and all possible inferences stemming from those allegations. Thus, as the plaintiff argues:

Accepting the truth of the allegations in the Complaint, and drawing all inferences in the light most favorable to Ms. Mishaga, this Court should deny Defendant’s Motion to Dismiss.

The defendant suggested that 430 ICLS 65/2(b)(9) and (10) would be exceptions that would apply to Ms. Mishaga and allow her to possess a firearm in the state of Illinois without a FOID Card. The plaintiff’s reply argues that neither of these apply to Ms. Mishaga’s case. First, 430 ICLS 65/2(b)(9) states that “nonresidents whose firearms are unloaded and enclosed in a case” are not required to hold a FOID Card. However, an unloaded and cased firearm is inoperable and not available for self-defense. The plaintiff argues that “this subsection of the FOID Act suffers from the same constitutional infirmity as the law struck down by the Supreme Court in District of Columbia v. Heller.” The Supreme Court said in Heller that inoperable firearms make it impossible for citizens to use them in self-defense and thus it was unconstitutional.

Subsection (9) specifically prohibits the constitutionally-protected activity Ms. Mishaga intends to engage in by requiring nonresidents’ firearms to be “unloaded and enclosed in a case” at all times. 430 ILCS 65/2(b)(9). Thus, even if 430 ILCS 65/2(b)(9) were not unconstitutional, this exception to the FOID Act would offer no support for Defendant’s Motion to Dismiss. Accordingly, Ms. Mishaga respectfully requests that the Court deny Defendant’s Motion to Dismiss.

The second exception to the FOID Card noted by the defendant involved citizens licensed or registered to possess a firearm in their resident state. However, Ms. Mishaga is a resident of Ohio which requires no licensing or registration to possess a firearm in that state. Indeed, as the plaintiff’s points out:

Ohio law forbids such licensing or registration. See Ohio Rev. Code § 9.68(A) (“[A] person, without further license, permission, restriction, delay, or process, may own, possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components, and its ammunition.”)

Lawful possession in one’s state of residence is not the same as either registration or licensing though this seems to be the argument of the defendant. If that were the case, then Ms. Mishaga could possibly lawfully possess a functional firearm in Illinois without a FOID Card. As the brief in opposition notes:

Defendant conflates “licensed or registered” possession of a firearm with “lawful” possession of a firearm; however, the statutory exception applies only to the former….Unfortunately, neither Defendant nor this Court has the power to rewrite Illinois law. Virginia v. American Booksellers Ass’n, 484 U.S. 383, 397 (1988) (“we will not rewrite a state law to conform it to constitutional requirements.”); United States v. Wilburn, 473 F.3d 742, 746 (7th Cir. 2007) (“[I]t is not our role to rewrite the law.”). Accordingly, Ms. Mishaga respectfully requests that the Court deny Defendant’s Motion to Dismiss.

Frankly, having read both the motion to dismiss and the plaintiff’s reply in opposition, I was amazed that Illinois made the arguments that they did in the first place. One argument provided for an inoperable firearm when it was clear from the original complaint that Ms. Mishaga was seeking to possess a functional firearm for self-defense. The other argument made the erroneous assumption that Ohio required licensing or registration. It may be too much to expect that Illinois will continue to make these types of errors in the future but one can always hope.

Mishaga v. Monken – Illinois Responds in FOID Challenge Case

The State of Illinois has responded to the challenge to the FOID Card – Firearms Owner Identification Card – requirements brought by the Mountain States Legal Foundation with a Motion to Dismiss. They base their motion on a Federal Rules of Civil Procedure Section 12 (b)(6) failure to state a claim on which relief can be granted.

Illinois contends that Ms. Mishaga, if a lawful gun owner in the State of Ohio, does not need an Illinois FOID card as she meets the exceptions to the requirement to possess a FOID card. As such, they argue that they have not interfered with her right to bear arms or her right to travel.

Tellingly, sections (2)(b)(9) and (2)(b)(10) allow Plaintiff to possess her firearms so long as she is lawfully able to do so in her resident State. See 430 ILCS 65/2(b). Assuming, as Plaintiff asserts, that she is lawfully able to carry guns in Ohio, Plaintiff qualifies under the exemptions and is not required to have an Illinois FOID Card to possess firearms in the State of Illinois. As such, the Defendant’s refusal to issue Plaintiff an Illinois FOID Card has no impact on her ability to possess firearms in the State of Illinois. Therefore, Plaintiff’s constitutional rights have not been harmed by Defendant’s actions and Plaintiff’s complaint should be dismissed.

Here is how the sections referred to, 430 ILCS 65/2 (b)(9) and (b)(10), read (with emphasis added):

(9) Nonresidents whose firearms are unloaded and
enclosed in a case;

(10) Nonresidents who are currently licensed or
registered to possess a firearm
in their resident state;

As Jim Manley, the attorney bringing this case on behalf of Ms. Mishaga, pointed out in an email to me regarding this case:

the Illinois law plainly states that nonresidents can possess functional firearms for self-defense only if they are “licensed or registered to possess a firearm in their resident state.” Since Ohio does not require a license, or offer one, Illinois law denies Mishaga her 2nd Amendment rights.

He is absolutely correct. If one examines the Ohio Revised Code on firearms, there is no mention of any license or registration requirement for firearms possession in the State of Ohio.

The State of Illinois is bordered by five states: Indiana, Iowa, Kentucky, Missouri, and Wisconsin. The states of Indiana, Kentucky, and Missouri require no license or registration to either possess or purchase firearms. Iowa requires no license or registration to possess a firearm but does require a permit to purchase a handgun. While Wisconsin requires no license or registration to possess or purchase any firearm, they do impose a 2-day waiting period on the purchase of handguns. By my reading of 430 ILCS 65/2 (b)(10), none of the residents of those states, with some exceptions, would be permitted to possess a functioning firearm in Illinois either.

Most states do not require a license or registration of the owner in order to possess a firearm. There are exceptions like the states of New York and Massachusetts which either require a permit to possess a pistol in New York’s case or a Firearms ID card in the case of Massachusetts.

When you read the response from the State of Illinois to Ms. Mishaga’s complaint, you are left wondering whether the Assistant Attorney General who drafted their response, Joanna Belle Gunderson, is even aware that many other states including Ohio don’t require a license nor require registration of gun owners. If she isn’t, then she has unwittingly pointed out a fatal flaw in her own argument.

Illinois’s FOID Card Challenged

When one thinks of organizations supporting pro-gun rights litigation, immediately think of either the NRA or the Second Amendment Foundation. In California, this can be expanded to include the CalGuns Foundation and the California Rifle and Pistol Association. This explains, in part, why the case of Mishaga v. Monken which challenges Illinois’s Firearm Owner’s Identification law flew under the radar. You do not think of the Mountain States Legal Foundation which is providing legal assistance in both this case and the suit against the Nevada State Park system, Baker v. Biaggi et al.

That may well be changing. Jim Manley, the staff attorney for MSLF handling their firearms litigation, shared this in an email to me:

MSLF is committed to protecting individual rights and that commitment extends to protecting the right to keep and bear arms. To that end, MSLF filed amicus briefs in Heller and McDonald. MSLF also represents the students suing the University of Colorado to overturn that school’s concealed carry ban.

In this case, Mishaga v. Monken, the Illinois State Police are being sued by Ellen Mishaga for violating her Second and Fourteenth Amendment rights. Mrs. Mishaga is a resident of Ohio who frequently visits friends in Illinois on overnight trips. While staying in her friend’s home, she wants to be able to have a loaded firearm for self-protection. However, this would violate the Firearm Owners Identification Card Act, 430 ILCS 65/2 (10), which requires non-residents to keep their firearms unloaded and enclosed in a case. The other exceptions to the requirement to have a FOID card involve law enforcement officials, non-resident hunters, or competitors in shooting competitions – none of which apply to her. The full list can be found here.

As the suit states with regard to her Second Amendment rights:

9. The Second Amendment guarantees, inter alia, the right to possess and use firearms in a home for personal security.

10. An overnight guest has a legitimate expectation of personal security in her host’s home and an overnight guest has the same Second Amendment right to possess and use firearms that the overnight guest has in her own home.

Mrs. Mishaga twice applied for an Illinois FOID card and both times her application was rejected. The rejection was because she did not have an Illinois driver’s license or Illinois identification card. As a resident of the state of Ohio she is precluded from having either form of identification. The suit notes that “Illinois law recognizes the right of Illinois residents to keep and bear arms, Ill. Const. Art I, Sec. 22; 430 ICLS 65/1 et seq.” Therefore, the suit claims:

The right to travel, guaranteed by the privileges and immunities clauses of Article IV and the Fourteenth Amendment, is violated when a State discriminates against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States.

Specifically, with regard to Illinois:

Illinois law prohibits Ms. Mishaga from possessing a functional firearm for self-defense when she is an overnight guest in her friends’ Illinois home because she is not a resident of Illinois. 430 ILCS 65/2; 65/4; 65/14.

By prohibiting Ms. Mishaga from possessing a functional firearm, Defendant
currently maintains and actively enforces a set of laws, customs, practices, and policies under color of state law that discriminate against citizens of other States, including Ms. Mishaga, and thereby deprives Ms. Mishaga of the right to travel, in violation of the privileges and immunities clauses of Article IV and the Fourteenth Amendment.

The suit is seeking a permanent injunction against the enforcement of the FOID card requirement on out-of-state residents or, as an alternative, to process Mrs. Mishaga’s application for a FOID card. The lawsuit is filed in the U.S. District Court for the Central District of Illinois.

The full complaint can be found here.

While I, of course, want all the post-McDonald litigation to succeed, I especially want Mrs. Mishaga to prevail in her case. The Complementary Spouse’s mother lives on the Illinois side of the river in Metro St. Louis. Whenever we go out to visit, I must lock up and unload my firearm in Kentucky before we cross the Ohio River even though I have a concealed carry permit. If we go into St. Louis, we must travel through East St. Louis which has one of the highest crime rates in the nation. I drive through there in that gray area between being in Condition Yellow and being in Condition Orange. It is that bad.

I plan on sending a donation to MSLF. You can find out more about them here.