Chicago Daily Law Bulletin 9/2/2020 ...
An Illinois law barring high-risk people from obtaining licenses to carry concealed firearms complies with the Second Amendment, a federal judge held.
In a written opinion last week, U.S. District Judge Joan H. Lefkow dismissed with prejudice a lawsuit challenging the constitutionality of Illinois’ Concealed Carry Act. The suit was filed by the Illinois State Rifle Association and Michael White, a man twice denied a concealed-carry license.
The suit contends a provision of the act that prohibits the Illinois Concealed Carry Licensing Review Board from granting a license until it determines the applicant “does not pose a danger to himself, herself or others, or a threat to public safety” violates the right to bear arms and the right to due process.
In a filing in the case, White and the rifle association maintained the provision’s dangerousness standard is unconstitutionally vague and gives the licensing board “unbridled discretion” in making its decisions.
White and the association also contended the board’s standard of proof of preponderance of the evidence is too low and the board’s superficial written decisions denies applicants a “meaningful right to review” of those decisions.
But Lefkow held the concealed-carry law meets the two-part test set out by the 7th U.S. Circuit Court of Appeals. The test starts with “the threshold question of whether the restricted activity is protected by the Second Amendment,” Lefkow wrote, quoting Horsley v. Trame, 808 F.3d 1126 (7th Cir. 2015).
It is clear, she wrote, that White and the rifle association’s claim “satisfies the first step: the Seventh Circuit has held that the Second Amendment protects a right to carry firearms in public for self-defense.” The next step is examining “the regulatory means the government has chosen and the public-benefits end it seeks to achieve,” Lefkow wrote, quoting Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019).
She noted the parties disagree on the standard that should be applied when determining if an applicant is dangerous. But the 7th Circuit resolved that question in Berron v. Illinois Concealed Carry Licensing Review Board, 825 F.3d 843 (7th Cir. 2016), Lefkow wrote, by upholding the dangerousness provision.
With that ruling, she wrote, the appeals court “impliedly decided” that the standard of proof in the provision — preponderance of the evidence — “was appropriate under the Second Amendment.” She would apply that standard even in the absence of Berron, Lefkow wrote. “There can be no question that prohibiting truly dangerous people from carrying firearms in public is proper under the Second Amendment,” she wrote, citing cases that included Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012).
“Plaintiffs propose no narrower language than the [concealed carry act’s] dangerousness standard that would enable Illinois to effectuate that goal.”
White applied for a concealed carry license in May 2014, but the Chicago Police Department and Cook County Sheriff’s Office opposed the application.
They based their objection on White’s three arrests from April 1995 to January 2012 and his inclusion on the police department’s controversial gang database as a purported member of the Latin Souls street gang. White denied he had ever belonged to a gang and noted that his only conviction was on a misdemeanor count of unlawful possession of a firearm.
The Illinois State Police denied White’s application in October 2014 based on the licensing board’s determination that he posed a danger.
White unsuccessfully challenged the decision in the Illinois courts. He again applied for a concealed carry license in August 2017 and the state police denied the application two months later. White and the rifle association filed their suit in April 2019.
In her opinion Friday, Lefkow dismissed the state police and the licensing board as defendants. She also threw out some claims against members of those bodies who had been sued in their official capacities. The claims that remained were White’s as-applied claims related to his second application and the rifle association’s facial challenges to the concealed carry statute. Lefkow rejected the argument that the statute violates the due process clause.
Citing Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461 (7th Cir. 1988), she acknowledged the licensing board “is prohibited from making decisions that are ‘arbitrary’ or ‘irrational.’” But judges “regularly consider arrests of all kinds — including old arrests and arrests for non-violent conduct — in assessing future dangerousness in criminal sentencing and related contexts” without violating due process, Lefkow wrote.
And she wrote legitimate concerns about the gang database were not enough for her to rule differently. “With respect to the Chicago Police Department’s gang database, White presents compelling arguments that it is a deeply flawed tool, supported by a critical report from Chicago’s Inspector General, but stops short of arguing that it would be irrational for the [b]oard to consider it,” Lefkow wrote.
The case is Michael White, et al. v. Illinois State Police, et al., No. 19 C 2797. White is represented by Gregory A. Bedell of Knabe & Bedell and David G. Sigale of the Law Office of David G. Sigale P.C. in Wheaton. In a statement, Sigale said White’s attorneys are weighing their next move “as to this injustice.”
“We strongly disagree with the ruling, and with the notion that long-ago occurrences, and innuendos in a faulty, discredited gang database, can permanently prohibit one from fully exercising the constitutional right to self-defense, especially in these times,” he said in a statement. “That Mr. White has never had the opportunity to look the decision-makers in the eye, and show he is not the person the State presumes him to be, is appalling and flies in the face of what the system should be about.” Illinois Assistant Attorney General Michael T. Dierkes represents the defendants in the suit. A spokesperson for the Illinois Attorney General’s Office could not be reached for comment.