Posted by Post authored by Jonathan Lubin
Does a police officer need probable cause in order to ask a gun owner for a Firearm Owner Identification Card? Hon. John Robert Blakey answered this question in the negative in granting summary judgment as to some claims in the matter of Lipford v. City of Chicago, 15 CV 6988 (Ill. N.D., March 5, 2018). In that case, City of Chicago police officers assisted probation department officials in conducting a spot-check on an individual who was on probation. The individual happened to be living with another individual who possessed firearms. The officers, upon seeing the firearms, asked their owner whether he had a FOID card. When he could not produce one, he was arrested for the failure to produce a FOID card. He was later acquitted at a criminal trial. The plaintiff then sued under 42 U.S.C. § 1983. In the interest of full disclosure, the undersigned was one of his attorneys during that lawsuit.
Of course, in order to maintain a claim for false arrest under 42 U.S.C. § 1983, a plaintiff must demonstrate that there was no probable cause for the arrest. Probable cause provides an absolute defense to a false arrest claim. Gonzalez v. City of Elgin, 578 F.3d 526, 537 (7th Cir. 2009). Probable cause for an arrest exists when the facts and circumstances at the time of the arrest—viewed from the perspective of a reasonable person in the officer’s shoes—warrant a prudent person believing that the suspect committed, is committing, or will commit a crime. Id.
Under Illinois’ FOID Card Act, residents who possess firearms or ammunition must also have a FOID card in their possession. 430 ILCS 65/2(a).
No decision of the Illinois Supreme Court seems to address the issue of whether an officer needs probable cause in order to ask to see a FOID card upon ascertaining that someone owns or possesses weapons. On one hand, (as Plaintiff argued) a police officer must have an articulable suspicion of risk in order to perform what has become known as a Terry Stop – that is, to stop and briefly frisk someone. Terry v. Ohio, 392 U.S. 1 (1968). But the Court did not adopt that line of reasoning. Instead, it found that analogizing the case to a Terry Stop would “make it nearly impossible to develop probable cause for a violation of the FOID Card Act, unless gun owners regularly announce that they lack FOID cards.”
Its holding was based upon a reading of two important Illinois appellate decisions, one of which invoked yet another important Illinois appellate decision. In People v. Mourecek, 566 N.E.2d. 841 (Ill. 2nd Dist. 1991), the defendant was pulled over for a traffic infraction. During the stop, the defendant admitted that he did not possess identification. The officers therefore possessed probable cause to arrest him for possessing two ammunition clips. Id. at 845.
The more illuminating decision, though, was People v. Granados, 773 N.E.2d 1272 (Ill. 4th Dist., 2002). That decision took pains to distinguish its holding from People v. Levens, 713 N.E.2d 1275 (Ill. 2nd Dist., 1999), which will be addressed first. In Levens, the defendant was observed driving 10 to 15 miles per hour on a public road, while wearing hunting clothes and looking into a field. He was stopped, and during the ensuing conversation it was revealed that he did not have a drivers’ license or a FOID card. He was arrested for both violations. The decision noted that the officer had probable cause to inquire about the defendant’s FOID card because he reasonably believed that the defendant was in violation of the Wildlife Code (520 ILCS 5/2.31), which prohibits using a vehicle and public roadways to hunt.
In Granados, by contrast, the defendant was stopped pursuant to a routine traffic stop. After he produced a driver’s license, registration, and proof of insurance, he was told that he was free to go. A second officer then stopped the defendant again, noting that weapons were visible in the car. Interestingly, in Granados, the defendant did have a FOID card, but was arrested because the officers, after the second stop, administered a field sobriety test, which the defendant failed. Granados found that the question presented in that case was “whether an officer may stop a motorist upon seeing weapons solely for the basis of verifying the motorist’s possession of a valid FOID card.” It found that “because the initial purpose of the stop (the roadside check) had been completed and because the officer lacked any reasonable suspicion of illegal activity,” the second stop was improper. Granados, 773 N.E.2d at 1276. Levens was therefore not dispositive. Id.
The application of this may be broader than simply the question of whether an officer needs probable cause to inquire after a FOID card. Many residents of Illinois are now taking advantage of the new medical marijuana laws. Like possessing guns, possessing or using marijuana may be a perfectly legal activity, depending on whether one has a license. Whether law enforcement officials may inquire after a license absent probable cause may impact both practitioners in the criminal arena and lawyers who, like the undersigned, practice in the area of civil rights.
About the Author:
Jonathan Lubin is a civil litigator with a focus on civil rights litigation. He currently is the president of the Decalogue Society of Lawyers.