Mishaga v. Monken Suit

krucam · Dec 1, 2010

Mishaga v. Monken is a case brought about by the Mountain States Legal Foundation (MSLF) in CO, about a woman residing in OH, that wishes to possess her firearm while visiting in IL.

IL prohibits POSSESSION of a handgun in IL without a Firearm Owners ID (FOID) card. Ms Mishaga attempted to obtain an IL FOID card, but was denied because she has an OH Drivers License.

And they're off....
Initial Complaint is here: http://ia700101.us.archive.org/15/items/gov.uscourts.ilcd.49772/gov.uscourts.ilcd.49772.1.0.pdf

The case was filed on July 27, 2010 in IL District Court (Central). It went through the normal steps including a Motion to Dismiss by the Defendants (IL).

The Docket is here: http://ia700101.us.archive.org/15/items/gov.uscourts.ilcd.49772/gov.uscourts.ilcd.49772.docket.html

On November 22nd, the MTD was DISMISSED by Judge Michael McCuskey! Nice read...
MTD Dismissal is here: http://ia700101.us.archive.org/15/items/gov.uscourts.ilcd.49772/gov.uscourts.ilcd.49772.8.0.pdf
:party29:

The final paragraph is the best...respond to the Complaint:

THEREFORE, the Motion to Dismiss (d/e 5) of Defendant Jonathon E. Monken, Director of the Illinois State Police, is DENIED. The Defendant is directed to file an answer to the Complaint by December 17, 2010.

There is some sanity in the Land of Lincoln, particularly when you get out of Chicago. I'll be experiencing that insanity in Chicago when I go back for Christmas, but that's another story...

More goodness and I thought it was time for this one to have it's own thread.

Trapper · Dec 1, 2010

look closely

I am really happy with this part:

The Second Amendment generally guarantees an individual the right to possess a weapon for protection in case of a confrontation. District of Columbia v. Heller, __ U.S.__, 128 S.Ct. 2783, 2797 (2008).1 The right includes a right to possess a weapon within one’s own home that may be used for personal protection.

Finally a judge who doesn't think it's limited to the home!! YEAH!!!!

jpr9954 · Dec 1, 2010

You can read more about Mishaga v. Monken at the links below. I have put them in chronological order from earliest to latest.

http://onlygunsandmoney.blogspot.com/2010/08/illinoiss-foid-card-challenged.html

http://onlygunsandmoney.blogspot.com/2010/10/mishaga-v-monken-illinois-responds-in.html

http://onlygunsandmoney.blogspot.com/2010/10/illinois-foid-challenge-plaintiffs.html

http://onlygunsandmoney.blogspot.com/2010/11/motion-to-dismiss-in-illinois-foid-case.html

This case has flown under the radar until just recently. The opinion by Judge McCuskey to deny the motion to dismiss caught some by surprise. As a result, it is getting the attention it deserves. Eugene Volokh at the Volokh Conspiracy, Glenn Reynolds at Instapundit, and Dave Hardy at Of Arms and the Law have all made comments on it. Given that they are some of the best Second Amendment scholars around, that helps.

Attorney Jim Manley is leading the new efforts from the Mountain States Legal Foundation to get involved in Second Amendment issues. In addition to Mishaga, they have two active cases in Colorado. Bonidy v. USPS challenges the banning of firearms from USPS property. The other case is in the Colorado Supreme Court and involves concealed carry on the U. of CO campus. CU is appealing a Ct of Appeals decision in favor of concealed carry.

They had a win in Nevada where they challenged the prohibition against a functional firearm by a non-resident CCW holder in state parks. Nevada agreed to change their regulations to allow it. (Baker v. Drozdoff)

Manley is also the state director for Students for Concealed Carry on Campus in Colorado.

John

krucam · Dec 2, 2010

jpr9954 said:
You can read more about Mishaga v. Monken at the links below. I have put them in chronological order from earliest to latest.

http://onlygunsandmoney.blogspot.com/2010/08/illinoiss-foid-card-challenged.html

http://onlygunsandmoney.blogspot.com/2010/10/mishaga-v-monken-illinois-responds-in.html

http://onlygunsandmoney.blogspot.com/2010/10/illinois-foid-challenge-plaintiffs.html

http://onlygunsandmoney.blogspot.com/2010/11/motion-to-dismiss-in-illinois-foid-case.html

This case has flown under the radar until just recently. The opinion by Judge McCuskey to deny the motion to dismiss caught some by surprise. As a result, it is getting the attention it deserves. Eugene Volokh at the Volokh Conspiracy, Glenn Reynolds at Instapundit, and Dave Hardy at Of Arms and the Law have all made comments on it. Given that they are some of the best Second Amendment scholars around, that helps.

Attorney Jim Manley is leading the new efforts from the Mountain States Legal Foundation to get involved in Second Amendment issues. In addition to Mishaga, they have two active cases in Colorado. Bonidy v. USPS challenges the banning of firearms from USPS property. The other case is in the Colorado Supreme Court and involves concealed carry on the U. of CO campus. CU is appealing a Ct of Appeals decision in favor of concealed carry.

They had a win in Nevada where they challenged the prohibition against a functional firearm by a non-resident CCW holder in state parks. Nevada agreed to change their regulations to allow it. (Baker v. Drozdoff)

Manley is also the state director for Students for Concealed Carry on Campus in Colorado.

John

Welcome back again and thanks, John.

krucam · Dec 17, 2010

Following the very satisfying Denial of Defendant MTD on November 22nd, the Defendants were ordered to respond to the initial complaint by today, which they did....just in the nick of time. I checked Pacer at 4:30pm EST, no joy. Checked again at 5:30pm and there it was.

Responses to Complaints are fairly dry. It is a paragraph by paragraph response to the Complaint, without referencing the Complaint. The response is meaningless unless you have the complaint with it.

The Docket is HERE

In the Plaintiff Complaint, they state:
7. The Second Amendment to the United States Constitution provides: “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

The Defendant Response to Para 7:
7. The allegations contained in paragraph 7 of the Complaint seek a legal conclusion and Defendant denies that they are applicable to this case. Defendant further denies that the allegations contained in paragraph 7 of the Complaint are a complete and accurate statement of the law.

#1 Complaint: http://www.archive.org/download/gov.uscourts.ilcd.49772/gov.uscourts.ilcd.49772.1.0.pdf

#9 Def Response to Complaint:

krucam · Dec 17, 2010

Patrick said:
They are referring to the sensitive places dicta in Heller.

This whole case is putting the cart before the horse. Right now they have no federal right to bear anywhere. The fact their particular state let's them do it is immaterial, as this is currently a gift from the legislature. They cannot sue the federal government for access to federal facilities using a non-existent right.

So essentially, to win these guys need to win the same case that Gura and the SAF are fighting: a recognized right to bear arms in public. Only then can they survive "sensitive places" defenses.

They are going to have the floor cleaned with their complaint. Hopefully they don't harm us in the process.

This is not that different than Peterson v McCabe.

An out of state (in this case IL) wishes to "bear" although she is a resident of OH. She can't get the required IL FOID required to "bear in IL" because she is a resident of OH.

I think it is a great opportunity for expansion of rights and could possibly gain traction given the Judges denial of the State MTD....then again, I could be completely wrong.

Patrick · Dec 17, 2010

I was completely wrong. I thought this was the postal service case. Damn.

I like this one. Thanks and sorry.

I usually pay better attention...was typing that last response while paying more attention to my two year old.

But if this were the postal service suit, I would still feel the same. But it ain't.

I just deleted my original mistake, but it lives in infamy in Mark's thread.

Al Norris · Dec 17, 2010

Fact is, the attorney for Mishaga is the same attorney that Gray is using.

Mark, I just finished reading the answer (side by side with the complaint). I really couldn't help but laugh!

When the complaint alleges that Ms. Mishaga filed for an FOID on such and such date, and the defendant admits that she did, but denies all other allegations in the paragraph - I just have to shake my head. It literally begs the question: What other allegations?

Then there is this: "The allegations contained in paragraph X of the Complaint seek a legal conclusion..." Excuse me? In every other "boilerplate" response, the form used is: "The allegations contained in paragraph X of the Complaint state a legal conclusion and no response is necessary." They generally leave it at that.

No other reply has then went on to deny "other" nonexistent allegations. Nor do any other responses claim, "denies that the allegations contained in paragraph X of the Complaint are a complete and accurate statement of the law," when the law in question is cited.

Even the City of Chicago isn't this stupid in their responses.

Is the attorney for Monken that illiterate in pleadings?

Gray Peterson · Dec 17, 2010

Al Norris said:
Fact is, the attorney for Mishaga is the same attorney that Gray is using.

Wrong guy. My attorney is John Monroe, who is VP for GeorgiaCarry.org. James Manley is the attorney for Mountain States Legal Foundation, not my lawyer, even though he's lives in the same state as where I'm suing. We're in communication.

Al Norris · Dec 18, 2010

Sorry about that, Gray.

Can I make the excuse that I dropped my score card?

Gray Peterson · Dec 18, 2010

Al Norris said:
Sorry about that, Gray.

Can I make the excuse that I dropped my score card?

Nope, you are not forgiven. :mad54:

krucam · Feb 15, 2011

The current Scheduling Order for Mishaga....

01/25/2011 MINUTE ENTRY: for proceedings on 1/25/11. Telephone status/scheduling hearing held. Status, scheduling, further proceedings considered. Attys Manley and Gunderson present. Scheduling time limits ordered:
(1) No motions to join other parties and to amend pleadings to be filed after 3/1/11;
(2) 4/1/11 for plaintiff to identify Rule 26 testifying experts and provide Rule 26 reports;
(3) 6/1/11 for defendant to identify Rule 26 testifying experts and provide Rule 26 reports;
(4) 8/1/11 for ALL parties to complete ALL discovery, including expert discovery;
(5) 10/3/11 to file dispositive motions;
(6) 12/22/11 at 2:30 p.m. for Final Pre-trial Conference (IN PERSON) in Courtroom 1 in Springfield, Illinois, before Chief U. S. District Judge Michael P. McCuskey; and
(7) 1/9/12 at 9:00 a.m. for Trial in Courtroom 1 in Springfield before Chief Judge McCuskey. Any conflicts between scheduling order and proposed discovery plan shall be controlled by scheduling order. See written order. Entered by Mag. Judge Evans on 1/25/11. (MJ, ilcd) (Entered: 01/25/2011)

01/25/2011 11 SCHEDULING ORDER entered by Magistrate Judge Charles H. Evans on 1/25/2011. (MJ, ilcd) (Entered: 01/25/2011)

Only 11.5 months to go... :innocent0

Patrick · Feb 15, 2011

This is why the smart ones avoid trials.

Mr H · Feb 15, 2011

Interesting...

Good thing I decided to read this.

I had been advised (sorry, no recollectionn of where or by whom), that the IL FOID cad requirement was only for residents of IL, and non-residents could posess while passing through (subject to Fed transport regs, and limited to hotels and private residences)

Will keep an eye on this one, as we are in IL frequently for family affairs.

press1280 · Feb 17, 2011

krucam said:
The current Scheduling Order for Mishaga....

Only 11.5 months to go...

Wow. Maybe Palmer will be decided by then. That'll be really messed up if it isn't.

Southern_Boy · Feb 18, 2011

So...

Possible outcomes?

(1) FOID-requirement stricken for non-residents -- which brings a new suit pointing out the insanity of allowing non-residents to possess w/o FOID but requiring it for residents?

(2) FOID-requirement upheld for non-residents, making an even bigger mess?

Nice job, whoever's behind this. It's this sort of "back-em-in-a-corner" work that will tear down the rest of such lunacy.

I - personally - believe even CC permits are unconstitutional, or AT A MINIMUM OC should be free, nationwide. Realistically though, I doubt we'll ever see that happen until after the coming collapse.

One thing's for sure: I thought the PRM was bad, I'll never enter Ill-Annoy again, ever. Not even passing through. Had a recent chance to accompany Wifey to Shi*cago - essentially free - when she went for business.

Didn't earn any nookie-points by refusing to go, but...

"Why would I want to submit to being molested or electronically-strip-searched, to travel to a place where I'll be deprived of what few remaining 2A rights I have, all for the "privilege" of spending what little of my hard-earned money Uncle Sugar lets me keep in a place with such obvious disdain for me and everything I stand for?

No way in hell, Honey -- in fact, I'd be a whole lot happier if YOU refused to go too!!"

For this, she calls me "an EXTREMIST!!" :rolleyes:

Ah, well... I didn't marry her for her hoplophobia...

krucam · Mar 4, 2011

An amended complaint (#13) was filed 3/1, I haven't compared (and probably won't) it to the original to see the difference.

Hopefully the Docket will be available soon at: http://ia700101.us.archive.org/15/items/gov.uscourts.ilcd.49772/gov.uscourts.ilcd.49772.docket.html

This case will not see trial until next year according to the Scheduling Order (#11).

krucam · Mar 30, 2011

This case had a reassignment of the Judge.

03/18/2011 TEXT ORDER: Pursuant to instructions from Chief U.S. District Judge Michael P. McCuskey, this case is transferred to U.S. District Judge Sue E. Myerscough for further proceedings due to her recent appointment as U.S. District Judge for the Central District of Illinois, Springfield Division. Entered by Chief Judge Michael P. McCuskey on 3/18/2011. (MC, ilcd) (Entered: 03/18/2011)

03/18/2011 TEXT ORDER: Pursuant to case reassignment of 3/18/2011, the Final Pretrial Conference and Trial have been reset. Final Pretrial Conference set for 12/22/2011 at 02:30 PM in Courtroom 1 in Springfield before Judge Sue E. Myerscough. Jury Trial set for 1/9/2012 at 09:00 AM in Courtroom 1 in Springfield before Judge Sue E. Myerscough. Entered by Judge Sue E. Myerscough on 3/18/2011. (MC, ilcd) (Entered: 03/18/2011)

03/18/2011 TEXT ORDER: 3/18/2011 text order setting trial corrected to read bench trial. Bench Trial set for 1/9/2012 at 09:00 AM in Courtroom 1 in Springfield before Judge Sue E. Myerscough. Entered by Judge Sue E. Myerscough on 3/18/2011. (MC, ilcd) (Entered: 03/18/2011)

03/21/2011 TEXT ORDER: On Court's own motion the Bench Trial scheduled for January 9, 2012 and the Final Pretrial Conference scheduled for December 22, 2011 are canceled. The Bench Trial is reset for Tuesday, January 3, 2012 at 9:00 am in Courtroom 1. The Final Pretrial Conference is reset for Monday, December 19, 2011 at 10:00 am in Courtroom 1. Entered by Judge Sue E. Myerscough on 3/21/2011. (CT, ilcd) (Entered: 03/21/2011)

And on Rev 2, they settle on a Jury, I mean Bench Trial date of 1/3/2012.

This one has a lot of potential implications, I wish it wasn't being drug around like this...

Papi4baby · Mar 30, 2011

Wow, that sucks.

Got to love the system :sad20:

press1280 · Mar 30, 2011

She's an Obama appointee. Look for a decision in line with that of Masciandaro, meaning the 2A is protected only in your home, not a friend's or relatives' house. Oh yea and its reasonable because of the crime problem in Illinois.
The case would most likely become moot if IL gets carry passed this year with either National Reciprocity or IL passing the universal permit recognition bill.

Mishaga v. Monken Suit

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