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Bolton v. Bryant

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

October 21, 2014

DONALD BOLTON, Plaintiff,
v.
ROBINZINA BRYANT, et al., Defendants

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[Copyrighted Material Omitted]

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For Donald Bolton, Plaintiff: Joseph Dennis Obenberger, LEAD ATTORNEY, Reed Clayton Lee, J. D. Obenberger and Associates, Chicago, IL.

For Robinzina Bryant, as Chair of the Illinois Concealed Carry Licensing Review Board, Sergio Acosta, as Member of the Illinois Concealed Carry Licensing Review Board, James Cavanaugh, as Member of the Illinois Concealed Carry Licensing Review Board, Patrick John Chesley, as Member of the Illinois Concealed Carry Licensing Review Board, John Diwik, as Member of the Illinois Concealed Carry Licensing Review Board, G. Patrick Murphy, as Member of the Illinois Concealed Carry Licensing Review Board, Virginia Wright, as Member of the Illinois Concealed Carry Licensing Review Board, Hiram Grau, as Director of the Illinois State Police, Jessica Trame, as Bureau Chief of Firearms Services, Illinois State Police, Defendants: Sunil Shashikant Bhave, LEAD ATTORNEY, Illinois Attorney General, Chicago, IL.

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Memorandum Opinion and Order

Honorable Edmond E. Chang, United States District Judge.

Plaintiff Donald Bolton applied for a license to carry a concealed weapon under the recently enacted Firearm Concealed Carry Act. 430 ILCS 66/1, et seq. His application was denied because of an objection by law enforcement. See R. 1, Compl. ¶ ¶ 13, 15. Bolton filed this suit under 42 U.S.C. § 1983 against the members of the Illinois Concealed Carry Licensing Board and agents of the Illinois Department of State Police for alleged violations of his procedural due process and

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Second Amendment rights.[1] Bolton now moves for a preliminary injunction, and Defendants move to dismiss Bolton's suit under Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). See R. 35, Pl.'s Mot. Prelim. Inj.; R. 41, Defs.' Mot. Dismiss. For the reasons stated below, Bolton's motion is denied, and Defendants' motion is granted in part and denied in part.

I. Background

In 2012, the Seventh Circuit applied the Second Amendment (via incorporation through the Fourteenth Amendment) to invalidate an Illinois law that prohibited carrying a ready-to-use gun outside the home, a fixed place of business, or the property of someone who gave permission to the person carrying the ready-touse gun. Moore v. Madigan, 702 F.3d 933, 934, 942 (7th Cir. 2012). The Seventh Circuit stayed its judgment for 180 days " to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public." Id. at 942. In response, the Illinois legislature passed the Firearm Concealed Carry Act, which went into effect on July 9, 2013. 430 ILCS 66/1, et seq. Under the Act, the Department of State Police " shall issue a license to carry a concealed firearm" to an applicant who meets certain statutory qualifications, submits requisite documentation and fees, and " does not pose a danger to himself, herself, or others, or a threat to public safety." 430 ILCS 66/10(a).

To determine if an applicant meets this last requirement under the Act, an applicant's information is entered into a database by the Department of State Police. 430 ILCS 66/10(i). Law enforcement agencies can access this database and may submit any objections to an applicant " based upon a reasonable suspicion that the applicant is a danger to himself or herself or others, or a threat to public safety." 430 ILCS 66/15(a). If an objection is made, the Concealed Carry Licensing Board--a body created by the Act--considers the objection. 430 ILCS 66/20(a). When considering an objection, the Board " shall review the materials received with the objection from the law enforcement agency," and the Board " may request additional information from the law enforcement agency, Department [of State Police], or the applicant." 430 ILCS 66/20(e) (emphasis added). The Board may only consider the information submitted by the law enforcement agency, the Department of State Police, or the applicant. Id. After reviewing the objection, the seven-member Board determines whether the applicant is eligible for a license by a majority vote. Id.; 430 ILCS 66/20(a). If an application is denied, the applicant may seek judicial review under the Illinois Administrative Review Act. 430 ILCS 66/87; see also 735 ILCS 5/3-101 et seq.

Bolton applied for a concealed carry license in January 2014. Compl. ¶ 11. The Chicago Police Department objected to Bolton's application. Id. ¶ 13. The objection alleged that Bolton had been arrested for impersonating a peace officer and unlawful use of a weapon. R. 57, Defs.' Resp. at 3; R. 57, Defs.' Exh. A, Law Enforcement Objection at AGO 000038. The basis for the objection (the arrests) has been revealed now, but at the time that the Board acted on Bolton's application, the Board did not inform Bolton of that basis. The Board neither notified Bolton of the objection nor requested additional evidence from him, and concluded that Bolton's application should be denied

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based on a failure to meet the public-safety requirement of 430 ILCS 66/10(a). Compl. ¶ ¶ 14-15. Bolton did not appeal the denial under the Illinois Administrative Review Act. Instead, he filed this lawsuit under 42 U.S.C. § 1983, alleging that the license requirement is an improper prior restraint on his Second Amendment rights, id. ¶ ¶ 25-31, and that the licensing procedures denied him due process of law. Id. ¶ ¶ 16-24.

After filing the lawsuit, Bolton eventually moved for a preliminary injunction to prevent Defendants from interfering with his right to carry a concealed handgun outside his home, acting against him for carrying a concealed handgun without a license, or preventing him from teaching firearms safety classes. Pl.'s Mot. Prelim. Inj. at 1-2. Shortly thereafter, Defendants moved to dismiss both counts for failure to state a claim under Rule 12(b)(6) and moved to dismiss the due process count on abstention grounds under Rule 12(b)(1). Defs.' Mot. Dismiss at 5-11.

II. Legal Standards

Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need only include " a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). This short and plain statement must " give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (alteration in original) (internal quotation marks and citation omitted). The Seventh Circuit has explained that this rule " reflects a liberal notice pleading regime, which is intended to 'focus litigation on the merits of a claim' rather than on technicalities that might keep plaintiffs out of court." Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)).

" A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted." Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). " [A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570). These allegations " must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. The allegations that are entitled to the assumption of truth are those that are factual, rather than mere legal conclusions. Iqbal, 556 U.S. at 678-79.

Federal Rule of Civil Procedure 12(b)(1) provides the procedural vehicle by which the defendant may move a federal court to dismiss a claim or suit on the ground that the court lacks jurisdiction.[2] See Fed.R.Civ.P. 12(b)(1); Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 ...


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