12 replies to this topic

[skinnyb82]

Filed in the Northern District back on April 28th, seeking relief pursuant to 28 U.S.C. §§ 2201 and 2202 and 42 U.S.C. §§ 1983 and 1988. It's (more or less) a carbon copy of the suit filed against the ISP and CCLRB in state court.  The State has not filed an answer to the complaint due to the the State assigning attorneys who are either not available or have a full caseload.  The State filed an unopposed motion for extension of time to file an answer, they have until 6/25.  Complaint is attached below along with the unopposed motion (which was granted).

 

"Mr. Roland is currently on vacation and will not be back in the office until May 27, 2014."  (Assigned the case WHILE on vacation)

"The undersigned was recently assigned to the present case, and has not yet had a chance to confer with his clients to discuss the merits and defenses. Nor has the undersigned had an opportunity to review any relevant documents necessary to adequately respond to the Complaint." (Because the AAG Bhave's caseload is full, same attorney representing the two ISP agents and Lieutenant in the individual capacity 1983 action in Rhein v. Pryor)

 

I love this, mostly because it's total BS.

 

"This motion is not brought for dilatory purposes, but rather is made so that counsel for Defendants can adequately represent Defendants in accordance with their professional obligations. Nor will allowing Defendants an extension unduly delay the resolution of the issues or prejudice Plaintiffs."

 

 Defendants.Unopposed.Motion.for.Extension.to.File.Answer.DE16.0.pdf   146.68KB   261 downloads

 

This involves a denial as well.  Buffalo Grove resident.  Whether Cooper or Howard drafted the complaint, it makes no difference, I would LOVE to see the State's answer to the complaint because the Plaintiffs' have the ISP/CCLRB dead to rights.  The FCCA (the "Act") creates a liberty interest, therefore subject to heightened scrutiny, arguably strict.  Also, well,

 

"In deciding what procedures the United States Constitution requires before the
State may deprive someone of a liberty interest, a court must weigh three factors: 'First, the
private interest that will be affected by the official action; second, the risk of an erroneous
deprivation of such interest through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and finally, the Government's interest, including
the function involved and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.' Mathews v. Eldridge, 424 U.S. 319, 335 (1976)."

 

 Complaint.DE1.0.pdf   59.16KB   247 downloads

 

 

Docket (RECAP...I will update as soon as the ISP files its answer/pleading):

 

Illinois State Rifle Association et al v. Grau et al

Edited by skinnyb82, 02 June 2014 - 11:15 AM.

[skinnyb82]

This is just downright entertaining.  The State is basically saying "Well, you can either appeal the denial itself or you can file your piddly little federal suit for denial of procedural due process, a 1983 claim, but NOT both.  It will confuse everyone.  Also, ISRA doesn't have standing because, allegedly, not all members are FOID card holders and thus eligible for an FCCL.  This is the fun part....

 

"The claim brought by both Thomas and the Rifle Association also should be dismissed on the ground of abstention. In Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817-19 (1976), the Supreme Court held that, where concurrent state and federal actions are 'parallel,' exceptional circumstances may warrant abstention from deciding the federal action. Here, a concurrent, on-going state court action challenging the Board’s procedures in denying Thomas a concealed carry license are parallel to the due process claim at issue in this case. (Ex. A). Exceptional circumstances warrant abstention."

 

How can it be parallel when the state court has NO jurisdiction over a procedural due process pleading?  The state court is NOT the proper venue for filing a 1983 claim, which is the procedural due process claim.  What does AAG Bhave suggest?

 

"Thomas filed a state court action nearly two weeks prior to filing this parallel federal action. In it, he complains that the Board’s process—which allegedly denied him notice of the law enforcement agency’s objection to his application and an opportunity to be heard—violates due process under the Illinois and federal constitutions. The same claim is at issue here. Moreover, the due process claims in both cases arises out of the same facts—that is, Thomas’s application, the law enforcement agency’s objection, the Board’s process, and the ultimate denial of his application. . . .  "
 

"Finally, the factual and legal issues between the state and federal actions are the same."

 

Allegedly?  Ok...heh.  Again, AAG Bhave, the...federal...district...court...has...original...jurisidiction...over...1983...claims.  Grasp at straws much?  Facts and legal issues are the same?  Facts, yeah.  Legal issues, yeah.  Remedy?  Not even CLOSE to identical.  Here is Bhave spoon feeding Judge Lefkow...

 

"While Thomas claims that his state court action is limited to administrative review of the Board’s decision under the Illinois Administrative Review Law, Illinois law also gives him the
right to challenge the Board’s decision on constitutional grounds, such as alleged lack of procedural due process. See Am. Nat’l Bank & Trust Co. v. City of Chicago, 636 F. Supp. 374, 379 (N.D. Ill. 1986) (“Illinois law unquestionably gives parties the right to attack the constitutionality of administrative action and of ordinances in the judicial administrative-review process.”). Thomas is raising the same factual and legal issues in the state court action. The two actions therefore are parallel for purposes of Colorado River abstention.").

 

So, the State remedy for a massive deprivation of civil liberties under the color of law is the same as under Section 1983?  I doubt it...especially since no such remedy exists in state court.

 

State's MTD under Rule 12((1) (lack of subject-matter jurisidiction):

 

 Defendants.MTD.Rule.12b1.DE27.0.pdf   245.56KB   271 downloads

 

[bmyers]

So for us dumb people what does this mean? In three-five years the poor guy will get to find out why he was denied? 

[skinnyb82]

They're trying to get the federal 1983 procedural due process claim chucked, the entire suit basically arguing that the state procedural due process claim preempts (in a way) the federal due process claim (even if it's a 1983 claim) even though the federal district court has original and exclusive jurisdiction over 1983 claims.  More or less arguing that state circuit court is the adequate venue for a due process claim.  How can you plead a procedural due process claim in an administrative proceeding?  One cannot present ANYTHING, no evidence, no testimony, nothing at all, how does the judge hear the case de novo?  It's impossible.

[bmyers]

Since it is 1983 case will it get fast tracked or will it be a long wait?

[Tango7]

Theoretically until the case is decided and the license is either approved or denied they can claim that there's no actual damage can't they.

More proof that brains and honesty often are disqualifiers for an attorney's job with the government.

[Gamma]

Theoretically until the case is decided and the license is either approved or denied they can claim that there's no actual damage can't they.

Since it's a fundamental civil right, an unreasonable delay is an infringement.

[C0untZer0]

The Rooker-Feldman or Colorado River abstention actually seems like a strong argument to me

[cnwfan3]

I just wanted to let everyone know that the NRA has decided to drop the case (at least for now).  I didn't want to say anything while the case was going on because I was the named plaintiff.   Since I won my appeal, I'm guessing that is why they decided to drop it (or maybe it's a strategy move, I'm not sure).

[Hipshot Percussion]

I'm just curious... Is it possible you received your license with the thought that granting you your rights would negate the effect of the lawsuit?  No idea, just asking.

 

Stay Safe and Carry Responsibly

[skinnyb82]

If I had to guess, it was strategic. You're a named plaintiff in the state action as well and the count is right, doctrine of abstention and Rooker-Feldman force the action to be litigated in state court. The due process pleading should stand no matter what. Sent from my SCH-I545 using Tapatalk 2

[cnwfan3]

I'm just curious... Is it possible you received your license with the thought that granting you your rights would negate the effect of the lawsuit?  No idea, just asking.

 

Stay Safe and Carry Responsibly

 

Who knows, anything is possible.  But I still don't have it yet.  I just won my appeal and the court is supposed to send a court order to grant it to me.  But as of right now, nothing yet.

[skinnyb82]

I'm glad to see you won your appeal. It's downright outrageous what Dart did to you and all the crap that the State has put you through, the money, court dates, lawyer, just to un-do the Dart (arguably deliberate) "lawn darting."

Sent from my SCH-I545 using Tapatalk 2