Kuhlman v Hines - Clear & Present Danger

[Euler]

Filed in the Federal District of Central Illinois (docket)

Complaint said:

...
On July 17, 2023, at approximately 8:00P.M., Plaintiff Kuhlman was at home when he received a call from his mother, who also resides in Normal. She was at home when a strange man repeatedly knocked on her back door asking to borrow her phone. Kuhlman's mother actually cracked her back door open and gave him her phone to make a call, hoping he would leave after that. However, the man did not leave, and continued to walk around Kuhlman's mother's house while seemingly talking to himself.

Scared for her safety, and unable to handle the situation herself, Kuhlman's mother called the police. Kuhlman's mother then called Kuhlman, who lives nearby, and told him a strange man, who may have a mental illness and of whom she felt threatened, was on her property and outside her door.

At all relevant times, Kuhlman possessed a Firearm Owners Identification card ("FOID card") pursuant to the Firearm Owners Identification Card Act ..., and an Illinois concealed carry license ("CCL") pursuant to the Illinois Firearms Concealed Carry Act ....

Kuhlman rushed over to his mother's house, with his 18-year-old son accompanying him. On the way, Kuhlman called his mother, and she was more distressed during that call than when she called Kuhlman initially. Kuhlman's mother said to him to "Please hurry!"
...
Fearing for his safety, and the safety of his mother and unarmed son, he drew his lawfully-possessed concealed firearm on the stranger, and told him to take his hand out of the bag and put the bag down. The man removed his hand but did not relinquish the bag. While covering the stranger with the pistol, Kuhlman waited for the Normal Police Department ("NPD"), which had not yet arrived.

At no time did Kuhlman discharge his firearm, nor at any time did he cause any harm to the stranger, whether with the firearm or otherwise.

Officers from the NPD -- including Defendant Hines -- arrived at Kuhlman's mother's house, and told Kuhlman to give them his firearm, which he did. The stranger did not turn out to have any weapon in the bag, though Kuhlman could not possibly have known that. The stranger was indeed believed and/or determined by the NPD to be suffering from a mental illness, and the NPD officers had him transported to a local hospital.

The NPD officers, including Hines, returned Kuhlman's firearm to him, and did not arrest or detain him in any way. Kuhlman said goodbye to his mother and went home.
...
However, at some point following the above occurrence, Defendants Hines and Cunningham submitted a "clear and present danger" report about Kuhlman to the Illinois State Police ("ISP") through its IL Law Enforcement Agency Portal, and told the ISP that Kuhlman was a danger to himself or others and that the ISP should revoke Kuhlman's FOID card, which it did along with Kuhlman's CCL.
...
By so burdening Kuhlman's ability to possess a FOID Card, and likewise a CCL, Hines and Cunningham have not only unjustifiably denied him his rights but has potentially effectively imposed a five-year ban -- up to as much as an unending ban-on Kuhlman's right to keep and bear arms for self-defense. At a minimum, Hines and Cunningham have indefinitely denied Kuhlman his rights while he attempts to navigate an intrusive, humiliating, and unwarranted appeal with the Illinois FOID Card Review Board.
...
... ROBERT K. KUHLMAN ... requests this Honorable Court to enter judgment against the Defendants, OFFICER NICHOLAS HINES (Star #20257) and OFFICER SERENA CUNNINGHAM (Star #19306), and to award Kuhlman actual or compensatory damages against Hines and Cunningham, and because they acted maliciously, wantonly, or oppressively, punitive damages, plus the costs of this action, plus attorney's fees ... and such other and additional relief as this Court deems just and proper, including but not limited to a recoupment of all costs expended in prosecuting this action.
...
... ROBERT K. KUHLMAN ... requests this Honorable Court enter judgment in his favor and against the Defendant, TOWN OF NORMAL, ILLINOIS, in the amount awarded to Kuhlman against Defendants Hines and/or Cunningham as damages, attorney's fees, costs and interest, and/or for any settlement entered into between Kuhlman and Hines and/or Cunningham and for whatever additional relief this Court deems equitable and just.
...

I expect the case against the officers to be dismissed for qualified immunity. The case against the town depends on whether they violated policy, which I suspect they didn't.

Edited February 17, 2024 at 06:18 PM by Euler

[davel501]

On 2/17/2024 at 12:15 PM, Euler said:

Filed in the Federal District of Central Illinois (docket)


I expect the case against the officers to be dismissed for qualified immunity. The case against the town depends on whether they violated policy, which I suspect they didn't.
 

 

You don't think they could play it like a false arrest? 

[Euler]

He wasn't arrested. C&PD seriously needs to get enjoined, but I don't think this is the case to do it. Wiener v Kelly was, I think, the case to do it. ISP apparently knew it, too, which is why ISP rolled over so fast and easy. But Wiener was funding it himself. He didn't have any sponsorship, so once ISP promised to give him his FOID back, he dropped the case.

[JTHunter]

On 2/17/2024 at 1:34 PM, davel501 said:

You don't think they could play it like a false arrest? 

 

Maybe not for "false arrest" but possibly libel and/or slander, due to the "false and derogatory information" given to the ISP.

Edited February 18, 2024 at 03:31 AM by JTHunter

[davel501]

On 2/17/2024 at 9:30 PM, JTHunter said:

 

Maybe not for "false arrest" but possibly libel and/or slander, due to the "false and derogatory information" given to the ISP.

 

The officers took unnecessary actions that appear to not be supported by the facts. They overstepped their bounds and deprived the plaintiff of his constitutional rights. It's not a false arrest but it follows the same principles. 

[TomKoz]

Conspiracy Under Color of Law.

Do they have qualified immunity to that?

[Euler]

Qualified immunity does not provide protection for crimes, but this case is civil.

[JTHunter]

On 2/18/2024 at 11:02 AM, Euler said:

Qualified immunity does not provide protection for crimes, but this case is civil.

 

Naturally.  They have to "protect" their own. 🤮

[fxdpntc]

There is a Federal Lawsuit filed against these officers and others, and the Normal PD. False arrest and excessive force. February 2023.

 

https://www.wglt.org/local-news/2023-02-27/normal-police-officers-accused-of-excessive-force-in-lawsuit

[Euler]

On March 20, defendants filed a motion to dismiss for failure to state a claim (i.e., to demand anything the defendants can actually do).

On August 26, the judge denied the motion. Defendants' response to the complaint is due by September 9.

Edited August 28, 2024 at 06:27 AM by Euler

[Euler]

I finally read the denial. Of 18 pages, here are the TL;DR parts.

Order said:

...
First, it is helpful to identify what Plaintiff is not claiming. The Complaint does not challenge the constitutionality of the provision of Illinois law requiring law-enforcement officers to submit reports to the ISP concerning persons they believe pose a "clear and present danger," even though the Complaint is filled with concern about the extrajudicial nature of the process by which he lost the ability to legally possess a firearm in Illinois. ... Plaintiff does not seek an injunction requiring the reinstatement of his FOID Card or CCL or the return of his pistol, and in fact, Defendants lack the authority to give him that relief, even if NPD physically possesses the documents and gun, because their revocation and surrender were ordered by the ISP, and only the ISP or a court may authorize their reinstatement. ... Neither does Plaintiff seek a declaratory judgment as the constitutionality of the "clear and present danger" procedure. He asks only for actual, compensatory, and punitive damages. ... Thus, the Court does not construe Plaintiff's Section 1983 claim as a facial constitutional challenge to the reporting requirement in 430 ILCS 65/8.1(d) or any other provision of the FOID Act, but as a claim that the individual officers named as defendants wrongfully filed a report that they should have known was highly likely to result in the loss of his ability to legally own, possess, or carry firearms for self-defense.
...
... The bulk of the Motion to Dismiss is concerned with immunity defenses, which will be discussed in the sections to follow. Defendants raise only one argument as to why Plaintiff fails to state a claim in Count I: Defendant Officers did not deprive Plaintiff of his right to keep and bear arms; the Illinois State Police did. ...

... "[T]he only reason the ISP revoked Kuhlman's FOID card and CCL was because Hines and Cunningham intentionally submitted the false clear and present danger report." ... Defendant Officers do not and cannot deny this; state statute does not direct or authorize the ISP to independently seek out FOID Card holders who may pose a clear and present danger, but instead creates a mechanism that relies on law-enforcement officers and other individuals identified in the statute to report qualifying conduct to the ISP. ...
...
... "[c]onduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 or § 1985 cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise, and the supremacy clause of the Constitution insures that the proper construction may be enforced." McLaughlin v Tilendis (7th Cir. 1968) ...
...
... At this stage, it would be premature to find Defendant Officers either entitled to qualified immunity or conclusively not entitled to it.
...

I included the first paragraph above to reiterate that Kuhlman is not seeking to have the C&PD law enjoined. He's also not seeking a lot of other things. He's only seeking money.

Even though the ISP revoked Kuhlman's FOID, it was the officers, not the ISP, who caused the revocation of Kuhlman's FOID, because the officers filed the C&PD report. The fact that Kuhlman is seeking money, not his FOID etc., is what makes his claim valid. ISP is the agency that could give him his FOID back, but Kuhlman only wants money. The officers (and Normal) have money, therefore Kuhlman has a claim.

The officers also asserted immunity to the civil suit in a "failure to state a claim" motion to dismiss. The judge didn't buy their immunity arguments, but he didn't rule them all out. It's not enough to dismiss the case at this point. They can re-introduce immunity arguments later in pleadings.

Maybe I like this case a little more now. Initially it seemed stupid to me to seek only money, but maybe it was a good strategic decision. Sadly, even if the officers are held liable individually, I believe that it's still going to be Normal that pays their bills. (There's an Illinois law about that somewhere.)

[ealcala31]

On 9/1/2024 at 3:44 AM, Euler said:

I finally read the denial. Of 18 pages, here are the TL;DR parts.


I included the first paragraph above to reiterate that Kuhlman is not seeking to have the C&PD law enjoined. He's also not seeking a lot of other things. He's only seeking money.

Even though the ISP revoked Kuhlman's FOID, it was the officers, not the ISP, who caused the revocation of Kuhlman's FOID, because the officers filed the C&PD report. The fact that Kuhlman is seeking money, not his FOID etc., is what makes his claim valid. ISP is the agency that could give him his FOID back, but Kuhlman only wants money. The officers (and Normal) have money, therefore Kuhlman has a claim.

The officers also asserted immunity to the civil suit in a "failure to state a claim" motion to dismiss. The judge didn't buy their immunity arguments, but he didn't rule them all out. It's not enough to dismiss the case at this point. They can re-introduce immunity arguments later in pleadings.

Maybe I like this case a little more now. Initially it seemed stupid to me to seek only money, but maybe it was a good strategic decision. Sadly, even if the officers are held liable individually, I believe that it's still going to be Normal that pays their bills. (There's an Illinois law about that somewhere.)

So, what's going on with his FOID/CCL? Did he already get it back, or doesn't care and want the money? What were the circumstances why the Normal PD filed this false C&PD Report? I am late to the game, I guess.

[ealcala31]

On 9/1/2024 at 2:02 PM, ealcala31 said:

So, what's going on with his FOID/CCL? Did he already get it back, or doesn't care and want the money? What were the circumstances why the Normal PD filed this false C&PD Report? I am late to the game, I guess.

I just saw the Mark Smith YT Video on it.

[Euler]

On September 1, 2024 at 02:02 PM CDT, ealcala31 said:→

So, what's going on with his FOID/CCL? Did he already get it back, or doesn't care and want the money? What were the circumstances why the Normal PD filed this false C&PD Report? I am late to the game, I guess.

The complaint alleges that the officers filed a false report because they are malicious, since they knew the report was false. (The alternative is that they're idiots who utterly misunderstood the situation.) The complaint does not say whether he got his FOID and firearm back. The opinion denying the dismissal implies that he has not (yet). The complaint certainly outlines the burdensome process of proving oneself innocent under the C&PD law. I'm sure he wants his FOID back. It's just not part of this case. The rest of the circumstances are summarized in the opening post.

Additional notes:

745 ILCS 10/9-102 said:

A local public entity is empowered and directed to pay any tort judgment or settlement for compensatory damages (and may pay any associated attorney's fees and costs) for which it or an employee while acting within the scope of his employment is liable in the manner provided in this Article. All other provisions of this Article, including but not limited to the payment of judgments and settlements in installments, the issuance of bonds, the maintenance of rates and charges, and the levy of taxes shall be equally applicable to judgments or settlements relating to both a local public entity or an employee and those undertakings assumed by a local public entity in intergovernmental joint self-insurance contracts. A local public entity may make payments to settle or compromise a claim or action which has been or might be filed or instituted against it when the governing body or person vested by law or ordinance with authority to make over-all policy decisions for such entity considers it advisable to enter into such a settlement or compromise.

TL;DR: The town has to cover the officers' compensatory liability (like the cost of Kuhlman getting his FOID back, lost pay, replacing the firearm, etc.) and legal fees. The town does not have to cover any punitive liability (i.e., punishment to stop the officers from doing it again). Considering that filing false reports is a crime, I doubt the town or the union will cover them (if they're found liable).

Re-reading the complaint, apparently the PD provided Kuhlman with a copy of the C&PD report, which is how so much is known about its contents. The C&PD law prohibits DHS and ISP from disclosing the information. I suspect that Normal is seriously revising its disclosure policy as a result of this case.

[Tvandermyde]

Euler --

 

can you show me the part of the statute that prevents ISP from disclosing the contents of the request for C&PD?

[Euler]

Underlining the relevant parts:

430 ILCS 65/8.1 said:

...

(d) If a person is determined to pose a clear and present danger to himself, herself, or to others:

(1) by a physician, clinical psychologist, or qualified examiner, or is determined to have a developmental disability by a physician, clinical psychologist, or qualified examiner, whether employed by the State or privately, then the physician, clinical psychologist, or qualified examiner shall, within 24 hours of making the determination, notify the Department of Human Services that the person poses a clear and present danger or has a developmental disability; or

(2) by a law enforcement official or school administrator, then the law enforcement official or school administrator shall, within 24 hours of making the determination, notify the Illinois State Police that the person poses a clear and present danger.

The Department of Human Services shall immediately update its records and information relating to mental health and developmental disabilities, and if appropriate, shall notify the Illinois State Police in a form and manner prescribed by the Illinois State Police. The Illinois State Police shall determine whether to revoke the person's Firearm Owner's Identification Card under Section 8 of this Act. Any information disclosed under this subsection shall remain privileged and confidential, and shall not be redisclosed, except as required under subsection (e) of Section 3.1 of this Act, nor used for any other purpose. The method of providing this information shall guarantee that the information is not released beyond what is necessary for the purpose of this Section and shall be provided by rule by the Department of Human Services. The identity of the person reporting under this Section shall not be disclosed to the subject of the report. The physician, clinical psychologist, qualified examiner, law enforcement official, or school administrator making the determination and his or her employer shall not be held criminally, civilly, or professionally liable for making or not making the notification required under this subsection, except for willful or wanton misconduct.

...

Notifying DHS and/or ISP is the initial disclosure. "Redisclosure" means DHS and/or ISP telling anyone about it, except to enforce the FOID revocation.

3.1(e) is the "Firearm Transfer Inquiry Program." (i.e., ISP can tell FFLs that the FOIDs are revoked and tell NICS that the person is now prohibited.)

Some people (at least two that I've seen, though it would be a pain to find them now) who have been subject to C&PD revocations have posted their revocation letters on the Internet. About the only thing the letters say is that their FOIDs are revoked with an effective date and, within 48 hours, to turn in their FOIDs and to dispossess their firearms. There have been some cases (all state, I think, also a pain to find now) in which people tried to get the details. They failed.

Edited September 2, 2024 at 11:50 PM by Euler

[Tvandermyde]

The fact that they won't tell a person what they have been accused of doing to loose their rights I think is problematic

 

 

[Euler]

On September 2, 2024 at 08:08 PM CDT, Tvandermyde said:→

The fact that they won't tell a person what they have been accused of doing to loose their rights I think is problematic
...

I've always thought that the challenge to C&PD should be it's extrajudicial nature, which necessarily denies due process. That is, the denial of due process arises from the extrajudicial nature. (It's an argument that could probably be applied to lots of administrative penalties.) Unfortunately, judicial procedures don't necessarily guarantee due process, either. Every "red flag" law allows ex parte court orders (i.e., the subject has no opportunity to defend himself), although at least the court record is available afterward. Illinois' "red flag" law is a separate law, thus a separate problem.

[Euler]

On September 10, the judge set the following schedule:

10/08: parties to file discovery plan
10/11: scheduling conference

[fxdpntc]

 

[Euler]

On September 10, 2024 at 11:41 PM CDT, Euler said:→

On September 10, the judge set the following schedule:

10/08: parties to file discovery plan
10/11: scheduling conference

On October 7, the parties filed a discovery plan.

[Euler]

On October 8, the judge canceled the October 11 conference and set the following schedule:

10/06/2025: Discovery completed
11/05/2026: (I think that's a typo. He meant either Nov 2025 or Jan 2026.) Dispositive motions due
02/24/2026: (That one's not a typo.) Final pretrial conference
03/09/2026: Jury trial begins

The judge also reminded the parties that court-sponsored mediation (i.e., out-of-court settlement) remains an option.

Edited October 10, 2024 at 06:54 AM by Euler

[MrTriple]

On 10/10/2024 at 1:51 AM, Euler said:

On October 8, the judge canceled the October 11 conference and set the following schedule:

10/06/2025: Discovery completed
11/05/2026: (I think that's a typo. He meant either Nov 2025 or Jan 2026.) Dispositive motions due
02/24/2026: (That one's not a typo.) Final pretrial conference
03/09/2026: Jury trial begins

The judge also reminded the parties that court-sponsored mediation (i.e., out-of-court settlement) remains an option.
 

These are completely unreasonable timelines. Imaging trying to justify something similar in the context of a First Amendment case.

[Euler]

On May 9, Normal filed for an extension to complete discovery.

I guess October 2025 is approaching too fast for them.

[TomKoz]

There should NEVER be an injunction prohibiting Rights clearly (in plain English language) defined in the Constitution.  
“Shall Not Be Infringed “.