Tempest Horsley v. Jessica Trame

Filing

Filed opinion of the court by Judge Williams. AFFIRMED. Richard A. Posner, Circuit Judge; Ann Claire Williams, Circuit Judge and Andrea R. Wood, District Court Judge*. *The Honorable Andrea R. Wood of the Northern District of Illinois, sitting by designation. [6714677-1] [6714677] [14-2846]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2846
TEMPEST HORSLEY,
Plaintiff-Appellant,
v.
JESSICA TRAME, in her official capacity as Chief of the Illinois
State Police Firearms Services Bureau,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 13 CV 00321 — Nancy J. Rosenstengel, Judge.

____________________
ARGUED APRIL 17, 2015 — DECIDED DECEMBER 14, 2015
____________________
Before POSNER and WILLIAMS, Circuit Judges, and WOOD,
District Judge. 1
WILLIAMS, Circuit Judge. Tempest Horsley’s application to
possess an Illinois Firearm Owner’s Identification Card, com-

1

The Honorable Andrea R. Wood of the Northern District of Illinois,
sitting by designation.

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monly known as a “FOID card,” was returned to her as incomplete because she was over 18 but not yet 21 and her application did not contain a parent or guardian signature. Although she could have under Illinois law, she did not seek further review from the Director of the Illinois State Police. We
disagree with Horsley that the Illinois statutory scheme violates her rights under the Second Amendment. Illinois does
not impose a categorical ban on firearm possession for 18-to20-year-olds whose parents do not consent. Rather, when an
applicant cannot obtain a parent or guardian signature, he or
she may appeal to the Director for a FOID card, and the Director will make a determination. We conclude that this process for 18-to-20-year-olds is not unconstitutional, so we affirm the decision of the district court.
I. BACKGROUND
A few months after Tempest Horsley turned 18, she
mailed in an application for an Illinois FOID card along with
the requisite check for $10. Horsley’s application was returned to her. The accompanying cover letter informed her
that the application was incomplete because she was not yet
21 years old and her application did not contain the signature
of a parent or guardian. Horsley did not appeal or seek further review from the Director of the Illinois State Police.
Instead, Horsley filed this lawsuit against Jessica Trame,
the Chief of the Illinois State Police Firearms Services Bureau,
under 42 U.S.C. § 1983. Horsley asserted in her complaint that
she seeks to possess a double-barrel shotgun or other firearm
for self-defense inside her home and that her parents will not
sign her application for a FOID card. Horsley contends that
the Illinois parent or guardian signature provision for FOID
card applicants who are at least 18 but less than 21 years old

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violates the Second Amendment to the United States Constitution. Her complaint sought an order directing that her application be processed without a parent or guardian signature
and an injunction preventing the Illinois State Police from rejecting an application for a FOID card to a person at least 18
years of age on the basis of a lack of parent or guardian signature.
Both parties filed motions for summary judgment, and
they stipulated that the legal issue to be resolved by the court
was whether the age provision in Illinois’s FOID Card Act is
constitutional. After a hearing, the district court granted
Trame’s motion for summary judgment and denied Horsley’s
motion. Horsley appeals.
II. ANALYSIS
In Illinois, most persons may not lawfully possess or acquire a firearm without a FOID card issued by the Illinois Department of State Police. 430 ILCS 65/2(a)(1). An applicant for
a FOID card must complete a form prepared by that department. 430 ILCS 65/4(a)(1). The applicant must submit evidence that, among other things, the applicant has not been
convicted of a felony, has not been adjudicated as a person
with a mental disability, and is not addicted to narcotics. 430
ILCS 65/4(a)(2)(ii), (iii), (xv). Another provision in the Illinois
FOID Card Act—the one relevant here—states that if under
21 years of age, the applicant must submit evidence that
he or she has the written consent of his or her parent or
legal guardian to possess and acquire firearms and
firearm ammunition … provided, however, that such
parent or guardian is not an individual prohibited
from having a Firearm Owner’s Identification Card … .

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430 ILCS 65/4(a)(2)(i). The Department of State Police must
approve or deny an application within 30 days of receipt. 430
ILCS 65/5.
Horsley’s application was rejected because she was under
21 years old and her application did not contain the written
consent of a parent or guardian. See 430 ILCS 65/8(b). With
exceptions not relevant here, when an application for a FOID
card is denied, the aggrieved party may appeal to the Director
of State Police for a hearing. 430 ILCS 65/10(a). The Director
may grant relief to a person who lacks a parent or guardian
signature if the applicant establishes to the Director’s satisfaction that the applicant has not been convicted of a forcible felony within a certain number of years, the applicant will not
be likely to act in a manner dangerous to public safety, and
granting relief would not be contrary to the public interest or
to federal law. 430 ILCS 65/10(c); O’Neill v. Director of Ill. Dep’t
of State Police, 28 N.E.3d 1020, 1024 (Ill. App. Ct. 2015). A decision from the Director denying an appeal is subject to judicial review under Illinois’s Administrative Review Law, 735
ILCS 5/3-101 et seq. 430 ILCS 65/11(a). Horsley did not seek
any relief from the Director.
We review the district court’s grant of summary judgment
in Trame’s favor de novo. Spierer v. Rossman, 798 F.3d 502, 507
(7th Cir. 2015). In doing so, we use the familiar standard that
summary judgment is appropriate where “the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). There are no disputes of material fact in this case, and
the only questions are ones of law.

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Trame first argues that Horsley’s case is not ripe for our
review because Horsley did not ask the Director of State Police to grant her a FOID card after her application was returned to her. “Ripeness is a justiciability doctrine designed
‘to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the
agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete
way by the challenging parties.’” Nat’l Park Hospitality Ass’n
v. Dep’t of Interior, 538 U.S. 803, 806 (2003) (citation omitted).
Although she did not appeal to the Director, it is clear that
the Department of State Police will not process Horsley’s application in the same way that it will process applications that
contain parent or guardian signatures. Applications with
such signatures can only be denied by the Department of State
Police on certain statutorily enumerated grounds. 430 ILCS
65/8. Someone in Horsley’s position, however, must pursue a
different procedure of review from the Director. See 430 ILCS
65/10(a), (c).
In addition, to the extent that Trame is arguing that we
should not review this case on the basis that Horsley failed to
exhaust her administrative remedies, we disagree. An “exhaustion requirement generally refers to administrative and
judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate.” Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S.
172, 193 (1985). There is no general duty to exhaust state judicial or administrative remedies before pursuing an action under 42 U.S.C. § 1983, however. Patsy v. Bd. of Regents of State of

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Fla., 457 U.S. 496, 516 (1982) (“exhaustion of state administrative remedies should not be required as a prerequisite to
bringing an action pursuant to § 1983”); see also Felder v. Casey,
487 U.S. 131, 146-47 (1988).
Trame argues that the rule the Supreme Court pronounced in Patsy does not control here, and she points to our
decision in Daniels v. Area Plan Commission of Allen County, 306
F.3d 445 (7th Cir. 2002) for the proposition that exhaustion of
state court remedies is sometimes a prerequisite to a § 1983
claim. But Daniels is a Takings Clause case. Id. at 454. Suits
alleging Takings Clause claims are one of the few exceptions
the Supreme Court has recognized to the general rule it announced in Patsy that § 1983 suits do not require exhaustion
of remedies. See Peters v. Village of Clifton, 498 F.3d 727, 730 n.4
(7th Cir. 2007). The exhaustion requirement in Takings Clause
cases “stems from the Fifth Amendment’s proviso that only
takings without ‘just compensation’ infringe that Amendment.” Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 734
(1997); see also Williamson Cnty., 473 U.S. at 186-87. And the
exhaustion requirement in the other exception, prisoner suits
alleging constitutional deprivations while incarcerated,
comes straight from a statute, 42 U.S.C. § 1997e. See Patsy, 457
U.S. at 508. Neither exception is present here.
We now turn to the merits. The Second Amendment of the
United States Constitution provides: “A well regulated Militia, being necessary to the security of a free State, the right of
the people to keep and bear Arms, shall not be infringed.”
U.S. Const. amend. II. The Supreme Court has ruled that the
Second Amendment includes an individual right to keep and
bear arms in the home for the purpose of self-defense. District
of Columbia v. Heller, 554 U.S. 570, 635 (2008). This Second

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Amendment right applies to the states through its incorporation in the Due Process Clause of the Fourteenth Amendment.
McDonald v. City of Chicago, 561 U.S. 742, 791 (2010). The Supreme Court has made clear that “[l]ike most rights, the right
secured by the Second Amendment is not unlimited.” Heller,
554 U.S. at 626. The question in our case is whether the Illinois
statutory scheme that promulgates a different procedure for
18-to-20-year-olds to possess a firearm, but does not ban them
from doing so, violates the Second Amendment.
Our court’s review of a Second Amendment claim typically begins with the threshold question of whether “the restricted activity [is] protected by the Second Amendment in
the first place.” United States v. Ezell, 651 F.3d 684, 701 (7th Cir.
2011). If the challenged law regulates activity that falls outside
the scope of the Second Amendment at the historically relevant time, then the regulated activity is not protected, and the
analysis stops there. Id. at 702-03.
Trame argues that the challenged statute does not regulate
activity protected by the Second Amendment because, she
contends, a right to firearm possession by a person under 21
is not within the amendment’s scope. Heller tells us that the
Second Amendment codified a “pre-existing right,” and it analyzed the amendment’s historical background and understanding at the time of the founding. See 554 U.S. at 592 (emphasis in original); id. at e.g., 592-94. Trame argues that the
Second Amendment was not originally understood to include
minors, and that minors during the founding era were understood to be persons under the age of 21. From there she reasons that persons who are presently under the age of 21 do
not have a Second Amendment right to possess a firearm.

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The Constitution does not set forth an age of majority.
During the founding era, persons under 21 were considered
minors or “infants.” See Nat’l Rifle Ass’n v. Bureau of Alcohol,
Tobacco, Firearms, & Explosives, 700 F.3d 185, 202 (5th Cir.
2012). According to Blackstone, for example, “full age in male
or female is twenty-one years,” and “till that time is an infant,
and so stiled in law.” 1 Commentaries on the Laws of England
463 (St. George Tucker ed. 1803); see Heller, 554 U.S. at 593-94
(stating that Blackstone “’constituted the preeminent authority on English law for the founding generation’”) (citation
omitted). The age of majority was 21 until the 1970s. Nat’l Rifle
Ass’n, 700 F.3d at 202. So most right-to-bear-arms laws were
passed while 18-to-20-year-olds were minors. And Trame
points to authority for the proposition that states could bar
the sale of firearms to minors, such as Thomas Cooley’s treatise that Heller called “massively popular” in which Cooley
writes that the states “may prohibit the sale of arms to minors” pursuant to their police power. Thomas M. Cooley,
Treatise on Constitutional Limitations 740 n.4 (5th ed. 1883); Heller, 554 U.S. at 616.
The Fifth Circuit considered historical and other evidence
and concluded that a prohibition on carrying a handgun in
public by 18-to-20-year-olds likely falls outside the Second
Amendment’s protection. Nat’l Rifle Ass’n, 700 F.3d at 204
(“Modern restrictions on the ability of persons under 21 to
purchase handguns—and the ability of persons under 18 to
possess handguns—seem, to us, to be firmly historically
rooted”). The Supreme Court of Illinois made that conclusion
even more definitively in two recent decisions challenging
convictions for aggravated unlawful use of a weapon
(AUUW) by defendants under 21. See People v. Mosley, 33

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N.E.3d 137 (Ill. 2015) (concluding that Illinois AUUW convictions for carrying a handgun while under 21 years old outside
the home did not violate Second Amendment because challenged provisions did not regulate conduct within scope of
Second Amendment); In re the Interest of Jordan G., 33 N.E.3d
162, 168-69 (Ill. 2015). And the First Circuit suggested that the
right to keep arms in the founding period did not extend to
juveniles, though that court was upholding the constitutionality of 18 U.S.C. § 922(x), which prohibits juveniles—persons
under 18, not 18-to-20-year-olds as here—from possessing
handguns (with certain exceptions). United States v. Rene E.,
583 F.3d 8, 16 (1st Cir. 2009).
Horsley, on the other hand, maintains that firearm possession by 18-to-20-year-olds falls within the scope of the Second
Amendment. She emphasizes that persons over 18 can vote
and serve in the military, get married without parental consent, and own land. Even though the age of majority was for
many years 21, it is now 18, and so she argues that presentday 18-year-olds cannot be restricted from possessing firearms based on age alone. She points to historical evidence that
she contends favors her position as well. The First Militia Act
enacted by the United States Congress in 1792, for example,
included 18-year-old men in the scope of those eligible for the
militia. Because a minor could be a member of the militia and
be armed, she reasons that the Second Amendment gives
these persons a right to bear arms.
We need not decide today whether 18-, 19-, and 20-yearolds are within the scope of the Second Amendment. Cf. Nat’l
Rifle Ass’n, 700 F.3d 185 at 204-05 (also declining to resolve
issue). Even if they are, our next step would be to turn to
means-ends scrutiny of the regulation. Ezell, 651 F.3d at 703.

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In this analysis we “evaluate the regulatory means the government has chosen and the public-benefits end it seeks to
achieve.” Id. The level of scrutiny we apply “will depend on
how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right.”
Id. “[L]aws restricting activity lying closer to the margins of
the Second Amendment right, laws that merely regulate rather than restrict, and modest burdens on the right may be
more easily justified.” Id. at 708.
The Supreme Court has said that the “need for defense of
self, family, and property is most acute” in the home. Heller,
554 U.S. at 628. As Horsley emphasizes, the Illinois statute
here implicates self-defense in the home. It also implicates
self-defense in the home using handguns, the weapon at issue
in Heller. That said, the Supreme Court explained in Heller that
not all regulations of firearm possession, even of handguns in
the home, are invalid. The Court made clear, for example, that
nothing in its opinion “should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by
felons and the mentally ill.” Id. at 626-27; see also Moore v.
Madigan, 702 F.3d 933, 940-41 (7th Cir. 2012) (listing “the usual
prohibitions of gun ownership by children, felons, illegal aliens, lunatics, and in sensitive places like public schools, the
propriety of which was not questioned in Heller”).
Significantly, although Horsley’s arguments treat the challenged statute as a categorical ban on firearm possession, the
FOID Card Act does not in fact ban persons under 21 from
having firearms without parent or guardian consent. 2 Having
2

We have affirmed categorical bans on firearm possession in other
instances. See United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010)
(affirming categorical ban on possession of firearms by felons); United

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a parent or guardian signature may speed up the process, but
it is not a prerequisite to obtaining a FOID card in Illinois. Rather, a person for whom a parent’s signature is not available
can appeal to the Director of the Illinois State Police. Upon a
sufficient showing regarding the applicant’s criminal record,
lack of dangerousness, and the public interest, the Director
may issue a card. 430 ILCS 65/10(c). And if the Director were
to deny the application, the denial is subject to judicial review.
430 ILCS 65/11(a).
So the lack of a parent signature does not bar Horsley from
possessing a firearm, despite her arguments to the contrary.3
Nor does it impose a bar on gun possession on an 18-to-20year-old whose parents have passed away or are disqualified
from owning guns. The absence of a blanket ban makes the
Illinois FOID Card Act much different from the blanket ban
on firearm possession present in Heller. That there is not a categorical ban here also distinguishes this case from Planned
Parenthood v. Danforth, 428 U.S. 52 (1976), to which Horsley
points. There the Supreme Court struck down a “blanket provision” requiring the consent of a parent or person in loco
parentis before an unmarried minor could have an abortion
during her first 12 weeks of pregnancy unless necessary to
preserve the mother’s life. Id. at 74.
States v. Yancey, 621 F.3d 681, 683 (7th Cir. 2010) (affirming ban on possession of firearms by unlawful users of controlled substances); United States
v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc) (affirming categorical
ban on possession of firearms by domestic violence misdemeanants).
3

Horsley did not address in her brief the opportunity for appeal to
the Director, despite the district court’s emphasis on the statutory provision providing the ability to do so, and she did not file a reply brief on
appeal.

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The absence of a parent or guardian signature is not a
“veto” on the ability of a person between 18 and 21 to get a
FOID card in Illinois. And the Illinois scheme is not a regulatory means that imposes “’severe burdens’” because it “’[does
not] leave open ample alternative channels’”; rather it is a restriction that “’impose[s] only modest burdens (because [it
does] leave open ample alternative channels’.” Heller v. District of Columbia, 670 F.3d 1244, 1262 (D.C. Cir. 2011) (quoting
Volokh, Implementing the Right to Keep and Bear Arms for SelfDefense: An Analytical Framework and a Research Agenda, 56
UCLA L. Rev. 1443 (2009)).
In addition to reviewing Illinois’s chosen regulatory
means, we also consider the public-benefits end it seeks to
achieve. Ezell, 651 F.3d at 703. It is clear that Illinois has an
important and compelling interest in its citizens’ safety. See
Schall v. Martin, 467 U.S. 253, 264 (1984) (“The ‘legitimate and
compelling state interest’ in protecting the community from
crime cannot be doubted.”). Illinois’s interest in protecting the
public from firearms violence underlies the challenged statute. The Illinois FOID Card Act also reflects an interest in ensuring sufficient compensation for injuries caused by an applicant’s firearms use, as parents or guardians who give consent on a FOID card application can be civilly liable for damages resulting from the applicant’s firearms use. See 430 ILCS
65/4.
The Illinois statute is substantially related to the achievement of the state’s interests. The goal of protecting public
safety is supported by studies and data regarding persons under 21 and violent and gun crimes. For example, before federal legislation targeting youth firearm possession and purchase was passed, the United States Departments of Justice

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and Treasury analyzed gun crime by persons over 18 and under 21. It reported that in 1997, 18-, 19-, and 20-year-olds
ranked first, second, and third in the number of gun homicides committed in the United States. U.S. Dep’t of the Treasury & U.S. Dep’t of Justice, Gun Crime in the Age Group 18-20,
at 2 (June 1999). In all gun homicides where an offender was
identified, 24% were committed by persons in that age group.
Id. The report also found that among murderers, 18-to-20year-olds were more likely to use firearms than persons 21
and over. Id.
More recent data reflects similar trends. An FBI analysis of
crime in 2014 reflects that 18-to-20-year-olds were responsible
for more than 15.8% of all charges issued for murder and
nonnegligent manslaughter. When forcible rape, robbery, and
aggravated assault are added, 18-to-20-year-olds account for
about 11% of charges brought for violent crime. U.S. Dep’t of
Justice & Fed. Bureau of Investigation, Crime in the United
States
2014,
Table
38:
Arrests
by
Age,
https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s./2014/
crime-in-the-u.s.-2014/tables/table-38. That is true even
though that age group represented only about 4.1% of the
country’s total population and 5.4% of the population over
the age of 14. See Nat’l Rifle Ass’n, 700 F.3d at 210 & n.20. Congressional investigations around the time that Illinois passed
the challenged statute in 1967 reflect similar patterns. Those
investigations concluded that minors under the age of 21 accounted for 64% of arrests for “serious crimes” in the United
States, S. Rep. 90-1097, at 77 (1968), including 21% of the arrests for murder, 114 Cong. Rec. 12279, 12309 (1968) (statement of Sen. Thomas J. Dodd). These crime figures reflect im-

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portant benefits to the public interest in limiting firearm possession by persons in the age group that is the subject of the
challenged statute.
Trame also points to scholarly research on development
through early adulthood that supports a conclusion that the
Illinois FOID card application procedure for persons under 21
fits the state’s compelling interest in public safety. Dr. Ruben
C. Gur, a neuropsychologist and Director of the Brain Behavior Laboratory at the University of Pennsylvania, for example,
explains: “The evidence now is strong that the brain does not
cease to mature until the early 20s in those relevant parts that
govern impulsivity, judgment, planning for the future, foresight of consequences, and other characteristics that make
people morally culpable.” Declaration of Ruben C. Gur,
Ph.D., http://www.americanbar.org/content/dam/aba/publishing/criminal_justice_section_newsletter/crimjust_juvjus_
Gur_affidavit.authcheckdam.pdf; see also, e.g., Adam Ortiz,
Adolescence, Brain Development and Legal Culpability, American
Bar Association, Juvenile Justice Center (2004) (collecting
studies). We also note that Illinois is not alone in directing additional measures for persons under 21. Federal law prohibits
federally licensed dealers from selling handguns to persons
under 21. 18 U.S.C. § 922(b)(1), (c)(1). Twelve other states in
addition to Illinois have age-based restrictions on firearm possession or purchase by those under 21. 4

4

See Cal. Penal Code § 27505(a); Conn. Gen. Stat. § 29-36f; Del. Code.
Ann. tit. 24, § 903; D.C. Code Ann. § 7-2502.03; Haw. Rev. Stat. Ann. § 1342; Iowa Code § 724.22; Md. Code. Ann., Pub. Safety § 5-133(d); Mass. Gen.
Laws ch. 140, § 131; N.J. Stat. Ann. § 2C:58-6.1; N.Y. Penal Law § 400.00;
Ohio Rev. Code Ann. § 2923.21; R.I. Gen. Laws §§ 11-47-30, 11-47-35.

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We conclude that Illinois has shown a sufficient meansend relationship between the challenged statute and an important government interest. Illinois’s decision to use parents
as a first check on firearm possession by persons under 21 is
reasonable. The parent or guardian signature provision provides for an individualized assessment of the applicant’s fitness for possession of a firearm by a person likely to be in the
best position to make such an evaluation. That signature also
subjects the parent to liability for harm caused by firearm
ownership. The legislature could reasonably conclude that
many persons under 21 would not have the financial ability
to compensate a person injured in a firearms incident, and the
signature provision in the Illinois statute provides a means for
an additional source of income in that event. If no parent or
guardian is willing or able to sign the application, the Illinois
statute provides that another person can make the individualized assessment—the Director of State Police. The challenged provisions in the FOID Card Act are substantially related to the state’s important interests, and we do not find the
law unconstitutional. See United States v. Decastro, 682 F.3d
160, 168 (2d Cir. 2012) (stating that a “law that regulates the
availability of firearms is not a substantial burden on the right
to keep and bear arms if adequate alternatives remain for lawabiding citizens to acquire a firearm for self-defense.”).
III. CONCLUSION
The judgment of the district court is AFFIRMED.