NOTICE 2025 IL App (5th) 230009-U NOTICE Decision filed 08/25/25. The This order was filed under text of this decision may be NO. 5-23-0009 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
DAVID KOSHINSKI, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Madison County. ) v. ) No. 15-CH-362 ) JEFFREY YENCHKO, Chief of Illinois State Police ) Firearms Services Bureau, ) Honorable ) A. Ryan Jumper, Defendant-Appellee. ) Judge, presiding. ______________________________________________________________________________
JUSTICE CATES delivered the judgment of the court. Justices Boie and Vaughan concurred in the judgment.
ORDER
¶1 Held: The appeal is dismissed as moot where plaintiff’s as-applied challenge to the constitutionality of two firearms licensing provisions is moot and does not fall under the public interest exception to the mootness doctrine.
¶2 The plaintiff, David Koshinski, filed an action for declaratory and injunctive relief,
challenging the constitutionality of section 8.2 of the Firearm Owners Identification Card Act
Identification (FOID Card Act) (430 ILCS 65/8.2 (West 2014)) and section 70(b) of the Firearm
Concealed Carry Act (Concealed Carry Act) (430 ILCS 66/70(b) (West 2014)). The plaintiff
claimed that these firearm licensing statutes improperly authorized the Illinois State Police to
temporarily suspend or revoke the FOID cards and concealed carry licenses of Illinois citizens,
including himself, based on an ex parte emergency order of protection entered against them,
without notice or an opportunity to be heard. The trial court initially dismissed the plaintiff’s action 1 with prejudice on grounds of mootness. On appeal, this court concluded that the plaintiff’s action
was moot, but that the plaintiff’s facial constitutional challenge met the requirements of the public
interest exception to the mootness doctrine. We reversed the order of dismissal, and we remanded
the case for further proceedings on that claim. See Koshinski v. Trame (Koshinski I), 2017 IL App
(5th) 150398. Several years after the remand, the parties filed cross-motions for summary
judgment. Following a hearing, the circuit court granted the defendant’s motion for summary
judgment and denied the plaintiff’s motion for summary judgment. On appeal, the plaintiff claims
the circuit court erred in denying his motion for summary judgment where he showed that the
firearms statutes were unconstitutional as applied to him. For the following reasons, the appeal is
dismissed as moot.
¶3 I. BACKGROUND
¶4 This case was originally filed in June 2015, and this is second time it has been before this
court. An overview of the background facts and procedural history relevant to the disposition of
the appeal follows.
¶5 On May 4, 2015, the circuit court of Madison County issued an ex parte emergency order
of protection against the plaintiff, based upon allegations that the plaintiff threatened to beat up his
77-year-old father-in-law. The protective order was served on the plaintiff on May 6, 2015. At that
time, the plaintiff had a valid Illinois FOID card, and a valid Illinois concealed carry license. The
Illinois State Police notified the plaintiff that his FOID card had been temporarily revoked, and his
concealed carry license suspended due to the protective order. On May 19, 2015, the plaintiff filed
a petition to rehear the emergency order of protection. Following a hearing on May 21, 2015, the
circuit court vacated the ex parte emergency order of protection and then entered an agreed
“mutual stay away” order that required the plaintiff and his father-in-law to stay away from each
2 other. The plaintiff had notice of the hearing. He participated in the proceedings and agreed to the
“mutual stay away” order. Subsequently, the plaintiff’s FOID card and concealed carry license
were reissued. The “mutual stay away” order was vacated on August 6, 2015.
¶6 On June 15, 2015, the plaintiff filed this action against the defendant, Jessica Trame, Chief
of the Illinois State Police Firearms Services Bureau, 1 in the circuit court of Madison County,
challenging the constitutionality of section 8.2 of the FOID Card Act (430 ILCS 65/8.2 (West
2014)) and section 70(b) of the Concealed Carry Act (430 ILCS 66/70(b) (West 2014)). The
plaintiff alleged that enforcement of those statutory provisions improperly deprived Illinois
citizens, such as himself, of their constitutional right to bear arms, based on the entry of an ex parte
emergency order of protection against them, without notice or an opportunity to be heard.
Asserting violations of the second and fourteenth amendments to the United States Constitution
(U.S. Const., amends. II, XIV), the plaintiff sought a declaratory judgment that section 8.2 of the
FOID Card Act and section 70(b) of the Concealed Carry Act were unconstitutional. He also
sought a permanent injunction restraining the defendant from suspending or revoking his firearms
licenses “in the event of an Emergency or other Order of Protection being issued against [him],
unless said order was issued after a hearing of which [he] received actual notice and *** an
opportunity to participate.” He requested an award for the costs and attorney fees he incurred
“pursuant to 42 U.S.C. [§] 1988.”
¶7 On August 24, 2015, the plaintiff filed a motion for summary judgment and permanent
injunction. The plaintiff argued that section 8.2 of the FOID Card Act and section 70(b) of the
Concealed Carry Act were unconstitutional “on their face” because the enforcement of those
1 The case was originally filed against Jessica Trame, in her official capacity as Chief of the Firearms Services Bureau of the Illinois State Police. During the pendency of this case, Jeffrey Yenchko replaced Jessica Trame as the Chief of the Firearms Services Bureau, and he was substituted as the named defendant. 3 provisions resulted in the deprivation of second and fourteenth amendment rights, without due
process or any other valid reason. He sought a judgment declaring those statutes unconstitutional
and enjoining the defendant from enforcing or complying with them. He also sought to enjoin the
defendant from suspending or revoking any FOID card or concealed carry license based only on
an ex parte order of protection entered without notice or an opportunity to be heard, along with an
award of costs and attorney fees.
¶8 On August 26, 2015, the defendant filed a motion to dismiss the plaintiff’s complaint with
prejudice. The defendant claimed the plaintiff’s cause of action was moot because the plaintiff’s
firearms licenses had been reinstated and there was no actual controversy remaining in the case.
The defendant also claimed that the public interest exception to the mootness doctrine did not
apply to the plaintiff’s action. In reply, the plaintiff argued that his action was not moot because
his claim for attorney fees was pending and because he remained at risk for the temporary
suspension or revocation of his firearms licenses should another order of protection be issued
against him. The plaintiff argued, in the alternative, that his claims should be heard under the
public interest exception or the capable-of-repetition-but-avoiding-review exception to the
mootness doctrine. He claimed the continued enforcement of the statutes placed thousands of
people holding FOID cards and concealed carry licenses at risk for temporary loss of their
constitutional right to bear arms, without notice or an opportunity to be heard. He further claimed,
“Any fact unique to plaintiff is irrelevant, as the question is simply the public question of whether
Second Amendment rights can be suspended, without any notice or opportunity to be heard.”
Following a hearing on September 18, 2015, the circuit court granted the defendant’s motion to
dismiss the plaintiff’s cause of action with prejudice for mootness and denied all other pending
motions as moot. The plaintiff appealed.
4 ¶9 In an opinion filed May 31, 2017, this court determined that the plaintiff’s constitutional
challenges to the firearm licensing statutes were moot. We found that because the plaintiff’s
firearm licenses had been reinstated and because he was no longer subject to the licensing statutes
and the temporary revocation provisions that he claimed were facially unconstitutional, there was
no meaningful relief that could be granted. Koshinski I, 2017 IL App (5th) 150398, ¶ 19. We then
determined that the plaintiff’s facial challenge satisfied the criteria for the public interest
exception. To that end, we found that the facial challenge was not “case-specific” and would
broadly determine the rights of firearm licensees who were subject to ex parte emergency orders
of protection and the firearm suspension statutes. Koshinski I, 2017 IL App (5th) 150398, ¶ 24.
We also found that the absence of conflicting precedents did not necessarily bar review when the
question was likely to recur and an authoritative determination of the question was desirable to
provide future guidance to public officers. Koshinski I, 2017 IL App (5th) 150398, ¶¶ 27-28. We
reversed the order of dismissal, and we remanded the case for further proceedings. The mandate
issued on July 18, 2017.
¶ 10 On November 17, 2017, the defendant moved to dismiss the plaintiff’s complaint pursuant
to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2016)), alleging that it
failed to state a claim as a matter of law. On May 8, 2018, the plaintiff filed a response in
opposition, arguing that he stated a claim because the suspension of FOID cards and concealed
carry licenses in all ex parte emergency order of protection cases, across the board, was
unconstitutional. On October 9, 2018, the circuit court denied the defendant’s 2-615 motion to
dismiss. In addition, the court directed the defendant to answer the complaint and the parties to file
summary judgment motions in accordance with the briefing schedule set forth in the order.
5 ¶ 11 On December 10, 2018, the defendant filed an answer and affirmative defenses. In the
answer, the defendant stated that the plaintiff had a valid FOID card and a valid concealed carry
license currently, and his FOID card and the concealed carry license had been reissued on June 11,
2015. As for affirmative defenses, the defendant claimed, among other things, that because the
plaintiff’s firearm card and license had been reissued before the filing of the complaint, the plaintiff
lacked standing to pursue his action 2 and the plaintiff’s cause of action was non-justiciable and
moot. The plaintiff did not file a response to the answer and affirmative defenses.
¶ 12 On August 10, 2021, the plaintiff filed a motion for summary judgment. Therein, the
plaintiff posited that in Illinois, orders of protection are generally granted, “almost no matter the
facts.” He argued that suspending a person’s firearms right, “either ex parte, or even with minimal
technical notice, as a matter of routine, when an order of protection, any order of protection is
entered, is illegal and unconstitutional.” (Emphases in original.) He concluded that the second
amendment right to keep and bear arms could not be suspended or revoked without proper notice
and an opportunity to be heard, and therefore, “430 ILCS 65/2 and 430 ILCS 66/70 should be held
unconstitutional and enjoined.”
¶ 13 In a supplemental pleading filed June 30, 2022, the plaintiff claimed there was no historical
precedent for disarming a law-abiding citizen, absent a trial with notice and substantial evidence
presented. He argued that “100% of the time, whether warranted or not, whether some sort of
minimal notice is given, or not, all orders of protection in Illinois erase all Second Amendment
rights” (emphasis in original), and therefore, it was unconstitutional for the defendant to suspend
FOID cards and concealed carry licenses upon entry of a non-final order of protection.
The purpose of standing is to ensure that courts are deciding actual controversies. Standing is 2
determined from the allegations in the complaint as of the date the lawsuit is filed. See Davis v. Yenchko, 2024 IL 129751, ¶ 13. Although standing was pleaded as an affirmative defense, it was not raised in this appeal. 6 ¶ 14 On September 26, 2022, the defendant filed a combined response to the plaintiff’s summary
judgment motion and a cross-motion for summary judgment. The defendant asserted that the
plaintiff could not succeed on his facial challenge because he failed to demonstrate that a
temporary suspension of firearms licenses in response to an ex parte emergency order of protection
offended the constitution in every application. The defendant also asserted that the plaintiff failed
to show that he had suffered or would suffer irreparable harm if the circuit court did not issue a
permanent injunction. In addition, the defendant claimed that the statutory provisions at issue were
consistent with the historical tradition of firearms regulation in this country. The defendant
concluded that section 8.2 of the FOID Card Act and section 70(b) of the Concealed Carry Act
were constitutional under the second amendment because the right to bear arms is subject to
reasonable, well-defined restrictions, the terms of the revocation or suspension for an ex parte
order of protection is temporary, and respondents are afforded opportunities to contest the order
of protection and the revocation or suspension.
¶ 15 On September 27, 2022—more than five years after the mandate issued in Koshinski I, the
circuit court held a hearing on the parties’ cross-motions for summary judgment. On December 9,
2022, the circuit court denied the plaintiff’s motion for summary judgment and granted the
defendant’s motion for summary judgment. This appeal followed.
¶ 16 II. ANALYSIS
¶ 17 On appeal, the plaintiff claims that the circuit court erred in denying his motion for
summary judgment. In his brief, the plaintiff expressly states that he is raising only an as-applied
challenge to the constitutionality of section 8.2 of the FOID Card Act and section 70(b) of the
Concealed Carry Act. Thus, the plaintiff has intentionally abandoned the facial challenge which
formed the foundation for his summary judgment motion in the trial court.
7 ¶ 18 At the outset, it is important to point out that facial challenges and as-applied challenges to
the constitutionality of a statute are distinct and not interchangeable. People v. Thompson, 2015 IL
118151, ¶¶ 36-37. A party raising a facial challenge must establish that the statute is
unconstitutional under any set of facts; thus, the specific facts related to the challenging party are
irrelevant. Thompson, 2015 IL 118151, ¶ 36. In contrast, an as-applied challenge requires the
challenging party to show that the statute violates the constitution as it applies to him. Thompson,
2015 IL 118151, ¶ 36. An as-applied constitutional challenge, by definition, is dependent on the
particular facts and circumstances of the individual plaintiff. Thompson, 2015 IL 118151, ¶ 37. If
a plaintiff prevails on an as-applied challenge to a statute, he may enjoin the enforcement of the
statute only against himself, while a successful facial challenge voids the statute in its entirety and
in all applications. Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 306 (2008). Statutes are
presumed constitutional and the burden of rebutting that presumption is on the party challenging
the validity of a statute to clearly demonstrate a constitutional violation. Napleton, 229 Ill. 2d at
306.
¶ 19 In this appeal, the plaintiff has abandoned his facial challenge and claims only that section
8.2 of the FOID Card Act and section 70(b) of the Concealed Carry Act are unconstitutional as
applied to him. This presents a procedural barrier for the plaintiff. In Koshinski I, we found that
the plaintiff’s constitutional challenges, both facial and as applied, to the constitutionality of the
aforementioned firearm licensing statutes were moot. We reasoned that because the plaintiff’s
firearm licenses had been reinstated, the plaintiff was no longer subject to the licensing statutes
which he sought to have declared unconstitutional and the temporary revocation provisions in
those statutes no longer applied to him. Koshinski I, 2017 IL App (5th) 150398, ¶ 19. In addition,
as to the as-applied challenge, the plaintiff sought only prospective injunctive relief, and he did
8 not seek damages to redress the past temporary deprivation of his firearms license. Upon
reinstatement of his firearms licenses, the plaintiff no longer had a personal claim, status, or right
that would be affected by the requested declaratory and injunctive relief. As a result, we
determined that we could grant no meaningful relief to him by ruling on the constitutionality of
the statutes, declaring them unconstitutional, or enjoining their enforcement. Koshinski I, 2017 IL
App (5th) 150398, ¶ 19. Nevertheless, we concluded that the plaintiff’s facial challenge, which he
now abandons, met the requirements of the public interest exception. Koshinski I, 2017 IL App
(5th) 150398, ¶¶ 24, 27-28. Notably, we did not find that the plaintiff’s as-applied challenge met
the requirements of the public interest exception and for good reason.
¶ 20 Generally, reviewing courts in Illinois do not decide moot questions, render advisory
opinions, or consider issues where the result will not be affected regardless of how those issues
are decided. Commonwealth Edison Co. v. Illinois Commerce Comm’n, 2016 IL 118129, ¶ 10. The
public interest exception to the mootness doctrine permits review of an otherwise moot question
“when the magnitude or immediacy of the interests involved warrants action by the court.”
Commonwealth Edison Co., 2016 IL 118129, ¶ 12. The public interest exception applies only if
“(1) the question presented is of a public nature; (2) an authoritative determination of the question
is desirable for the future guidance of public officers; and (3) the question is likely to recur.” In re
Shelby R., 2013 IL 114994, ¶ 16. The exception is narrowly construed and requires a clear showing
of each of its criteria. Commonwealth Edison Co., 2016 IL 118129, ¶ 13. “If any one of the criteria
is not established, the exception may not be invoked.” Commonwealth Edison Co., 2016 IL
118129, ¶ 13.
¶ 21 In this case, the plaintiff’s as-applied challenge is case-specific and dependent on the
particular facts and circumstances for which the ex parte emergency order of protection was
9 issued. Should the plaintiff succeed on his challenge, the injunctive relief requested would apply
only to the plaintiff and would restrain the enforcement of the statutory provisions at issue only as
to the plaintiff himself. There is no clear showing that a resolution of the question would have a
significant effect on the public. Thus, the first criterion of the public interest exception was not
met. In addition, the plaintiff sought only prospective injunctive relief based upon the possibility
that he could be subject to a subsequent order of protection by his father-in-law. Initially, we note
that this claim is speculative. Further, more than a decade has passed since the ex parte emergency
order of protection was entered and subsequently vacated, and there is no evidence that the plaintiff
has been subjected to a subsequent ex parte emergency order of protection or that his firearms
licenses have been suspended as a result. Additionally, given that this case was not expeditiously
pursued, but rather allowed to languish in the trial court for more than five years after the mandate
issued in Koshinski I, the plaintiff has not shown that the immediacy of the interests involved
warrant any further action by this court. Finally, given the passage of time and the absence of
disarray in the law, the plaintiff has not shown that an authoritative determination of his as-applied
challenge is desirable to provide future guidance to public officers. To invoke the public interest
exception, there must be a clear showing of all three criteria, and the plaintiff has not done so.
Therefore, the appeal is dismissed as moot.
¶ 22 III. CONCLUSION
¶ 23 After a thorough review of the record, we conclude, as we did in Koshinski I, that the
plaintiff’s as-applied challenge to the constitutionality of section 8.2 of the FOID Card Act and
section 70(b) of the Concealed Carry Act is moot and does not fall under the public interest
exception to the mootness doctrine. For the reasons stated, the appeal is dismissed as moot.
¶ 24 Appeal dismissed.