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ISRA vs ISP FOID delays - Bradley vs Kelly


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Full article at link...

 

https://www.thecentersquare.com/illinois/isra-seeks-injunction-against-illinois-state-police-over-foid-delays/article_5173f6fa-416b-11eb-b392-bf5fe9a2bee7.html

 

...(The Center Square) Illinoisans whove been waiting months to get their Firearm Owner Identification Cards could find some relief if a federal judge grants an injunction against the Illinois State Police on Tuesday.

 

One of the many cases filed in state and federal courts over the states gun laws deals with the delay in FOID card applications being processed.

 

The complaint was filed this summer in federal court by residents of the state alongside a couple of gun-rights groups and requests the court declare the delays violated the Second Amendment. It also asks the court to recognize its a violation of the defendant's Fourteenth Amendment due process rights.

 

 

ISP has said theyre working through the backlog, but theres been an explosion of applications during the pandemic, but the delays and backlogs were around before the pandemic. The agency recently reported an average wait of 121 days and a backlog of 145,000 FOID cards.

 

Illinois State Rifle Association Executive Director Richard Pearson said the latest filing in the case initiated this summer will be heard Tuesday requesting a judge order the state police to issue the FOID cards within the 30-day time limit as required by law.

 

The delays are detrimental to peoples rights, Pearson said.

 

They cant purchase a firearm, they cant purchase ammunition, Pearson said. Weve had calls they go in there with a letter, they say its not valid so they cant buy anything.

 

Illinois State Police have said through emergency administrative rules they have made expired FOID cards valid during the renewal process. Pearson said thats not enough.

 

 

If you show a firearm dealer an invalid FOID card with a nice note from the state police, they dont care, Pearson said.

 

Pearson said he hopes the judge issues an injunction against ISP.

 

It would mean that the state police have to get there and they have to issue these cards, Pearson said....

Edited by InterestedBystander
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Such are the problems when you have to apply for an ID card for permission to exercise your Constitutional right. Oh, the cries that would be heard if one had to have a state card and pay a fee to enter a mosque, church or synagogue. Aren't these the same hypocrites who cry that having to show a drivers license or state ID to vote is a "poll tax?" How have they gotten away with this for over half a century???

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Good.I hope the courts order the 30 day limit to be enforced.Then the ISP says or proves that it can't be done.Then the courts finally abolish the whole system.

I really wish that were true, but I think that monkeys would fly out of my butt first.

 

I know,but it's a 40+ year old dream I've been having.Abolishing the system I mean,not the monkeys flying stuff.

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If the court were to grant the injunction, the state would likely be forced to spend the money to comply with the existing law. If the State failed to comply, it would be followed by a what's called a Rule to Show Cause hearing (contempt) due to failure of the State to comply with the injunction. Rule to Show cause hearings can be nasty, it puts the party that failed to comply with the Court's order at the mercy of the court. Would the court enjoin the actual enforcement of the FOID card? That's unlikely, but just like everything else in Illinois, a rule to show cause order can be used as a club to wield against the legislature to address problems.

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If the court were to grant the injunction, the state would likely be forced to spend the money to comply with the existing law. If the State failed to comply, it would be followed by a what's called a Rule to Show Cause hearing (contempt) due to failure of the State to comply with the injunction. Rule to Show cause hearings can be nasty, it puts the party that failed to comply with the Court's order at the mercy of the court. Would the court enjoin the actual enforcement of the FOID card? That's unlikely, but just like everything else in Illinois, a rule to show cause order can be used as a club to wield against the legislature to address problems.

 

Unfortunately, to address the problems, the legislature could simply remove the timelines from the law. Make the law state that the card would be issued “upon completion” of all checks...

Doesn’t accomplish much other than to kick the can further down the road. Would require new lawsuits to address....

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  • 4 weeks later...

Just guessing but....

The dog probably ate the states filing and they need another couple of months to redo it, and will undoubtedly require another extension of 2 to 3 months.

 

Appears there was a filing on on the 14th (a day early) probably the states reply or another motion by the state to delay. My PACER account was cancelled awhile back and I'm too lazy to setup another so this is all I have the document might not have even been uploaded to PACER yet.

 

https://www.courtlistener.com/docket/17366674/bradley-v-kelly/

 

isp.jpg

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NOTICE by Jarod Ingebrigtsen, Brendan F. Kelly re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendants Jarod Ingebrigtsen, Brendan F. Kelly 61, memorandum in support of motion 62 (Johnston, Mary) (Entered: 01/11/2021)

 

 

67 Jan 15, 2021 RESPONSE by Jarod Ingebrigtsen, Brendan F. Kellyin Opposition to MOTION by Plaintiffs Illinois State Rifle Association, John M. Marszalek, Second Amendment Foundation, Inc. for preliminary injunction 47 (Attachments: # 1 Exhibit Exhibit A, # 2 Notice of Filing)(Johnston, Mary) (Entered: 01/15/2021) Buy on PACER 68 Jan 15, 2021

MOTION by Defendants Jarod Ingebrigtsen, Brendan F. Kelly for leave to file excess pages (UNOPPOSED) (Attachments: # 1 Notice of Filing Notice of Filing)(Johnston, Mary) (Entered: 01/15/2021)

 

 

The first motion basically is that they are trying to dismiss the case because it's frivolous, typical examples:

  • The plaintiff is alleging conduct that does not amount to a violation of law
  • The plaintiff has failed to list all of the elements of proof for the violation
  • No measurable injury has actually been indicated in the complaint

The motion recent motion appears to be to basically stall to read the latest amended complaint, which was way back in November.

 

 

Probably what they are doing is Kelly and the AG attorney assigned to the defendants are going back to the FSB and telling them to quickly issue the cards listed in complaint. Then they come back and say there's no case because the injured parties have already received their FOID cards. Then ISRA ends up going back to amend the complaint again, looking for more names to add. Same tactic as the Thomas vs ISP case.

Edited by hceuterpe
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NOTICE by Jarod Ingebrigtsen, Brendan F. Kelly re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendants Jarod Ingebrigtsen, Brendan F. Kelly 61, memorandum in support of motion 62 (Johnston, Mary) (Entered: 01/11/2021)

 

 

67 Jan 15, 2021 RESPONSE by Jarod Ingebrigtsen, Brendan F. Kellyin Opposition to MOTION by Plaintiffs Illinois State Rifle Association, John M. Marszalek, Second Amendment Foundation, Inc. for preliminary injunction 47 (Attachments: # 1 Exhibit Exhibit A, # 2 Notice of Filing)(Johnston, Mary) (Entered: 01/15/2021) Buy on PACER 68 Jan 15, 2021

MOTION by Defendants Jarod Ingebrigtsen, Brendan F. Kelly for leave to file excess pages (UNOPPOSED) (Attachments: # 1 Notice of Filing Notice of Filing)(Johnston, Mary) (Entered: 01/15/2021)

 

 

The first motion basically is that they are trying to dismiss the case because it's frivolous, typical examples:

  • The plaintiff is alleging conduct that does not amount to a violation of law
  • The plaintiff has failed to list all of the elements of proof for the violation
  • No measurable injury has actually been indicated in the complaint

The motion recent motion appears to be to basically stall to read the latest amended complaint, which was way back in November.

 

 

Probably what they are doing is Kelly and the AG attorney assigned to the defendants are going back to the FSB and telling them to quickly issue the cards listed in complaint. Then they come back and say there's no case because the injured parties have already received their FOID cards. Then ISRA ends up going back to amend the complaint again, looking for more names to add. Same tactic as the Thomas vs ISP case.

So we need the local gun stores that may have people waiting on FOID’s to get the word out?

However, wasn’t the NewYork city case that went to the Supreme Court similar in that they fixed the issue to avoid going to court by the time scotus heard it. Don’t recall what the end result was but I thought SCOTUS heard the issue anyway?

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NOTICE by Jarod Ingebrigtsen, Brendan F. Kelly re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendants Jarod Ingebrigtsen, Brendan F. Kelly 61, memorandum in support of motion 62 (Johnston, Mary) (Entered: 01/11/2021)

 

 

67 Jan 15, 2021 RESPONSE by Jarod Ingebrigtsen, Brendan F. Kellyin Opposition to MOTION by Plaintiffs Illinois State Rifle Association, John M. Marszalek, Second Amendment Foundation, Inc. for preliminary injunction 47 (Attachments: # 1 Exhibit Exhibit A, # 2 Notice of Filing)(Johnston, Mary) (Entered: 01/15/2021) Buy on PACER 68 Jan 15, 2021

MOTION by Defendants Jarod Ingebrigtsen, Brendan F. Kelly for leave to file excess pages (UNOPPOSED) (Attachments: # 1 Notice of Filing Notice of Filing)(Johnston, Mary) (Entered: 01/15/2021)

 

 

The first motion basically is that they are trying to dismiss the case because it's frivolous, typical examples:

  • The plaintiff is alleging conduct that does not amount to a violation of law
  • The plaintiff has failed to list all of the elements of proof for the violation
  • No measurable injury has actually been indicated in the complaint

The motion recent motion appears to be to basically stall to read the latest amended complaint, which was way back in November.

 

 

Probably what they are doing is Kelly and the AG attorney assigned to the defendants are going back to the FSB and telling them to quickly issue the cards listed in complaint. Then they come back and say there's no case because the injured parties have already received their FOID cards. Then ISRA ends up going back to amend the complaint again, looking for more names to add. Same tactic as the Thomas vs ISP case.

So we need the local gun stores that may have people waiting on FOID’s to get the word out?

However, wasn’t the NewYork city case that went to the Supreme Court similar in that they fixed the issue to avoid going to court by the time scotus heard it. Don’t recall what the end result was but I thought SCOTUS heard the issue anyway?

 

 

To bad you can't have a person A like for Madigan and you only have to show up with someone waiting at the time....

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Solution: get a list 250k+ people with pending applications. If they want to play hardball, let them try that.

The problem with that suggestion is

a ) They would have to subpoena ISP for these records, which I highly doubt they'd willingly cough given they'd immediately counter it with privacy concerns (which I can't blame them for)

b ) they would then have to obtain consent from the 250K people which by itself would be a herculean task, and an incredibly expensive one at that.

 

Even then not sure it would even buy them anything. ISPFSB has already disclosed the backlog counts and average wait times.

 

I'm just spitballing here but I suspect the ISP is intentionally delaying the cases in perpetuity in order to buy them more time to work on the backlog at least in the short term and then going back to court waving their hands and saying "tah-da problem solved! Dismiss it, judge!" And I emphasize IN THE SHORT TERM. Otherwise allowing the case to proceed to the point the court orders an injunction means it becomes a far bigger hassle and perhaps ripe for the court to go even further to possibly have the audacity (in their minds, not ours of course) to rule the FOID law as unconstitutional.

Edited by hceuterpe
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What it is probably going to take to get this 'fixed' (beyond tossing it out entirely) and not tossed outby the courts is a group of individuals on the waiting list in excess of the mandated timeframe finding themselves in a situation where the denial of their 2nd rights caused them notable physical harm aka another Mary Shepard.

 

Because at that point the harm from being denied the right is excess of the mandated laws is done and can't simply be erased by the state issuing the card.

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I agree with Flynn. It would be great (in the legal sense, not in the wishing ill on someone sense) to find a plaintiff who suffered a legal injury while unable to ably defend themselves because they did not have a FOID/CCL despite the statutory time limit having passed. The complaint would then have to seen monetary damages as well as declaratory relief. This was the mistake that NYSRPA made in their case that was mooted by a NY law change at the supreme court. We have to assume that local and state gov'ts will try to moot these cases and requesting monetary damages for defined injuries (e.g. carjacking, robbery, burglary, etc) is one way to do it. Alternatively, a competitor who misses competitions, olympic trials, or even a hunting trip may provide enough to avoid mooting the case.

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What it is probably going to take to get this 'fixed' (beyond tossing it out entirely) and not tossed outby the courts is a group of individuals on the waiting list in excess of the mandated timeframe finding themselves in a situation where the denial of their 2nd rights caused them notable physical harm aka another Mary Shepard.

 

Because at that point the harm from being denied the right is excess of the mandated laws is done and can't simply be erased by the state issuing the card.

I agree with Flynn. It would be great (in the legal sense, not in the wishing ill on someone sense) to find a plaintiff who suffered a legal injury while unable to ably defend themselves because they did not have a FOID/CCL despite the statutory time limit having passed. The complaint would then have to seen monetary damages as well as declaratory relief. This was the mistake that NYSRPA made in their case that was mooted by a NY law change at the supreme court. We have to assume that local and state gov'ts will try to moot these cases and requesting monetary damages for defined injuries (e.g. carjacking, robbery, burglary, etc) is one way to do it. Alternatively, a competitor who misses competitions, olympic trials, or even a hunting trip may provide enough to avoid mooting the case.

Both are good ideas !

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69 Jan 19, 2021 MINUTE entry before the Honorable Mary M. Rowland: Defendants' unopposed motion to file overlength brief instanter 68 is granted. Mailed notice. (dm, ) (Entered: 01/19/2021)

 

I'm learning so much about the law over following this case....

 

Basically this means they acknowledge they missed their deadline and are asking the judge for more time to file their brief. Overlength brief I'm confused on but I think it might mean their response was longer than expected?

 

From what I'm reading, they'd better not make a habit of doing this...

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