Rogers v. Hacker
| Decision Date | 01 July 2021 |
| Docket Number | 20-cv-1116 |
| Parties | WILLIAM R. ROGERS, Plaintiff, v. GREGORY HACKER, Defendant. |
| Court | U.S. District Court — Southern District of Illinois |
This matter comes before the Court on the Defendant's Motion to Dismiss Plaintiff's First Amended Complaint (Doc. 54) and the Defendant's Motion to Stay Discovery (Doc. 55). Both motions have been briefed and are ripe for consideration.
Plaintiff's First Amended Complaint (“Complaint”) (Doc. 33) alleges that Rogers is a resident of the State of Illinois and meets all of the qualifications under the “Firearm Owners Identification (“FOID”) Card Act, 430 ILCS 65/1, et. seq., which establishes a prerequisite process for any Illinois resident to purchase, own, or possess a firearm. Under the FOID Act, the State of Illinois must either approve or deny applications for a FOID Card within 30 days. 430 ILCS 65/5. (Doc. 33. ¶7) Plaintiff complains that he did not receive his FOID Card within that time period and that “Hacker waited until he was actually served with summons and process in this case [and then] immediately issued the FOID card, in an effort to moot the case . . .” (Doc. 33, ¶ 9). According to Rogers Complaint, Hacker's actions violate the Second and Fourteenth Amendments. In Count II, Rogers seeks to enjoin Hacker from “failing to process Plaintiff's Concealed Carry application within 60 days of receipt of said application”. (Doc. 33, P.9) In Count III, Rogers, on his own behalf and the “Plaintiff Class, ” alleges that Hacker collects and improperly transfers to other state-administered funds fees paid by applicants for FOID cards and Concealed Carry Licenses and, as such, amounts to a “charge for the enjoyment of a [constitutional] right” in violation of the Second and Fourteenth Amendments. (Doc. 33, ¶ 11-13). In Count IV, Rogers alleges that 720 ILCS 5/24-3(H), which prohibits a firearm dealer from selling to a private individual a handgun consisting of certain parts made of zinc alloys or metals that will deform at less than 800 degrees Fahrenheit, is unconstitutional in that it prohibits those with meager finances from purchasing an otherwise affordable handgun. (Doc. 33, ¶ 11). Rogers seeks a declaration that 720 ILCS 5/24-3(H) is unconstitutional. In Count VI, Rogers alleges that Illinois' background checks have resulted in delays such that Federal law, which proscribes transfers of a firearm to an individual after the passage of 30 days following the date that his or her background check has been conducted, operates to unconstitutionally interfere with that individual's right to bear arms. Rogers seeks to enjoin Hacker from “enforcing any ban or prohibition on the transfer of a firearm” after the passage of 72 hours unless specifically “disapproved.” (Doc. 33 ¶¶ 20-23).
Hacker moves to dismiss “all of Plaintiff's claims because: (1) Plaintiff lacks standing; (2) Count II is not ripe; (3) the Eleventh Amendment bars Plaintiff's supplemental claim in Count V; (4) Defendant Hacker is an improper party; (5) qualified immunity bars Count I; (6) Section 24-3 is constitutional; and (7) any government delay in processing background checks does not impose a substantial burden on Second Amendment Rights.” (Doc. 54)
Hacker claims that Rogers lacks standing to challenge FOID card fee, concealed carry licensing fee, and the constitutionality of Section 24-3. More specifically, Hacker argues that Roger's allegations that the fees charged are “largely comprised of taxes” in amounts above that which is reasonably necessary to the administration of the programs are without support and are insufficient to demonstrate that he has or will be harmed, along with others in the class in future years. (Doc. 54, P. 7).
A Rule 12(b)(1) motion challenging subject-matter jurisdiction questions the very power of the court to hear a case, Morrison v. Nat'l Australia Bank, Ltd. 561 U.S. 247, 254 (2010), because “Article III of the Constitution limits the exercise of judicial power to 'cases‘ and 'controversies.'” Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 239, (1937). “It goes without saying that those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Art. III of the Constitution by alleging an actual case or controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983).
In issue here is an Illinois law that imposes on its citizens the requirement of acquiring and possessing a valid FOID card before owning or purchasing a firearm or ammunition. 430 ILCS 65/2(a)(1). The Department of the State Police shall either approve or deny any initial application for a FOID card within 30 days. In Count I, Rogers provides a large array of allegations, but boiled down they suggest that he has been deprived of the timely issuance of a FOID card under 430 ILCS 65/5 due to “systemic” and “unreasonable delays” brought about by Hacker's “abandon[ment]” of applicable time periods and reason. (Doc. 33, ¶¶ 8, 10, 13). He also alleges efforts on the part of Hacker to create an “unlawful scheme to violate the Second and Fourteenth [A]mendments and to delay as much as practical, the issuance of FOID and concealed carry licenses.” (Id. a ¶18). Further, he asserts that Hacker “has personally seen to it that employees and contractors responsible for the issuance of FOID cards have been told not to come into work for large periods of time, and to not process applications.” (Doc. 33, ¶ 15) More to the point, Rogers alleges in Count I that only his filing and service of the lawsuit prompted Hacker, in an attempt to render the issue moot, to allow the issuance of the FOID card to Rogers. (Id. at ¶17-18). Rogers only requests relief in the form of “$5, 000.00, plus attorney's fees pursuant to 42 U.S.C. 1988.” (Id.).[1]
To establish standing, “a plaintiff must show (1) injury in fact, meaning an invasion of a legally protected interest that is concrete and particularized, actual or imminent, and not conjectural or hypothetical; (2) a causal connection between the injury and the conduct complained of such that the injury is fairly traceable to the defendant's actions; and (3) that a favorable decision is likely to redress the injury.” Tobin for Governor v. Illinois State Bd. of Elections, 268 F.3d 517, 527-28 (7th Cir. 2001). See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, (1992); Sierakowski v. Ryan, 223 F.3d 440, 442-43 (7th Cir. 2000). “With respect to the injury in fact requirement, the plaintiff must establish that he has sustained or is immediately in danger of sustaining some direct injury.” Tobin for Governor, 268 F.3d at 527-28. See Lyons, 461 U.S. at 101-02, (“Abstract injury is not enough.”); Lyons, 461 U.S. at 101.
Certainly, the ownership of certain firearms is a concrete and particularized legally protected interest under the Second Amendment. See generally D.C. v. Heller, 554 U.S. 570, 634 (2008); People v. Chairez, 2018 IL 121417, ¶ 26, 104 N.E.3d 1158, 1168 (Ill. 2018). Hacker does not argue otherwise. From the pleadings, it is clear that Rogers adequately pleads the existence of legally protected interest. Rogers does not, however, adequately allege injury other than to say that there was a delay which prevented him from purchasing a firearm. It is conceivable that delay, in and of itself, may result in or even bring about injury, but Rogers does not set forth in his complaint the nature of the injury he suffered as a result of any delay. A litigant must demonstrate an injury which is “real, not imaginary; concrete, not abstract; apparent, not illusory; and demonstrable, not speculative.” J.N.S., Inc. v. State of Ind., 712 F.2d 303, 305 (7th Cir. 1983). Count I of the Complaint falls short and should be dismissed.
Count II of the First Amended Complaint seeks injunctive relief against Hacker to prevent him from failing to issue Rogers' Concealed Carry permit within the 60-day period required under Illinois law. Rogers, at the time of the filing of the Complaint, only “intends to apply for an Illinois Concealed Carry License once he is reasonably confident he can safely pass the shooting test.” (Doc. 33, ¶17). Rogers does allege that he was not able to practice so that he can “ultimately take and pass the proficiency test and that the current state of the commercial market is delaying plans to do so.” (Doc. 33). He also pleads that Hacker “is claiming to take an average processing time of 160 days” but does not allege the existence of any direct injury given that he has not applied for the license. “It is insufficient that an actual controversy may occur in the future; it must presently exist in fact.” Id. Here, Rogers allegations contained in Count II are inadequately pled to establish subject matter jurisdiction, and Count II should be dismissed.
Likewise, “[o]ne aspect of the case-or-controversy requirement is ripeness”, Amling v. Harrow Industries, LLC, 943 F.3d 373, 377 (7th Cir., 2019). “Ripeness and other justiciability requirements bar a federal court from deciding a question that depends on so many future events that a judicial opinion would be 'advice about remote contingencies.'” Id. “A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998) (internal quotations omitted).
Hacker argues that the claim contained in Count II is not ripe and therefore, not justiciable. The Court agrees. Here, again, Roger has not yet applied for his Concealed Carry permit. While he alleges that he will apply at some time in the future, he may or may not follow...
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