An appeals court has ordered a Madison County judge to consider whether it’s constitutional to suspend the gun permits of people who are the subjects of temporary or emergency orders of protection.
The Fifth District Appellate Court in Mount Vernon issued its order Friday in a Madison County case involving a man whose Firearm Owner Identification Card and concealed-carry permit were suspended because he was the subject of a temporary order of protection.
A protective order was sought in May 2015 by the father-in-law of the gun owner, David Koshinski, after the two men had an argument over the phone. The father-in-law was granted an emergency protective order, without Koshinski being allowed to present arguments or evidence to the judge. It’s routine for judges to issue emergency or temporary orders of protection in “ex parte” fashion — meaning only one party presented evidence or arguments, and the other party was likely not even aware of the proceeding.
Illinois State Police suspended Koshinski’s gun permits after the emergency order was issued against him.
Providing a definitive decision as to the statutory limits of a state’s authority to limit a citizen’s firearm ownership as a result of a trial court entering an ex parte order of protection, a common occurrence, will provide guidance to judges and prosecutors and firearm owners, in addition to public officers, including the defendant, faced with questions regarding the statutes’ validity.
5th District Appellate Court
In Illinois, an emergency order of protection lasts for 14-21 days. An emergency order of protection can become a plenary order of protection — one that’s in effect up to two years — only if the respondent is notified of the case and given an opportunity to present evidence.
A couple of weeks after the emergency order was issued against Koshinski, he and his father-in-law agreed to change the protective order to a “mutual stay-away” order, under which they would stay away from each other, and the court approved it. About three months later, Associate Judge Clarence Harrison dropped the stay-away order, and noted in his order that there was no evidence to support the suspension of Koshinski’s gun permits.
Shortly after that, State Police reinstated Koshinski’s gun permits. But Koshinski sued ISP, seeking an injunction that would prohibit the suspension of his licenses if he were to again be the subject of an ex parte order of protection. Koshinski also asked that the state’s firearm-licensing statutes be declared unconstitutional.
State Police argued that Koshinski’s lawsuit should be dismissed because it became a moot issue after his licenses were reinstated. A Madison County judge agreed with ISP and dismissed Koshinski’s suit. Koshinski appealed the dismissal.
The appeals court, in its ruling, said the case is not moot because it “will broadly determine the rights of firearm licensees who are subject to ex parte orders of protection and the firearm suspension statutes.” The court added that the issue “is of sufficient breadth and has a significant effect on the public as a whole.”
The appeals court added: “Providing a definitive decision as to the statutory limits of a state’s authority to limit a citizen’s firearm ownership as a result of a trial court entering an ex parte order of protection, a common occurrence, will provide guidance to judges and prosecutors and firearm owners, in addition to public officers, including the defendant, faced with questions regarding the statutes’ validity.”
Koshinski’s attorney, Tom Maag, did not immediately return a call seeking comment, nor did a spokesman at ISP headquarters in Springfield.
Valinda Rowe, spokeswoman for IllinoisCarry.com, said losing gun permits because of an order of protection is “a big concern” for gun owners, “especially when they don’t get their day in court before their rights are suspended.”
Rowe said she’s aware of one instance where a person sought a protective order for only vindictive reasons, knowing that the gun owner, a competitor in shooting sports, would lose his gun permits, which “would hit him hard.”
“We’re all for someone being protected against an abuser or someone who is threatening them, but at the same time, sometimes these things are filed for revenge, for retribution, and they’re baseless,” Rowe said.
Attempts Saturday to reach multiple groups that advocate for victims of domestic violence and against gun violence were not successful. A spokesman for Everytown For Gun Safety said his organization does not usually comment on individual court cases.