White v. Ill. State Police

• Decision Date: 06 October 2021
• Docket Number: No. 20-2842,20-2842
• Citation: 15 F.4th 801
• Parties: Michael WHITE & Illinois State Rifle Association, Plaintiffs-Appellants, v. ILLINOIS STATE POLICE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

15 F.4th 801

Michael WHITE & Illinois State Rifle Association, Plaintiffs-Appellants,

v.ILLINOIS STATE POLICE, et al., Defendants-Appellees.

No. 20-2842

United States Court of Appeals, Seventh Circuit.

Argued September 15, 2021

Decided October 6, 2021

Gregory Abbott Bedell, Attorney, Knabe, Kroning & Bedell, Chicago, IL, David G. Sigale, Attorney, Law Firm of David G. Sigale, P.C., Wheaton, IL, for Plaintiffs-Appellants.

Alex Hemmer, Attorney, Office of the Attorney General, Chicago, IL, Sarah A. Hunger, Deputy Solicitor General, Office of the Attorney General, for Defendants-Appellees.

William James Taylor, Jr., Attorney, Everytown Law, New York, NY, for Amicus Curiae.

Before Brennan, Scudder, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

Illinois's Firearm Concealed Carry Act creates a scheme for licensing individuals to carry concealed firearms in public. Michael White applied for a concealed carry license on two occasions. Both times the State denied his application. White unsuccessfully appealed the first denial in Illinois state court. Following the second denial, White and the Illinois State Rifle Association (ISRA) filed this lawsuit in federal court challenging the constitutionality of the Concealed Carry Act. The defendants—state entities and officials tasked with enforcing the Act—moved to dismiss the lawsuit. The district court granted the motion with prejudice, and the plaintiffs now appeal.

We affirm. ISRA lacks Article III standing, so the district court correctly dismissed its claims. And White's facial challenges to the Concealed Carry Act are precluded by the judgment in his state court lawsuit challenging the denial of his first application. With these claims out of the way, our review on the merits is narrow. We ask only whether the Concealed Carry Act violates the Second Amendment as applied to the State's denial of White's second application. We hold that it does not. White has two criminal convictions—including one for unlawful use of a firearm—and multiple gun-related arrests. Illinois's individualized determination that White's criminal history renders him too dangerous to carry a concealed firearm in public survives intermediate scrutiny.

Though we affirm, we modify the judgment to reflect that ISRA's claims are dismissed without prejudice. The district court dismissed ISRA's claims for lack of jurisdiction, and a dismissal for lack of jurisdiction cannot be with prejudice.

I. Background

A. The Concealed Carry Act

Under the Concealed Carry Act, the Illinois Department of State Police "shall issue" a concealed carry license to an applicant who meets several statutory criteria. Namely, the applicant must be 21 or older, trained to handle firearms, eligible to possess a firearm under state and federal law, not subject to any pending proceedings that could disqualify him from possessing a firearm, and free of certain types of substance abuse treatment and criminal convictions within the past five years. 430 ILCS §§ 66/10(a), 66/25. In addition, the applicant must "not pose a danger to himself, herself, or others, or a threat to public safety as determined by the Concealed Carry Licensing Review Board." Id. § 66/10(a)(4).

This last requirement takes center stage in this case. To determine whether an applicant poses a danger to himself or others or a threat to public safety, the Illinois Concealed Carry Licensing Review Board relies on objections from state law enforcement agencies. A state law enforcement agency "may" object to an application "based upon a reasonable suspicion" that the applicant poses a danger to himself or others or a threat to public safety. Id. § 66/15(a). An agency "shall" object to an application if the applicant has five or more arrests in the past seven years or three or more arrests in the same period "for any combination of gang-related offenses." Id. § 66/15(b). Objecting agencies must supply information relevant to their objections. Id. § 66/15.

If an agency objects to an application, the Board must resolve the objection by a preponderance of the evidence. Id. § 66/20(g). In doing so, the Board considers the materials submitted with the objection. Id. § 66/20(e). The Board may also request additional information or testimony from the agency, the state police, or the applicant. Id. ; see 20 Ill. Admin. Code § 2900.140(c), 2900.150. Whenever an objection "appears sustainable," the Board notifies the applicant of the objection, including the basis for the objection, and allows the applicant to respond. 20 Ill. Admin. Code § 2900.140(e). If the Board sustains the objection, the state police must deny the application and "notify the applicant stating the grounds for the denial." Id. § 66/10(f). If there is no objection, or if the Board overrules an objection, then the state police move forward with the application. Id. §§ 66/15(d), 66/20(g). Unsuccessful applicants may challenge the denial of their applications through administrative and judicial review. Id. § 66/87.

B. White's First Application

White has a Firearm Owner's Identification Card, which allows him to possess a firearm at home, see 430 ILCS § 65/2(a)(1), but he has been unsuccessful in obtaining a concealed carry license. White first applied for a concealed carry license in May 2014. At the time, White was in his late 30s.

The Chicago Police Department and Cook County Sheriff objected to White's application on the grounds that the Chicago Police Department's gang database listed him as a member of the Latin Souls street gang. They also pointed to a 1995 arrest for battery with a knife, a 1996 arrest for unlawful possession of a firearm in a vehicle, and a 2012 arrest for unlawful use of a weapon and reckless discharge.

In response to the objection, White denied being a member of the Latin Souls street gang. With respect to the 1995 battery arrest, he claimed that he "never battered anyone and the arresting officer declined to press charges and that case was dismissed." He labeled the 1996 arrest "a case of mistaken identity," but he conceded that he pled guilty to unlawful use of a firearm (a misdemeanor) in 1998. And he maintained that the 2012 arrest had resulted in an acquittal at trial. Going beyond the information in the objection, White admitted that he pled guilty to misdemeanor possession of cannabis in 1994. He also admitted to an allegation of disorderly conduct in 2000 and a traffic offense in 2001.

The Board denied White's application in August 2015¹ after determining by a preponderance of the evidence that White posed a danger to himself or others or a threat to public safety. The Board did not explain the basis for its finding. White appealed the denial of his application, arguing that the Board's decision misapplied the statute and was wrong on the merits. More broadly, White argued that the Concealed Carry Act violated the Second Amendment and the Fourteenth Amendment's Due Process Clause. The Circuit Court of Cook County affirmed the Board's decision after holding a hearing.

White appealed, and the Illinois Appellate Court affirmed. White v. Ill. Dep't of State Police-Firearms Serv. Bureau , No. 1-16-1282, 2017 WL 2602637 (Ill. App. Ct. June 14, 2017). To begin, the court rejected White's statutory arguments, holding that the Act permits the Board to consider an applicant's entire criminal history, including old arrests and hearsay evidence of gang membership. In a similar vein, the court held that the Board did not violate state administrative law by failing to make findings of fact. On the merits, the court held that the Board's finding that White posed a "danger" or "threat" was not clearly erroneous. As for White's constitutional arguments, the court held that White had forfeited his Second Amendment claim by failing to raise it before the Board, that the Act's "danger" or "threat" standard was not unconstitutionally vague, and that the Board's failure to hold a hearing did not violate due process. The Illinois Supreme Court denied White's petition for leave to appeal.

C. White's Second Application

White's second application proceeded in similar fashion. He applied in August 2017, and the Chicago Police Department objected based on his 2012 arrest and his supposed membership in the Latin Souls street gang. In response, White again denied membership in any street gang. He made similar representations about his criminal history, though this time he admitted to a 1996 arrest for unlawful use of a weapon. He also reprised his constitutional arguments. In November 2017, the Board denied White's application based, once again, on its unexplained conclusion that he posed a danger to himself or others or a threat to public safety.

D. Federal Lawsuit

Rather than appeal the denial of his second application in state court, White brought this federal lawsuit under 42 U.S.C. § 1983 against the state police, the Board, and various individuals associated with those organizations. White alleges that the Concealed Carry Act, both on its face and as applied to him, violates the Second Amendment and the Fourteenth Amendment's Due Process Clause. He seeks a declaration that the Act violates his constitutional rights as well as an injunction barring the defendants from violating his constitutional rights in the future and requiring them to issue him a concealed carry license.

White is joined in this lawsuit by ISRA. ISRA represents that its purposes include "securing the Constitutional right to privately own and possess firearms within Illinois, through education, outreach, and litigation." It sues on its own behalf and on behalf of its members, many of whom have unsuccessfully applied for concealed carry licenses. It alleges that its members would carry loaded firearms in public for self-defense, but that they refrain from doing so "because they fear prosecution due to the prohibition on carrying a concealed firearm in public for self-defense without a [license]." Those are all of ISRA's allegations. ISRA does not...