Miller vs Walker - IllinoisCarry Joins Challenge of Day Care Licensee Handgun Ban

[Molly B.]

IllinoisCarry is excited and proud to join the Second Amendment Foundation lawsuit challenging the state's ban prohibiting in home day care licensees from having handguns in the home - even under lock and key. The IL Dept. of Children and Family Services maintains this same ban for IL concealed carry licensees, even the Firearm Concealed Carry Act does not prohibit.

 

(430 ILCS 66/65)
Sec. 65. Prohibited areas.

Nothing in this paragraph shall prevent the operator of a child care facility in a family home from owning or possessing a firearm in the home or license under this Act, if no child under child care at the home is present in the home or the firearm in the home is stored in a locked container when a child under child care at the home is present in the home.

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3497&ChapterID=39

 

Miller vs Walker complaint.pdf

 

Our thanks to the Second Amendment Foundation for taking up this challenge. Please support the SAF in their endeavors to reclaim our rights here in IL!

[cybermgk]

Kudos and needless to say, best of luck.

[wtr100]

give 'em hellp Edited April 17, 2018 at 04:39 PM by wtr100

[THE KING]

Any word on this case as of yet.

[Molly B.]

Depositions began this week in this case.

[JTHunter]

Thanks for keeping us informed on this Molly.

[Billard]

Does anybody have any updates on this case?

[gunuser17]

Order from June, 2020 - case appears to be in the middle of expert discovery right now:

 

06/03/2020 TEXT ORDER by U.S. Magistrate Tom Schanzle-Haskins: Plaintiffs' Motion for Extension of Time for Discovery Production 39 and Defendants' Response to Plaintiffs' Motion for Extension of Time and Cross-Motion for Stay, or in the Alternative for Extension of Case Deadlines 40 are ALLOWED in part. Plaintiffs are given an extension of time to 6/15/2020 to comply fully with this Court's Text Order entered 4/22/2020. The Court extends and revises the schedule in this case as follows: Fact Discovery due by 11/1/2020; Plaintiff's Expert Disclosure due by 11/30/2020; Defendant's Expert Disclosure due by 2/1/2021; Expert Discovery due by 4/15/2021; Dispositive Motions due by 6/01/2021; pretrial conference set for 6/01/2021 is CANCELED and reset 9/7/2021 at 2:00 PM in Courtroom 1 in Springfield before U.S. District Judge Sue E. Myerscough. Bench Trial set for 6/15/2021 is CANCELED and reset 9/21/2021 at 9:00 AM before Judge Myerscough; and Telephonic Status Conference set 1/20/2021 is CANCELLED and reset Thursday, 4/15/2021, at 10:00 AM (court will place call) before Magistrate Judge Schanzle-Haskins. (LB, ilcd) (Entered: 06/03/2020)

[Molly B.]

Coming up on three years since this case was filed.

[Molly B.]

Was scheduled for Sept. 21st, moved to March, 2022.

[Euler]

The case is now known as Miller v Smith.

 

The opinion was issued March 14. The Millers lost. The opinion is 46 pages. A summary is below.

 

Opinion (pdf)

Opinion said:

This cause is before the Court on the Motion for Summary Judgment ... filed by Defendants Marc D. Smith and Kwame Raoul. For the reasons stated below, Defendants' Motion for Summary Judgment is GRANTED.

...

A. The Illinois Attorney General Is Not Entitled to Eleventh Amendment Immunity from Plaintiffs' Claims.

 

Defendants argue that Defendant Raoul is not a proper defendant because the Eleventh Amendment to the U.S. Constitution immunizes him against Plaintiffs' claims. The Court disagrees.

...

B. Defendants Have Not Shown that the Millers Knowingly Waived Their Second Amendment Rights.

...

Constitutional rights, including the Second Amendment right to keep and bear arms, may be contractually waived.

...

Because Defendants have not carried their burden of overcoming every reasonable presumption against waiver, the Court finds that the Millers have not waived their Second Amendment challenge to the Day Care Home Rule and that a genuine factual dispute exists as to whether the Millers waived their challenge to the Foster Home Rule.

...

C. The Court Will Analyze Plaintiffs' As-Applied Challenges to the DCFS Rules Before Considering Whether to Address Plaintiffs' Facial Challenges.

...

Because the DCFS Rules, as applied to the Millers, do not violate the Second Amendment, the Court rejects the Millers' as-applied challenge. As Plaintiffs have not offered any reason why the DCFS Rules are unconstitutional as applied to any broad swath of affected persons other than the Millers, the Court also rejects Plaintiffs' facial challenge.

...

D. The Day Care Home Rule Survives Constitutional Scrutiny.

...

The fact that day cares are designated spaces for the care of young children is a powerful indicator that they may be "sensitive places." Moreover, a ban on firearms in day cares is closely analogous to a ban on firearms in schools, which is one of the core "presumptively lawful" measures referenced in Heller. For these reasons, the Court finds that licensed day cares are "sensitive places" in which unusually restrictive firearms prohibitions may be permissible.

...

An absolute prohibition on keeping handguns in the home during day care hours is a relatively severe burden on the core Second Amendment right. However, relatively few people are affected by the Day Care Home Rule. In fact, the institutional Plaintiffs have not been able to name any members other than the Millers who would be affected. ... Moreover, the only households affected are those that have chosen to apply for a Day Care Home License and accept the various burdens and requirements associated with licensure.

...

The Rule places no restrictions on the Millers' Second Amendment rights at night, when the need to defend the home may be greatest. Having considered the evidence presented, the Court concludes that Illinois has carried its burden of demonstrating that the Day Care Home Rule is substantially related to an important governmental interest.

...

E. The Foster Home Rule Survives Constitutional Scrutiny.

...

The Foster Home Rule provides in relevant part that "[a]ny and all firearms and ammunition shall be stored and locked up separately at all times and kept in places inaccessible to children" and that "[l]oaded guns shall not be kept in a foster home," subject to certain exceptions not at issue in this case.

...

Like the Day Care Home Rule, the Foster Home Rule burdens the core Second Amendment right, the right to use a handgun in self-defense in the home. Additionally, the Foster Home Rule is significantly broader in its application than the Day Care Home Rule. Where the Day Care Home Rule applies only to day care businesses that operate out of homes and applies only during day care hours, the Foster Home Rule applies twenty-four hours a day, seven days a week, to every foster caregiver who is not a law enforcement officer.

...

However, the Foster Home Rule imposes a much less substantial burden on the Second Amendment rights of affected individuals than the Day Care Home Rule. While the Day Care Home Rule prohibits handguns entirely and requires that all firearms besides handguns be stored disassembled and in a locked storage facility separate from the locked storage facility in which ammunition is kept, the Foster Home Rule, as applied to the Millers, requires only that firearms and ammunition be "stored and locked up separately at all times and kept in places inaccessible to children."

...

Based on its consideration of analogous First Amendment precedents, as well as the evidence presented by Defendants, the Court concludes that the safe storage requirements imposed by the Foster Home Rule survive intermediate scrutiny.

...

For the reasons stated above, Defendants' Motion for Summary Judgment ... is GRANTED. The Clerk is DIRECTED to enter final judgment in favor of Defendants Marc D. Smith and Kwame Raoul and against the Plaintiffs. Any pending motions are DENIED as MOOT, any pending deadlines are TERMINATED, and any scheduled settings are VACATED. This case is CLOSED.

[Molly B.]

Disappointing but no surprise, Judge Myerscough has never ruled in our favor.  The case will be appealed to the U.S. 7th Circuit Court of Appeals.

[Molly B.]

Judge says it's okay for the state to infringe on a constitutional right during the day cause you can still exercise that right at night. Where's that laughing emoji?

[John Q Public]

I think it rates another emoji... ya know, the steaming pile variety.

[Molly B.]

State files third motion to extend deadline in appellate court -

22 motion for extension.pdf

[CaptCraig]

On 7/28/2022 at 2:46 PM, Molly B. said:

State files third motion to extend deadline in appellate court -

22 motion for extension.pdf 101.88 kB · 2 downloads

 

Stall tactic?

[Molly B.]

Could be. 

[Euler]

Appellees' brief due on or before 09/06/2022 for Kwame Raoul and Marc D. Smith.

 

Appellants' reply brief, if any, is due on or before 09/27/2022 for Appellants Illinois Carry, Illinois State Rifle Association, Darin E. Miller, Jennifer J. Miller and Second Amendment Foundation, Incorporated.

 

CA7 Docket

Docket extract from PACER:

General Docket Seventh Circuit Court of Appeals

Court of Appeals Docket #: 22-1482 Docketed: 03/25/2022 Nature of Suit: 3440 Other Civil Rights Jennifer Miller, et al v. Marc Smith, et al Appeal From: Central District of Illinois Fee Status: Paid

Case Type Information: 1) civil 2) private 3) -

Originating Court Information: District: 0753-3 : 3:18-cv-03085-SEM-TSH Trial Judge: Sue E. Myerscough, District Court Judge Date Filed: 04/16/2018 Date Order/Judgment: Date NOA Filed: 03/15/2022 03/24/2022

05/20/2022 14 ORDER re: Motion for leave to file brief of amici curiae Firearms Policy Coalition and FPC Action Foundation in support of appellants and reversal. The motion is GRANTED. The clerk of this court shall file the tendered amicus curiae brief INSTANTER. [13] NER [14] [7237548] [22-1482] (HTP) [Entered: 05/20/2022 09:33 AM] 05/20/2022 15 Amicus brief filed by Amici Curiae FPC Action Foundation and Firearms Policy Coalition, per order. Paper copies due on 05/27/2022 Electronically Transmitted. [15] [7237575] [22-1482] (SK) [Entered: 05/20/2022 10:22 AM] 05/23/2022 16 NOTICE: Attorney Mr. Peter A. Patterson for Appellants Illinois Carry, Illinois State Rifle Association, Darin E. Miller, Jennifer J. Miller and Second Amendment Foundation, Incorporated will not be available for oral argument July 6-7 and August 2-3. [16] [7238024] [22-1482] (Patterson, Peter) [Entered: 05/23/2022 04:25 PM] 05/24/2022 17 Paper copies of amicus brief filed by Amici Curiae FPC Action Foundation and Firearms Policy Coalition. [17] [7238085] [22-1482] (SK) [Entered: 05/24/2022 09:25 AM] 05/26/2022 18 Motion filed by Appellees Kwame Raoul and Marc D. Smith to extend time to file appellee brief. [18] [7238904] [22-1482] (Hunger, Sarah) [Entered: 05/26/2022 07:28 PM] 05/27/2022 19 ORDER issued GRANTING motion to extend time to file a brief. [18] Appellees' brief due on or before 07/05/2022 for Kwame Raoul and Marc D. Smith. Appellants' reply brief, if any, is due on or before 07/26/2022 for Appellants Illinois Carry, Illinois State Rifle Association, Darin E. Miller, Jennifer J. Miller and Second Amendment Foundation, Incorporated. SCR [19] [7239110] [22-1482] (AD) [Entered: 05/27/2022 02:25 PM] 06/28/2022 20 Motion filed by Appellees Kwame Raoul and Marc D. Smith to extend time to file appellee brief. [20] [7245025] [22-1482] (Hunger, Sarah) [Entered: 06/28/2022 02:24 PM] 06/28/2022 21 Order issued GRANTING motion to extend time to file appellees' brief. [20] Appellees' brief due on or before 08/04/2022 for Kwame Raoul and Marc D. Smith. Appellants' reply brief, if any, is due on or before 08/25/2022 for Appellants Illinois Carry, Illinois State Rifle Association, Darin E. Miller, Jennifer J. Miller and Second Amendment Foundation, Incorporated. CMD [21] [7245058] [22-1482] (ER) [Entered: 06/28/2022 03:37 PM] 07/28/2022 22 Motion filed by Appellees Kwame Raoul and Marc D. Smith to extend time to file appellee brief. [22] [7251102] [22-1482] (Hunger, Sarah) [Entered: 07/28/2022 11:02 AM] 07/29/2022 23 Order issued GRANTING motion to extend time to file appellees' brief. [22] Appellees' brief due on or before 09/06/2022 for Kwame Raoul and Marc D. Smith. Appellants' reply brief, if any, is due on or before 09/27/2022 for Appellants Illinois Carry, Illinois State Rifle Association, Darin E. Miller, Jennifer J. Miller and Second Amendment Foundation, Incorporated. Counsel for appellees is expected to meet this deadline. JPK [23] [7251446] [22-1482] (FP) [Entered: 07/29/2022 02:49 PM]

Edited August 4, 2022 at 02:22 AM by Euler

[Euler]

On August 30, the deadlines to submit supplemental briefs have been extended by one month (again).

 

Appellees' brief due on or before 10/06/2022 for Kwame Raoul and Marc D. Smith.

 

Appellants' reply brief, if any, is due on or before 10/27/2022 for Appellants Illinois Carry, Illinois State Rifle Association, Darin E. Miller, Jennifer J. Miller and Second Amendment Foundation, Incorporated.

 

07/29/2022 23 Order issued GRANTING motion to extend time to file appellees' brief. [22] Appellees' brief due on or before 09/06/2022 for Kwame Raoul and Marc D. Smith. Appellants' reply brief, if any, is due on or before 09/27/2022 for Appellants Illinois Carry, Illinois State Rifle Association, Darin E. Miller, Jennifer J. Miller and Second Amendment Foundation, Incorporated. Counsel for appellees is expected to meet this deadline. JPK [23] [7251446] [22-1482] (FP) [Entered: 07/29/2022 02:49 PM] 08/29/2022 24 Motion filed by Appellees Kwame Raoul and Marc D. Smith to extend time to file appellee brief. [24] [7257232] [22-1482] (Hunger, Sarah) [Entered: 08/29/2022 12:43 PM] 08/30/2022 25 ORDER issued GRANTING motion to extend time to file appellees' brief. [24] Appellees' brief due on or before 10/06/2022 for Kwame Raoul and Marc D. Smith. Appellants' reply brief, if any, is due on or before 10/27/2022 for Appellants Illinois Carry, Illinois State Rifle Association, Darin E. Miller, Jennifer J. Miller and Second Amendment Foundation, Incorporated. Further extensions will be granted only in extraordinary circumstances. CDH [25] [7257513] [22-1482] (CG) [Entered: 08/30/2022 11:09 AM]

Edited September 19, 2022 at 12:49 AM by Euler

[Molly B.]

State's brief has been filed.  See attachment.

28 - Appellees' Brief.pdf

[John Q Public]

What are your thoughts on this one Val?

[Molly B.]

On 10/9/2022 at 1:24 PM, John Q Public said:

What are your thoughts on this one Val?

 

 

I believe the total ban on handguns in the home is too broad and unconstitutional and will be ruled as such in the end.

[John Q Public]

I tend to agree. I wonder how long it will take to get there? They seem to delay and play musical courts and the never get where they need to go. Same with much of the law here in Illinois. Public transport is a big one in my book because it reflects directly on those with less money, but so does the cost to get an Il permit. It's so exasperating!

[Molly B.]

It's not unusual for these cases to take 5 or 6 years. Frustrating, yes. 

[John Q Public]

~Sigh~

[Molly B.]

This case was filed in April 2018 so we're about 2/3 of the way there?  Maybe?  Wonder if the New York ruling will help wrap it up?

[John Q Public]

As expected...

 

https://www.foxnews.com/us/new-yorks-gun-law-gets-reprieve-federal-appeals-court

[Euler]

On 10/10/2022 at 4:22 PM, Molly B. said:

This case was filed in April 2018 so we're about 2/3 of the way there?  Maybe?  Wonder if the New York ruling will help wrap it up?

 

On 10/13/2022 at 5:08 PM, John Q Public said:

As expected...

 

https://www.foxnews.com/us/new-yorks-gun-law-gets-reprieve-federal-appeals-court

 

I think Molly meant the Bruen decision.

[Euler]

On October 6, as noted above, Raoul and Smith filed their brief.

 

10/07/2022 29 NOTICE: Attorney Mr. Peter A. Patterson for Appellants Illinois Carry, Illinois State Rifle Association, Darin E. Miller, Jennifer J. Miller and Second Amendment Foundation, Incorporated will not be available for oral argument December 5-9 and 13-14. [29] [7265404] [22-1482] (Patterson, Peter) [Entered: 10/07/2022 01:34 PM] 10/11/2022 30 Paper copies of appellee brief filed by Appellees Kwame Raoul and Marc D. Smith. [30] [7265665] [22-1482] (SK) [Entered: 10/11/2022 12:03 PM] 10/12/2022 31 Circuit Rule 26.1 Disclosure Statement and Appearance filed by Attorney Michael J. Dell for Proposed Amici Curiae American Medical Association, Illinois State Medical Society, American Academy of Pediatrics and Illinois Chapter, American Academy of Pediatrics. [31] [7266070] (L-Yes; E-Yes; R-No) [22-1482] (Dell, Michael) [Entered: 10/12/2022 04:18 PM] 10/12/2022 32 Filed Non-Party Motion for Leave to File Brief of Amici Curiae in Support of Defendants-Appellees and Affirmance by American Medical Association, Illinois State Medical Society, American Academy of Pediatrics, and Illinois Chapter, American Academy of Pediatrics. [7266078] [22-1482] (Dell, Michael) [Entered: 10/12/2022 04:27 PM] 10/12/2022 33 Submitted brief by Michael J. Dell for amicus American Medical Association, Illinois State Medical Society, American Academy of Pediatrics. and Illinois Chapter, American Academy of Pediatrics. Consent from all parties contained within brief. [33] NOTE: Access to this entry is limited to counsel of record. Once the document is approved by the court, it will be filed onto the court's docket as a separate entry which will be open to the public. [7266079] [22-1482] (Dell, Michael) [Entered: 10/12/2022 04:30 PM] 10/13/2022 34 Circuit Rule 26.1 Disclosure Statement and Appearance filed by Attorney Janet Carter for Non-Party Everytown for Gun Safety. [34] [7266280] (L-Yes; E-Yes; R-No) [22-1482]--[Edited 10/13/2022 by ER - to reflect non-party] (Carter, Janet) [Entered: 10/13/2022 01:07 PM] 10/13/2022 35 ORDER re: Motion for Leave to File Brief of Amici Curiae American Medical Association, Illinois State Medical Society, American Academy of Pediatrics and Illinois Chapter, American Academy of Pediatrics. [32] The motion to file an amici curiae brief by consent is GRANTED only to the extent that movants may file, on or before 10/20/2022, an amici curiae brief that complies with this court's rules. Specifically, the brief must contain disclosure statements for each attorney listed on the cover of the brief. See Fed. R. App. P. 26.1, 29(a)(4)(A); Cir. R. 26.1. No changes to the substance of the brief will be permitted. JPK [35] [7266290] [22-1482] (MM) [Entered: 10/13/2022 01:38 PM] 10/13/2022 36 Circuit Rule 26.1 Disclosure Statement and Appearance filed by Attorney Jonathan K. Baum for Timothy J. Carey, Joshua M. Horwitz, Alexander D. McCourt, Kelly E. W. Roskam, Jon S. Vernick, Daniel W. Webster. [36] [7266417] (L-Yes; E-Yes; R-No) [22-1482] (Baum, Jonathan) [Entered: 10/13/2022 03:34 PM] 10/13/2022 37 Circuit Rule 26.1 Disclosure Statement and Appearance filed by Attorney Debra K. Lefler for Timothy J. Carey, Joshua M. Horwitz, Alexander D. McCourt, Kelly E. W. Roskam, Jon S. Vernick, Daniel W. Webster. [37] [7266444] (L-Yes; E-Yes; R-No) [22-1482] (Lefler, Debra) [Entered: 10/13/2022 03:54 PM] 10/13/2022 38 Submitted brief by Janet Carter for amicus Everytown for Gun Safety. Consent from all parties contained within brief. [38] NOTE: Access to this entry is limited to counsel of record. Once the document is approved by the court, it will be filed onto the court's docket as a separate entry which will be open to the public. [7266467] [22-1482] (Carter, Janet) [Entered: 10/13/2022 04:59 PM]

[Molly B.]

Reply Brief has been filed:

 

49 reply brief.pdf