Rogers v Hacker - FOID, CCL, ZAMAK, Waiting period

[Euler]

The case was filed in the Federal District Court of Southern Illinois in 2020. It's still kicking around.

 

Docket

Complaint said:

COUNT I

...

[N]o known laws, other than the FOID Card Act, at issue in this case, prohibit Plaintiff from lawfully possessing firearms, and in the case of the FOID Card Act, Plaintiff is only prohibited from possessing a firearm, if he has not been issued a FOID card.

...

That well over 30 days prior to filing this lawsuit, Plaintiff filed, using the online computer system, for a FOID card, and paid the $10.00 fee, plus a processing fee not authorized by statute.

...

That in violation of 430 ILCS 65/5, Defendant has not either approved, or denied, Plaintiff's application for a FOID card within the 30 days allotted.

...

That while, 430 ILCS 65/10, in theory, provides an administrative remedy for failure to timely process a FOID application, in truth and in fact, filing an administrative appeal for untimely FOID processing is a futile act ...

...

COUNT II

...

That there is no mechanism, under Illinois law, to obtain a firearm or firearm background check, without a FOID card, such that, even if Plaintiff were allowed to possess a firearm without a FOID card, be could not acquire a firearm without a FOID card, from any legitimate or legal source.

...

COUNT III

...

On its face, the charges for a FOID and a FCCL appear to be a mere fee used to process applications. However, this is a farce.

 

As actually enforced, the charges are not a mere fee, but on closer examination clearly become a tax on constitutionally protected activity, that being the acquisition, possession and bearing of arms and ammunition.

...

COUNT IV

...

Plaintiff who is not financially well off, and does not presently own any firearms, as he cannot afford most handguns on the market.

 

That he has, however, discovered that certain handguns retail for around $100.00, which would be within her budget for a new handgun.

 

However, these "budget minded" handguns are generally made of a zinc alloy and will deform is heated to a certain level, not possible to attain by normal, or even abusive use of the firearm.

 

That there is no law applicable in Illinois that prohibits mere possession or use of a handgun made out of zinc alloy or any other metal, nor does it prohibit the purchase and sale of handguns by non federally licensed persons, however, the statute acts as a total ban on new, modern and safe zinc alloy firearm.

...

COUNT V

...

That under Illinois law, there exists a 72 hour waiting period in order to purchase any firearm.

...

Thus, under a plain language reading of Section 1235.90, a licensed dealer may transfer a firearm to a purchaser, like Plaintiff Rogers, as long as the transaction (a) has not been disapproved, and (b) the Department has had at least 72 hours to process the transaction.

 

That contrary to its own administrative code, Defendant Hacker has issued official guidance, in the form of official FAQs, which state, in relevant part,

 

"The actual transfer of the firearm cannot take place until there is an approval from the FTIP system, regardless of when the agreement was reached. If the FFL receives a transaction number, they cannot complete the transfer until they receive an approval."

 

That the official state regulation and the FAQ are irrevocably in conflict with each other, thus creating an actual controversy.

 

That many, or most, licensed dealers will not actually transfer a firearm, including to Plaintiff, even with a valid FOID card, after 72 hours, unless there is express approval from Defendant Hacker, for fear or prosecution and arrest, resulting in Plaintiff's rights being delayed again.

...

[Euler]

There was a first amended complaint and motions to dismiss, some of which were granted and some or which were not. So there is now a second amended complaint, which is the current complaint.

 

TLDR; Count II above got dismissed. Counts III, IV, and V are now numbered II, III, and IV, with some wording changes.

 

Complaint said:

COUNT I

...

[N]o known laws, other than the FOID Card Act, at issue in this case, prohibit Plaintiff from lawfully possessing firearms, and in the case of the FOID Card Act, Plaintiff is only prohibited from possessing a firearm, if he has not been issued a FOID card.

...

That well over 30 days prior to filing this lawsuit, Plaintiff filed, using the online computer system, for a FOID card, and paid the $10.00 fee, plus a processing fee not authorized by statute.

...

That in violation of 430 ILCS 65/5, Defendant has not either approved, or denied, Plaintiff's application for a FOID card within the 30 days allotted.

...

That while, 430 ILCS 65/10, in theory, provides an administrative remedy for failure to timely process a FOID application, in truth and in fact, filing an administrative appeal for untimely FOID processing is a futile act ...

...

COUNT II

...

On its face, the charges for a FOID and a FCCL appear to be a mere fee used to process applications. However, this is a farce.

 

As actually enforced, the charges are not a mere fee, but on closer examination clearly become a tax on constitutionally protected activity, that being the acquisition, possession and bearing of arms and ammunition.

...

COUNT III

...

Plaintiff who is not financially well off, and does not presently own any handguns, as he cannot afford most handguns on the market.

 

That he has, however, discovered that certain handguns retail for around $120.00, which would be within her budget for a new handgun.

 

However, these "budget minded" handguns are generally made of a zinc alloy and will deform is heated to a certain level, not possible to attain by normal, or even abusive use of the firearm.

 

That there is no law applicable in Illinois that prohibits mere possession or use of a handgun made out of zinc alloy or any other metal, nor does it prohibit the purchase and sale of handguns by non federally licensed persons, however, the statute acts as a total ban on new, modern and safe zinc alloy firearm, as no legitimate firearms dealer or manufacturer will sell such a firearm to a FOID card holder, upon fear of prosecution, and Defendant Hacker using it as a reason to revoke the dealer’s state permission to sell firearms.

...

COUNT IV

...

That under Illinois law, there exists a 72 hour waiting period in order to purchase any firearm.

...

Thus, under a plain language reading of Section 1235.90, a licensed dealer may transfer a firearm to a purchaser, like Plaintiff Rogers, as long as the transaction (a) has not been disapproved, and (b) the Department has had at least 72 hours to process the transaction.

 

That contrary to its own administrative code, Defendant Hacker has issued official guidance, in the form of official FAQs, which state, in relevant part,

 

"The actual transfer of the firearm cannot take place until there is an approval from the FTIP system, regardless of when the agreement was reached. If the FFL receives a transaction number, they cannot complete the transfer until they receive an approval."

 

That the official state regulation and the FAQ are irrevocably in conflict with each other. However, Plaintiff does not ask this Court to resolve this state law conflict, but rather to resolve this under federal law.

 

That many, or most, licensed dealers will not actually transfer a firearm, including to Plaintiff, even with a valid FOID card, after 72 hours, unless there is express approval from Defendant Hacker, for fear or prosecution and arrest, resulting in Plaintiff's rights being delayed again.

...

[Euler]

On July 25, 2022, ISP (Hacker) asked for extended time to discover and reply to the complaint in light of the Bruen decision.

 

On July 26, the judge granted the request for extended time. Jury trial is set for February 13, 2023, in East St. Louis.

[burningspear]

Plaintiff should ask leave to amended the complaint to add a count asking that the FOID Act be declared unconstitutional, using the text, tradition, and history analysis described in the Bruen decision. 

[Euler]

The 2nd amended complaint was filed after Bruen. If plaintiffs had wanted, they could have updated it for Bruen. In whatever opinion it decides, the court is still bound by Bruen, which may be more difficult without any example arguments.

[Euler]

On September 22, ISP (Hacker) asked again for extended time to discover, because Rogers has not replied to requests for discovery. Rogers also did not reply with any objections to the request for extended discovery time.

 

On September 23, the judge granted the request for extended time. Jury trial is reset for April 17, 2023, in East St. Louis.

[Euler]

On 9/25/2022 at 7:29 PM, Euler said:

...

On September 23, the judge granted the request for extended time. Jury trial is reset for April 17, 2023, in East St. Louis.

 

On December 21, Hacker asked for another extension. The judge granted the motion. The jury trial set for April 17 is canceled and will be rescheduled for a date not yet determined.

[Black Flag]

And Rogers still has no FOID card?

 

[Euler]

On 12/24/2022 at 10:34 AM, Black Flag said:

And Rogers still has no FOID card?

 

It seems he was issued a FOID in November 2020, about a month after the ISP was initially served with the lawsuit.

[Upholder]

Extensions requested by the defense from the docket:

1. Dec 3, 2020 - Docket entry #36 - MOTION for Extension of Time to File Response/Reply as to 10 MOTION for Preliminary Injunction Unopposed by Gregory Hacker. (Fruth, Shannon) (Entered: 12/03/2020), granted to 12/17/2020
2. Dec 9, 2020 - Docket entry #39 - ORDER. Defendant Gregory Hacker seeks an extension of time until January 11, 2021 to respond to Plaintiff William Rogers's amended complaint pursuant to Federal Rule of Civil Procedure 6(b). For good cause shown, Doc 38 Defendant's Motion for Extension of Time to File a Response to Plaintiff's Amended Complaint at Doc. 33 is GRANTED. The deadline is extended until January 11, 2021 for the Defendants response to the Plaintiffs amended complaint.
3. Jan 11, 2021 - Docket entry #45 - Second MOTION for Extension of Time to File Response/Reply as to 33 Amended Complaint by Gregory Hacker. (Fruth, Shannon) (Entered: 01/11/2021), granted to 2/1/2021
4. Feb 18, 2021 - Docket entry #55 - MOTION to Stay Discovery by Gregory Hacker. (Fruth, Shannon) (Entered: 02/18/2021)
5. Jul 19, 2021 - Docket entry #71 - MOTION for Extension of Time to File Answer by Gregory Hacker. (Fruth, Shannon) (Entered: 07/19/2021), granted to 7/20/2021
6. Aug 25, 2021 - Docket entry #73 - Second MOTION for Extension of Time to File Answer by Gregory Hacker. (Fruth, Shannon) (Entered: 08/25/2021), granted to 9/28/2021
7. Sept 27, 2021 - Docket entry #75 - Third MOTION for Extension of Time to File Answer by Gregory Hacker. (Fruth, Shannon) (Entered: 09/27/2021), granted to 10/7/2021
8. Dec 8, 2021 - Docket entry #82- MOTION to Amend/Correct 63 Scheduling Order by Gregory Hacker. (Bautista, Laura) (Entered: 12/08/2021), granted discovery due 6/24/2022 with motions due by 7/25/2022
9. Jun 21, 2022 - Docket entry #88 - MOTION to Amend/Correct Scheduling Order by Gregory Hacker. (Bautista, Laura) (Entered: 06/21/2022), granted discovery due 7/25/2022 with motions due by 8/23/2022
10. Jul 25, 2022 - Docket entry #90 - MOTION for Extension of Time to Extend Discovery Schedule by Gregory Hacker. (Bautista, Laura) (Entered: 07/25/2022), granted discovery due 9/23/2022 with motions due 10/4/2022
11. Sep 22, 2022 - Docket entry #92 - MOTION to Amend/Correct Discovery Schedule to November 22, 2022 by Gregory Hacker. (Bautista, Laura) (Entered: 09/22/2022), granted discovery due 11/22/2022 with motions due 12/23/2022
12. Dec 21, 2022 - Docket entry #94 - MOTION for Extension of Time to File Dispositive Motion by Gregory Hacker. (Bautista, Laura) (Entered: 12/21/2022), granted motions due 1/13/2023

The ISP in this case asked for 12 extensions/stays/reschedulings.

[Euler]

Long story on this one, so a recap is included.

 

On December 21, plaintiffs filed a motion for summary judgment.

 

On January 18, defendants requested an extension to respond to plaintiffs' motion.

 

On January 19, the judge granted defendants' request.

 

On February 13, defendants filed their response.

 

Meanwhile:

 

On January 13, defendants filed their own motion for summary judgment.

 

On March 24, plaintiffs requested an extension to respond to defendants' motion. On the same day, the defendants opposed it.

 

(This space left intentionally blank.)

 

On March 27, plaintiffs filed their response to defendants' motion.

 

So ...

 

On one hand, the judge granted a request for an extension by the defendants while (based on the docket) ghosting a similar request by the plaintiffs.

 

On the other hand, both plaintiffs and defendants got two months to respond to each others' motions.

[JTHunter]

Euler - as usual, more favoritism.  Not at all surprising in this state.

[Euler]

On April 17, both parties asked for a continuance on the parts of the lawsuit that won't be covered by imminent summary judgment.

 

(NOTE: "imminent" means probably within a month.)

 

The summary judgment should be a ruling on counts II, III, and IV. As a reminder of above (my paraphrasing):

 

Count II: There is no mechanism in the FOID Act to obtain a firearm in Illinois without a FOID even for people who, by law, do not require a FOID.

 

Count III: The FOID fee is a de facto tax on firearm and ammunition possession.

 

Count IV: The prohibition on purchase of ZAMAK firearms is a de facto ban on ownership of ZAMAK firearms.

 

Edited April 18, 2023 at 03:23 AM by Euler

[Euler]

On May 17, defendants submitted Cook County case People v Chatonda as a supplemental authority. [I have no idea what this case is.]

 

On May 18, the judge set the following schedule.

 

January 11, 2024: Final pretrial conference

January 22, 2024: Trial

 

The judge also noted that summary judgement for non-trial counts (2, 3, & 4 noted previously) is "ripe" (i.e., expect an opinion any minute now).

[SiliconSorcerer]

On 5/18/2023 at 5:27 PM, Euler said:

On May 17, defendants submitted Cook County case People v Chatonda as a supplemental authority. [I have no idea what this case is.]

 

On May 18, the judge set the following schedule.

 

January 11, 2024: Final pretrial conference

January 22, 2024: Trial

 

The judge also noted that summary judgement for non-trial counts (2, 3, & 4 noted previously) is "ripe" (i.e., expect an opinion any minute now).

Count III - What other constitutional right cost money? 

Certainly voting costs a whole bunch of money but we don't seem to be charging people to vote. 

This is just my pet peeve, blatantly unconstitutional but here we are.  

[Euler]

On June 5, defendants submitted Madison County case Wilson v Kelly (19-ch-666) as a supplemental authority. [I have no idea what this case is, either.]

[Euler]

On August 28, the judge granted the defendant's (i.e., ISP's) motion for summary judgment against Rogers, mostly on the basis of the plaintiff's arguments not reaching the merits of a constitutional challenge. This case is terminated (at the district level).

[mab22]

On 8/30/2023 at 3:58 PM, Euler said:

On August 28, the judge granted the defendant's (i.e., ISP's) motion for summary judgment against Rogers, mostly on the basis of the plaintiff's arguments not reaching the merits of a constitutional challenge. This case is terminated (at the district level).

So, despite bringing up Bruen, a federal Judge in Illinois said go pound sand? Does that about sum up the FOID challenge?

 

[Euler]

Bruen requires that the plaintiff establish that the case warrants a constitutional challenge before the burden shifts to the defendant. The judge said that the plaintiff didn't do that.

I think the problem is that several of Rogers' (Maag's) arguments were a bit facetious. For example, he said he wanted to buy a firearm, but he couldn't because it's made of ZAMAK. Then he also said he wanted to apply for a CCL, but couldn't afford the $150 fee.

There are arguments to be made, but these aren't the ones. Remember that this case was filed in 2020, well before Bruen, and amended in 2021, still before Bruen. It was never amended after Bruen.