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Berron v. Illinois Concealed Carry Licensing Review Board

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

March 16, 2015

JOHN BERRON Plaintiff,
v.
ILLINOIS CONCEALED CARRY LICENSING REVIEW BOARD, et al., Defendants.

OPINION AND ORDER

CHARLES RONALD NORGLE, District Judge.

John Berron ("Plaintiff") applied for a concealed carry license under the Illinois Firearm Concealed Carry Act, 430 Ill. Comp. Stat. 66/1 et seq. (or "the Act"), and his application was denied. In response, he filed this lawsuit against the Illinois Concealed Carry Licensing Review Board (the "Board"), an Illinois administrative agency; Robinzina Bryant, Chair of the Illinois Concealed Carry Licensing Review Board; Sergio Acosta, James Cavenaugh, Patrick John Chesley, John Diwik, Patrick G. Murphy, and Virginia Wright, Members of the Illinois Concealed Carry Licensing Review Board; the Illinois State Police, an Illinois law enforcement agency (the "Department"); Hiram Grau, Director of the Illinois State Police; Jessica Trame, Firearm Services Bureau Chief for the Illinois State Police; the Village of Skokie, an Illinois municipal corporation; and Anthony Scarpelli, Skokie Chief of Police (collectively, "Defendants"). Before the Court are Defendants' motions to dismiss Plaintiff's Complaint pursuant to Federal Rules of Procedure 12(b)(1) and 12(b)(6). For the following reasons, the motions are granted and the case is dismissed.

I. BACKGROUND[1]

Until December of 2012, Illinois outright banned its citizens from carrying loaded, uncased guns outside their homes. It was the last state in the United States to have such a ban. Illinois' gun ban stood until December 11, 2012, when the Seventh Circuit found that the Illinois Unlawful Use of Weapons (UUW) and the Illinois Aggravated Unlawful Use of a Weapon (AUUW) statutes violated the Second Amendment of the United States Constitution. Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012). The Seventh Circuit stayed its decision 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... on the carrying of guns in public." Id.

On July 9, 2013, Illinois promulgated the Illinois Firearm Concealed Carry Act, which implemented new procedures for its citizens to apply for concealed carry licenses. See 430 Ill. Comp. Stat. 66/1 et seq. Under Section 10 of the Act, the Illinois State Police "shall issue a license" whenever an applicant:

(1) meets the qualifications of Section 25 of this Act;
(2) has provided the application and documentation required in Section 30 of this 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 in accordance with Section 20.
Id. 66/10(a).

Plaintiff, who resides in Skokie, Illinois, submitted his application for a concealed carry license on January 5, 2014. He met the qualifications of Section 25 - he is over twenty-one years of age; he has a valid Firearm Owner's Identification Card; he did not have a record of any of the criminal convictions listed in the statute; he was not subject to a pending arrest warrant, prosecution, or other disqualifying proceeding; he was not enrolled in a drug or alcohol treatment program; and he had completed the requisite firearm training. He submitted a complete application along with the documentation required by Section 30. He also submitted the requisite fees, totaling $150. However, Plaintiff was denied a license because the Board determined that he posed a danger and he did not meet the fourth requirement under Section 10 of the Act.

The Act permits any law enforcement agency to object to an applicant's licensure "based upon a reasonable suspicion that the applicant is a danger to himself or herself or others, or a threat to public safety." 430 Ill. Comp. Stat. 66/15(a). During the review of Plaintiff's application, "a law enforcement agency" objected to the Board about his eligibility for a license. Compl., Ex. A at 1. Plaintiff then received a letter on March 19, 2014, explaining: "The Board has notified the Department that it ha[d] determined by a preponderance of the evidence that [Plaintiff] pose[d] a danger to [him]self or others/a threat to public safety, " and his application was denied. Id . The Department also informed Plaintiff that he could "appeal the decision of the Board by petitioning in writing the circuit court in the county of [his] residence for a hearing on the denial." Id . The guidance in the letter is consistent with the judicial review provision in the Act. See 430 Ill. Comp. Stat. 66/87(a).

Before receipt of the denial letter, Plaintiff did not know that a law enforcement agency had objected to his application. Even after receipt of the letter, Plaintiff was not told which law enforcement agency objected or why the agency objected, and he was not given an opportunity to respond to the objection before the denial. Plaintiff never saw, received, or knew what comprised the law enforcement agency's suspicion that he was dangerous. Plaintiff alleges, merely on "information and belief, " that Anthony Scarpelli, acting on behalf of the Village of Skokie, filed a formal objection with regard to his application. Compl. ¶ 14. Plaintiff alleges that the composition of the Board "tend[s] toward bias" because it is composed of a majority of members with government law enforcement backgrounds instead of victims' rights advocates, counselors, or criminal defense attorneys. Id . ¶ 19d. However, Plaintiff does not allege that any of the Defendants harbored a specific bias towards him or acted in a random manner that was noncompliant or unauthorized by the Act.

Plaintiff filed his Complaint in this Court on April 21, 2014, and he filed a similar complaint arising from the same denial letter in the Circuit Court of Cook County on April 28, 2014.[2] In his Complaint before this Court, Plaintiff asserts three causes of action: he seeks a judgment finding that the Act is unconstitutional for failing to provide him with sufficient procedural due process (Count I); he seeks a judgment finding that the Act, on its face and as applied, is unconstitutional for imposing a prior restraint on his ...


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