DeServi v. Bryant et al

Filing 63

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 6/19/2015:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

RONALD DeSERVI,
Plaintiff,

Case No. 14 C 3881

v.

Judge Harry D. Leinenweber

ROBINZINA BRYANT, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
I.

BACKGROUND

Plaintiff
the

originally

filed

a

two-count

Illinois

Concealed

Carry

Licensing

Complaint

Review

against

Board

(the

“Board”) alleging, in Count I, that the procedures employed by
the Board in carrying out its duties in considering applications
to

obtain

rights,

concealed
and,

in

unconstitutional,

carry

licenses

Count II,

both

facially

that
and

violated
the
as

his
act

applied,

due

process

itself
as

a

was
prior

restraint.
The Plaintiff had filed an application for a license but
was

turned

down

by

the

Board.

Instead

of

filing

for

administrative review of this denial, Plaintiff filed suit in
this Court.

This Court denied the Defendants’ Motion to Dismiss

as to Count I, but granted the Motion with respect to Count II.

The Motion to Dismiss Count I was denied on the basis that the
procedures adopted by the Board did not provide adequate notice
of an objection to licensure and did not provide an opportunity
for the applicant to respond to the objection and thus ran afoul
of the due process clause.

The Court dismissed Count II on the

basis that the prior restraint analysis urged by Plaintiff did
not extend to deprivations under the Second Amendment.
After the Court decided the Motion to Dismiss, the Board
adopted amendments to its administrative rules so as to provide
notice to the applicant of the name of the objector, the basis
of the objection, and an opportunity to file a response.

The

Plaintiff did not re-file for a license under the new rules but
instead filed this Amended Complaint.
pleads

five

counts:

rights

for

lack

Count II,

of

violation

Count
a
of

I,

violation

meaningful
his

His new Complaint now

due

of

his

opportunity

process

due

to
to

due
be

process
heard;

insufficient

burden of proof to sustain a denial of a license; Count III,
failure to issue adequately reasoned opinions in recommending
denial of a license; Count IV, redundancy and excessive burden
because the law already provides for the revocation of the FOID
card; and Count V, the Board is biased in favor law enforcement
objectors.

Defendants have responded to the Amended Complaint

- 2 -

by filing a Motion to Dismiss under Rule 12(b)(1) for lack of
jurisdiction and Rule 12(b)(6) for failure to state a claim.
II.
A.
Defendants

DISCUSSION

The Jurisdictional Objection

contend

that

the

Plaintiff=s

claim

is

moot

because he did not re-apply after the Board amended its rules
and the rules of which he complains no longer exist and he only
seeks

declaratory

and

injunctive

relief.

Defendants

cite

Burbank v. Twomey, 520 F.2d 744, 747-48 (7th Cir. 1975), in
which

the

Department
seeking

Seventh
of

to

Corrections

respond

regulation,

Circuit

the

to

a

held

formally

of

where

adopted

plaintiff=s

cessation

conduct mooted the case.

that

the

a

new

objection
alleged

the

to

Illinois
regulation

the

former

unconstitutional

Without evidence that the state agency

had in the past adopted new regulations when faced with legal
challenges and subsequently reverted back to the old procedure
after

the

case

was

dismissed,

the

possibility

that

the

challenged practice will be resurrected “is purely a speculative
contingency.”
Plaintiff
that

the

Complaint.

Id.
responds

amended

to

this

regulations

do

mootness
not

claim

respond

to

by

contending

his

original

He claims that, in at least two applications filed

under the new administrative regulations, the Circuit Court of
- 3 -

Cook County in administrative review of denials saw fit to send
the cases back to the Board for more detailed findings.

Thus,

he claims, the Board continues to deny procedural due process so
that

this

case

is

not

moot.

He

cites

Northeastern

Florida

Chapter, AGCA v. City of Jacksonville, 508 U.S. 656, 662 (1993).
In Jacksonville, after the Supreme Court granted certiorari to
review

its

set

aside

ordinance,

Jacksonville

ordinance but in an insignificant way.

amended

its

Since the new ordinance

disadvantaged the plaintiffs in the same way as the old, the
issue was not moot.
Plaintiff’s due process claim was upheld by this Court on
the basis that, under the then existing administrative rules, he
was not entitled to notice and an opportunity to be heard, both
key requirements of due process.

Moreover administrative review

by the courts consisted only of a review of the administrative
record before the Board which would not contain any response
from the applicant.

The new rule requires both notice to the

applicant and an opportunity to be heard.

Thus, the precise

complaints he made in his original Complaint, which this Court
declined to dismiss, have been resolved in his favor.

However,

plaintiff in his Amended Complaint in Count II raises a new
objection: the low burden of proof which constitutes a facial
claim of unconstitutionality.

He contends that the constitution
- 4 -

requires that applications can only be denied if the Board finds
reasons by a clear and convincing standard rather than by a mere
preponderance

of

the

evidence.

The

evidence

shows

that

the

Board denied Plaintiff a license under a preponderance of the
evidence standard so that this issue is not moot.

Thus, the

Court declines to dismiss the case for lack of jurisdiction due
to mootness.

Illinois Tool Works, Inc. v. Marshall, 601 F.2d

943, 947 (7th Cir. 1979) (administrative changes that remedy
some but not all of the plaintiff’s complaints does not moot the
case.)
B.

Count I B Notice and Opportunity to be Heard

However, Count I is subject to be dismissed as moot.

The

Court previously denied the Motion to Dismiss this Count because
the rules under which the Board operated did not give adequate
notice to an applicant when an objection to licensure was made
and did not give the applicant an opportunity to be heard in
response to the objection.
has

remedied

these

The Board, since the Court ruled,

shortcomings

opportunity to be heard.

by

providing

notice

and

an

Thus, Plaintiff=s objections have been

remedied so that this issue is moot.

Burbank v. Twomey, 520

F.2d 744.
Plaintiff

cites

two

cases

currently

pending

before

the

board on remand from the Circuit Court of Cook County due to the
- 5 -

Board having made insufficient factual findings in an attempt to
show

that

the

Board

still

operates

under

a

de

facto

unconstitutional procedure despite the de jure ones mandated by
the rules amendments.

However, this contention appears to be a

due process claim that challenges the “random and unauthorized”
actions of the Board.
the

clear

mandate

applications.

Plaintiff charges the Board with ignoring

of

Thus,

the
he

current

is

not

rules

governing

complaining

about

licensure
the

rules

themselves, but that the Board fails to follow the rules, i.e.,
acting

in

a

random

and

unauthorized

manner.

Veterans

Legal

Defense Fund v. Schwartz, 330 F.3d 937, 939-40 (7th Cir. 2003).
This

type

of

claim

can

be

satisfied

by

an

adequate

post-

deprivation remedy, such as administrative review in the state
Circuit Court.

In fact, as Plaintiff admits, in the two cases

he cites, the Circuit Court remanded the case to the Board for
it to make more adequate findings.

Thus, at least in the two

cases cited by Plaintiff, the post-deprivation remedy seems to
be adequate.
Plaintiff further cites several cases in which “voluntary
cessation” was deemed inadequate to moot a claim.
Seventh

Circuit

has

stated

that

the

However, the

“voluntary

cessation”

argument applies with considerable less force when applied to
government officials, particularly, as here, where the change
- 6 -

has been made by official rulemaking.

Federation of Advertising

v.

929-30

City

of

Chicago,

326

F.3d

924,

(7th

Cir.

2003).

Moreover, this claim is arguably not ripe because Plaintiff has
not applied for licensure under the amended rules.
in

a

similar

position

as

was

the

plaintiff

Whitburn, 975 F.2d 1329, 1333 (7th Cir. 1992).

in

Thus he is
Hinrichs

v.

In that case a

plaintiff=s claim was not considered ripe because her refusal to
participate in a state program did not allow the state officials
any flexibility in applying the program to her.

Therefore, the

court grants the Motion to Dismiss Count I.
C.

Count II - The Standard of Proof

The statute provides for the Board to recommend denial of a
license if it finds by a “preponderance of the evidence” that
the applicant is a danger or threat to himself or the public.
430 ILCS 66/20(g).

Plaintiff contends that this provision makes

the Act unconstitutional on its face.
right

to

bear

arms

is

a

He claims that since the

fundamental

constitutional

right

(District of Columbia v. Heller, 554 U.S. 570, 592 (2008)), and
therefore

a

deprivation

convincing evidence.
under

the

Mathews

of

that

right

requires

clear

and

The Defendants contend in response that
v.

Eldrige,

424

U.S.

319,

332

framework, the preponderance of evidence rule is adequate.

- 7 -

(1956)

As the Supreme Court noted in Sandosky v. Kramer, 455 U.S.
745, 756-57 (1982), the minimum requirements of procedural due
process is a matter of federal law, and the state does not have
the right to specify some lesser requirement and the degree of
proof required is left to the judiciary to resolve, using the
Mathews

v.

private

interest

deprivation

Eldrige

affected;

of

the

and

procedure;

examination

(3)

(2)

interest
the

of

three

the

factors:

risk

created

by

countervailing

of

the

an

(1)

erroneous

state’s

governmental

the

chosen

interest.

Here the private interest is the Plaintiff’s right to carry a
concealed weapon and the countervailing governmental interest is
the

protection

erroneous

of

the

deprivation

to

public.
the

Obviously,

Plaintiff

preponderance of the evidence rule.
risk

of

an

erroneous

deprivation

is

the

risk

greater

of

under

an
the

Also it is obvious that the
of

the

state’s

interest

in

protecting its citizens from injuries or death due to concealed
weapons in the hands of, say, the mentally ill, would be greater
under the “clear and convincing” standard.

It is clear that the

public interest is at least as important as Plaintiff’s interest
in being able to protect himself from criminal elements.

So the

near balancing to the risk of error seems best to be recognized
by a near balancing of the risk of error.

Remember even under

the

to

preponderance

standard,

a

tie

- 8 -

goes

the

plaintiff-

applicant, so that the risk of error still favors the Plaintiff
over

the

state.

The

preponderance

meets constitutional muster.
D.

of

the

evidence

obtained

The Court dismisses Count II.

Count III B Failure to Issue an Adequately Reasoned Decision
Plaintiff=s Complaint here is that the Board, when it denied

his application, did not detail the reasons for denial other
than

a

cursory,

standard.
held

unelaborated

recitation

of

the

statutory

He cites an Illinois Appellate Court decision that

that

while

extraordinarily

administrative

detailed,

they

findings

“must

be

need

specific

not

be

enough

to

permit an intelligent review of [the agency=s] decision.”

Lucie

B. V. Department of Human Services, 966 N.E.2d 1005, 1011 (2nd
Dist. 2012).
foreclosed

However, this claim of violation of due process is
by

the

same

“random

described earlier in this opinion.

and

unauthorized”

argument

The Illinois Administrative

Review Act provides for a post remedy procedure of a complete
appellate review on the Circuit and Appellate level with the
power to remand a case to the administrative body due to the
failure

to

satisfy

factual

findings

the

Illinois

requirement,

5

Administrative
ILCS

Procedure

100/10-50(a).

exactly what the Appellate Court did in Lucie B.

That

Act
is

It vacated the

the administrative decision of the State Department of Human
Resources and remanded the case to the Department for further
- 9 -

review, evaluation, findings, and a decision consistent with its
opinion.

This

is

what

Plaintiff

could

have

done:

sought

administrative review and a remand for more detailed findings,
which is clearly an adequate post deprivation remedy.
obviously

no

due

process

violation

based

on

There is

this

claim.

Count III is dismissed.
E.

Count IV B Redundancy and Unconstitutional Burden

Plaintiff=s argument here is that the state agency already
has the power to revoke a FOID card where an individual presents
a “clear and present danger.”
procedure

to

obtain

a

Therefore providing a separate

concealed

carry

license

is

redundant.

However, the Illinois General Assembly has determined that it is
advisable to have separate procedures, one for gun ownership in
general, and a separate procedure in order to be allowed to
carry a concealed weapon.

Moreover it was pushed into making

this determination by the Seventh Circuit Court of Appeals in
Moore v. Madigan, 702 F.3d 933 (2012), in which that court held
the then existing Illinois law forbidding Illinois citizens to
carry in public guns that are ready to use was a violation of
the Second Amendment.

However, the court said that the state

could “impose reasonable limitations consistent with the public
safety and the Second Amendment,” on the right to bear arms in
public.

That is what Illinois has sought to do in the concealed
- 10 -

carry

licensure

act.

different purposes:

Since

the

two

acts

have

completely

FOID, to regulate gun ownership in general,

and Concealed Carry, to regulate possession of guns in public,
it cannot be said that the two acts are redundant.

The Motion

to Dismiss Count IV is granted.
Count V B Board Bias

F.
Plaintiff

alleges

substantially

biased

that

in

by

favor

design
of

the

upholding

Board
law

is

“very

enforcement

objections” through the statutory criteria for board membership.
430 ILCS 66/20(a).

The basis of this charge is that the statute

mandates that two of the Board members must have at least 5
years’ experience with the United States Department of Justice,
and that three of the Board members must have at least 5 years’
federal

employment

or

investigative

States law enforcement agencies.
decisionmaker
probability

is

of

bias

is

with

United

However, bias on the part of a

constitutionally

actual

experience

very

infirm
high.

only

when

Caperton

Massey Coal Co., Inc., 556 U.S. 868, 872 (2009).

v.

the
A.T.

This requires

a determination depending on the specific facts as it relates to
an

individual

adjudicator
proceeding.

has

adjudicator’s
a

personal

bias,
stake

such
in

the

as

whether

outcome

of

the
the

Plaintiff has cited no cases and the Court has

found none in which an adjudicator is disqualified solely based

- 11 -

on

his

professional

experience.

Accordingly,

the

Motion

to

Dismiss Count V is granted.
III.

CONCLUSION

For the reasons stated herein, the Defendants’ Motion to
Dismiss is granted.

Counts I, II, III, IV, and V are dismissed.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: June 19, 2015

- 12 -