Rogers v. Hacker

• Docket Number: 3:20-cv-1116-DWD
• Decision Date: 28 August 2023
• Parties: WILLIAM R. ROGERS, Plaintiff, v. GREGORY HACKER, Personally, and JEFFREY YENCHKO, In His Official Capacity as the Chief of the Illinois State Policy Firearms Services Bureau, Defendants.[1]
• Court: U.S. District Court — Southern District of Illinois

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WILLIAM R. ROGERS, Plaintiff, v. GREGORY HACKER, Personally, and JEFFREY YENCHKO, In His Official Capacity as the Chief of the Illinois State Policy Firearms Services Bureau, Defendants.^[1]

No. 3:20-cv-1116-DWD

United States District Court, S.D. Illinois

August 28, 2023

MEMORANDUM & ORDER

DAVID W. DUGAN, UNITED STATES DISTRICT JUDGE

Before the Court are Plaintiff's Cross-Motion for Summary Judgment as to Counts II, III, and IV (Doc. 95) and Defendants' Cross-Motion for Summary Judgment as to all Counts (Doc. 101) of the Second Amended Complaint. Also before the Court is Plaintiff's Motion for an Extension of Time (Doc. 105) to file a Response to Defendants' Motion for Summary Judgment (Doc. 107). For the reasons explained below, the Court GRANTS Plaintiff's Motion for an Extension of Time DENIES Plaintiff's Cross-Motion for Summary Judgment, and GRANTS Defendants' Cross-Motion for Summary Judgment. In doing so, the Court emphasizes, as a result of the specific findings made in relation to Plaintiff's lack of standing, which is discussed in detail below, it does not reach the merits of the constitutional questions implicated by Counts II, III and IV of the Second Amended Complaint.

I. Background

On July 7, 2021, Plaintiff filed a Second Amended Complaint (Doc. 69) against Defendant Hacker. In Count I, Plaintiff alleges the Chief of the ISP Firearms Services Bureau, formerly Defendant Hacker and now Defendant Yenchko, is responsible for processing Firearm Owners Identification (“FOID”) card applications, the issuance of FOID cards, and the licensing and regulation of firearms dealers in Illinois. (Doc. 69, pg. 2). Before initiating this lawsuit, Plaintiff allegedly applied for a FOID card, paid the associated $10.00 fee, and paid a processing fee that is not authorized by statute. (Doc. 69, pg. 2). According to Plaintiff, under 430 ILCS 65/5, Defendant Hacker was required to approve or deny all FOID card applications within 30 days of their receipt. (Doc. 69, pg. 2). Nevertheless, in violation of the Second and Fourteenth Amendments to the U.S. Constitution, Defendant Hacker failed to “either approve, or deny, Plaintiff's application for a FOID card within any reasonable constitutionally allowed time frame, and [he] would not have done so in less than 115 days, but for this lawsuit.” (Doc. 69, pg. 3).

As support, Plaintiff alleges systemic, “excessive[,] and unreasonable delays...in the processing” of FOID cards. (Doc. 69, pgs. 2-4). Plaintiff states Defendant Hacker and the State of Illinois forced Plaintiff and others “to simply wait[] [for] unknown and unknowable periods of time, in many cases six months[] [and] in some cases[] over a year, to conduct a background check.” (Doc. 69, pgs. 2-3). Defendant Hacker was allegedly aware of the delay, the fact that it violated Illinois law, and the undue restriction of the Second Amendment, yet he took “no articulable steps to actually redress th[e] problem, despite promises, going back nearly a decade (in the case of Hacker's predecessors) to fix the delay problem.” (Doc. 69, pg. 4). Further, Defendant Hacker allegedly engaged in a policy and practice of discouraging and/or mooting cases brought by persons seeking FOID cards. (Doc. 69, pgs. 3-4). Plaintiff notes his FOID card was immediately issued after Defendant Hacker was served in this case. (Doc. 69, pgs. 3-4). Plaintiff seeks “an amount... of money less than $5,000.00, plus attorney fees...and costs of suit, plus such other, further[,] and different relief allowed by law.” (Doc. 69, pg. 7).

In Count II, Plaintiff alleges the charges for a Firearm Concealed Carry License (“FCCL”), on their face, “appear to be a mere fee used to process applications.” (Doc. 69, pg. 8).^[2] As enforced, however, Plaintiff alleges the $150 fee constitutes a tax on constitutionally protected activity, i.e., the right to keep and bear arms under the Second Amendment. (Doc. 69, pg. 8). Plaintiff alleges the FCCL costs more than is reasonably necessary to administer the relevant statute and program, as monies collected from the fees are transferred from the statutorily intended funds to the General Revenue Fund of the State. (Doc. 69, pgs. 9-11). Further, Plaintiff alleges he cannot afford the FCCL fee. (Doc. 69, pg. 8). Therefore, the FCCL fee allegedly prohibits him from exercising the right to keep and bear arms outside of the home. (Doc. 69, pgs. 8, 11-12). Aside from attorney's fees and costs, Plaintiff seeks to enjoin (1) the collection of monies paid by applicants for FCCL cards to fund any program that is unrelated to processing and issuing such cards, and (2) the enforcement of the Firearm Concealed Carry Act (“FCCA”) (430 ILCS 66/1 et seq.) until the charges are limited to processing and administration costs. (Doc. 69, pg. 12).

In Count III, Plaintiff alleges he “is not financially well off[] and does not presently own any handguns, as he cannot afford most handguns on the market.” (Doc. 69, pg. 12). However, Plaintiff allegedly discovered certain handguns cost $120.00 and are within his budget. (Doc. 69, pg. 13). Plaintiff alleges such handguns are made of zinc alloy. (Doc. 69, pg. 13). According to Plaintiff, Section 24-3(A)(h) of the Illinois Criminal Code of 2012 (720 ILCS 5/24-3(A)(h)) operates as a total ban on “new, modern[,] and safe” zinc alloy handguns, as dealers and manufacturers will not sell such firearms due to a fear of prosecution or license revocations. (Doc. 69, pg. 13). As such, the cheapest handguns, allegedly common and available elsewhere, were driven from Illinois, forcing Plaintiff to remain unarmed. (Doc. 69, pg. 14). Plaintiff seeks a finding that Section 24-3(A)(h) is unconstitutional, an order of enjoinment, and attorney's fees and costs. (Doc. 69, pg. 15).

In Count IV, Plaintiff alleges, under 20 Ill. Adm. § 1235.90, a licensed firearm dealer may transfer a firearm to a purchaser if the transaction has not been disapproved and the ISP had 72 hours to process the transaction. (Doc. 69, pg. 16). However, the ISP Firearms Services Bureau allegedly issued guidance that is contrary to § 1235.90 and could result in “unlimited delay[s] on the right to keep and bear arms.” (Doc. 69, pgs. 16-17). That guidance allegedly provides: “The actual transfer of the firearm cannot take place until there is an approval from the [Firearm Transfer Inquiry Program] system, regardless of when the agreement was reached. If the [Federal Firearm Licensees] receive[] a transaction number, they cannot complete the transfer until they receive an approval.” (Doc. 69, pg. 16). Plaintiff alleges most licensed dealers will not transfer a firearm to a FOID card holder, even after 72 hours, without approval from Defendant Yenchko, which results in an infringement on the right to keep and bear arms. (Doc. 69, pg. 17).

Further, under federal law, Plaintiff alleges a licensed firearms dealer may proceed with a firearm transfer, after 72 hours, if it has not been disapproved and there was a background check within 30 days. (Docs. 69, pgs. 17-18). Therefore, Plaintiff suggests purchasers face a “catch 22,” as Illinois law could bar a dealer from transferring a firearm to a purchaser for more than 30 days at the same time that federal law bars a dealer from transferring a firearm pursuant to a background check older than 30 days. (Doc. 69, pgs. 17-18). For current FOID card holders, Plaintiff notes that a background check has already been performed and is reperformed frequently by Defendant Yenchko, such that there is no reason a transaction, not disapproved within 72 hours, cannot proceed. (Doc. 69, pgs. 18-19). Aside from attorney's fees and costs, Plaintiff seeks the following relief: (1) an order enjoining Defendant Yenchko from enforcing a ban on the transfer of a firearm from a licensed firearm dealer, more than 72 hours after a background check, unless Defendant Yenchko disapproves the transaction before the transfer of the firearm; and (2) an order holding any waiting period over 72 hours unconstitutional. (Doc. 69, pg. 19).

A. Plaintiff's Cross-Motion for Summary Judgment as to Counts II, III, and IV

Plaintiff makes arguments similar to the allegations contained in the Second Amended Complaint. First, as to Count II, he argues the cost of a FCCL improperly constitutes an “excessive and exorbitant” tax on a constitutional right. (Doc. 95, pgs. 3, 7, 9).

Plaintiff notes the “average processing cost” for a FCCL, which has a fee of $150, was $67.18 in 2022, $43.59 in 2021, $75.50 in 2020, and $34.82 in 2019. (Doc. 95, pgs. 4-5). As such, Plaintiff argues the State of Illinois had a profit of $74.50 to $115.18 on each FCCL application during those years. (Doc. 95, pg. 8). Also, from the FCCL fee, Plaintiff notes $120 is transferred to the ISP Firearms Services Bureau, $20 is transferred to a mental health fund, and $10 is transferred to a crime lab. (Doc. 95, pg. 4). According to Plaintiff, the FCCL regime is inconsistent with that of other States, where a concealed carry license is not required, is free, or costs less than $60. (Doc. 95, pgs. 5, 8). Plaintiff suggests the FCCL scheme, coupled with the scheme for FOID cards, resulted in $15,000,000 being “swept” into general revenue funds. (Doc. 95, pg. 8). Therefore, Plaintiff argues the FCCL fee discourages FCCL applications and funds unrelated programs. (Doc. 95, pg. 8).

Second as to Count III, Plaintiff argues it is illegal for a federal firearms licensee to sell or give away a handgun with an alloy frame or barrel, including a zinc alloy frame or barrel, under § 24-3(A)(h). (Doc. 95, pg. 13). Since it is against federal law to directly receive a handgun made of zinc alloy from a licensed dealer in another state, without going through a federal firearm licensee in the ...