Perez v. Ill. Concealed Carry Licensing Review Bd.

• Decision Date: 15 September 2016
• Docket Number: No. 1–15–2087.,1–15–2087.
• Citation: 63 N.E.3d 1046,407 Ill.Dec. 614
• Parties: Benjamin PEREZ, Plaintiff–Appellant, v. The ILLINOIS CONCEALED CARRY LICENSING REVIEW BOARD, The Illinois State Police, and Hiram Grau, as Director of the Illinois State Police, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

63 N.E.3d 1046
407 Ill.Dec. 614

Benjamin PEREZ, Plaintiff–Appellant,
v.
The ILLINOIS CONCEALED CARRY LICENSING REVIEW BOARD, The Illinois State Police, and Hiram Grau, as Director of the Illinois State Police, Defendants–Appellees.

No. 1–15–2087.

Appellate Court of Illinois, First District, Fourth Division.

Sept. 15, 2016.

63 N.E.3d 1048

Joel A. Brodsky, of Chicago, for appellant.

Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro, Solicitor General, and Mary C. Labrec, Assistant Attorney General, of counsel), for appellees.

OPINION

Justice McBRIDE delivered the judgment of the court, with opinion.

407 Ill.Dec. 616

¶ 1 Plaintiff, Benjamin Perez, filed an application with defendant, the Illinois State Police, seeking a license to carry a concealed firearm in Illinois pursuant to the Firearm Concealed Carry Act (Act). 430 ILCS 66/1 et seq. (West 2014). Objections were made from two law enforcement agencies, the Cook County sheriff and the Chicago police department. The application was referred to defendant, the Illinois Concealed Carry Licensing Review Board (the Board), for administrative review. The Board subsequently denied plaintiff's application, finding by a preponderance of the evidence that plaintiff posed a danger to himself or others or a threat to public safety. 430 ILCS 66/10 (West 2014).

¶ 2 Plaintiff appeals, arguing that the Board's decision was against the manifest weight of the evidence because (1) it was based on police reports and criminal history reports regarding criminal charges for which plaintiff was either found not guilty or was not charged, (2) the decision was based on inadmissible and unreliable hearsay evidence, and (3) the Board's decision to deny his application without conducting an evidentiary hearing denied plaintiff of his due process rights.

¶ 3 In January 2014, plaintiff filed his application for a concealed carry license with the Illinois State Police. In March 2014, the Illinois State Police notified plaintiff that they received objections to his eligibility from a law enforcement agency. The objections were submitted to the Board, which would issue a decision within 30 days of receipt of the objections. The objection from the Chicago police department was from a police report of domestic violence in February 2007.

63 N.E.3d 1049

407 Ill.Dec. 617

¶ 4 The narrative section of the report stated that the reporting officers responded to a domestic battery. Upon arrival the officers spoke with the victim, plaintiff's girlfriend. She informed them that she and plaintiff were in a verbal argument and plaintiff “without justification struck victim in the back of head with his fist.” Plaintiff then “struck victim several more time[s] using his hands and feet about the head, face, and body before fleeing the scene.” The officers observed “minor bruising to the left eye and lower right leg.” The victim refused medical treatment and did not sign a complaint. The report indicated that there were 14 past instances of abuse, and that two children were present. The investigation was subsequently suspended when the detective was unable to contact the victim for an interview.

¶ 5 The objection from the Cook County sheriff was based on plaintiff's arrest in August 2011 for aggravated assault to a police/sheriff employee (720 ILCS 5/12–2(a)(16) (West 2010)). Plaintiff was subsequently found not guilty following a January 2012 bench trial.

¶ 6 In addition, plaintiff's criminal history disclosed that in August 2003, plaintiff was charged with four vehicle related offenses, including criminal trespass to vehicle, and driving without a license. The history indicated these charges were “stricken from docket with leave to reinstate.” Plaintiff also had a 2001 juvenile arrest for assault with a disposition that was “not mandated to be reported.”

¶ 7 In March 2014, plaintiff received a letter from the Illinois State Police informing him that the Board “has determined by a preponderance of the evidence” that he posed a danger to himself or others and was a threat to public safety. The Board affirmed the objections and denied plaintiff's application.

¶ 8 In April 2014, plaintiff filed a pro se complaint in the circuit court seeking review of the Board's decision to deny his application. In July 2014, defendants filed a motion to remand to the Board. Defendants asserted that subsequent to its denial of plaintiff's application, the Illinois Administrative Code was amended to include new rules regarding the Board and its review of law enforcement objections. See 20 Ill. Adm. Code 1231.230, adopted at 39 Ill. Reg. 1518 (eff. Jan. 6, 2015) (adopting emergency rule at 38 Ill. Reg. 19571 (eff. Sept. 18, 2014)). Defendants asked for a remand for further proceedings consistent with the new administrative rules. In July 2014, the circuit court granted defendants' motion and remanded the case to the Board for further proceedings.

¶ 9 Following remand, plaintiff received a letter from the Illinois State Police informing him of the objections to his concealed carry application, and his right to submit relevant evidence to the Board for its consideration. Plaintiff submitted a response, arguing that (1) there was no competent evidence that he committed an act of domestic violence or the aggravated assault of police or sheriff employee, (2) the not guilty finding in the aggravated assault of police or sheriff employee was evidence of his innocence, and (3) the failure of police to arrest and charge him in the domestic violence case was evidence that he did not perform the acts. Plaintiff attached the certified statement of conviction/disposition for the aggravated assault case, stating that there was a finding of not guilty.

¶ 10 In December 2014, the Board issued its final order denying plaintiff's application for a concealed carry license. “After reviewing the evidence received, the [Board] determined, by a preponderance of the evidence, that [plaintiff] is a danger to him/herself, is a danger to others, or

407 Ill.Dec. 618

63 N.E.3d 1050

poses a threat to public safety. Therefore, the objection is sustained and the Illinois State Police is directed to deny” plaintiff's application.

¶ 11 Thereafter, plaintiff filed a motion asking to file his first amended complaint for administrative review. Plaintiff later filed a “specification of errors” in regard to the Board's final decision, arguing that (1) the Board's decision was contrary to the record and against the manifest weight of the evidence and clearly erroneous, (2) the finding that plaintiff is a danger to himself and others or poses a threat to public safety is based on inadmissible and unreliable hearsay evidence, and (3) plaintiff was denied due process when the Board failed to hold an evidentiary hearing. In response, defendants contended that (1) there was sufficient evidence in the record to support the Board's finding and the Board is authorized to review an applicant's complete criminal history and (2) the Board is not statutorily required to conduct an evidentiary hearing on an application for a concealed carry license.

¶ 12 In July 2015, the circuit court conducted a hearing. At the conclusion of the hearing, the court affirmed the Board's order denying plaintiff's application.

¶ 13 This appeal followed.

¶ 14 On appeal, plaintiff argues that the Board's denial of his concealed carry license application was against the manifest weight of the evidence because (1) it was based on police reports and criminal history reports regarding criminal charges for which plaintiff was either found not guilty or was not charged, (2) the decision was based on inadmissible and unreliable hearsay evidence, and (3) the Board's decision to deny his application without conducting an evidentiary hearing denied plaintiff his due process rights.

¶ 15 When a party appeals the circuit court's decision on a complaint for administrative review, the appellate court's role is to review the administrative decision rather than the circuit court's decision. Siwek v. Retirement Board of the Policemen's Annuity & Benefit Fund, 324 Ill.App.3d 820, 824, 258 Ill.Dec. 392, 756 N.E.2d 374 (2001). The Administrative Review Law provides that judicial review of an administrative agency decision shall extend to all questions of law and fact presented by the entire record before the court. 735 ILCS 5/3–110 (West 2012). Further, “[t]he findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” 735 ILCS 5/3–110 (West 2012). “The standard of review, ‘which determines the degree of deference given to the agency's decision,’ turns on whether the issue presented is a question of fact, a question of law, or a mixed question of law and...