We filed a lawsuit today in federal court in three counts, due process violation, prior restraint violation, and administrative review (a claim actually under state law, filed here under supplemental jurisdiction of the federal court).
In sum, Plaintiff is a law-abiding citizen possessing a FOID card.
He applied for concealed carry on the first day that it was possible to do so, January 5, 2014. As part of the process, he uploaded his FOID Card, fingerprints, a training certificate, and granted a waiver for examination to any and all medical records and a world of other personal things. (And a $150 nonrefundable application fee, portions of which are specifically earmarked for purposes outside the application process.)
He received a terse letter on March 19 by which the State Police advise that an unspecified law enforcement objection was filed, that the Board determined by preponderance of the evidence that he was dangerous to himself or others or presented a danger to the public safety in a hearing, and that he was denied a permit.
To this day he does not know who objected or what they said. He had no prior knowledge of the secret proceeding and certainly no chance to present evidence or argue to the contrary. The concealed carry law exempts this Board from FOIA and the Open Meetings Act.
Though he letter did not say so, his only right to challenge this is through the Illinois Administrative Review Law, but it turns out that is a sham. In a FOID card denial, there would be a right to a full hearing in front of a judge as to all of the issues. In any normal administrative review, as for example a zoning case, the "record" below would be filed in court as the answer. However, under the Concealed Carry law, the record below is a secret that can't be disclosed except by a specific judicial order, and there is no right to a hearing de novo. In other words, the judge's decision would be limited to reviewing the facts in evidence before the secret tribunal - and then only if he ordered the Board to give it up. The review would be for abuse of discretion in the decision, and at no point would he have the right to actually speak or otherwise introduce evidence on his own behalf. Though the letter of denial didn't state it, even the right to a sham imitation of judicial review is lost without the filing of a lawsuit within 35 day. The time limit causes people to focus on that deadline - rather than the fact that the law denies them any honest or effective way of challenging the tilted bias and secret evidence of this hidden tribunal.
The Board itself, by the Concealed Carry Act, must include at least three individuals with at least five years experience as federal investigators and two who have at least five years experience as US Attorneys. It requires, in describing the composition of the Board,
(2) 2 commissioners with at least 5 years of experience serving as an attorney with the United States Department of Justice;
(3) 3 commissioners with at least 5 years of experience as a federal agent or employee with investigative experience or duties related to criminal justice under the United States Department of Justice, Drug Enforcement Administration, Department of Homeland Security, or Federal Bureau of Investigation;
Section 20 (a), Public Act 098-0063
That's a majority of the seven commissioners provided for. There is no provision for persons with experience in advocating for or counseling the victims of gun assault or criminal defense attorneys, persons who might know the consequences of inability to defend a predatory criminal assault with lethal defensive weapons.
We filed today because all of this grossly violates the constitutional guarantee that liberty cannot be deprived without due process of law - fundamentally fair procedures in light of the right at issue - and because the exercise of fundamental rights, such as the freedom of speech, the right to marry, the right to vote, cannot be conditioned on asking governmental guardians for permission.
The FOID Card procedure already in place goes as far - and perhaps further - than the constitution permits for the protection of the public. The main significant difference between it and the Concealed Carry Act is the creation of this secret tribunal to determine the objection of law enforcement to an individual's right to carry a defensive weapon outside the home. The vague standard contained in the law - and the secrecy of the proceedings and the lack of notice or right to defend to affected individuals - and the immunity of those who object and those who decide - and the lack of any serious judicial oversight to the proceedings - tends to assure that the screening process for the applicants, all of them FOID Card holders or applicants, amounts to little or nothing more than a visceral, gut-feeling test for the exercise of a fundamental right by a law-abiding citizen. We think that, in a country that stamps the word, "Liberty", on each and every coin, the secret and functionally unchallengeable proceedings of this procedure, simply cannot stand constitutional scrutiny, and will fall.
J. D. Obenberger, Attorney at Law
115 South LaSalle Street, Suite 2600
Chicago, IL 60603