IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

) Case No. 20-cr-00272

)

v. )

) Judge Sharon Johnson Coleman

EVANDER FOSTER, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Defendant Evander Foster is charged with being a felon in possession of a firearm in 

violation of 18 U.S.C. § 922(g)(1). Before the Court is his motion to dismiss the indictment on 

Second Amendment grounds in light of recent Supreme Court case New York State Rifle & Pistol 

Ass’n., Inc. v. Bruen, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022). For the following reasons, the motion 

[148] is denied.

Background

Foster’s criminal record reflects a felony conviction under Illinois law for armed robbery 

with a dangerous weapon, for which he was sentenced to 10 years in prison. See Dkt. 15. Foster was 

on parole for this conviction at the time of the instant offense. Id.

On or about June 1, 2020, during the civil unrest in Chicago, Foster, as seen on bank security 

footage, entered the Providence Bank & Trust located on the 7800 block of South State Street in 

Chicago. Foster was captured on bank security footage attempting to gain access to an ATM outside 

of the bank. When officers with the Chicago Police Department (“CPD”) arrived at the bank to 

disperse the crowd, Foster fled. Approximately ten minutes later, CPD officers saw Foster walking 

approximately one block north of the Providence Bank & Trust, in the bank’s direction. The 

officers attempted to make contact with him, but Foster again fled. As he fled, officers observed 

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Foster throw an object onto the northbound I-94 ramp. Defendant was subsequently apprehended, 

and officers retrieved the thrown item: a loaded firearm.

As a result, the government charged Foster with unlawful possession of a firearm by a felon 

in violation of § 922(g)(1) and entering a bank with the intent to commit bank larceny in violation of 

18 U.S.C. § 2113(a). Foster now moves to dismiss the indictment as unconstitutional in light of 

Bruen, 142 S. Ct. 2111.1

Legal Standard

Federal Rule of Criminal Procedure 12(b)(1) provides that “[a] party may raise by pretrial 

motion any defense, objection, or request that the court can determine without a trial on the merits.” 

Rule 12 authorizes defendants to challenge the lawfulness of a prosecution on purely legal, as 

opposed to factual, grounds. See United States v. Coscia, 866 F.3d 782, 790 (7th Cir. 2017) (considering 

defendant’s contention that the indictment must be dismissed because the statute under which it is 

brought is unconstitutionally vague). A court may decide all questions of law raised in a motion to 

dismiss, including the constitutionality and interpretation of a federal statute. See United States v.

Sorich, 523 F.3d 702, 706 (7th Cir. 2008).

Discussion

In Bruen, the Supreme Court established a framework for analyzing whether a challenged 

firearm regulation violates the Second Amendment. First, Bruen instructs courts to determine 

whether the Second Amendment‘s plain text covers an individual's conduct. If it does, the conduct 

is “presumptively protect[ed],” and the government bears the burden of demonstrating that the 

1 The Court finds it is important to note the parties' excessive briefing on an issue that has been extensively 

litigated across this district. The defendant's 12-page motion elicited a 50-page response (73 pages with 

exhibits) from the government, which in turn elicited a 34-page reply. The Court strongly encourages the 

parties to review the time and effort spent in regurgitating similar arguments, and to consider ways to 

advocate their positions more efficiently. Such excessive briefing burdens not only this Court and its staff, 

but our entire judicial system.

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challenged regulation “is consistent with the Nation's historical tradition of firearm regulation.” Id. at 

2129–30.

This Court recently issued opinions on identical § 922(g)(1) challenges that discussed this 

standard. See United States of America v. Dionte Vaughns, No. 22-CR-00636, 2023 WL 8258575 (N.D. 

Ill. Nov. 29, 2023) (Coleman, J.); United States of America v. Tyriiq Washington, No. 23-CR-00274, 2023 

WL 8258654 (N.D. Ill. Nov. 29, 2023) (Coleman, J.); United States of America v. Darrell Griffin, No. 21-

CR-00693, 2023 WL 8281564 (N.D. Ill. Nov. 30, 2023) (Coleman, J.) In each opinion, this Court 

held that that felons are included in “the people” protected by the Second Amendment. Vaughns, 

2023 WL 8258575, at *4; Washington, 2023 WL 8258654, at *4; Griffin, 2023 WL 8281564, at *4. 

Furthermore, the Court held that the well-established record of British loyalist law supplies a 

sufficient historical tradition to support enforcement of Section 922(g)(1). Vaughns, 2023 WL 

8258575, at * 8; Washington, 2023 WL 8258654, at *8; Griffin, 2023 WL 8281564, at *8. The Court 

adopts and incorporates the reasoning of those opinions.

Foster’s arguments are virtually identical to those made in opinions above. Thus, this Court

will not revisit the prior holdings as to the finding that Section 922(g)(1) is facially constitutional. 

In support of its argument that Foster demonstrates a risk of violence, the government notes 

that Foster has an extensive criminal history including a felony conviction under Illinois law for 

armed robbery with a dangerous weapon. There is no dispute that this type of evidence the 

government has advanced may be considered by the Court in determining whether a defendant 

demonstrates a risk of violence. Indeed, this criminal record more than supports a finding of 

dangerousness. In addition to his felon-in possession charge, Brown is charged with entering a bank 

with the intent to commit bank larceny in violation of 18 U.S.C. § 2113(a). Notably, the present 

charges occurred while Brown was on parole for his recent felony conviction for armed robbery 

with a dangerous weapon. Based on this evidence, the Court finds that Foster’s criminal record and 

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the circumstances of his arrest support a finding that he poses a risk to public safety such that he 

cannot be trusted to use a weapon responsibly. Thus, this Court finds that as applied to Foster’s

Section 922(g)(1) is constitutional.

Conclusion

The felon firearm-dispossession statute, 18 U.S.C. § 922(g)(1), does not violate the Second 

Amendment as applied to Foster. Thus, the motion to dismiss is denied. 

IT IS SO ORDERED.

Date: 1/24/2024 Entered: _____________________________ 

 SHARON JOHNSON COLEMAN

 United States District Judge

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