Jankovich v. Ill. State Police
| Decision Date | 27 April 2017 |
| Docket Number | No. 1-16-0706,1-16-0706 |
| Citation | 2017 IL App (1st) 160706,78 N.E.3d 548 |
| Parties | Michael JANKOVICH, Plaintiff-Appellant, v. The ILLINOIS STATE POLICE and The Illinois Concealed Carry Licensing Review Board, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Samuel A. Shelist, of Chicago, for appellant.
Lisa Madigan, Attorney General, of Chicago (David L. Franklin, Solicitor General, and Mary C. LaBrec, Assistant Attorney General, of counsel), for appellees.
¶ 1 Plaintiff Michael Jankovich appeals from the rejection of his application for a concealed-carry license under the Firearm Concealed Carry Act (Act) (430 ILCS 66/1 et seq. (West 2014)) by defendants the Illinois State Police (ISP) and the Concealed Carry Licensing Review Board (Board) (collectively, defendants). The Chicago police department and Cook County sheriff's office filed objections to plaintiff's application, which the Board affirmed. Plaintiff then filed a petition for review of the Board's decision in the circuit court of Cook County, which the circuit court denied.
¶ 2 On appeal, plaintiff argues (1) that the trial court incorrectly found that the second amendment does not protect the right to carry a concealed firearm and, as a result, applied the improper level of scrutiny to the Act; (2) that the Board improperly relied on a rap sheet and police reports, which were inadmissible hearsay; (3) that the standard applied by the Board in denying his license violates the second amendment and is unconstitutionally vague; and (4) if the Board could rely on hearsay evidence under the Act, the Act's allowing such reliance violates his constitutional rights.
¶ 3 We affirm. We hold that the Board did not err in considering the rap sheet or police reports, as the Act contemplates the Board relying on such evidence. We hold that the Act's standard for denying a license, based on an applicant posing a danger to himself or others or a threat to public safety, is consistent with the second amendment and is not unconstitutionally vague. We finally hold that plaintiff's inadequate argument that the Board's reliance on hearsay violated his constitutional rights merits no consideration.
¶ 5 In order to provide better context for the facts and procedural history of this case, we first explain the statutory scheme for issuing concealed carry licenses under the Act.
¶ 7 The Act charges ISP with issuing and denying licenses to carry concealed firearms. 430 ILCS 66/10 (West 2014). The Board, which exists within ISP, is composed of seven commissioners with specific qualifications: one with at least five years' service as a federal judge, two with at least five years' experience as attorneys in the United States Department of Justice, three with at least five years' experience as federal agents, and one with at least five years' experience as a licensed physician or clinical psychologist with expertise in mental illness. 430 ILCS 66/20(a) (West 2014).
¶ 8 Under section 25 of the Act (430 ILCS 66/25 (West 2014) ), an applicant for a concealed carry license must have six qualifications: (1) be at least 21 years old; (2) have a current, valid Firearm Owner's Identification (FOID) Card and meet the requirements for the issuance of a FOID Card; (3) have not been convicted of a misdemeanor involving the use or threat of physical force or violence or two or more drug- or alcohol-related offenses in the past five years; (4) not be subject to a pending arrest warrant or prosecution; (5) have not been in residential or court-ordered alcohol or drug treatment for the last five years; and (6) have completed firearms training and education under the Act. Id.
¶ 9 The Act further provides that the ISP "shall issue a license to carry a concealed firearm" to an applicant who:
¶ 10 Once an application is filed, ISP must perform a background check on the applicant. 430 ILCS 66/35 (West 2014). Additionally, "[a]ny law enforcement agency may submit an objection to a license applicant based upon a reasonable suspicion that the applicant is a danger to himself or herself or others, or a threat to public safety." 430 ILCS 66/15(a) (West 2014).
¶ 11 The Board is tasked with hearing any law enforcement objections to an application. 430 ILCS 66/20(a), (e) (West 2014). The Board can request additional information from the law enforcement agency that submitted the objection, ISP, or the applicant. 430 ILCS 66/20(e) (West 2014). The Board "shall affirm the objection" and deny the applicant a license "[i]f the Board determines by a preponderance of the evidence that the applicant poses a danger to himself or herself or others, or is a threat to public safety." 430 ILCS 66/20(g) (West 2014).
¶ 12 When the Board denies an application, the applicant may petition the circuit court for a hearing on the denial. 430 ILCS 66/87(a) (West 2014). The Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2014)) governs the review of Board decisions in circuit court. 430 ILCS 66/87(b) (West 2014).
¶ 14 Plaintiff filed his application on April 14, 2014. The application included 15 questions relating to plaintiff's criminal history, history of substance use, and mental capacity. Plaintiff answered "no" to all of the questions, indicating that he met most of the six qualifications for a concealed carry license under section 25.
¶ 15 As part of its background check, ISP compiled defendant's rap sheet from the Law Enforcement Agencies Data System (LEADS). See 20 Ill. Adm. Code 1240.10(a) (1999) ().
¶ 16 The Chicago police department objected to plaintiff's application, saying that the department had a reasonable suspicion to believe that plaintiff was a threat to public safety. In support of its objection, the department attached police reports relating to three incidents involving plaintiff.
¶ 17 The first incident occurred on July 13, 2010, when plaintiff allegedly kicked and punched an individual using "metal knuckles." The victim said that plaintiff "caused injury to his face" and cracked one of his teeth. The officer reported that he "observed swelling." A supplementary report indicated that the officers could not reach the victim by phone or at his address. The officer recommended that the case be suspended pending contact with the victim.
¶ 18 The second incident occurred on February 7, 2011. The report said that the victim had damaged some of plaintiff's signs for his campaign for alderman of the 43rd ward of Chicago. In response, plaintiff allegedly called the victim and said:
"I am going to have some officers come over there and arrest you if you do not pay and if not, I'm gonna [sic ] have some of my guys come over there and bust your head open and break your legs while I'm eating my dinner ... it's nothing to me."
A supplementary report said that the victim did not want to have plaintiff arrested and charged because "he had heard from people in the Bridgeport neighborhood that [plaintiff] would make good on his threats." The victim eventually stopped returning the detective's calls, and the detective recommended that the investigation be suspended.
¶ 19 The third incident occurred on September 17, 2012, when plaintiff allegedly called one of his employees and said, "I'm going to put you in a wood chipper and six feet underground if you don't stop calling about the money." A detective recommended suspending the investigation because the victim said that the calls stopped and that he did not need any further police assistance.
¶ 20 The Cook County Sheriff objected shortly after the Chicago police, also claiming a reasonable suspicion that plaintiff was a danger to others and a threat to public safety. The sheriff attached a Chicago police criminal history report for defendant to support its objection. That report indicated that plaintiff had been arrested 18 times. But only one of those arrests led to a conviction: a 1992 conviction for criminal damage to property, for which plaintiff received probation. The sheriff highlighted four arrests which did not lead to convictions: a 2009 arrest for assault, 1990 and 1991 arrests for battery, and a 1989 arrest for assault. The State nol-prossed the 2009 assault charge and the other three charges were all stricken off of the docket with leave to reinstate.
¶ 21 Based on these objections, the Board initially denied plaintiff's application for a license, and plaintiff sought administrative review of that decision in circuit court. Instead of answering the complaint, defendants sought remand of the matter to the Board in light of new administrative rules promulgated by ISP, which required the Board to notify applicants of any objections to license applications and to give licensees the opportunity to respond to those objections. See 20 Ill. Adm. Code 2900.140(e)(1) (2015). The circuit court remanded the matter to the Board.1
¶ 22 Then, in a letter dated May 7, 2015, in accordance with the new administrative rules, the Board formally notified plaintiff that it had received these objections from the Chicago police department and Cook County Sheriff. The Board detailed the specifics of these objections, not materially differently than we have described above, and informed plaintiff as follows:
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