Monday, July 15, 2013

An Update In The Mishaga Case

The Mishaga case (originally Mishaga v. Monken but now Mishaga v. Grau et al) is a challenge to the State of Illinois' restrictions as to who may have a Firearms Owner ID (FOID) card. The case involves a resident of Ohio who often visits friends in Illinois and wants to be legally armed in their home while there for self-protection. The convoluted nature of Illinois firearms law makes it both illegal for her to be armed without a FOID card and for her to obtain a FOID card.

The case was brought in the US District Court for the Central District of Illinois back in July 2010 by the Mountain States Legal Foundation on behalf of Ellen Mishaga. After a flurry of activity in the case in late 2010 and in 2011, the case has lain dormant despite being fully briefed. This past Friday attorney Jim Manley who represents Ms. Mishaga filed a Plaintiff's Second Notice of Supplemental Authority.

This notice makes reference to the recently passed HB 183 which now provides for concealed carry permits in Illinois for both residents and non-residents. The possession of a FOID card is not required for a non-resident to obtain a non-resident concealed carry permit.
Defendents' argument that there is substantial reason to discriminate against nonresidents who apply for a FOID is eviscerated by this statutory change. See Pl's Mot. for Summ. J. at 15-18. There is no rational justification for issuing a permit to "carry a loaded...concealed firearm," to nonresidents, 430 ILCS 66/10(c), yet at the same time deny nonresidents a FOID - and thereby deny the right to possess a functional firearm only in a home. Accordingly, the de facto residency requirement imposed by 430 ILCS 65/4(a-5) and the explicit residency requirement at 430 ILCS 65/4(a)(2)(xiv) and 430 ILCS 65/8(q) are unconstitutional.
The Second Notice concludes that the FOID Act residency requirement is a "fixed harm" that inflicts "irreparable injury.

The passage of HB 183 may be the catalyst to finally move this case to a favorable conclusion. After all this time, one could only hope so.