United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
GARY FEINERMAN, District Judge.
Kim Rhein and David Rhein bring this suit under 42 U.S.C. § 1983 against Agent Steven Pryor, Agent Freddie Summers, and Lieutenant John Coffman of the Illinois State Police in their individual capacities, and against Illinois State Police Director Hiram Grau in his official capacity. The official capacity claim alleges that § 8(f) of the Illinois Firearm Owners Identification ("FOID") Card Act, which provides that the State Police may revoke a person's FOID card upon finding that the person's "mental condition is of such a nature that it poses a clear and present danger to the applicant, any other person or persons or the community, " 430 ILCS 65/8(f), is facially unconstitutional. Doc. 29. The individual capacity claims allege that the revocation of David's FOID card pursuant to § 8(f) and the seizure of David's and Kim's firearms from their home violated the First, Second, Fourth, and Fourteenth Amendments. Ibid. The official capacity claim seeks injunctive and declaratory relief, while the individual capacity claims seek damages. Id. at ¶¶ 4, 6 and p. 6. Defendants have moved to dismiss the amended complaint. Doc. 26. The motion is granted as to the official capacity claim and denied as to the individual capacity claims.
In considering the motion to dismiss, the court assumes the truth of the amended complaint's factual allegations, though not its legal conclusions. See Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir. 2012). The court also must consider "documents attached to the [amended] complaint, documents that are critical to the [amended] complaint and referred to in it, and information that is subject to proper judicial notice, " along with additional facts set forth in Plaintiffs' brief opposing dismissal, so long as those facts "are consistent with" the amended complaint. Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). The following facts are set forth as favorably to Plaintiffs as these materials allow. See Gomez v. Randle, 680 F.3d 859, 864 (7th Cir. 2012).
The FOID Card Act provides that no person in Illinois "may acquire or possess any firearm... within this State without having in his or her possession a Firearm Owner's Identification Card previously issued in his or her name by the Department of State Police under the provisions of this Act." 430 ILCS 65/2(a)(1). Section 8(f) of the Act allows the Illinois Department of State Police to "revoke and seize a [FOID] Card previously issued under this Act... if the Department finds that the... person to whom such card was issued is or was at the time of issuance:... [a] person whose mental condition is of such a nature that it poses a clear and present danger to the applicant, any other person or persons or the community." 430 ILCS 65/8(f). The Act recently was amended to define "clear and present danger" to mean "a person who: (1) communicates a serious threat of physical violence against a reasonably identifiable victim or poses a clear and imminent risk of serious physical injury to himself, herself, or another person as determined by a physician, clinical psychologist, or qualified examiner; or (2) demonstrates threatening physical or verbal behavior, such as violent, suicidal, or assaultive threats, actions, or other behavior, as determined by a physician, clinical psychologist, qualified examiner, school administrator, or law enforcement official." 430 ILCS 65/1.1.
If a person's FOID card is revoked pursuant to § 8(f), the Department must provide the individual with "a written notice... stating specifically the grounds upon which... his Identification Card has been revoked... [and setting forth] the person's right to administrative or judicial review under Section 10 and 11 of this Act." 430 ILCS 65/9. Section 10 states that a person whose FOID card is revoked "may appeal to the Director of State Police for a hearing upon such... revocation." 430 ILCS 65/10(a). Section 10 further provides:
The Director shall grant the relief if it is established by a preponderance of the evidence that the person will not be likely to act in a manner dangerous to public safety and that granting relief would not be contrary to the public interest. In making this determination, the Director shall receive evidence concerning (i) the circumstances regarding the firearms disabilities from which relief is sought; (ii) the petitioner's mental health and criminal history records, if any; (iii) the petitioner's reputation, developed at a minimum through character witness statements, testimony, or other character evidence; and (iv) changes in the petitioner's condition or circumstances since the disqualifying events relevant to the relief sought. If relief is granted under this subsection or by order of a court under this Section, the Director shall as soon as practicable but in no case later than 15 business days, update, correct, modify, or remove the person's record in any database that the Department of State Police makes available to the National Instant Criminal Background Check System and notify the United States Attorney General that the basis for the record being made available no longer applies.
430 ILCS 65/10(f). Section 11 provides for de novo judicial review of the Director's decision: "Any final administrative decision by the Director of State Police to deny a person's application for relief under [§ 10(f)] of this Act is subject to de novo judicial review by the circuit court, and any party may offer evidence that is otherwise proper and admissible without regard to whether that evidence is part of the administrative record." 430 ILCS 65/11(b).
As of February 3, 2011, Plaintiffs possessed FOID cards, owned firearms, and kept their firearms in their home. Doc. 29 at ¶¶ 9-11. At some point before February 3, 2011, David expressed "unpopular political views... about his support of Second Amendment rights" to "a locally elected official." Id. at ¶¶ 34, 36. That official, somebody in that official's office, or one of the individual defendants falsely construed David's comments "as evidence that [he] had a mental condition that made him dangerous." Id. at ¶ 36. On February 3, 2011, Lieutenant Coffman wrote a letter to David revoking his FOID card under § 8(f) of the Act based on the false and unreasonable assertion that David had a "mental condition" within the meaning of that provision. Id. at ¶¶ 12, 14, 31. The letter was mailed on February 4, 2011, id. at ¶ 13, and David did not receive it until February 7, 2011, id. at ¶ 15.
On February 5, 2011, with Lieutenant Coffman's approval, Agents Pryor and Summers entered Plaintiffs' home without a warrant or consent, conducted a search, and seized Plaintiffs' firearms, which Plaintiffs used for personal protection, hunting, investment, and enjoyment. Id. at ¶¶ 16-17. These actions were taken even though "[t]here was no reasonable basis to conclude David Rhein had a mental condition that presented a clear and present danger to himself or anyone else." Id. at ¶ 23. It follows, the amended complaint claims, that the seizure of Plaintiff's firearms and the revocation of David's FOID card was "in no way... justified under this statute [§ 8(f)]." Id. at ¶ 22. Kim's FOID card was not revoked. Id. at ¶¶ 11, 30.
Plaintiffs hired an attorney, and in Summer 2012, as a result of a court order, their firearms were returned to them. Id. at ¶ 18. Plaintiffs plan to continue engaging in political commentary in support of the Second Amendment, and they fear that their speech will put them at risk of being labeled "mentally unstable and dangerous" and having their firearms seized and FOID cards revoked. Id. at ¶¶ 37-38.
I. Facial Challenge to § 8(f) of the FOID Card Act
Defendants contend that Plaintiffs lack standing to facially challenge the constitutionality of § 8(f) of the Act. Doc. 27 at 12-14. This argument implicates the court's subject matter jurisdiction, and thus must be addressed at the threshold. See Citizens Against Ruining the Env't v. EPA, 535 F.3d 670, 675 (7th Cir. 2008). Although Defendants press their standing argument under Rule 12(b)(6), the appropriate vehicle is Rule 12(b)(1). See Am. Fed'n of Gov't Emps., Local 2119 v. Cohen, 171 F.3d 460, 465 (7th Cir. 1999) ("Obviously, if a plaintiff cannot establish standing to sue, relief from this court is not possible, and ...