Weiner v Kelly - Clear and Present Danger

[Euler]

How did I miss this one? It was filed in the Federal District Court of Northern Illinois in December.

 

Docket

Complaint said:

...

The "clear and present danger" prohibitor in Section 65/8(f) of the Illinois Firearm Owners Identification Card Act ("FOID Card Act") (430 ILCS 65/1, et seq.), where a variety of individuals, including law-enforcement officers, have the power to submit a form to the Illinois State Police ("ISP") that causes the ISP to revoke a person's FOID card, works a significant and unconstitutional injustice upon law-abiding persons who have done nothing wrong. The revocation comes with no accountability or availability for cardholders to challenge (or even learn about) the circumstances of the revocation. Most importantly, there is no escape valve where one who can prove the revocation was in error can bypass the process through an adversarial hearing or other meaningful procedure.

 

The above is true even if the revoked cardholder can demonstrate the revocation was a mistake or, in Plaintiff's case, a hoax. ...

...

At or around 1:00AM on July 12, 2022, a high-school acquaintance of Weiner, S.A., contacted the Chicago Police Department and falsely told them that Weiner was planning to kill several people in the West Loop upon waking that morning. The claimed basis was a text message Weiner had allegedly sent him, though S.A.’s call was actually a hoax.

 

S.A. also said Weiner had a 'mental history,' that he had been admitted to the hospital several times for mental illness, and that he had access to an AR-15. None of this was true.

 

To investigate, the Chicago Police first responded to S.A.'s apartment. S.A. met police at the threshold to his apartment, and was evasive answering the officers’ questions about what they informed him was a very important matter.

...

At the time S.A. contacted and was interviewed by Chicago Police, he was under the influence of alcohol and controlled substances.

...

S.A. ... told police that he had ... deleted [the texts].

...

Weiner did not and does not have a plan to kill anyone, anywhere at any time. Further, Weiner did nothing -- even in jest -- to give S.A. the impression that Weiner had such a plan or intent.

 

Plaintiff did and does not have access to an AR-15 in Chicago, in compliance with M.C.C. §8-20-075.

 

Plaintiff does not have a 'mental history,' and has never been admitted to any hospital for mental illness.

...

Police secured Weiner's legally-owned firearms for safekeeping and then transported Weiner -- in custody -- to the Jesse Brown VA hospital for a psychiatric evaluation.

 

Weiner was not admitted to the hospital; rather, doctors at the VA hospital -- non-plussed by what turned out to be a hoax -- sent Weiner home shortly after he was evaluated by a psychiatrist in the emergency department.

...

On or between July 12, 2022 and July 14, 2022 a Chicago Police Detective was assigned to investigate further. The detective subsequently notified ISP that the detective determined that Plaintiff posed a clear and present danger.

...

Based on the Chicago Police Detective's notification, ISP determined that Plaintiff met the definition of a clear and present danger, and revoked Plaintiff's FOID Card.

...

The facts and circumstances giving rise to Weiner's clear and present danger determination and FOID Card revocation ... render the ISP's procedures [for restoration of Plaintiff's firearm rights] wholly arbitrary and constitutionally inequitable as applied to Weiner.

...

COUNT I: VIOLATION OF RIGHT TO PROCEDURAL DUE PROCESS U.S. CONST. AMEND. XIV, 42 U.S.C. §1983

...

COUNT II: VIOLATION OF RIGHT TO KEEP AND BEAR ARMS U.S. CONST. AMENDS. II AND XIV, 42 U.S.C. §1983

...

WHEREFORE, Weiner prays this Honorable Court:

a. find that the Defendants, facially and/or as applied to Weiner, have unjustifiably denied Weiner his Second Amendment right to keep and bear arms ... and the lack of any hearing or other meaningful procedure whereby Weiner can challenge the deprivation as erroneously -- and falsely -- based;

b. find that the Defendants ... denied Weiner his Fourteenth Amendment procedural due process rights ...;

c. enter an order granting Weiner injunctive relief ...;

d. enter a mandatory injunction requiring the Defendants to issue a FOID card and CCL to Weiner and relieve him of any and all other firearm-related disabilities the Defendants may have imposed upon him ...;

e. enter a mandatory injunction requiring the Defendants to implement a meaningful procedure whereby Weiner can challenge his categorization as a clear and present danger, and the resulting FOID card revocation, within a reasonable timeframe in an adversarial proceeding and without being subjected to the clear and present danger appeal requirements;

...

 

I'd have liked to see the complaint ask to have the C&PD law declared unconstitutional for violating due process. The elements of (procedural) due process are:

 

Cornell Law School

Cornell Law School said:

1. An unbiased tribunal.
2. Notice of the proposed action and the grounds asserted for it.
3. Opportunity to present reasons why the proposed action should not be taken.
4. The right to present evidence, including the right to call witnesses.
5. The right to know opposing evidence.
6. The right to cross-examine adverse witnesses.
7. A decision based exclusively on the evidence presented.
8. Opportunity to be represented by counsel.
9. Requirement that the tribunal prepare a record of the evidence presented.
10. Requirement that the tribunal prepare written findings of fact and reasons for its decision.

 

Illinois' C&PD law doesn't have even a single one of those elements.

[Sol-Invictus]

Imagine if any other aspect of the bill of rights was treated this way and the uproar it would cause. 

[Tvandermyde]

same judge who ruled on Illinois firearms Retailers Assn. 

[DarkLord]

On 2/2/2023 at 4:24 AM, Sol-Invictus said:

Imagine if any other aspect of the bill of rights was treated this way and the uproar it would cause. 

 The sheep would be told it was for their safety and go along with it. 

[mab22]

On 2/2/2023 at 7:21 AM, Tvandermyde said:

same judge who ruled on Illinois firearms Retailers Assn. 

what was that result?
 

[Tvandermyde]

good for us

Ill. Ass'n of Firearms Retailers v. City of Chi.pdf

[JTHunter]

On 2/2/2023 at 12:51 AM, Euler said:

Cornell Law School

 

Illinois' C&PD law doesn't have even a single one of those elements.

 

These are the reasons that the majority of "red flag laws" (if not all of them) are unconstitutional.

[Euler]

On 2/2/2023 at 11:13 PM, JTHunter said:

These are the reasons that the majority of "red flag laws" (if not all of them) are unconstitutional.

 

Generally true, but remember that Illinois' C&PD law is not a red flag law.

 

Illinois has a red flag law, but it's a different law (with a slightly less extreme problem). Red flag laws are at least enforced through the courts, which issue orders.

 

The C&PD law is cops acting on their own authority under only their own review to seize firearms and suspend civil liberties.

 

Edited February 3, 2023 at 04:42 AM by Euler

[cybermgk]

On 2/2/2023 at 10:41 PM, Euler said:

 

 

 

The C&PD law is cops acting on their own authority under only their own review to seize firearms and suspend civil liberties.

 

Perfect for any regime that wants tyranny.

[hceuterpe]

On 2/2/2023 at 10:41 PM, Euler said:

 

Generally true, but remember that Illinois' C&PD law is not a red flag law.

 

Illinois has a red flag law, but it's a different law (with a slightly less extreme problem). Red flag laws are at least enforced through the courts, which issue orders.

 

The C&PD law is cops acting on their own authority under only their own review to seize firearms and suspend civil liberties.

 

 

 

Yeah the C&PD is far more egregiously unconstitutional than the FRO ever could be (arguably far more effective in disarming people).  Let's not forget the ISP refusing to fulfill FOIA requests for people's own records to aid in appealing--there's even a case pending over this.

[Euler]

On February 9, defendants asked for an extension to respond to the complaint. On February 16, the motion was granted. The schedule is now:

 

Defendants' response is due 03/02/2023.

Next status report is due by 03/09/2023, proposing a discovery schedule (if defendants have filed a response) or a briefing schedule (if a dispositive motion has been filed).

Tracking status hearing is reset to 03/17/2023. (Previously it was 2/17.)

[Euler]

On 2/16/2023 at 11:19 PM, Euler said:

On February 9, defendants asked for an extension to respond to the complaint. On February 16, the motion was granted. ...

 

On March 2, defendants asked (again) for an extension to respond to the complaint. On March 6, the motion was granted (again). The schedule is now:

• Defendants' response is due 03/30/2023.
• Next status report is due by 04/07/2023, proposing a discovery schedule (if defendants have filed a response) or a briefing schedule (if a dispositive motion has been filed).
• Tracking status hearing is reset to 04/14/2023.

[Tvandermyde]

One would think that ourside would quit giving these unopposed motions for more time.