Lawsuit challenging Clear & Present Danger: BRUNKE v. Kelly

[Molly B.]

Filed by attorney David Sigale on Friday, Sept. 13th

INTRODUCTION
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 – anytime, even months or years later - 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 based on a mistake or a hoax. Instead, like every other person who has their FOID card revoked pursuant to this subsection, Plaintiffs must submit to an expensive and intrusive psychological examination and certification process, submit certain medical records to the Illinois State Police (“ISP”), and gather character references among friends and family, all of whom must be informed of the circumstances of the revocation – a process made much more difficult when even the cardholder does not know the circumstances of the revocation. This process is an additional indignity on top of the revocation itself.

This flaw and resulting breakdown of the FOID appeal system have wrongfully denied Plaintiffs’ rights and endangered public safety, as qualified persons such as Plaintiffs are denied their rights and the ability to self-defense and defense of their families with a firearm while languishing in the FOID appeal system, during which time their CCLs are also revoked – with no guarantee of their appeals being successful and their rights restored - while criminals who ignore the FOID Card Act and the concealed carry licensing requirements of the Firearms Concealed Carry Act (430 ILCS 66/1, et seq.) carry on unaffected.

The right to keep and bear arms for defense of hearth and home is a fundamental individual right (See District of Columbia v. Heller, 554 U.S. 570 (2008)), and applies to the Defendants (See McDonald v. City of Chicago, 561 U.S. 742 (2010)). The right to the public carry of firearms is also fundamental, as much so as the possession of firearms inside one’s home. See New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). Previous to Bruen, in response to the Seventh Circuit’s decision in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), Illinois became the last State in America to allow the public carry of firearms for self-defense purposes.

However, the laws governing the licensing of firearm possession and concealed carry in Illinois have resulted in a system that, for some, result in a permanent denial of that right. This is due to a system that is extremely quick to deny or revoke persons’ rights, and slow in acknowledging or restoring them. This is especially egregious when Plaintiffs should not be in this system in the first place.

Plaintiffs complain that facially and as applied to them under the facts of the instant case, the ISP’s labyrinthine procedures that citizens must navigate in order to obtain relief from a clear and present danger determination—procedures which lack of any way to challenge the underlying basis of the determination—violate Plaintiffs’ due process Fourteenth Amendment rights.

Plaintiffs also complain that facially and as applied to them under the facts of their individual cases, ISP’s determination that Plaintiffs pose(d) a clear and present danger and ISP’s revocation of Plaintiffs’ respective FOID Cards—acts which deprive/deprived Plaintiffs of their ability to lawfully keep and bear arms—violate/violated Plaintiffs’ Second Amendment rights.

This action seeks to restore Plaintiffs’ right to keep and bear arms in a manner consistent with their rights to due process. Plaintiffs seeks declaratory relief, as well as preliminary and permanent injunctive relief, and nominal damages.
JURISDICTION AND VENUE

 

 

1 - Complaint.pdf

[Euler]

The case caption is Brunke v Kelly. (docket)

[Euler]

Is this case related to:

On August 6, 2024 at 05:46 PM CDT, Molly B. said:→

Please contact me if you were subjected to one of these Clear and Present Danger enforcement details and FOID revocation.

?

[Euler]

Summarizing the plaintiffs' facts from the complaint:

Complaint said:

...
On February 1, 2023, Brunke was on the road driving for UPS with his partner. ... The next morning, February 2, 2023 ... Brunke received an e-mail from the Illinois State Police that his FOID and CCL status had changed. He ... called the Park Ridge Police Department for information. The Desk Sergeant told him that [his girlfriend] had been in and had taken out an Order of Protection in the Circuit Court of Cook County.
...
On February 22, 2023, Brunke went to the court for the Order of Protection hearing. His girlfriend was not there, and the Emergency Order of Protection was vacated and the case was dismissed. Brunke has never seen the actual Petition for Order of Protection, so he has no knowledge what he was accused of doing.
...
On or about February 2, 2023, the ISP Division of Administration revoked Brunke's FOID Card based on the legal disability of being "a clear and present danger" ... and sent him a letter to that effect on February 3, 2023. Brunke does not know who submitted it, and did nothing to deserve it. Brunke did not do or say anything threatening at the Park Ridge Department in person, nor did he say anything threatening towards anyone while on the phone with them.

... Brunke ... is completely in the dark as to who made the report against him, or what the allegations against him could possibly have been. Brunke was never questioned about any of the allegations, nor was there (to his knowledge) any investigation.

Brunke has since had his FOID and CCL returned to him ...
...
... On multiple occasions, Horvitz had communicated with the Deputy Commissioner to express concern about safety hazards and noise violations at Millenium Park, and also to discuss what Horvitz believed was an improper prohibition on carrying concealed firearms while crossing through Millenium Park. ...

On November 6, 2023, Horvitz had lunch plans with the Deputy Commissioner to discuss his concerns. ... When the Deputy Commissioner came into the lobby, she asked if Horvitz was carrying a firearm. When Horvitz said yes, the Deputy Commissioner immediately canceled lunch and told him to leave the building. ...

On December 26, 2023, Horvitz went to the Chicago Cultural Center to attempt to speak with the Deputy Commissioner. ... When he reached the fourth floor, an usher told him the Deputy Commissioner could not meet with him and he needed to leave. ...

On his way walking back home, on Michigan Avenue, he was stopped by 5 or 6 Chicago Police officers who pulled up on the street next to him. ... The officer asked if Horvitz had a CCL, and Horvitz said yes, and upon request showed it to the officer. The officer told Horvitz to have a nice day, and the officers all left. ...

On or about January 9, 2024, Horvitz received a notice from the Illinois State Police that his FOID and CCL were revoked because Horvitz had been deemed a "clear and present danger." ...

... To date, because someone unqualified to evaluate Horvitz's mental health has made an unfounded diagnosis about Horvitz, he has since been stripped of his Second Amendment rights until at least January, 2029.
...
On September 13, 2022, DeAngelis was on his driveway, taking photos of the flooded, liquified^sic concrete, and muddy conditions in the alley behind his house caused by a contractor of the owner of the property on the other side of the alley who had been undertaking the excavation and build-out of his basement for months. ...

... DeAngelis said he was the worst contractor he had ever seen, and the contractor again said, "F**k you," balled up his fist and started coming toward DeAngelis.

DeAngelis normally carries both his firearm and pepper spray. ... While DeAngelis was reaching for the pepper spray, the contractor saw DeAngelis's firearm, ... and added, several times, how DeAngelis was not "the only one to have a gun. I have a gun too." The contractor then reached behind his back and started coming toward DeAngelis again. ...

DeAngelis, afraid the contractor was going to attack him or try to take his firearm, drew it in low-ready behind him. The moment DeAngelis did this the contractor stopped and backed off DeAngelis's property. ...

DeAngelis did not end up contacting the police; he thought the incident was over and did not want to escalate the conflict even further. DeAngelis calmed down, put his firearm into the safe, grabbed his pepper spray and went to Home Depot ....

While at Home Depot, probably 45 minutes after the assault on him, DeAngelis received a call from Skokie dispatch, telling him that Lincolnwood P.D. wanted to speak with him. DeAngelis went back to his home and parked in front, and numerous officers came up to him. Some officers were in the back of his home, speaking with the contractor. After approximately 15 minutes, an officer came up to the front of DeAngelis's house and arrested him for disorderly conduct and aggravated assault, both misdemeanors.

Though the charges were later dismissed nolle prosequi, the Illinois State Police revoked DeAngelis's FOID card on September 19, 2022, suspended his CCL on the same date, and revoked his CCL a year later on September 18, 2023, because the Lincolnwood P.D. submitted a report labeling DeAngelis a "clear and present danger" ....
...
On August 4, 2022, the ISP sent a letter to Nekrasius revoking his FOID card due to his being a "clear and present danger" ....

Nekrasius was later told the allegedly-dangerous conduct was a phone call, though Nekrasius was neither informed with whom he allegedly spoke, nor what he supposedly said that was dangerous or threatening.

Through later-received information from the ISP, the allegedly-dangerous conduct was on December 2, 2021.
...
Further, there is no factual reason why -- if Nekrasius's alleged actions in December, 2021 did not merit him being labeled as a "clear and present danger" at the time, that he should have been deemed a "clear and present danger" -- such that the ISP had the sudden need to revoke Nekrasius's FOID card -- eight months later.

To date, because someone unknown and unqualified to evaluate Nekrasius's mental health has made an unfounded diagnosis about Nekrasius, he has since been stripped of his Second Amendment rights until at least December, 2026.
...

• ...
• "Present" has no meaning in practice; triggering event could be months or years before, which violates the clear statutory temporal requirement.

...

The remedies sought includes a permanent injunction on the ability of cops (and school administrators) to file C&PD reports to ISP.

Nothing in this lawsuit seeks to limit the ability of physicians or qualified mental health professionals from filing C&PD reports to the Illinois Department of Human Services. That could be a good thing or a bad thing. Without the ability to know who filed a C&PD report, plaintiffs are going to have to prove that it was cops in every instance. The three instances other than DeAngelis are certainly suggestive, but not conclusive. I'd argue that even the process for a qualified mental health professional to revoke a FOID is a violation of due process. So starting small, with the worst of the law, could be smart, but could have problems. It will be interesting to see if discovery of the unknowns can proceed, considering that the law prohibits (re)disclosures. Would a judicial seal work?

Meanwhile, the bullet point I quoted above is something I hadn't considered before. How current does a "present" danger have to be before it's in the past? What happened between December 2, 2021, and August 4, 2022? I know: July 4, 2022. I suspect that the state will argue "present" is "within five years."

Edited September 18, 2024 at 06:43 AM by Euler
cops → cops and school administrators enjoined

[Molly B.]

On 9/16/2024 at 5:54 PM, Euler said:

Is this case related to:


?

It is what we were working toward. Always looking for the next case that brings us closer to real 2A freedom.

[mab22]

If I read it correctly this is Federal not, State correct?

[Euler]

It was filed in the US District Court for Northern Illinois. The claims are Section 1983 violations of 2nd and 14th Amendment rights.

If it were a state case, it would have been filed in a County Circuit Court.

[MrTriple]

A good start. Teachers really shouldn't be allowed to report owing to concerns about bias and an inability (from a professional standpoint) to be able to properly identify what truly constitutes "clear and present danger," because if the cops can't even get it right, I trust teachers even less so.

[Euler]

On September 17, 2024 at 11:55 PM CDT, MrTriple said:→

A good start. Teachers really shouldn't be allowed to report owing to concerns about bias and an inability (from a professional standpoint) to be able to properly identify what truly constitutes "clear and present danger," because if the cops can't even get it right, I trust teachers even less so.

Oops. I misspoke. Plaintiffs are seeking to enjoin 430 ILCS 65/8.1(d)(2), which is cops and school administrators, not just cops.

BTW, teachers cannot report anyone directly, just school administrators (like principals and district superintendents). Teachers would have to get a school administrator to submit the report for them.

[MrTriple]

On 9/18/2024 at 1:40 AM, Euler said:

Oops. I misspoke. Plaintiffs are seeking to enjoin 430 ILCS 65/8.1(d)(2), which is cops and school administrators, not just cops.

BTW, teachers cannot report anyone directly, just school administrators (like principals and district superintendents). Teachers would have to get a school administrator to submit the report for them.

That's a little better, since the administration would (on paper) have a cooler head. Still wouldn't trust them.

[Euler]

On October 9, ISP filed an unopposed motion for an extension to respond to the complaint.

BTW, ISRA announced a week or so ago that it's sponsoring this lawsuit.

[mab22]

On 9/18/2024 at 10:45 AM, MrTriple said:

That's a little better, since the administration would (on paper) have a cooler head. Still wouldn't trust them.

 

This might irritate you slightly then. You can report someone "as a guest" and only have to provide "demographic information" according to the top of the page.

https://foid2.dhs.illinois.gov/foidpublic/foid/registration/DisplayClinicianNoRegistrationData.do?sessionControlDisabled=true

 

[Euler]

On October 11, the judge granted the extension until November 22.

On November 22, the state met the deadline to respond.

On December 23, the judge set a status hearing for January 30.

[Euler]

On January 27, the judge transferred the case to the district magistrate and canceled the January 30 status hearing.

On January 28, the district magistrate set the following schedule:

03/21: deadline to amend pleadings
04/01: status report due (mostly to include negotiated discovery schedule; see next item)
10/31: discovery complete (The court chooses not to subdivide discovery types.)

Edited February 28, 2025 at 05:11 AM by Euler

[Tvandermyde]

for the love of God, we'll never get anything done at this rate

[John Q Public]

As intended. 

[Plinkermostly]

Ya do kind of get that idea -- they ain't just going to roll over, not a surprise since they never understood: shall not infringe.

[John Q Public]

Even if we prevail on this/that there are just going to pass another illegal law and starts over. We will never prevail until there are held accountable. End of story. 

 

As Euler said, for now, it's just OP that are treated this way.

 

https://capitolnewsillinois.com/news/pritzker-signs-karinas-law-to-remove-guns-from-domestic-violence-situations/#:~:text=House Bill 4144%2C also known,as a remedy in court.

 

In that article they said the SC agreed, but didn't they stipulate the accused must be allowed to defend themselves, "Before" the guns could be removed? What Il is doing is to take them having had an Ex Parte hearing in which the accused was not involved, nor having the chance to defend themselves. Since DV is a dis qualifier, even on the Fed level, it's not needed since the guilty already has the FOID taken and would no longer pass a background check anyway. Bottom line either you have been convicted, or you have had a chance to defend yourself. 

 

 

Edited March 2, 2025 at 06:56 PM by John Q Public

[Euler]

On April 1, the parties filed a joint status report.

On April 2, the judge acknowledged that an arbitrated settlement wasn't going to be a feasible resolution. Parties are to file their next status report on May 1.

[Gunowner773]

This whole process has destroyed my life I really need help. Can someone please recommend an honorable lawyer to me? 

[John Q Public]

Oxymoron...

 

There's one on here that does FOID work, I dunno what you need them for?

[Euler]

On May 1, the parties filed a joint status report. Parties are to file their next status report on June 16.

[TomKoz]

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