DeServi v. Bryant et al
Filing
33
MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 10/3/2014:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RONALD DeSERVI,
Case No. 14 C 3881
Plaintiff,
Hon. Harry D. Leinenweber
v.
ROBINZINA BRYANT, as Chair of
the Illinois Concealed Carry
Licensing Review Board, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Before
No. 25].
the
Court
is
Defendants’
Motion
to
Dismiss
[ECF
For the reasons stated herein, the Motion is granted in
part and denied in part.
I.
The
following
facts
BACKGROUND
are
drawn
from
the
allegations
in
Plaintiff Ronald DeServi’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”).
Stat. 66/10.
430 Ill. Comp.
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
[the] Act;
of
Section
25
of
(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
applicant
law
enforcement
receiving
a
agency,
license
if
however,
the
may
agency
object
has
to
an
“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 (“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).
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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 preponderance of the evidence that you pose a danger to
yourself or others/are a threat to public safety.”
¶ 15].
[ECF No. 1,
The decision also advised Plaintiff of his right to appeal
the decision.
Instead of seeking review of the Board’s decision in state
court, however, Plaintiff filed suit in federal court against the
Board, its members, the ISP, and two officials within the ISP.
Count
I,
Plaintiff
deprived him
Fourteenth
of
alleges
his
procedural
Amendment.
unconstitutional,
that
both
Count
facially
the
due
II
and
Act’s
process
alleges
as
licensing
rights
that
applied
to
process
under
the
In
Act
the
is
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 prior restraint on his right to
carry a firearm in public.
Defendants have moved to dismiss the Complaint, arguing that
(1) under Federal Rule of Civil Procedure 12(b)(1), the Court
should abstain from hearing Count I pursuant to Younger v. Harris,
401 U.S. 37 (1971), and (2) both counts fail to state a claim under
Rule 12(b)(6).
The Court will address each argument in turn.
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II.
LEGAL STANDARD
The Supreme Court recently clarified the scope of Younger
abstention.
See, Sprint Commc’ns, Inc. v. Jacobs, 134 S.Ct. 584,
588 (2013).
Younger abstention is appropriate in “exactly three
classes of cases:
where federal jurisdiction would intrude into
ongoing state criminal proceedings, or into civil enforcement
proceedings
(judicial
or
administrative)
akin
to
criminal
prosecutions, or into civil proceedings ‘that implicate a State’s
interest in enforcing the orders and judgments of its courts.’”
Mulholland v. Marion Cnty. Elec. Bd., 746 F.3d 811, 815–16 (7th
Cir. 2014) (quoting Sprint Commc’ns, Inc., 134 S.Ct. at 588).
Younger abstention is the exception, not the rule, and in examining
whether
a
state
civil
proceeding
calls
for
abstention,
“the
critical consideration . . . is how closely [the state proceeding]
resembles a criminal prosecution.”
Id.
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).
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III.
A.
ANALYSIS
Younger abstention — Count I
Plaintiff’s Complaint alleges that the Act’s licensing scheme
deprived
him
of
his
Second
Amendment
rights
without
constitutionally sufficient due process. Defendants argue that the
Court should abstain from hearing this count because a ruling on it
would interfere with a state agency’s decision to deny Plaintiff a
concealed carry license.
Defendants have failed to demonstrate that this case fits into
one of the three exceptional situations in which Younger abstention
is appropriate. Mulholland, 746 F.3d at 816.
There are no ongoing
criminal proceedings here, and Defendants have not argued that the
Board’s review constitutes a civil proceeding “that implicate[s] a
State’s interest in enforcing the orders and judgments of its
courts.”
Sprint Commc’ns, Inc., 134 S.Ct. at 588.
Defendants’
argument for the application of Younger abstention stems from their
characterization
of
the
Act’s
licensing
process
as
a
civil
enforcement proceeding. According to Defendants, a law enforcement
agency’s
objection
“complaint”
against
to
the
a
license
applicant.
application
If
constitutes
the Board
denies
a
the
application, Defendants contend that the Board has simply “enforced
the Act’s requirements against” the applicant pursuant to the
“complaint.” [ECF No. 28 at 4].
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Defendants’ characterization of the Act’s licensing process as
a civil enforcement proceeding misses the mark.
The Seventh
Circuit has said that, “at least after Sprint,” Younger abstention
is not warranted unless the state proceeding is a “quasi-criminal
proceeding.” Mullholland, 746 F.3d at 816. The analysis therefore
turns on
how
closely
the
Act’s
licensing
scheme
resembles
a
criminal proceeding. In this case, there are very few similarities
between the two.
In most cases, a criminal or quasi-criminal proceeding is
initiated by the state in order to “sanction the federal plaintiff,
i.e., the party challenging the state action, for some wrongful
act.”
Sprint Commc’ns, Inc., 134 S.Ct. at 592.
In this case,
Plaintiff initiated the Board’s proceedings by submitting a license
application.
To accept Defendants’ argument would be to find that
Plaintiff initiated a quasi-criminal proceeding against himself.
Defendants have not cited any case in which a federal court
abstained under Younger due to state court proceedings initiated by
the
federal
plaintiff.
To
the
contrary,
each
of
the
cases
Defendants cite in support of this argument involve state-initiated
criminal
proceedings
or
civil
enforcement
proceedings.
See,
Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 510 (1st Cir.
2009) (state agency sanctioned federal plaintiffs “for purported
Insurance Code violations”); Nelson v. Murphy, 44 F.3d 497, 501
(7th Cir. 1995) (involving “continuations of the original criminal
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prosecutions”).
not
transform
enforcement
That the Board enforced the Act’s provisions does
the
proceeding
proceeding.
into
Younger
a
quasi-criminal,
abstention
civil
therefore
is
inappropriate in this case.
Because the Court will not abstain under Younger, the Court
must address whether Plaintiff’s Complaint properly states a claim
for relief under Rule 12(b)(6).
B.
Sufficiency of Plaintiff’s Due Process Claim – Count I
Plaintiff alleges that the Act’s licensing scheme does not
provide adequate procedural due process.
“To state a procedural
due-process claim, a plaintiff must allege (1) deprivation of a
protected interest, and (2) insufficient procedural protections
surrounding that deprivation.”
Michalowicz v. Vill. of Bedford
Park, 528 F.3d 530, 534 (7th Cir. 2008).
Defendants’ argument for
dismissal rests solely on the second prong; the Court therefore
presumes for the purpose of deciding this Motion that Plaintiff has
been deprived of a protected interest, as alleged in the Complaint.
See, Dehorty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996).
“In evaluating what process satisfies the Due Process Clause,
. . . the Supreme Court has distinguished between (a) claims based
on established state procedures and (b) claims based on random,
unauthorized acts by state employees.”
Leavell v. Ill. Dep’t of
Natural Res., 600 F.3d 798, 804 (7th Cir. 2010) (internal quotation
marks omitted).
For claims based on established procedures, the
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state is in a position to provide a pre-deprivation hearing because
the established procedures enable the state to predict when a
deprivation might occur.
Id.
In these circumstances, “post-
deprivation procedures will not, ipso facto, satisfy due process.”
Id.
If, however, the state’s action in depriving a right is
“random and unauthorized,” a “meaningful post-deprivation remedy”
alone can satisfy due process.
Id.
In either instance, the
analysis turns on “whether sufficient state-law protections exist,”
regardless of whether the federal plaintiff took advantage of them.
Michalowicz, 528 F.3d at 534.
Defendants argue that the Board’s action here is “random and
unauthorized” because there is no way to predict what the Board
will do in any individual in case.
Thus, according to Defendants,
Plaintiff is not entitled to any pre-deprivation procedural process
and the Court should look to the Act’s post-deprivation procedures
to determine if they are constitutionally adequate.
See, Veterans
Legal Defense Fund v. Schwartz, 330 F.3d 937, 939–40 (7th Cir.
2003).
Defendants’ argument fails for several reasons.
First, the
Act explicitly authorizes the Board to do exactly what it did. The
Act
authorizes
a
law
enforcement
agency
to
object
to
any
application, and it further authorizes the Board to deny any
application if it finds by a preponderance of the evidence that the
applicant poses a danger to himself, others, or the public.
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430
Ill. Comp. Stat. 66/15(a), 66/20(g).
“unauthorized,”
the
Board
acted
Thus, rather than being
entirely
within
the
Act’s
framework.
Second, Defendants’ argument fails because the Board’s action
here is not a “random” state action as that word is used in the due
process context.
For example, the Seventh Circuit in Schwartz
dealt with “random and unauthorized” state action.
F.3d at 941.
Schwartz, 330
That case involved Illinois’ Personnel Code, which
required that veterans be hired over equally-qualified non-veterans
in certain situations.
Id. at 938–39.
The Illinois Supreme Court
had held that the Personnel Code provided veterans “an absolute
hiring preference,” after which the Illinois Governor’s office
issued a memorandum directing all state agencies to comply with
both the Personnel Code and the supreme court’s ruling.
Id.
Two
non-veterans were hired for state jobs instead of the veteran
plaintiffs, and the plaintiffs brought due process claims against
various state actors alleging that the state deprived them of their
right to preferential hiring.
Id.
The court found that the state action at issue was “random and
unauthorized” and, thus, post-deprivation procedures alone could
satisfy due process.
Id. at 941.
The state action was considered
“random and unauthorized” because, “[o]nly by acting in a manner
‘patently inconsistent with Illinois law,’ could the defendants
deprive the plaintiffs of the hiring preference.”
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Id. (quoting
Easter House v. Felder, 910 F.2d 1387, 1401 (7th Cir. 1990) (en
banc)); see also, Leavell, 600 F.3d at 804–05 (finding that the
plaintiff’s claim was based on “random and unauthorized” state
conduct when the Illinois Department of Natural Resources failed to
give the plaintiff notice of a hearing that was expressly required
by Illinois law).
The court ultimately affirmed the district
court’s grant of summary judgment for the defendants because the
plaintiffs
had
not
shown
that
procedures were inadequate.
the
available
post-deprivation
Id. at 942.
Unlike the state actors in Schwartz who violated the law in
allegedly depriving the plaintiff of a right, here, both parties
agree that the Board did not stray from any of the Act’s provisions
but, rather, followed them exactly as written. The Board’s actions
are not “random” at all.
To the contrary, although the Board’s
action in any single case might be unpredictable, the Act itself
allows for some applications to be denied.
deprivation
is
therefore
process purposes.
“predicable
and
The potential for
authorized”
for
due
See, id. at 940 (internal quotation marks
omitted). Thus, the Court finds that Plaintiff’s claim is based on
the Act’s established procedures, and therefore the availability of
post-deprivation
procedures
does
not,
by
itself,
necessarily
satisfy due process.
To determine the process due for claims based on established
procedures, the Court must balance “the private interest . . .
- 10 -
affected by
deprivation
the
of
interest.”
official
such
Mathews
action[,]
interest[,]
v.
the
and
Eldridge,
.
424
risk of
.
.
U.S.
an
the
319,
erroneous
Government’s
335
(1976).
Plaintiff alleges that the Act’s procedures do not satisfy due
process
under
Mathews
because
(1)
the
Act
does
not
require
notification to an applicant regarding any law enforcement agency
objection, (2) the Act does not automatically give an applicant the
opportunity to be heard before the Board before it denies an
application, and (3) the Act works to prevent some applicants from
ever presenting their own evidence supporting their applications,
because the Act only allows review of the Board’s decision in state
court
under
Illinois’
Administrative
Review
Law,
which
“specifically limits judicial review to the administrative record.”
Marconi v. Chi. Heights Police Pension Bd., 870 N.E.2d 273, 292
(Ill. 2006).
Defendants’ Motion does not contest these allegations, nor
does the Motion argue that the Act satisfies due process under
Mathews.
The Court therefore denies Defendants’ Motion to Dismiss
Count I.
C.
Plaintiff
Sufficiency of Plaintiff’s Prior
Restraint Claim – Count II
alleges
that
the
Act
is
unconstitutional
both
facially 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.]
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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
publications
(quoting
‘to
as
prevent
had
Patterson
been
v.
all
such
practiced
Colorado
ex
previous
by
rel.
other
restraints
upon
governments.’”)
Attorney
General
of
Colorado, 205 U.S. 454, 462 (1907)).
The
concerns
regarding
unique to the First Amendment.
prior
restraints
are
historically
The Court is unaware of any similar
- 12 -
history surrounding the Second Amendment.
The Court therefore
declines to extend prior restraint analysis to the Second Amendment
context and dismisses Count II.
IV.
CONCLUSION
For reasons stated herein, Defendants’ Motion to Dismiss [ECF
No. 25] Count I of Plaintiff’s Complaint is denied.
Defendants’
Motion to Dismiss [ECF No. 25] Count II of Plaintiff’s Complaint is
granted.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Date:10/3/2014
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