Holder v. The Winnebago County State Attorney's Office

2021 IL App (2d) 200533-U

• Court: Appellate Court of Illinois
• Decided: October 1, 2021
• Docket: 2-20-0533
• Status: Unpublished

Opinion

2021 IL App (2d) 200533-U No. 2-20-0533 Order filed September 30, 2021

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

JAMES HOLDER ) Appeal from the Circuit Court ) of Winnebago County. Petitioner and Respondent-Appellee, ) ) v. ) No. 19-MR-29 ) THE WINNEBAGO COUNTY STATE’S ) ATTORNEY’S OFFICE, ) ) Respondent, ) ) Honorable (The Department of State Police, Intervenor ) Donna R. Honzel, and Petitioner-Appellant). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BRENNAN delivered the judgment of the court. Presiding Justice Bridges and Justice Jorgensen concurred in the judgment.

ORDER

¶1 Held: The trial court’s “denial” of the Department of State Police’s section 2-1401 petition was actually a dismissal for failure to allege a meritorious defense to the trial court’s order directing the Department to issue petitioner a FOID card. The dismissal was improper, as the Department’s petition did indeed allege a meritorious defense, namely that due to petitioner’s prior felony convictions in Texas—which restricted his right under Texas law to possess firearms—he was barred under federal law from possessing any firearms. 2021 IL App (2d) 200533-U

¶2 The Department of State Police (Department) appeals from the denial of its petition under

section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2018)). The

petition sought to vacate the trial court’s order granting James Holder’s petition under section 10

of the Firearm Owners Identification Card Act (FOID Card Act) (430 ILCS 65/10(c) (West 2018))

and directing the Department to issue Holder a Firearm Owners Identification Card (FOID Card).

The Department contends that, in granting Holder’s section 10 petition, the trial court

misinterpreted the United States Supreme Court’s holding in Caron v. United States, 524 U.S. 308

(1998), concerning which offenders are federally prohibited from owning firearms. As relief, the

Departments asks us to reverse both the judgment denying its section 2-1401 petition and the prior

judgment that granted Holder’s section 10 petition and directed the Department to issue him a

FOID card. We agree with the Department that the trial court misread Caron and that federal law

bars Holder from obtaining a FOID card. However, while this is a sufficient basis for us to vacate

the denial of the Department’s section 2-1401 petition, it is not a sufficient basis for us to disturb

the judgment granting Holder’s section 10 petition. Therefore, we vacate the dismissal of the

Department’s petition and remand the cause for further proceedings under section 2-1401.

¶3 I. BACKGROUND

¶4 On January 22, 2019, Holder filed a petition under section 10 of the FOID Card Act

requesting an order directing the Department to issue him a FOID card. He alleged that he had

applied to the Department for a FOID card and that his request was denied based on his four felony

convictions in Texas, the most recent of which was in 1988. He further alleged that he had pursued

an administrative appeal and that the Department never responded. Holder asserted that he met

the standards for issuance of a FOID card despite the Texas convictions. As required by section

10(b) (430 ILCS 65/10(b) (West 2018)), Holder served his petition on the Winnebago County

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State’s Attorney’s Office, which he listed as respondent. The State’s Attorney’s office filed an

appearance on its own behalf.

¶5 On May 23, 2019, the trial court held a hearing on Holder’s petition and received testimony.

That day, the trial court issued an order, “over the objection of the State,” directing the Department

to issue a FOID card to Holder.

¶6 Over a year later, on June 10, 2020, the Department filed a petition under section 2-408 of

the Code (735 ILCS 5/2-408 (West 2018)) seeking leave to intervene as of right. The Department

sought to intervene so that it could file a petition under section 2-1401 of the Code for relief from

the May 23, 2019, order. The Department asserted:

“[The Department] should be granted leave to intervene because it (1) timely filed this

petition to intervene once it became aware of the May 23, 2019 Order ***; (2) the interests

that it possesses were not adequately represented by the State’s Attorney prior to the

issuance of the May 23, 2019 Order; and (3) [the Department] is the agency charged with

enforcing the [FOID Card Act] and issuing FOID cards to those who meet the statutory

requirements.”

In support of its contention that the State’s Attorney’s office did not adequately represent its

interests, the Department noted that the record did not reflect that Holder’s firearms rights had

been restored in Texas following his convictions, which, according to the Department, was a

necessary condition for his obtaining a FOID card in Illinois through a section 10 petition.

¶7 The Department included its proposed section 2-1401 petition as an exhibit to its section

2-408 petition. That petition recited the standard from Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-

21 (1986): “To be entitled to relief under section 2-1401, the petitioner must affirmatively set forth

specific factual allegations supporting each of the following elements: (1) the existence of a

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meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit

court in the original action; and (3) due diligence in filing the [petition].”

¶8 The Department alleged in its section 2-1401 petition that it had a meritorious defense in

that Holder was federally barred from possessing firearms. On the element of diligence, the

Department alleged that it “was not served with the section 10(c) Petition and was unable to

participate in the underlying proceedings.” However, it “ha[d] been diligent in seeking relief under

section 2-1401 after it became aware of the May 23, 2019 Order.”

¶9 Turning to the merits of its defense, the Department noted that, when Holder applied for a

FOID card, the Department denied the application because Holder had four Texas felony

convictions. The Department contended that the denial was authorized by section 8(c) of the FOID

Card Act (430 ILCS 65/8(c) (West 2018)), which provides that the Department may deny a FOID

card to “[a] person convicted of a felony under the laws of this or any other jurisdiction.” The

Department further maintained that Holder’s action in the trial court to challenge the denial had

no merit. The Department cited section 10(b) of the FOID Card Act, which provides that trial

court “shall not issue” an order requiring the Department to issue a FOID card “if the petitioner is

otherwise prohibited from obtaining, possessing, or using a firearm under federal law” (430 ILCS

65/10(b) (West 2018)). The Department contended that Holder, as a convicted felon, was federally

prohibited from possessing a firearm by section 922(g)(1) of the federal Gun Control Act of 1968

(Gun Control Act) (18 U.S.C. § 922(g)(1) (2012)). Section 922(g)(1) prohibits felons from

possessing firearms connected to interstate commerce:

“(g) It shall be unlawful for any person—

(1) who has been convicted in any court of a crime punishable by

imprisonment for a term exceeding one year;

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***

to ship or transport in interstate or foreign commerce, or possess in or affecting

commerce, any firearm or ammunition; or to receive any firearm or ammunition

which has been shipped or transported in interstate or foreign commerce.”

(Emphasis added.) 18 U.S.C. § 922(g)(1) (2012).

Section 921(a)(20) of the Gun Control Act (18 U.S.C. § 921(a)(20) (2012)) supplies a particular

definition of “conviction” for purposes of section 922(g)(1). Section 921(a)(20) provides in

relevant part:

“What constitutes a conviction of such a [disqualifying] crime shall be determined in

accordance with the law of the jurisdiction in which the proceedings were held. Any

conviction which has been expunged, or set aside or for which a person has been pardoned

or has had civil rights restored shall not be considered a conviction for purposes of this

chapter, unless such pardon, expungement, or restoration of civil rights expressly provides

that the person may not ship, transport, possess, or receive firearms.” (Emphasis added.)

18 U.S.C. § 921(a)(20) (2012).

The italicized language is sometimes called the “unless” clause, and we follow that convention.

In its petition, the Department pointed out that the United States Supreme Court held that the

“unless” clause applied when “[t]he State has singled out the offender as more dangerous than law-

abiding citizens” by restricting his or her right to possess firearms. Caron, 524 U.S. at 315. The

Department contended that Holder fell within the “unless” clause as interpreted in Caron because,

under Texas law, a felon who completes supervision can possess a firearm, but only in the premises

where the felon lives (Tex. Penal Code Ann. § 46.04(a)(2) (West 2012)). The Department

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concluded that section 922(g)(1) prohibited Holder from possessing a firearm and thus he was

ineligible under section 10(b) for a FOID card.

¶ 10 To support its allegation of diligence in (1) bringing its defense before the trial court and

(2) filing its section 2-1401 petition, the Department included affidavits from Jessica Trame, the

chief of the Department’s Firearms Services Bureau (FSB), and Samantha Grund-

Wickramasekera, the assistant attorney general representing the Department in its attempt to

intervene.

¶ 11 Trame averred: (1) on October 31, 2016, the Department denied Holder’s request for a

FOID card; (2) the Department did not participate in the proceedings on Holder’s section 10

petition; (3) on June 4, 2019, the FSB received a letter from Holder’s counsel along with a copy

of the May 23, 2019, order directing the Department to issue Holder a FOID card, but “no action

was taken by the FSB staff”; (4) on August 29, 2019, the FSB received a second letter from

Holder’s counsel along with a petition for a rule to show cause, but again “no action was taken by

the FSB staff”; (5) on December 13, 2019, the FSB received a “ ‘Request for FOID Appeal,’ ” and

“[t]his time the document was brought to [Trame’s] attention as Bureau Chief,” whereupon she

immediately notified the Department’s legal counsel; (6) on January 7, 2020, after receiving notice

of Holder’s “FOID Appeal,” the Department sought representation by the Office of the Attorney

General; and (7) on or before January 28, 2020, Holder’s background and criminal history were

compiled and provided to the Department’s legal counsel.

¶ 12 Grund-Wickramasekera averred: (1) on January 7, 2020, the attorney general received the

Department’s request for legal representation in relation to the trial court’s May 23, 2019, order

directing the Department to issue Holder a FOID card; (2) on January 8, 2020, Grund-

Wickramasekera was assigned to the case; (3) on January 28, 2020, the Department notified her

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of Holder’s background and criminal history; (4) in February 2020, as part of her investigation,

she communicated with the Winnebago County State’s Attorney’s Office and with Holder’s

counsel; (5) in March 2020, the stay-at-home orders related to COVID-19 were issued, requiring

a “challenging” adjustment to business operations; (6) in April 2020, after completing her

investigation, she began drafting the Department’s petition to intervene and its petition for relief

from judgment; (7) in May 2020, she continued drafting the documents, conferring with the

attorney general’s appellate division on the application of case law; and (8) in mid-May 2020,

drafts of the pleadings were sent to the Department for review.

¶ 13 Holder’s response addressed the merits of both the section 2-408 petition and the proposed

section 2-1401 petition. First, Holder asserted that the section 2-408 petition was untimely. He

claimed that, even allowing for COVID-19 related disruptions, the Department’s delay of over a

year before petitioning to intervene was unreasonable. Second, he maintained that the section 2-

1401 petition did not assert a meritorious defense. Citing Johnson v. Department of State Police,

2020 IL 124213, Holder claimed that the trial court’s very act of directing the Department to issue

Holder a FOID card restored Holder’s civil rights (or at least the civil right of firearm ownership)

for purposes of section 921(a)(20) of the Gun Control Act. Thus, Holder’s Texas convictions

should not be deemed “convictions” that prohibit him under section 922(g)(1) of the Gun Control

Act from possessing firearms. Holder, therefore, asked the trial court to deny the Department’s

petition to intervene. He also sought a contempt finding against the Department based on its failure

to grant him a FOID card despite the May 23, 2019, order.

¶ 14 In reply, on the issue of diligence, the Department noted that it was not named in Holder’s

suit. It also emphasized that once Trame herself learned of Holder’s request for an appeal, she

immediately informed the Department’s legal counsel.

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¶ 15 On the issue of a meritorious defense, the Department noted that federal and Illinois cases

agree that whether a state conviction triggers a federal prohibition on the possession of firearms

depends on the law of the state in which the conviction occurred—in Holder’s case, Texas. The

Department argued that Holder misinterpreted Johnson, which held only that Illinois courts have

the authority to remove prohibitions created by Illinois convictions—not the foreign convictions

at issue here.

¶ 16 At a hearing on the petition to intervene, the Department conceded that the FSB had twice

received the May 23, 2019, order, but that no action was taken until Trame herself received notice

of that order on December 13, 2019, and then immediately requested that the attorney general’s

office represent the Department. Production within the Department was slowed during the

transition to remote work. The Department suggested that the issue of whether its section 2-408

petition was timely overlapped with the issue of whether it could show diligence in its section 2-

1401 petition.

¶ 17 The parties also argued the merits of the Department’s position that Holder was federally

barred from possessing firearms. Holder’s counsel contended that, where Texas permitted him to

possess a firearm—albeit not outside his home—it would be illogical to hold that he fell within

the ambit of the “unless” clause (“unless such pardon, expungement, or restoration of civil rights

expressly provides that the person may not ship, transport, possess, or receive firearms” (18 U.S.C.

§ 921(a)(20) (2012)). Counsel argued:

“I would say that if Holder can possess a gun in the State of Texas then that’s, that’s

the cards of the matter. That is the rule for the prohibitor. He can’t carry a gun everywhere

in Texas like everyone else in Texas can, but he can have a gun. The language in [section

921(a)(2) of the Gun Control Act] talks about shipping, transporting, receiving. [Section

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46.04 of the Texas Penal Code (Texas Penal Code Ann. § 46.04(a) (West 2018))] just says

possess.

Logically, how can a person possess a firearm in their home if they can’t have it

shipped to them if they can’t buy it and take it to their home? I think a logic[al] construction

of that statute means, yeah, they can get a firearm, yeah they can have it in their home. Can

they carry it? Maybe not, but they can have it in their home.”

¶ 18 The Department rejoined that, under the “unless” clause as interpreted in Caron, Holder

was not permitted to “possess” firearms, even if the restriction was qualified.

¶ 19 The trial court allowed additional briefing on how section 921(a)(20) of the Gun Control

Act affected Holder’s eligibility for a FOID card. Holder, invoking what he contended was the

plain meaning of section 921(a)(20), maintained that since Texas law allowed him to possess

firearms, the “unless” clause was inapplicable. He asserted that nothing in federal law “says that

State rights must be restored ‘totally’ or ‘fully.’ ” The Department continued to argue that, under

Caron and its progeny, the “unless” clause applies if there is anything short of a complete

restoration of firearms rights. Thus, Texas’s qualified restriction on Holder’s ability to possess a

firearm triggered the federal prohibition. The Department reemphasized the narrowness of

Johnson’s holding: that Illinois courts can remove restrictions on firearms possession—and thus

remove the federal prohibition—for Illinois convictions alone.

¶ 20 The court granted the Department’s section 2-408 petition to intervene. The court

criticized the Department for its delay but concluded that intervention would avoid further

litigation:

“All that notwithstanding because it’s a practical matter, if the petition was not allowed

there’d be another lawsuit and that just protracts the litigation, increases cost and I don’t

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think does substantial justice which, obviously, we’re always trying to do substantial

justice.

So *** I think the way this has been presented and argued, I think that was kind of

foregoing [sic] conclusion but I think I do have to make that specific finding on the record

that *** the [Department] is allowed to intervene. *** I think everybody *** went about

it as a—conclusion and with all that said I think there just has to be that explicit indication.”

¶ 21 The court then addressed the Department’s section 2-1401 petition. The court opined that,

under Caron, a restriction that limits where a person can possess firearms does not trigger the

“unless” clause. The court did not express any opinion on the Department’s diligence under the

section 2-1401 standards. The court’s written order stated that the petition was “denied on the

merits.” The Department timely appealed.

¶ 22 II. ANALYSIS

¶ 23 The Department argues that the trial court erred as a matter of law when it denied its section

2-1401 petition on the ground that section 921(a)(20)’s “unless” clause did not apply to Holder

despite Texas’s restriction on his possession of firearms.

¶ 24 Holder has not filed a brief. We follow the guidelines in First Capitol Mortgage Corp. v.

Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976), for resolving an appeal in the absence of

an appellee’s brief:

“We do not feel that a court of review should be compelled to serve as an advocate

for the appellee or that it should be required to search the record for the purpose of

sustaining the judgment of the trial court. It may, however, if justice requires, do so. Also,

it seems that if the record is simple and the claimed errors are such that the court can easily

decide them without the aid of an appellee's brief, the court of review should decide the

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merits of the appeal. In other cases[,] if the appellant’s brief demonstrates prima facie

reversible error and the contentions of the brief find support in the record[,] the judgment

of the trial court may be reversed.”

Illinois reviewing courts have taken Talandis to give them three options: (1) when justice requires,

actively seek bases for sustaining the judgment of the trial court; (2) when the issues are simple,

decide the case on the merits; and (3) reverse when the appellant's brief shows prima

facie error. Thomas v. Koe, 395 Ill.App.3d 570, 577 (2009). Here, we elect to resolve the appeal

in the absence of appellee’s brief because the issues are straightforward, and appellant’s brief

demonstrates prima facie error.

¶ 25 “[S]ection 2-1401 of the Code represents a comprehensive statutory procedure authorizing

a trial court to vacate or modify a final order or judgment in civil and criminal proceedings.”

Warren County Soil & Water Conservation District v. Walters, 2015 IL 117783, ¶ 31. “As an

initial pleading, a section 2-1401 petition is procedurally the counterpart of a complaint and subject

to all the rules of civil practice that that character implies.” Blazyk v. Daman Express, Inc., 406

Ill. App. 3d 203, 207 (2010); see also Ostendorf v. International Harvester Co., 89 Ill. 2d 273, 279

(1982). Thus, it should be treated procedurally more like a complaint than a motion. Studentowicz

v. Queen’s Park Oval Asset Holding Trust, 2019 IL App (1st) 181182, ¶ 9. Accordingly,

dispositive motions—such as motions to dismiss for failure to state a claim and motions for

judgment on the pleadings—are proper in section 2-1401 proceedings.

¶ 26 Our supreme court has recognized at least two types of section 2-1401 petitions. One type

is what the supreme court in Airoom recognized as presenting a “fact-dependent challenge” to a

judgment. Walters, 2015 IL 117783, ¶ 50 (citing Airoom, 114 Ill. 2d at 221). In Walters, the court

characterized that type of petition as follows:

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“Airoom established that to be entitled to relief from a final judgment or order under

section 2-1401, the petition must set forth specific factual allegations supporting each of

the following elements: (1) the existence of a meritorious defense; (2) due diligence in

presenting this defense or claim to the circuit court in the original action; and (3) due

diligence in filing the section 2-1401 petition for relief. [Citation.] Under Airoom, the

quantum of proof necessary to sustain a section 2-1401 petition is a preponderance of the

evidence. [Citation] The question of whether relief should be granted lies within the sound

discretion of the circuit court, depending on the facts and equities presented. [Citation.]

Accordingly, this court held in Airoom that a reviewing court will reverse the circuit court’s

ruling on the petition only if it constitutes an abuse of discretion.” Walters, 2015 IL

117783, ¶ 37.

Another type of section 2-1401 petition raises a purely legal challenge to the judgment. The typical

example is a petition that challenges a judgment as void (Walters, 2015 IL 117783, ¶ 47), but the

Walters court also cited the example of a claim, brought by a person civilly committed as a sexually

dangerous person, that his counsel was ineffective in the commitment proceeding (Walters, 2015

IL 117783, ¶ 41 (citing People v. Lawton, 212 Ill. 2d 285, 297 (2004)). 1 The Walters court held

that the disposition of a section 2-1401 petition that raises purely legal issues is subject to de novo

review. Walters, 2015 IL 117783, ¶ 47 (addressing the use of the de novo standard in People v.

Vincent, 226 Ill. 2d 1, 5 (2007)). The Walters court further recognized that the procedural posture

1 In Aurora Loan Services, LLC v. Pajor, 2012 IL App (2d) 110899, ¶¶ 15-19, we identified

another example: the descendant of an action for a bill of review, which seeks relief for errors of

law apparent on the face of the record and does not require a showing of diligence.

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of the case can determine the standard of review; judgments on the pleadings and dismissals (such

as for failure to state a cause of action) are reviewed de novo. Walters, 2015 IL 117783, ¶ 47.

¶ 27 The Department argues that we should “review[ ] legal questions raised by the circuit

court’s denial of a section 2-1401 petition de novo, and any factual questions under a more

deferential standard.” It contends that “this case presents solely a question of law, indeed one of

statutory construction, that is subject to de novo review.” Pointing to Caron, it argues that the trial

court erred as a matter of law in denying the petition.

¶ 28 We agree that our standard of review is de novo. This is so even though the Department

presented its petition as an Airoom-type petition and pleaded the diligence elements. Since the

trial court’s order stated that it was denying the petition on the merits, it appears on the surface

that, under Walters, we should review for an abuse of discretion. That impression, however, is

overcome by two facts. First, none of Holder’s filings in the trial court was a response—in the

sense of a responsive pleading answering a petition—to the Department’s section 2-1401 petition.

Second, at the hearing on the Department’s petitions, the trial court made clear that, as a matter of

law, it was rejecting the Department’s proposed meritorious defense to Holder’s petition under

section 10. Thus, before Holder had filed a responsive pleading, the court concluded that his

arguments against the applicability of the “unless” clause were sufficient to dispose of the section

2-1401 petition. Thus, the trial court’s disposition was more akin to a dismissal for failure to state

a cause of action than to a denial. Under Walters, such a dismissal is subject to de novo review.

Walters, 2015 IL 117783, ¶ 47.

¶ 29 We hold that the trial court erred in rejecting, as a matter of law, the Department’s defense

to Holder’s claim for a FOID card. We conclude that, per Caron’s interpretation of the “unless”

clause, Holder was barred from possessing a firearm under federal law.

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¶ 30 In Caron, the issue was whether the “unless” clause was triggered by a Massachusetts law

that allowed the defendant to possess rifles or shotguns but prohibited him from possessing a

handgun outside his home or business. Caron, 524 U.S. at 311. As the Court noted, under section

922(g)(1) of the Gun Control Act, “a person convicted of a crime punishable by more than one

year in prison may not possess any firearm” (Caron, 524 U.S. at 309 (citing 18 U.S.C. § 922(g)(1)).

Which judgments count as “convictions” under section 922(g)(1) is determined by section

921(a)(20) of the Gun Control Act. Caron, 524 U.S. at 312-13. As noted, section 921(a)(20)

states:

“What constitutes a conviction of such a [disqualifying] crime shall be determined in

accordance with the law of the jurisdiction in which the proceedings were held. Any

conviction which has been expunged, or set aside or for which a person has been pardoned

or has had civil rights restored shall not be considered a conviction for purposes of this

chapter, unless such pardon, expungement, or restoration of civil rights expressly provides

that the person may not ship, transport, possess, or receive firearms.” (Emphasis added.)

¶ 31 In Caron, the parties agreed that, “[a]side from the unless clause,” the civil rights of the

defendant had been restored by operation of Massachusetts law. Caron, 524 U.S. at 313. Thus,

the question was “whether the handgun restriction activates the unless clause, making the

convictions count under federal law.” Caron, 524 U.S. at 313.

¶ 32 The defendant argued that “the unless clause allows an offender to possess what state law

permits him to possess, and nothing more.” Caron, 524 U.S. at 314. The Court recognized the

commonsense appeal of this approach, but held that such a reading was irreconcilable with the

language of section 921(a)(20):

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“The unless clause is activated if a restoration of civil rights ‘expressly provides that the

person may not ... possess ... firearms.’ 18 U.S.C. § 921(a)(20). Either the restorations

forbade possession of ‘firearms’ and the convictions count for all purposes, or they did not

and the convictions count not at all.

Under [the more prohibitive] approach, a state weapons limitation on an offender

activates the uniform federal ban on possessing any firearms at all. This is so even if the

guns the offender possessed were ones the State permitted him to have. The State has

singled out the offender as more dangerous than law-abiding citizens, and federal law uses

this determination to impose its own broader stricture.” (Emphasis added.) Caron, 524

U.S. at 314-15.

The Court adopted the more prohibitive approach:

“Congress *** provid[ed] that the law of the State of conviction, not federal law,

determines the restoration of civil rights as a rule. While state law is the source of law for

restorations of other civil rights, however, it does not follow that state law also controls the

unless clause. Under the [more prohibitive] approach, with which we agree, the federal

policy still governs the interpretation of the unless clause. We see nothing contradictory

in this analysis. Restoration of the right to vote, the right to hold office, and the right to sit

on a jury turns on so many complexities and nuances that state law is the most convenient

source for definition. As to the possession of weapons, however, the Federal Government

has an interest in a single, national, protective policy, broader than required by state law.

[The less prohibitive] approach would undermine this protective purpose.” Caron, 524

U.S. at 316.

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The Court concluded that the Massachusetts firearms restriction brought the defendant within the

ambit of the “unless” clause, and thus the Court affirmed a sentencing enhancement based on the

defendant’s violation of section 922(g)(1). Caron, 524 U.S. at 309, 316-17.

¶ 33 The precise facts in Caron are critical to understanding the trial court’s error here: the

defendant in Caron was under a restriction that allowed him to possess rifles, shotguns, and

handguns, but prohibited him from possessing a handgun outside his home or business. Caron,

524 U.S. at 313. The Court held that the handgun restriction was enough to activate the “unless”

clause. Caron, 524 U.S. at 316-17. The defendant in Caron was under less severe restrictions

than Holder, whom Texas law bars from possessing any firearm outside his home. If the restriction

faced by the defendant in Caron activated the “unless” clause, then so does the restriction here.

¶ 34 The trial court distinguished Caron on the ground that the restriction in Caron was as to

the type of firearms that could be possessed, as opposed to the Texas law at issue, which only

restricted where Holder may possess firearms, i.e., outside the home. Our reading of Caron,

however, does not support the conclusion that location restrictions fall outside the ambit of the

“unless” clause. The question in Caron was indeed whether Massachusetts’ prohibition of

possessing certain types of weapons implicated the “unless” clause. In concluding that it did,

however, the court noted that the “unless” clause applies where “[t]he State has singled out the

offender as more dangerous than law-abiding citizens, and federal law uses this determination to

impose its broader stricture.” Caron, 524 U.S. at 315. This is exactly what the Texas law did when

it restricted Holder from possessing any firearms outside his home. Cf. United States v. Kyllonen,

774 Fed. App’x 212, 213 (5th Cir. 2019) (per curium) (Michigan concealed weapon restriction

triggered the “unless” clause and prohibited the defendant from possessing a firearm under federal

law); United States v. Sanford, 707 F.3d 594, 596 (6th Cir.) (inability of the defendant to obtain a

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concealed weapons permit restricted his ability to “transport” a firearm which was sufficient to

trigger the “unless” clause).

¶ 35 The Court in Caron was explicit in embracing the consequence of the rule it adopted: a

partial state restoration of an offender’s firearms rights leaves the offender under a blanket federal

prohibition. Moreover, the Court made clear that, although federal restrictions may be broader

than state restrictions, it is still the law of the state of conviction that determines whether those

federal restrictions are triggered for a particular individual.

¶ 36 For this reason, Holder’s citation to Johnson availing. In Johnson, the supreme court held

that civil rights in Illinois include firearms rights. Johnson, 2020 IL 124213, ¶ 37. Thus, according

to Johnson, proceedings under section 10 of the FOID Card Act are part of Illinois’s path to

restoring a person’s civil rights—the manner of restoration contemplated in section 921(a)(20) of

the Gun Control Act. Johnson, 2020 IL 124213, ¶¶ 26-27. In other words, section 10(b) of the

FOID Card Act does not prevent a court from granting a section 10 petition where that relief is

sufficient to remove the federal prohibition. Johnson, 2020 IL 124213, ¶¶ 30, 40. However, citing

Caron, Johnson recognized that “[t]he law of the convicting jurisdiction controls whether civil

rights have been restored.” (Emphasis added.) Johnson, 2020 IL 124213, ¶ 26 (citing Caron, 524

U.S. at 316). Thus, a court may grant a section 10 petition when a restriction on firearms rights is

the only impediment to restoring a person’s federal firearms rights. A court cannot grant a section

10 petition where, as here, a restriction from another jurisdiction impedes the restoration of the

person’s federal firearms rights.

¶ 37 Essentially, Holder’s restrictions were similar to those in Caron: Holder was allowed to

carry his firearm in his dwelling house, but he was otherwise prohibited from possessing firearms

anywhere else in Texas. As in Caron, this restriction was sufficient to trigger the “unless” clause.

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Accordingly, we hold that the trial court was incorrect in concluding that the Department’s

defense—that Holder remains federally prohibited from possessing firearms—fails as a matter of

law. As this was the only basis for the dismissal of the Department’s section 2-1401 petition, we

hold that the dismissal was erroneous.

¶ 38 As for the appropriate relief, we note that the Department makes an ambitious request:

“For the[ ] reasons [stated in the brief, the Department] asks that this court reverse

the circuit court’s judgment to the extent that it denied its section 2-1401 petition for relief

from the judgment on the merits, thereby reversing the orders requiring it to issue a FOID

card to *** Holder.” (Emphasis added.)

The Department does not explain why, even if the trial court made an error of law in the disposition

of the petition, the appropriate relief would be to disturb the May 23, 2019, judgment directing the

Department to issue Holder a FOID card. The customary remedy for improper dismissal is a

remand for further proceedings, not award of the relief that the prevailing party sought in the

dismissed pleading. As noted, the Department presented its petition as an Airoom-type petition,

complete with diligence allegations. The determination whether a section 2-1401 petitioner has

been diligent invokes the trial court’s discretion. Walters, 2015 IL 117783, ¶ 37. Here, the trial

court has not yet applied that discretion, as its dismissal was based solely on the “meritorious

defense” element. Nor does the Department argue that it satisfied the diligence elements as a

matter of law. Therefore, the proper relief is to vacate the dismissal and remand for further

proceedings on the section 2-1401 petition.

¶ 39 III. CONCLUSION

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¶ 40 For the reasons stated, we vacate the judgment of the circuit court of Winnebago County

dismissing the Department’s section 2-1401 petition, and remand the cause for further proceedings

under section 2-1401 consistent with this order.

¶ 41 Vacated and remanded.

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