United States District Court, N.D. Illinois, Western Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, UNITED STATES DISTRICT JUDGE.
plaintiff Charles Gudbrandsen has sued the City of Sycamore
Police Department and Roger A. Scott, the Sheriff of DeKalb
County. He alleges that Illinois' recently-enacted
Firearms Restraining Order Act, 430 Ill. Comp. Stat. 67,
violates the Second Amendment to the United States
Constitution. Scott has moved to dismiss the complaint,
arguing that Gudbrandsen lacks standing to pursue his claim
because he has not suffered an injury. The state of Illinois,
which has intervened in the case to defend the
constitutionality of the statute, has also filed a motion to
dismiss for lack of standing. For the reasons explained
below, the Court grants the motions.
Firearms Restraining Order Act became effective on January 1,
2019. In relevant part, the Act establishes a procedure by
which an individual can file a petition for an emergency
restraining order against someone that "poses an
immediate and present danger of causing personal injury to
himself, herself, or another by having in his or her custody
or control, purchasing, possessing, or receiving a
firearm." 430 Ill. Comp. Stat. 67/35(a). The only
individuals who may petition for a restraining order under
the Act are law enforcement officials or family members of
the person against whom the order is sought. See Id.
§ 67/5 (defining "petitioner"). If the court
grants the petition, it must issue a restraining order
requiring the respondent to refrain from possessing or
obtaining firearms and to turn over his or her Firearm
Owner's Identification Card and/or concealed carry
license to law enforcement. Id. § 67/35(g).
Another provision of the Act, 420 Ill. Comp. Stat. 67/60,
requires Illinois courts to recognize similar firearms
restraining orders issued in other jurisdictions that are
filed with the clerk of the court.
alleges that sections 67/35 and 67/60 of the Act violate the
Second Amendment. He does not allege, however, that the Act
has been enforced against him or anyone else. Rather, he
contends that the ex parte procedure established in section
67/35 and the recognition of out-of-state firearms
restraining orders subject him to possible "State
action, enforced by the Defendants, which will invariably
imbue the Plaintiff as being psychologically unstable,
violent, and/or engaged in criminal conduct based solely on
an allegation from a petitioner, or any other arbitrary
standard enacted by another state, tribe, or United States
Territory." Amended Compl., dkt. no. 19, ¶ 11.
Gudbrandsen alleges that the onset of ex parte proceedings
under section 67/35 could result in the loss of his security
clearance and thus his job as an officer in the United States
original complaint, Gudbrandsen named the state of Illinois
as the sole defendant. The state moved to dismiss the
complaint, arguing that sovereign immunity barred the suit
and that Gudbrandsen lacked standing because he had not
suffered an injury. In his brief in response to the motion,
Gudbrandsen addressed only the question of standing; rather
than discussing the issue of sovereign immunity, he filed an
amended complaint that substituted as defendants the City of
Sycamore Police Department and the Sheriff of DeKalb County.
Sheriff has moved to dismiss the amended complaint for lack
of standing. The Office of the Illinois Attorney General, no
longer a named defendant, moved to intervene in the suit to
defend the constitutionality of the statute, and its prior
motion to dismiss for lack of standing remains pending.
doctrine of standing "is rooted in Article III" of
the U.S. Constitution, "which limits a federal
court's power to the resolution of 'Cases' or
'Controversies.'" Carello v. Aurora
Policemen Credit Union, 930 F.3d 830, 833 (7th Cir.
2019). A federal court may therefore exercise jurisdiction
over a dispute only if the plaintiff has "allege[d] an
injury in fact that is traceable to the defendant's
conduct and redressable by a favorable judicial
case, the question of whether Gudbrandsen has standing turns
on the "injury in fact" requirement-specifically,
whether he may challenge the constitutionality of the
Firearms Restraining Order Act even though it has not been
enforced against him. In Susan B. Anthony List v.
Driehaus, 573 U.S. 149 (2014), the Supreme Court
explained that in appropriate circumstances an individual
need not have experienced "an actual arrest,
prosecution, or other enforcement action" to challenge a
law. Id. at 158. "Instead, we have permitted
pre-enforcement review under circumstances that render the
threatened enforcement sufficiently imminent."
Id. at 159. To satisfy this requirement, the
plaintiff must allege that he has "an intention to
engage in a course of conduct arguably affected with a
constitutional interest, but proscribed by a statute, and
there exists a credible threat of prosecution
allegations in Gudbrandsen's amended complaint do not
satisfy this requirement. First, he has not alleged that he
intends to engage in conduct that that is "arguably
proscribed by" the Firearms Restraining Order Act. By
the express terms of the Act, he would be subject to a
restraining order only if a law enforcement officer or a
member of his family filed "an affidavit or verified
pleading" alleging that he "poses an immediate and
present danger of causing personal injury to himself . . . or
another." 430 Ill. Comp. Stat. 67/35(a). But Gudbrandsen
has not alleged that he intends to pose such a danger or that
he plans to engage in conduct that would lead another person
to believe him dangerous. Rather, he appears to contend that
he will be falsely or mistakenly accused but does not allege
any facts suggesting that this fear has any basis in reality.
Indeed, the Act guards against malicious or intentionally
false accusations by providing that a "person who files
a petition for an emergency firearms restraining order,
knowing the information provided to the court at any hearing
or in the affidavit or verified pleading to be false, is
guilty of perjury," id. § 67/35(c), and
thus subjects him- or herself to criminal prosecution.
Supreme Court's decision in Babbitt v. United Farm
Workers National Union, 442 U.S. 289 (1979), provides a
useful comparison. In that case, the Court held that the
plaintiffs had standing to challenge a statute that made it
unlawful to use "dishonest, untruthful and deceptive
publicity" in advocating agricultural boycotts even
though the plaintiffs "did not plan to propagate
untruths." Id. at 301. The Court, citing
New York Times Co. v. Sullivan, 376 U.S. 254 (1964),
reasoned that "erroneous statement is inevitable in free
debate" and that the plaintiffs had therefore
sufficiently alleged their intent to engage in proscribed
activities because they planned to continue their boycott
advocacy. Babbitt, 442 U.S. at 301. In this case, by
contrast, Gudbrandsen has not alleged anything that would
suggest that he is likely to be accused of dangerousness in
an ex parte proceeding under the Act as a result of any
particular future conduct. Whereas false statements naturally
occur during "free debate"-particularly during
boycott campaigns-the average individual does not as a matter
of course "pose an immediate and present danger of
causing personal injury." 430 Ill. Comp. Stat. 67/35(a).
Gudbrandsen thus has not alleged an intention to engaged in
proscribed activities as required by Babbitt and
Susan B. Anthony List.
Gudbrandsen has not alleged facts that support a reasonable
inference that he faces a "substantial" or
"credible" threat of future enforcement. See
Susan B. Anthony List, 573 U.S. at 161, 164. Unlike the
plaintiffs in Susan B. Anthony List, Gudbrandsen has
not identified any instances in which ex parte proceedings
under section 67/35 have been instituted against him or
anyone else based on conduct in which he plans to engage.
See Id. at 164 ("[P]ast enforcement against the
same conduct is good evidence that the threat of enforcement
is not chimerical" (internal quotation marks omitted)).
In Susan B. Anthony List, for example, the
plaintiffs credibly alleged a risk of future enforcement
because the state had "already found probable cause to
believe that [the petitioners] violated the statute" by
making "the same sort of statement petitioners plan to
disseminate in the future." Id. at 162. In this
case, Gudbrandsen has not alleged any history of enforcement
of the Act that might "demonstrate a realistic danger of
sustaining direct injury as a result of the statute's
operation or enforcement" beyond a purely
"imaginary or speculative" risk that he will be
falsely accused. Babbitt, 442 U.S. at 298.
Firearms Restraining Order Act also poses a less serious risk
of enforcement than the statute at issue in Susan B.
Anthony List because it allows only a small category of
individuals-law enforcement officers and Gudbrandsen's
family members-to institute proceedings against him.
See 430 Ill. Comp. Stat. 67/5; see also Susan B.
Anthony List, 573 U.S. at 164 ("The credibility of
[the] threat [of enforcement] is bolstered by the fact that .
. . 'any person' with knowledge of the purported
violation [may] file a complaint."). And unlike the
plaintiffs in Susan B. Anthony List-which were
organizations that criticized candidates for political office
and thus were "easy targets" for complaints,
see id.-Gudbrandsen has not alleged that he is
particularly susceptible to false accusations of
dangerousness, particularly in light of the fact that a
knowingly false accusation would be a crime. Because the