Ghantous v. Illinois Concealed Carry Licensing Review Board et al
Filing
40
MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 9/30/2014:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SETH GHANTOUS,
Plaintiff,
Case No. 14 C 3544
v.
Hon. Harry D. Leinenweber
ILLINOIS CONCEALED CARRY
LICENSING REVIEW BOARD, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants’ Motion to Dismiss [ECF No. 26].
For the reasons stated herein, the Motion is granted.
I.
BACKGROUND
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.
Id. 66/10(a).
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
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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
restraint on his right to carry a firearm in public.
prior
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.
v. United States, 424 U.S. 800 (1076); and (3) Counts I and II fail
to state a claim under Rule 12(b)(6).
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II.
LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) requires the Court to
analyze the legal sufficiency of the complaint, not the factual
merits of the case.
Autry v. Nw. Premium Servs., Inc., 144 F.3d
1037, 1039 (7th Cir. 1998).
The complaint must do more than recite
the elements of a violation; it must plead facts with sufficient
particularity so that the right to relief is more than a mere
conjecture.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
III.
A.
ANALYSIS
Mootness – Counts I and III
As a threshold matter, the Court must decide whether it should
dismiss or stay Counts I and III as moot.
The mootness doctrine
limits a federal court’s jurisdiction to live cases or controversies.
Damasco v. Clearwire Corp., 662 F.3d 891, 894 (7th Cir. 2011).
“[A]t
all stages of litigation,” the mootness doctrine requires that both
parties “maintain a personal stake in the outcome.” Id. “Therefore,
once the defendant offers to satisfy the plaintiff’s entire demand,
there is no dispute over which to litigate, and a plaintiff who
refuses to acknowledge this loses outright . . . because he has no
remaining stake.”
Id. (internal quotation marks omitted).
After Defendants filed their Motion to Dismiss, they filed a
Motion in the state case to voluntarily remand the case back to the
Board for further review of Plaintiff’s license application in light
of recently enacted “Emergency Rules.”
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Under these new rules, when
the Board determines that “an objection appears sustainable,” the
Board must provide the applicant with “notice of the objection,
including the basis of the objection and the agency submitting the
objection, within ten calendar days.”
1231.230(e) (2014).
Ill. Admin. Code tit. 20, §
After receiving notice of the objection, the
applicant then has ten days “to submit any additional material that
the applicant wants [the Board] to consider in response to the
objection.”
Id.
Defendants argue that because they have agreed to
remand the state case to the Board for further review under these new
rules, Plaintiff’s first and third counts are moot and should be
dismissed or at least stayed until the state court resolves the
issue.
Plaintiff responds that he intends to object to Defendants’
Motion for Remand in the state proceedings because Plaintiff asserts
that he is challenging the procedures themselves, both the ones
prescribed by the Act and the new emergency rules.
For example, part
of Plaintiff’s due process claim is that the Act’s preponderance of
the evidence standard falls short of what is required by due process,
and these new rules would leave in place the Act’s requirement that
the Board use the challenged standard.
As to Count I, if the state court grants Defendants’ Motion to
Remand and the Board on remand grants Plaintiff a license, Plaintiff
will no longer have a live case or controversy because he will have
received a concealed carry license and will not have been deprived of
any right. In that case, Plaintiff will have received the license he
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seeks and Count I would be moot.
The result is not different simply
because Plaintiff challenges the very procedures by which he might be
granted a license on remand; being denied a license is the very
injury
that
provides
Plaintiff
with
standing.
See,
Lujan
v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992) (stating that one of
the “irreducible constitutional” elements of standing is that “the
plaintiff must have suffered an “injury in fact”).
If, however, the state court denies the Motion, Count I would
not be moot.
Moreover, Defendants’ offer to remand the case is not
an offer that “satisf[ies] the plaintiff’s entire demand” as to Count
I, because Plaintiff in that count is not merely seeking remand to
the Board.
See, Damasco, 662 F.3d at 894.
The Court therefore finds
that staying — rather than dismissing — Count I is appropriate to
determine whether the state court’s resolution of the remand motion
moots Count I.
As
to
Count
III,
Plaintiff
seeks
to
enforce
the
Act’s
administrative review procedures and asks this Court to either order
Defendants to issue Plaintiff a license or to order a remand to the
Board.
Unlike Count I, Defendants’ Motion to Remand is indeed an
offer to satisfy Plaintiff’s demands in Count III in full. Thus, the
Court
dismisses
Count
III
as
moot
because
Plaintiff
has
the
opportunity to obtain the very relief demanded in Count III by
accepting Defendants’ offer to remand Plaintiff’s state case to the
Board.
See, Id.
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B.
Sufficiency of Plaintiff’s Prior
Restraint Claim – Count II
In Count II, Plaintiff alleges that the Act is unconstitutional
both facially and as applied to him because it requires “prior
government permission” before “law-abiding citizens of Illinois” may
exercise their Second Amendment rights [ECF No. 1, ¶ 26].
Plaintiff
asks this Court to extend the First Amendment’s prior restraint
analysis to the Second Amendment.
Plaintiff acknowledges that neither the Supreme Court nor the
Seventh Circuit (nor any other jurisdiction that the Court is aware
of) has extended prior restraint analysis into the Second Amendment
context. The Court declines Plaintiff’s invitation to take that step
here.
Prior restraint analysis is appropriately confined to the
First Amendment context because the framers included the free speech
and freedom of the press clauses precisely to combat the practice of
censorship that was common in England.
See, Near v. Minnesota ex
rel. Olson, 283 U.S. 697, 716 (1931) (“[L]iberty of the press,
historically considered and taken up by the Federal Constitution, has
meant, principally although not exclusively, immunity from previous
restraints or censorship.”); see also, Michael L. Meyerson, The
Neglected History of the Prior Restraint Doctrine: Rediscovering the
Link Between the First Amendment and the Separation of Powers, 34
Ind. L. Rev. 295, 295 (2001) (“Oliver Wendell Holmes . . . declare[d]
that the main purpose of the First Amendment was ‘to prevent all such
previous restraints upon publications as had been practiced by other
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governments.’”) (quoting Patterson v. Colorado ex rel. Attorney
General of Colorado, 205 U.S. 454, 462 (1907)).
The concerns regarding prior restraints are historically unique
to the First Amendment.
The Court is unaware of any similar history
surrounding the Second Amendment.
The Court therefore declines to
extend prior restraint analysis to the Second Amendment context and
dismisses Count II.
IV.
For
reasons
stated
CONCLUSION
herein,
Defendants’
Motion
to
Dismiss
[ECF No. 26] is granted.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Date:9/30/2014
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