Why an Illinois FOID Card is No Guarantee You’ll Get a Concealed Carry Permit
If you are an Illinois FOID card holder and have applied for but been denied a Concealed Carry License (CCL), you are not alone.
More people qualify for a FOID card than a CCL permit due to differing eligibility standards. The rules for who is eligible to obtain a FOID card in Illinois are relatively straightforward. You are either a convicted felon or you’re not, for example. In comparison, the eligibility rules for obtaining a CCL permit are not as black-and-white.
Under Illinois law, those responsible for issuing CCL permits -- the seven-member Concealed Carry Licensing Review Board (CCL Board) -- have been granted considerably more leeway in deciding who should receive a permit. Significantly, the CCL Board is authorized to hear objections from law enforcement based on someone’s prior arrest record, non-disqualifying convictions, and whether someone has recently tested positive for a controlled substance – factors that would not disqualify someone from obtaining a FOID card.
This this article will review the guidelines for obtaining both a FOID card and a CCL permit, as well as what appeal rights and remedies are available to those whose applications have been denied.
FOID Card Eligibility
The right to lawfully own a firearm in Illinois is regulated under both federal and state law. In Illinois, before someone can legally purchase or possess a firearm, he/she must obtain a Firearm Owner’s Identification Card – what we refer to as a FOID card.
Federal Law
Under federal law, several factors will disqualify someone from being able to handle or own a gun. No state has the right to ignore or override these factors, which include:
Convicted felons (no distinction made between a violent and non-violent offense or how old the case is)
Fugitives (someone with an outstanding warrant)
Misdemeanor domestic violence convictions (includes those instances where domestic battery charges are amended to simple battery, provided that the victim was living with the defendant when the incident occurred)
Addicted to a controlled substance
Previously subject to an order of protection or restraining order
Subject to a pending indictment
Adjudicated mentally ill & unfit to own a gun and/or involuntarily committed to a mental institution
Illegal or unlawful alien (one who has no legal right to be in the U.S.)
Dishonorable discharge (depending on underlying basis for discharge).
Illinois Law
Illinois’ list of disqualifying factors includes many of the same factors cited under federal law, as well as several additional factors:
Convicted felon
Domestic battery conviction or substantially similar offense (misdemeanor or felony)
Previously adjudicated delinquent for an offense that would constitute a felony if it had been committed by an adult (age 18 or older)
Subject to a current order of protection
Misdemeanor convictions within the past five years for assault, aggravated assault, violating an order of protection
A person under 21 who has been convicted of a misdemeanor or adjudicated delinquent
Addicted to narcotics
Adjudicated mentally defective or is mentally retarded
A person who has been a patient of a mental institution within the past 5 years
A person who intentionally lies on a FOID card application.
Challenging a FOID Card Denial
Prior to 2013, if an individual wanted to appeal a FOID card denial, he/she could file a petition for relief pursuant to 430 ILDC 65/10(a). The petition asks a state court judge to direct the Illinois State Police (ISP) to issue a FOID card to the petitioner. To prevail, the petitioner must satisfy the following elements:
The petitioner has not been convicted of a forcible felony (as defined in the Illinois Criminal Code, 720 ILCS 5/2-8) within the past 20 years;
Despite the applicant’s past criminal conduct, he/she is not likely to act in a manner dangerous to public safety in the future; and
Granting such relief (issuing a FOID card) is not contrary to the public’s interest.
430 ILCS 65/10(c).
Although this provision remains in effect, Section 65/10 was amended several years ago adding language prohibiting courts from ordering the ISP to issue a FOID card if doing so would be contrary to federal law. The amended language went into effect on January 1, 2013.
What that means is if you were denied a FOID card based on one or more of the federal firearm’s disqualifying factors (e.g., convicted felon, domestic violence conviction), a state court judge no longer has the legal authority to rule in your favor.
Following the amendment to Section 65/10, the only way to reverse a FOID card denial resulting from an Illinois criminal conviction (e.g., felony, domestic violence, violation of an order of protection, juvenile adjudication) is to petition for clemency from the governor.
Only the governor has the legal authority to reinstate gun rights taken away from someone due to a state criminal conviction. In most states, you can only petition for clemency for state law crimes committed in that state. I have only come across one state (Florida) that permits residents to request reinstatement of their constitutional rights due to a conviction without regard to where the conviction is from through its clemency process.
Governor J.B. Pritzker requires that petitioners expressly request reinstatement of their firearm rights when they apply for clemency.
Concealed Carry Eligibility
Factors that can result in the denial of a CCL application fail into one or two categories: 1) automatic disqualifications, and 2) discretionary disqualifications. Factors that are automatically disqualifying include:
Misdemeanor convictions involving a threat of force or violence (assault, aggravated assault, battery) within past 5 years;
Two or more convictions for DUI (alcohol or drugs) within past 5 years;
Not subject to a pending criminal case or outstanding warrant (that would disqualify applicant); or
Has not be in a residential or court-ordered alcohol or drug-treatment program within past 5 years.
Discretionary factors for disqualification include:
Has 5 or more arrests for any reason over the past 7 years;
Has 3 or more arrests within 7 years for any combination of gang-related offenses.
Any law enforcement agency may object to an applicant’s CCL permit request by presenting information to the CCL Board about that person’s arrest record history and/or any other, non-automatic, disqualifying criminal convictions. The burden is on law enforcement to show by the preponderance of the evidence (more likely than not) the applicant poses a threat to him or herself or to others or is a threat to public safety.
Before the CCL Board can deny an application based on this information, it must first notify the applicant of the objection and give him/her a chance to respond by presenting additional information to challenge what information has been provided by law enforcement.
If an arrest report is the only information the CCL Board is given, it is doubtful that a complete and accurate accounting of the events was presented. As the saying goes, there’s always two sides to a story, with the truth being somewhere in between.
This is an applicant’s only opportunity to present information offering a more complete or different factual account. If the CCL Board denies the application, the applicant will be in a better position to appeal the ruling since no additional information can be presented when someone seeks administrative review.
Since the CCL law went into effect, several court challenges have been filed questioning the fairness of using arrest record information as a bias for denying an CCL application. To date, none of these challenges have been successful.
In 2017, the state appellate court upheld the ISP’s and the CCL Board’s denial for an individual who had been arrested 18 times and had one conviction on his record (1992 conviction for criminal damage to property). In objecting to the man’s 2014 application, the Cook County Sheriff focused on four of the man’s prior arrests (1990 & 1991 arrests for battery, 1989 & 2009 arrests for assault).
In 2018, the state appellate court upheld the ISP’s and CCL Board’s denial for an individual who had been arrested 29 times and had three misdemeanor convictions. In its objection to the applicant’s 2014 application, the Cook County Sheriff and Chicago Police focused on four of the applicant’s prior arrests: an 2004 aggravated battery (police officer), 2006 telephone harassment, a battery complaint (no year noted), and a 2011 assault & aggravated assault (police officer).
Although these cases involved individuals who had an extensive arrest record, I am familiar with CCL applicants who’ve faced objections due to far fewer arrests.
Recently, I talked with a young man who’d received a letter seeking additional information about his two past criminal arrests (the only arrests on his record). The first incident took place when the man was 15 or 16 years old. He was arrested after caught spray painting the wall of a building in a suburb of Cook County. Under questioning, the young man falsely boasted that he was a member of a gang. When asked the name of the gang, the man made up a name. The man was eventually released without being charged. Several years later, the young man was charged with retail theft. He was sentenced to supervision and was not convicted of the crime.
I advised the man what additional information to provide to the CCL Board. At the time of this writing, I do not know what happened to the man’s CCL application.
Challenging a CCL Permit Denial
Applicants may appeal a CCL denial by filing for administrative review in state court. As noted earlier, when someone files for administrative review, the only evidence that a court may consider is the information that was presented to the administrative body, in this case the CCL Board.
It is very difficult to overturn a prior decision of an administrative body. That’s why, an applicant’s best chance of receiving a favorable ruling is to exercise their right to present additional evidence why the matter is still pending before the CCL Board.
In neither case discussed above did the applicants choose to provide additional information about their arrests or convictions to the CCL Board. Rather, they argued that their constitutional (due process, Second Amendment) rights had been violated, and that hearsay evidence (the arrest reports) was improperly taken into consideration.
Benefits to Sealing or Expunging Criminal History
Sealing your criminal convictions does not eliminate disqualifying convictions from consideration by the ISP when applying for a FOID card or a CCL permit. Sealed record information is always available to law enforcement.
Less certain is whether law enforcement can use expunged arrest records to oppose a CCL application. In theory, law enforcement should not be permitted to this information because the information is supposed to be purged from all law enforcement records (arresting authority and ISP).
If you previously sealed your arrest record history because the law did not permit you to expunge that information at the time, you may want to unseal and expunge these records now.
If you have cases in Cook County that are eligible to expunge, there is a good chance that you will be eligible for an automatic fee waiver. The automatic fee waiver runs through the end of this year. Please contact A Bridge Forward LLC for further guidance and assistance.
Ina R. Silvergleid assists individuals with criminal backgrounds in applying for their professional licenses in Illinois. She specializes in assisting clients with felony records in getting their insurance license and real estate license.