White v. Ill. State Police

482 F.Supp.3d 752

Michael WHITE and the Illinois State Rifle Association, Plaintiffs

v.ILLINOIS STATE POLICE, Illinois Concealed Carry Licensing Review Board, Brendan Kelly, in his official capacity as Acting Director of the Illinois State Police, Jessica Trame, in her official capacity as Bureau Chief of the Illinois State Police Firearms Services Bureau, Jeremy Margolis, as Chair of the Illinois Concealed Carry Licensing Review Board, Edward Bobrick, Stephen Dinwiddie, Joseph Duffy, Jon Johnson, Joseph Vaughn and Frank Wright, Defendants.

Case No. 19 C 2797

United States District Court, N.D. Illinois, Eastern Division.

Signed August 28, 2020

Gregory Abbott Bedell, Chicago, IL, David G. Sigale, Law Firm of David G. Sigale, P.C., Glen Ellyn, IL, for Plaintiffs.

Michael T. Dierkes, Illinois Attorney General's Office, Chicago, IL, for Defendants.

OPINION AND ORDER

Joan H. Lefkow, U.S. District Judge

Michael White and the Illinois State Rifle Association ("the ISRA") sue the Illinois State Police ("the ISP"), the Illinois Concealed Carry Licensing Review Board ("the Board"), and several individual members of both agencies under 42 U.S.C. § 1983, bringing both as-applied and facial constitutional challenges to Illinois’ Firearm Concealed Carry Act, 430 Ill. Comp. Stat. 66/1 et seq. (the "FCCA"). Defendants move to dismiss. The motion is granted.¹

BACKGROUND²

Illinois enacted the FCCA in the wake of District of Columbia v. Heller , 554 U.S. 570, 635, 128 S. Ct. 2783, 171 L.Ed.2d 637 (2008), which held that the Second Amendment guarantees "the right of law-abiding, responsible citizens to use arms in defense of hearth and home," and McDonald v. City of Chicago , 561 U.S. 742, 130 S. Ct. 3020, 177 L.Ed.2d 894 (2010), which held that right to be applicable against the states. Following those decisions, the Seventh Circuit held that the right to use firearms in self-defense extends beyond the home and, accordingly, struck down two Illinois statutes that generally prohibited carrying firearms in public. Moore v. Madigan , 702 F.3d 933, 942 (7th Cir. 2012). The Illinois legislature passed the FCCA in response, creating a licensing system that authorizes the concealed carry of loaded firearms in public.³ See Berron v. Ill. Concealed Carry Licensing Review Bd. , 825 F.3d 843, 845 (7th Cir. 2016) ; Culp v. Raoul , 921 F.3d 646, 648 (7th Cir. 2019). The system is administered by the ISP, which the FCCA provides "shall issue" a concealed carry license to an applicant who meets certain statutorily enumerated qualifications,⁴ submits required documentation and fees, and "does not pose a danger to himself, herself, or others, or a threat to public safety." 430 Ill. Comp. Stat. 66/10(a). It is that last condition—which the court will refer to as the requirement that an applicant not be "dangerous"—that is at issue in this case.

To determine whether applicants are dangerous under the FCCA, the ISP enters their basic biographical information into a database accessible to Illinois law enforcement agencies. 430 Ill. Comp. Stat. 66/10(i). Those agencies may then review their records and object to an applicant's eligibility if they have a "reasonable suspicion" of dangerousness. 430 Ill. Comp. Stat. 66/15(a). The ISP refers any such objections to the Board, a seven-member body composed primarily of people with experience in federal law enforcement.⁵ 430 Ill. Comp. Stat. 66/20(a) ; see also 20 Ill. Admin. Code §§ 1231.70(d), 1231.80(b). If the Board determines that an objection "appears sustainable," it sends the applicant "notice of the objection, including the basis for the objection and the [name of the] agency submitting the objection." 20 Ill. Admin. Code § 2900.140(e). Upon receipt of such notice, the applicant has fifteen days to submit a response. 20 Ill. Admin. Code § 2900.140(e)(1). The Board also has authority to request additional evidence of its own accord from the applicant, the objecting agency, or the ISP. 430 Ill. Comp. Stat. 66/20(e) ; 20 Ill. Admin. Code § 2900.140(b)-(c).

After collecting evidence through that process, the Board is charged with determining, by "a preponderance of the evidence," whether the applicant is too dangerous to hold a concealed carry license. 430 Ill. Comp. Stat. 66/20(a) & (g). The Board's determination that an applicant is dangerous is conclusive of the administrative process, but a denied applicant may seek judicial review under the Illinois Administrative Review Law. 20 Ill. Admin. Code § 2900.160(e) ; 430 Ill. Comp. Stat. 66/87 ; see also 735 Ill. Comp. Stat. 5/3–101, et seq. Illinois courts review the Board's determination of dangerousness deferentially, overturning it only where it is "clearly erroneous." White v. Illinois Dep't of State Police-Firearms Serv. Bureau , No. 1-16-1282, 2017 WL 2602637, at *4 (Ill. App. Ct. June 14, 2017) (unpublished); Perez v. Ill. Concealed Carry Licensing Review Bd. , 407 Ill.Dec. 614, 63 N.E.3d 1046, 1052, 2016 IL App (1st) 152087, ¶ 22 (Ill. App. Ct. 2016) ; see also 735 Ill. Comp. Stat. 5/3–110 ("The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct").

I. White's First Application

White first applied for a concealed carry license on May 1, 2014. (Dkt. 1 ¶ 30.) The Chicago Police Department and Cook County Sheriff objected to his application on grounds that are described in the following letter White received from the Board:

Based on your history & conduct reported by both the Chicago Police Department and the Cook County Sheriff's Office, the Board has preliminarily voted to sustain the objection to your receipt of a Concealed Carry License (CCL). Chicago PD lists you as a member of the Latin Souls Street Gang and Cook County reports you were arrested on 04/07/1995 for Battery with a knife, on 01/01/2012 for Unlawful Use of a weapon and reckless discharge and on 01/09/1996 for possession of a firearm in a vehicle. You now have 10 days from the date of this notice to submit any additional evidence for the Board to consider before the Board's vote is finalized and your application for a CCL is denied.

White , 2017 WL 2602637, at *1.⁶ White submitted the following letter in response:

To whom it may concern,

I am not and never have been a member of any street gang.

I am not, never was and never will be affiliated with the Latin Souls street gang. I think because of the area I was arrested in, I was presumed to be a Latin Soul.

On the charge of 04/07/1995 (battery with a knife) I never battered anyone and the arresting officer declined to press charges and that case was dismissed.

On the charge of 01/09/1996 This must be a case of mistaken identity because I was never arrested or charged with any crime on that day or year. I can not attach anything to disprove this charge because I was never arrested on this date or year.

On 08/10/1998 I was arrested for (unlawful carry/possess firearm) this was a simple possession charge not in a commission of any crime. This charge was reduced to a misdemeanor on 08/10/2001 I have attached a PDF of the court records as proof.

On the charge of 01/01/2012 (UUW and reckless discharge) I was found not guilty of all charges and I have also attached a copy of the court records to prove this.

Just to recap I have met all the criteria to obtain a F.O.I.D. card.

I currently posses[s] one and have had no arrests since receiving the card. I've read all the requirements to obtain a CCL and meet them ALL. Therefore I don't understand why I can legally own a firearm but I have to go through all these hoops to carry one.

Id. at *1-2.

The ISP denied White's application in October 2014, stating that the Board had reviewed the evidence received and "determined, by a preponderance of the evidence, that the above referenced Applicant is a danger to him/herself, is a danger to others, or poses a threat to public safety." Id. at *2. White sought review of the denial in the Circuit Court of Cook County, which remanded the case to the Board for reconsideration based on post hoc changes to the FCCA's implementing regulations that afforded applicants the right described above to know "the basis" of any law enforcement agency objection, and the name of the objecting agency. Id. ; 20 Ill. Admin. Code § 2900.140(e).

On remand, the Chicago Police Department and the Cook County Sheriff again filed objections to White's application, which the Board described as follows:

The Chicago Police Department submitted an objection stating: Superintendent Garry F. McCarthy/Chicago Police Department object to the issuance of a concealed carry license to the applicant Michael White based upon a reasonable suspicion that the applicant is a danger to himself or others or a threat to public safety. The criminal activities of street gangs pose a substantial threat to the safety and quality of life of the residents of Chicago. In support of the objection, be advised that Chicago Police Department reports reflect the following: The applicant is listed in the CPD Gang Member Data Base [sic ] as a member of The Latin Souls Street Gang.

The Cook County Sheriff's Office submitted an objection stating: There is a reasonable suspicion that White is a danger to others and a threat to public safety. A search of CLEAR revealed that White was arrested for BATTERY/UUW KNIFE on 4/7/1995, UUW WEAPON FELON AND RECKLESS DISCHARGE on 1/1/2012 & POSSESSION FIREARM VEHICLE on 1/9/1996. A CLEAR search also revealed White as a Latin Soul Gang Member.

Id. at *2.

White submitted a written response and supporting affidavit on July 30, 2015, arguing that "with only one arrest within 7 years of his application, [he] could not be deemed ‘a danger to himself or herself or others, or a threat to public safety.’ " Id. He also argued that the FCCA's dangerousness standard was unconstitutionally vague, its preponderance standard could not withstand Second Amendment scrutiny, and that consideration of hearsay evidence regarding his gang...