|Search & Seizure
Hiland v. Trent, 868 N.E. 2d 396, Third District
Appellate Court (5/16/07).
People v. Williams, 858 N.E. 2nd 606. Illinois Appellate Court, Ist District.
United States v. Cherry, 436 F. 3d 769 ( C.A. 7, Ill., 2006)
People v. Miller, 824 N.E. 2d 1080 ,
Illinois 1st District Appellate Court (2-7-05).
HUDSON v. MICHIGAN. United States Supreme Court, June 2006. 126 S. Ct. 2159
People v. Dieppa, 357 Ill.
App. 3d 847
ILLINOIS v. CABALLES. U.S.
Supreme Court (1/25/05)
writ of certiorari to the Supreme Court of Illinois. 03-923
DEVENPECK et al. v. ALFORD No.
People v. Parra, 352 Ill. App.
3d 584, 817 N.E. 2d 141 ( 2d Dist., 10/12/04)
People v. Travis Smith, 346
Ill. App. 3d 146, 803 N.E. 2d 1074
People v. Starbuck, 358 Ill
App. 3d 234 (3rd Dist. 2005)
People v. Mendoza, 846 N.E. 2d 169 (2d Dist App. Ct.,
People v. Frederick Hampton, 358 Ill App. 3d 1029 (2d Dist 2005)
and People v. Shinara Mathews, 357 Ill App. 3d 1062 (3rd Dist. 2005)
Hiland v. Trent, 868 N.E. 2d 396, Third District
Appellate Court (5/16/07). The Appellate Court, Lytton, J., held that the
Director of the Illinois Department of State Police abused his discretion in
denying a FOID card application.
|Facts: Larry Hiland had been
convicted of several federal crimes, including multiple counts of mail fraud in
1988. At the time of his conviction, Hiland possessed a Firearm Owners
Identification (FOID) card, but was required to turn it in upon request by the
Illinois State Police.
|Several years after his conviction Hiland requested a hearing
with the Director of the Illinois State Police to seek re-issuance of his FOID
card pursuant to the FOID ACT, 430 ILCS 65/10(c) At the hearing, Hiland
established that the mail fraud charges were the result of his participation as
president of a pharmaceutical company that failed to obtain FDA approval when
adding a new substance to an existing drug. Both the manufacturer of the drug
and the executive v.p of the company had urged him to add the substance to the
product line without a need to obtain FDA approval. Hiland’s good character was
established at the hearing, including statements by the pastor of his church,
and a letter from his former probation officer indicating his non-violent past
and “that he had made a very positive adjustment to supervision and is not
perceived as being a threat to himself or the community.”
|Administrative Law Judge rulings:
The hearing officer issued a ruling recommending that Hiland be issued a FOID
card, and the deputy director agreed and granted a FOID card with a cautionary
comment that Hiland also seek relief from any disability that may have been
imposed by the Federal Gun Control Act of 1968 (18 U.S.C. Sec. 921 et. seq.
(1988). Hiland never sought relief from federal authorities.
When the FOID card renewal date came up in 1997, the card was renewed upon
Hiland’s application. However, when he applied again for renewal in 2002, the
application was denied “because of his 1988 convictions.” Another hearing was
requested pursuant to section 10(c) of the Act, and all the prior evidence from
the prior hearing, including the character reference letters, were allowed to
be introduced at the 2003 hearing. Hiland stated his need for a FOID card so
that he could hunt on his own property.
At this second administrative law hearing the ALJ concluded “that Hiland had
not committed a forcible felony within 20 years and that his criminal history
and reputation were such that he was not likely to act in a dangerous manner.
[However] . . .granting Hiland a FOID card ‘would be contrary to the public
interest as Section 8(n) of the FOID Card Act prohibits the issuance of a FOID
card to an individual who is prohibited from possessing firearms or ammunition
under federal law.’” The Director, Larry G. Trent, denied the application based
on the ALJ’s findings and recommendations.
| Circuit Court and Apellate Decisions:
|Upon appeal to the Circuit Court of Hancock County the Court
“reversed the denial, holding that the Director [Trent] abused his discretion
by denying Hiland’s FOID card application.” Defendants then appealed, arguing
that “the Director properly denied Hiland a FOID card because [his] federal
criminal convictions prevented him from possessing firearm under federal law.”
|The Third District Appellate Court noted that proper method of
review of the Director’s decision to deny issuance of a FOID card is whether
there has been an“abuse of discretion.” See Rawlings v. Ill. Department of Law
Enforcement, 73 Ill. App. 3d 267 (1979). “An abuse of discretion will be found
where the decision is ‘fanciful, arbitrary or unreasonable to the degree that
no reasonable person would agree with it.’” Also, if the decision is based on a
misinterpretation of the applicable law, it is an abuse of discretion, as well.
See Mid-America Television Co. v. Peoria Housing Authority, 93 Ill. App. 3d 314
|While Section 8 of the FOID Act notes the authority in the
Department to deny an application if, among other things, it finds that the
applicant is prohibited from acquiring or possessing a firearm by state or
federal law, the provisions of Section 10 allows an applicant who has been
denied a FOID card under Section 8 to apply to the Director for relief, and the
Director may grant a FOID card if the applicant establishes:
| a.) he has not been convicted of a
forcible felony within 20 years;
b.) the circumstances surrounding his criminal conviction,
criminal history, and reputation are
such that he will not be likely
to act in a manner dangerous to public safety, and
c.) granting relief would not be contrary to the public
interest. 430 ILCS 65/10 (c).
|“By not exercising the discretion granted him in Section 10
(c), the Director ignored the overwhelming evidence establishing that Hiland
has been a law-abiding citizen and productive member of his community since his
convictions. . . .Judgment of the Circuit Court of Hancock County is affirmed.”
NOTE: Concurring in the decision, Justices Carter and Holdrige noted that while
the provisions of Section 922(g)(1) of the Federal Gun Act of 1968 prohibit a
convicted felon to possess a firearm, Section 925(c) nevertheless allows an
individual so disqualified from possessing a firearm to apply to the Secretary
of the Treasury for Relief. However, since federal funding had been suspended
regarding review requests under Section 925(c),” an individual disqualified
from ownership under Section 922(g)(1) of the federal Gun Control Act has no
avenue for relief from that disqualification.”
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