United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
HARRY D. LEINENWEBER, District Judge.
Before the Court is Defendants' Motion to Dismiss [ECF No. 26]. For the reasons stated herein, the Motion is granted.
The following facts are drawn from the allegations in Plaintiff Seth Ghantous's Complaint, which are taken as true for the purposes of deciding this Motion to Dismiss. Gillman v. Burlington N. R.R. Co., 878 F.2d 1020, 1022 (7th Cir. 1989). Plaintiff applied for a license to carry a concealed weapon under Illinois' Firearm Concealed Carry Act (the "Act"). 430 Ill. Comp. Stat. 66/10. Under the Act, the Illinois Department of State Police ("ISP") "shall issue a license to carry a concealed firearm" if the applicant:
(1) meets the qualifications of Section 25 of [the] Act;
(2) has provided the application and documentation required in Section 30 of [the] Act;
(3) has submitted the requisite fees; and
(4) does not pose a danger to himself, herself, or others, or a threat to public safety as determined by the Concealed Carry Licensing Review Board.
Any law enforcement agency, however, may object to an applicant receiving a license if the agency has "reasonable suspicion that the applicant is a danger to himself or herself or others, or a threat to public safety." Id. 66/15(a). If an agency objects, the application and the objection are reviewed by the seven-member Concealed Carry Licensing Review Board (the "Board"). Id. 66/15-20. The Board then considers only the application and the objection materials to decide whether to grant a license, unless at least four Board members vote to "request additional information [or testimony] from the law enforcement agency, [ISP], or the applicant." Id. 66/20(e).
Generally, the Board has 30 days from when it receives an objection to issue a decision. Id. 66/20(f). The Board will issue a license unless it finds "by a preponderance of the evidence that the applicant poses a danger to himself or herself or others, or is a threat to public safety." Id. 66/20(g). If the applicant's license is denied, the applicant may challenge the Board's decision in state court. Id. 66/87(a).
In this case, the Board found that Plaintiff satisfied the first three requirements above, but failed the fourth based on a law enforcement agency's objection to his applications. The Board issued a written decision to Plaintiff that stated the Board found "by a preponderance of the evidence that you pose a danger to yourself or others/are a threat to public safety." [ECF No. 1, ¶ 16]. The decision also advised Plaintiff of his right to appeal the decision.
Plaintiff then sought review of the Board's decision in state court via Illinois' Administrative Review Law, as allowed under the Act. Id. 66/87(b). Shortly thereafter, with that action still pending, Plaintiff filed suit in this Court against the Board, its members, the ISP, and various officials within the ISP. In Count I, Plaintiff alleges that the Act's licensing process deprived him of his procedural due process rights under the Fourteenth Amendment. Count II alleges that the Act is unconstitutional, both facially and as applied to Plaintiff. Plaintiff urges the Court to extend the First Amendment's prior restraint analysis to his Second Amendment case and find that the Act imposes an unconstitutional prior restraint on his right to carry a firearm in public. Finally, in Count III Plaintiff asks this Court to review the Board's decision according to the Act's review procedures.
Defendants have moved to dismiss the Complaint, arguing that: (1) Counts I and III are moot in light of Defendants' Motion in the state court case seeking voluntary remand to the Board for further review; (2) under Federal Rule of Civil Procedure 12(b)(1), the Court should abstain from hearing Counts I and III pursuant to Younger v. Harris, 401 U.S. 37 (1971) and Colo. River Water Conservation Dist. ...