Marszalek v. Kelly

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOHN M. MARSZALEK, et al.,

Plaintiffs,

Case No. 20-cv-04270

v.

Judge Mary M. Rowland

BRENDAN F. KELLY, in his official

capacity as Director of the Illinois

State Police; and JAROD

INGEBRIGTSEN, in his official

capacity as Bureau Chief of the Illinois

State Police Firearms Services Bureau,

Defendants.

MEMORANDUM OPINION AND ORDER

The individual and organizational plaintiffs bring this action against officials of

the Illinois State Police (ISP) alleging violations of their Second and Fourteenth

Amendment rights. The claims arise from the ISP’s delays in granting to applicants

Firearm Owners Identification (FOID) cards necessary to legally possess a firearm in

Illinois. The plaintiffs John Marszalek, the Illinois State Rifle Association (ISRA),

and the Second Amendment Foundation (SAF) have moved for a preliminary

injunction against the defendants directing them to immediately issue FOID cards to

Marszalek and affected members of ISRA and the SAF. For the reasons state below,

the plaintiffs’ Motion [47] is denied.

STANDARD

“A preliminary injunction is an extraordinary remedy.” Whitaker v. Kenosha

Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017). See also

Orr v. Shicker, 953 F.3d 490, 501 (7th Cir. 2020) (“a preliminary injunction is an

exercise of a very far-reaching power, never to be indulged [] except in a case clearly

demanding it.”) (cleaned up).

The party seeking a preliminary injunction must make an initial threshold

showing that: (1) it has some likelihood of succeeding on the merits; (2) it will suffer

irreparable harm if the injunction is not granted; and (3) there is no adequate remedy

at law. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the U.S.A., Inc., 549 F.3d

1079 (7th Cir. 2008). See also Illinois Republican Party v. Pritzker, 973 F.3d 760, 763

(7th Cir. 2020). Demonstrating a likelihood of success is “a significant burden,”

though “at such a preliminary stage, the applicant need not show that it definitely

will win the case.” Id. (noting that the “better than negligible” standard has been

retired). “A ‘strong’ showing thus does not mean proof by a preponderance…[b]ut it

normally includes a demonstration of how the applicant proposes to prove the key

elements of its case.” Id. If the moving party fails to demonstrate “any one of the[]

three threshold requirements, [the court] must deny the injunction.” Girl Scouts of

Manitou, 549 F.3d at 1086.

If the moving party makes the initial showing, the court then balances the

irreparable harm that the moving party would endure without a preliminary

injunction against any irreparable harm the nonmoving party would suffer if the

court were to grant the requested relief. Id. “This Circuit employs a sliding scale

approach for this balancing: if a plaintiff is more likely to win, the balance of harms

can weigh less heavily in its favor, but the less likely a plaintiff is to win the more

that balance would need to weigh in its favor.” GEFT Outdoors, LLC v. City of

Westfield, 922 F.3d 357, 364 (7th Cir. 2019), cert. denied sub nom. 140 S. Ct. 268, 205

L. Ed. 2d 137 (2019) (internal citations and quotations omitted). Finally, the court

considers “whether the preliminary injunction is in the public interest, which entails

taking into account any effects on non-parties.” Courthouse News Serv. v. Brown, 908

F.3d 1063, 1068 (7th Cir. 2018). “Ultimately, the moving party bears the burden of

showing that a preliminary injunction is warranted.” Id.

BACKGROUND

The facts herein are taken from the plaintiffs’ Second Amended Complaint (Dkt.

40), their Motion for Preliminary Injunction (Dkt. 48), their Reply (Dkt. 73), and the

defendants’ Response (Dkt. 67). In support of the Motion, the plaintiffs submitted

declarations from John Marszalek (Dkt. 48-1); Richard Pearson, the Executive

Director of ISRA (Dkt. 48-2, Dkt. 73-1); Julianne Versnel, the Director of Operations

of the SAF (Dkt. 48-3); Alexey Alekseev (Dkt. 73-2); Andrew Schamaun (Dkt.73-2);

Benjamin Kirkland (Dkt. 73-2); and Pamela DiCarlantonio (Dkt. 73-2), along with a

supporting exhibit. The defendants submitted a declaration from Gregory Hacker,

the acting commander of the ISP’s Firearms Services Bureau (Dkt. 67-1), and a

supporting exhibit.1

Marszalek is a resident of Carol Stream, Illinois. Dkt. 40, Am. Compl. ¶ 12. ISRA

is a non-profit organization incorporated in Illinois. Id. at ¶ 15. ISRA has 26,000

members in the state, and its purposes include “securing the constitutional right to

1 “Affidavits are ordinarily inadmissible at trials but they are fully admissible in summary

proceedings, including preliminary-injunction proceedings.” Ty, Inc., 132 F.3d at 1171.

privately own and possess firearms within Illinois, through education, outreach, and

litigation.” Id. The SAF is a non-profit organization incorporated in Washington with

over 650,000 members and supporters. Id. at ¶ 19. Its purposes include “education,

research, publishing, and legal action focusing on the constitutional right privately

to own and possess firearms.” Id. Kelly and Ingebrigtsen are officials with the ISP

responsible for managing programs related to firearms. Id. at ¶¶ 24-25.

Illinois law requires that individuals obtain a FOID card before they may legally

possess a firearm or ammunition. Id. at ¶¶ 27-28. The ISP is responsible for reviewing

FOID applications and issuing FOID cards. Id. Illinois law requires that the ISP

approve or deny applications within 30 days of receiving them. Id. at ¶ 29. The ISP

is required to grant a card unless the applicant is disqualified by a factor listed in the

relevant statute. Id. at ¶ 19.

Despite the statutory requirement, the ISP often takes longer than 30 days to

review applications and issue FOID cards. Id. at ¶ 19. As of October 2020, it took 116

days on average to process an application. Dkt. 48, Mot. at 7. The ISP says that

applications can be delayed for several reasons, such as gathering information from

out-of-state law enforcement agencies. Dkt. 67, Resp. at 11. In 2020, the ISP

processed an average of 15,891 applications a month. Id. The backlog has been

exacerbated by the Covid-19 pandemic and summer protests, with the ISP seeing a

surge in applications at the same time that remote work hampered the training of

new analysts. Id. at 11-12.

On May 4, 2020, Marszalek applied for an FOID card. The application was

approved on December 3, 2020 and mailed on January 2, 2021, after the instant

Motion was filed. Dkt. 67-1, Hacker Decl. ¶ 3. ISRA and SAF, however, state that

other members of their organizations qualify for cards and have been waiting for more

than 30 days. Pearson identifies a 55-year-old man and a 76-year-old who are both

members of ISRA who have been waiting since June 2020. Dkt. 48-2, Pearson Decl.

¶¶ 7-8. In a later declaration, Pearson affirms that the 55-year-old is still waiting for

his FOID card. Dkt. 73-1, Pearson Decl. ¶ 3. Versnel identifies a 55-year-old man as

an SAF member who has also been waiting since last June. Dkt. 48-3, Versnel Decl.

¶ 6. In their Reply, the plaintiffs provide declarations from four other ISRA members

stating that they qualify for FOID cards and have had applications pending for more

than 30 days. See Dkt. 73-2. Finally, ISRA operates a firing range in Bonfield, Illinois.

Dkt. 40, Am. Compl. ¶ 16. In order to gain access to the range, ISRA members must

purchase a range membership for $600 from the organization and have a valid FOID

card. Id. at ¶ 55.

On July 20, 2020, the present lawsuit was filed. Subsequently, however, many of

the individual plaintiffs’ claims were rendered moot because they received their FOID

cards. On December 15, 2020, Marszalek and the organizational plaintiffs filed this

Motion for Preliminary Injunction. They seek a preliminary injunction directing the

defendants to immediately issue FOID cards to Marszalek and all affected members

of ISRA and the SAF.2

ANALYSIS

As stated, in order to obtain a preliminary injunction, the plaintiffs must establish

that they have a likelihood of success on the merits; will suffer irreparable harm if an

injunction is not granted; and lack an adequate remedy at law. Girl Scouts of Manitou

Council, Inc. v. Girl Scouts of the U.S.A., Inc., 549 F.3d 1079 (7th Cir. 2008). If that

hurdle is cleared, the court must balance the harms that would be imposed by

granting or denying the injunction. Id. In this case, the plaintiffs’ Motion fails at the

first step. The defendants present two different arguments as to why the plaintiffs

are unlikely to succeed on the merits—first, that the plaintiffs lack standing and,

second, that their substantive claims will fail.

A. The Organizational Plaintiffs Have Standing

The defendants first argue that the plaintiffs are unlikely to succeed on the merits

because their claims are moot or they lack standing. According to an uncontested

declaration supplied by the defendants, Marszalek received his FOID card

subsequent to the filing of the present motion. Dkt. 67-1, Hacker Decl. ¶ 3. As a result,

his claim for injunctive relief is now moot. See Brown v. Bartholomew Consol., 442

F.3d 588, 596 (7th Cir. 2006). Without Marszalek, only ISRA and the SAF remain to

litigate this case.

2 It is unclear how many FOID cards the plaintiffs are requesting be issued. At a hearing, the plaintiffs’

counsel did not know what percentage of ISRA and SAF members currently have FOID cards, and the

Motion does not identify how many affected members there are.

The defendants assert that ISRA and SAF lack standing to bring this action. In

order to establish Article III standing a plaintiff must show that she has suffered an

“injury in fact;” that there is a causal connection between the injury and the

defendant’s actions; and that the injury is likely to be redressed by a favorable

decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). A mere “abstract

interest” in a particular topic is not enough to grant standing. Muro v. Target Corp.,

580 F.3d 485, 491 (7th Cir. 2009).

Along with their own standing, organizations may also assert standing on behalf

of their members. An organization may exercise such associational standing when:

“(1) its members would otherwise have standing to sue in their own right, (2) the

interests it seeks to protect are germane to the organization's purpose, and (3) neither

the claims asserted, nor the relief requested, requires the participation of individual

members in the lawsuit.” Disability Rts. Wisconsin, Inc. v. Walworth Cty. Bd. of

Supervisors, 522 F.3d 796, 801 (7th Cir. 2008). The plaintiffs insist that ISRA has

standing in itself and that ISRA and SAF have standing on behalf of their members.

The Organizational Plaintiffs Lack Standing in Themselves

In support of ISRA’s standing, the plaintiffs rely on the shooting rang that ISRA

operates in Bonfield, Illinois. It is available to ISRA members who pay an additional

$600 annual fee. To use the range, however, the member must have an FOID card.

So, the plaintiffs assert, ISRA is harmed by the long delays in FOID card processing

because it denies them revenue they otherwise would receive. Importantly, however,

they do not claim that any delayed member would actually purchase a range

membership.

In order to show an injury, a plaintiff must assert “some nonnegligible,

nontheoretical, probability of harm.” MainStreet Org. of Realtors v. Calumet City, Ill.,

505 F.3d 742, 744 (7th Cir. 2007). A harm that is probabilistic, for example a proposed

ordinance that may increase or decrease property values, can provide standing. See

id. But the harm claimed here is not an identified harm that has some percentage of

likelihood to arise from a particular action. Instead, it is speculation that more ISRA

members with FOID cards may translate into more range revenue. The mere

theoretical possibility that someone would purchase a range pass is not enough to

confer standing. This is reinforced by the fact that, as the defendants point out, the

shooting range is located in a town of about four hundred people around fifty miles

from Cook County.

The plaintiffs correctly state that loss of revenue can be a cognizable injury. See

Craig v. Boren, 429 U.S. 190 (1976) (holding that a beer vendor prohibited from

selling to young men had standing to sue for discrimination). But in Craig, there was

no question as to whether the plaintiff had potential customers. Here, the plaintiffs

have conspicuously failed to plead that any of the appealing ISRA members would

shell out the $600 in additional member dues in order to access the ISRA shooting

range. As a result, the organization does not have standing on its own behalf.

ISRA and the SAF Have Associational Standing

In order to establish associational standing, the organization must have members

who “would otherwise have standing to sue in their own right.” Disability Rts.

Wisconsin, 522 F.3d at 801. Only one qualifying member is needed to satisfy this

requirement, and he need not be named. Id. at 802. Still, the plaintiff must make

“specific allegations establishing that at least one identified member had suffered or

would suffer harm.” Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009). In

Summers, the Supreme Court held that the organizational plaintiff lacked standing

to challenge an agency regulation affecting logging. In support of its standing, the

organization had submitted a declaration by a member who hoped to one day visit a

specific national forest, who said that his enjoyment of the trip would be marred by

planned logging there. Id. at 495-96. The Court found this individual did not have an

injury in fact because the “vague desire” to visit a place was not sufficiently imminent.

Id. at 496. Because the individual had not suffered an injury in fact, the organization

to which he belonged did not have standing to sue on his behalf.

In the present case, by contrast, ISRA and the SAF have alleged that at least one

member of both organizations is currently awaiting an FOID card after having

applied over 30 days ago. There is no question of imminence—the applicant is

currently suffering the harm about which the organizations complain. He clearly

would have standing to sue on his own, and so he can bestow associational standing

on ISRA and the SAF.

The defendants argue that the Court should not accept “the organizations' self-

descriptions of their membership.” Id. at 499. Instead, the Court has “an independent

obligation to assure that standing exists.” Id. But in those passages, the Summers

majority was objecting to the dissent accepting as true allegations of harm made in

the complaint but unsupported by declarations. See id. at 506-07 (Breyer, J.,

dissenting). In this case, the organizations’ descriptions of their membership are

supported by declarations from their officers. See Dkt. 48-2, Pearson Decl. ¶¶ 7-8;

Dkt. 48-3, Versnel Decl. ¶ 6. The Court has no reason to doubt the truthfulness of

these declarations. The defendants insist that the plaintiffs must “identify members

who have suffered the requisite harm.” Id. at 499. But it is not clear how a more

specific identification could be accomplished at this stage without explicitly naming

the affected member, a step that associational standing does not require. See

Disability Rts. Wisconsin, Inc. v. Walworth Cty. Bd. of Supervisors, 522 F.3d 796, 803

(7th Cir. 2008).

The defendants also argue that the organizational plaintiffs lack standing because

it is possible that the underlying members’ claims have been mooted, as occurred with

the named plaintiffs. Dkt. 67, Def. Resp. at 3. In their Reply, ISRA reaffirmed that

one of the previously mentioned members was still waiting for an FOID card. The

plaintiffs also supplied the declarations of several other ISRA members whose FOID

applications remain in limbo, suggesting that ISRA has a number of members

through which it can claim standing. None of the declarations in the Reply mentioned

the SAF, but the plaintiffs have not informed the Court of any change since the

original declarations were filed. Of course, “mootness doctrine requires re-evaluating

the standing requirements throughout litigation.” Milwaukee Police Ass'n v. Bd. of

Fire & Police Comm'rs of City of Milwaukee, 708 F.3d 921, 929 (7th Cir. 2013). It is

possible that all the affected members of the organizational plaintiffs will obtain

FOID cards during this litigation, denying ISRA and SAF standing. But the Court

will not make that conclusion preemptively.

ISRA and the SAF also satisfy the final two elements of associational standing.

Both organizations describe their purpose as furthering the “the constitutional right

to privately own and possess firearms.” Dkt. 40, Am. Compl. ¶¶ 15; 19. Ensuring their

members are able to legally exercise that right in a timely fashion is clearly an

interest “germane to the organization's purpose.” Disability Rts. Wisconsin, Inc. v.

Walworth Cty. Bd. of Supervisors, 522 F.3d 796, 801 (7th Cir. 2008).

Furthermore, it is clear that the participation of individual members is not

required in this lawsuit. Supreme Court precedent holds that individual participation

“is not normally necessary when an association seeks prospective or injunctive relief

for its members.” United Food & Com. Workers Union Loc. 751 v. Brown Grp., Inc.,

517 U.S. 544, 546 (1996). In cases where government practice, as opposed to policy,

is at issue, the participation of some individual members may be necessary to

establish the governmental practice. See Retired Chicago Police Ass'n v. City of

Chicago, 7 F.3d 584, 601 (7th Cir. 1993). But the Supreme Court has not limited

“representational standing to cases in which it would not be necessary to take any

evidence from individual members of an association.” Id. at 602. Instead, the

requirement limits standing when “it is necessary to establish ‘individualized proof’

for litigants not before the court,” as when bringing a claim for damages. Id.

In this case, the organizational plaintiffs do not seek damages on behalf of the

plaintiffs. And while individual participation will be required to establish the

plaintiff’s allegations of the ISP’s practice, it will not be necessary to establish

individualized facts for every affected member of the organizational plaintiffs. The

defendants cite to cases that find a presumption against granting third-party

standing, but third-party standing is a legally distinct concept from associational

standing, where the organization represents the interests of its members. Compare

Uptown Tent City Organizers v. City of Chicago Dep't of Admin. Hearings, No. 17 C

4518, 2018 WL 2709431, at *7 (N.D. Ill. June 5, 2018) (analyzing a plaintiff’s third-

party standing argument); with id. at **6-7 (analyzing a plaintiff’s legally distinct

associational standing argument). Accordingly, ISRA and the SAF satisfy all the

requirements for associational standing. In order to determine their likelihood of

success, we must turn to the underlying merits of the case.

B. The Plaintiffs Have Not Demonstrated a Likelihood of Success on the

Merits of Their Second Amendment Claim

ISRA and the SAF allege violations of their members Second and Fourteenth

Amendment rights. In determining whether to grant a preliminary injunction, the

Court must determine whether these claims are likely to succeed on the merits. Girl

Scouts of Manitou Council, Inc. v. Girl Scouts of the U.S.A., Inc., 549 F.3d 1079 (7th

Cir. 2008).

Following the Supreme Court’s recognition of an individual right to possess

firearms in District of Columbia v. Heller, 554 U.S. 570 (2008), the Seventh Circuit

articulated a two-step process to evaluate Second Amendment claims. Ezell v. City of

Chicago, 651 F.3d 684, 701 (7th Cir. 2011). The first, “threshold inquiry” asks

whether “the restricted activity [is] protected by the Second Amendment in the first

place.” Id. If it is, the Court must then consider “the strength of the government's

justification for restricting or regulating the exercise of Second Amendment rights.”

Id. at 703. To establish a likelihood of success, the plaintiffs must show the ISP’s

delays in granting FOID cards implicate and unduly burden the constitutional right.

The ISP’s FOID Process Implicates the Second Amendment

Determining the scope of the Second Amendment “requires a textual and

historical inquiry” into its meaning at the time it became applicable against the states

through the ratification of the Fourteenth Amendment. Ezell, 651 F.3d at 701-02. The

Supreme Court has recognized that laws prohibiting certain limited classes of people

from possessing firearms, such as felons and the mentally ill, likely do not implicate

the Second Amendment. Heller, 554 U.S. at 626. The Fifth Circuit conducted a

thorough review of the historical record and identified deep historical precedents for

“a variety of gun safety regulations,” including those that kept “track of who in the

community had guns” and that “targeted particular groups for public safety reasons”

in Nat'l Rifle Ass'n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives,

700 F.3d 185, 200 (5th Cir. 2012). The defendants provide further citations to

historical state laws requiring background checks and permits before obtaining a

permit. See 1911 N.Y. Laws 195, at 442 § 1984; 1918 Mont. Laws 2, at 6 § 3; see also

David B. Kopel, Background Checks for Firearms Sales and Loans: Law, History, and

Policy, 53 Harv. J. on Legis. 303, 343 (2016) (describing these and other early-20th

century regulations).

The gathered historical evidence is clear that prohibiting some classes of people

from obtaining firearms does not implicate the Second Amendment. The evidence

further suggests that some form of permit requirement is consistent with a

historically-informed understanding of the Second Amendment. But the plaintiffs

here are not challenging the permitting process set up by the Illinois legislature.

Instead, they claim the ISP’s processing of applications consistently and significantly

exceeds the deadline set by the legislature. “The system is broken,” plaintiffs lament.

The relevant question, then, is whether the Second Amendment is implicated by a

state agency’s noncompliance with state law aimed at preventing unauthorized

persons from possessing firearms, when that results in widespread delays in the

ability of authorized people to possess firearms.

Neither side offers historical evidence directly responsive to the question, but the

clear implication of Heller is that such state action must implicate the Second

Amendment. In Heller, the Supreme Court found that the Second Amendment

protected the use of firearms for the “core lawful purpose of self-defense.” 554 U.S. at

630. If the ISP spent three decades vigorously reviewing every FOID applicant, that

would effectively prevent Illinois residents from exercising that core right of the

Second Amendment. If a state practice could effectively deny all residents from

keeping a firearm in their home for self-defense, that practice must implicate the

Second Amendment. See Pena v. Lindley, 898 F.3d 969, 1010–11 (9th Cir. 2018)

(Bybee, J. concurring in part and dissenting in part) (stating that a regulation that

would effectively ban the commercial sale of guns cannot fall outside the scope of the

Second Amendment).

Of course, the delays at issue in this case are on the order of months, not decades.

But if the Second Amendment is not implicated by such delays, then Illinois residents

would have no constitutional redress if the application processing time did in fact

lengthen to years. Clearly, at some point, agency dithering would violate the Second

Amendment. Fixing that point would be difficult, but the Court need only decide

whether the ISP’s current practice likely constitutes a violation. To make that

determination, we must continue to Ezell’s second step. See Ezell v. City of Chicago,

651 F.3d 684, 701 (7th Cir. 2011).

The ISP Delays Likely Do Not Violate the Second Amendment

If a given practice is found to implicate the Second Amendment, the Court must

then consider “the strength of the government's justification for restricting or

regulating the exercise of Second Amendment rights.” Id. at 703. This process

requires “the court to evaluate the regulatory means the government has chosen and

the public-benefits end it seeks to achieve,” with the stringency of the review

depending on “how close the law comes to the core of the Second Amendment right

and the severity of the law's burden on the right.” Id. In order to evaluate the

constitutionality of the ISP’s FOID card processing, the Court must first determine

the appropriate level of scrutiny to apply.

Although Heller established that rational basis review was insufficient, the

Supreme Court has not clearly articulated a level of scrutiny framework for the

Second Amendment. United States v. Meza-Rodriguez, 798 F.3d 664, 672 (7th Cir.

2015). Instead, the circuit courts have been left to navigate through the “‘levels of

scrutiny’ quagmire.” United States v. Skoien, 614 F.3d 638, 642 (7th Cir. 2010).

Drawing on Seventh Circuit case law, the litigants have proposed two competing

levels of scrutiny in this case. The plaintiffs have argued that the ISP should be

subjected to the “not quite ‘strict scrutiny’” articulated in Ezell, which required an

“extremely strong public-interest justification and a close fit between the

government's means and its end.” 651 F.3d at 708. In Ezell, the Seventh Circuit was

evaluating a Chicago ordinance that prohibited the construction of firing ranges in

the City but also required range training in order to obtain a gun permit. Id. at 691.

The ordinance was subjected to higher review because it applied to “law-abiding,

responsible citizens” and, by prohibiting Chicago residents from training in their city,

it severely restricted the right to train, an essential corollary of the Second

Amendment’s core right to possess a gun for self-defense. Id. at 708. A similarly strict

standard was employed in Moore v. Madigan, which held unconstitutional an Illinois

law that prohibited almost all people from carrying a ready-to-use firearm outside of

the home. 702 F.3d 933, 934 (7th Cir. 2012). Again, the law was reviewed strictly

because it applied to “the entire law-abiding adult population” and it infringed what

the court recognized in that case as a core right to armed self-defense outside of the

home. Id. at 940.

The defendants, on the other hand, argue that a standard “akin to intermediate

scrutiny,” which would require them to prove that the “challenged statute is

substantially related to an important governmental objective,” is more appropriate.

Kanter v. Barr, 919 F.3d 437, 442 (7th Cir. 2019). This less stringent but still “strong”

standard has been employed by the Seventh Circuit when evaluating federal law

prohibiting the possession of firearms by certain categories of people, including

unauthorized aliens and nonviolent felons. United States v. Meza-Rodriguez, 798 F.3d

664, 672 (7th Cir. 2015); Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019).

Neither of these sets of cases are precisely analogous to the present situation. For

one thing, the plaintiffs in this case are not challenging a law or regulation, but the

ISP’s implementation of a law. ISP’s processing speed is affected by a variety of

practical factors that do not, in themselves, have a Second Amendment valiance, most

notably the slowdown in processing and new hire training caused by the pandemic.

See Dkt. 67-1, Hacker Decl. ¶¶ 28-35; see also Roman Cath. Diocese of Brooklyn v.

Cuomo, 141 S. Ct. 63, 74, 208 L. Ed. 2d 206 (2020) (Kavanaugh, J., concurring)

(admonishing federal courts to “afford substantial deference to state and local

authorities about how best to balance competing policy considerations during the

pandemic”).

Also, unlike in Ezell and Moore, the FOID card delays do not represent a

categorical prohibition on certain forms of core Second Amendment activity. Instead,

the delay is exactly that, a delay. And while the waiting periods described in the

declarations, up to a year, are no doubt frustrating, they do not amount to a de facto

ban on possessing firearms. See Dkt. 73-2, Alekseev Decl.; Dkt.73-2, Schamaun Decl.;

Dkt. 73-2, Kirkland Decl.; Dkt. 73-2, DiCarlantonio Decl.

The instant case also differs from Kanter and Meza-Rodriguez because the burden

affects all new applicants, not only those that belong to limited, particularly risky,

categories. The delays affect the “the entire law-abiding adult population” of

applicants. Moore v. Madigan, 702 F.3d 933, 934 (7th Cir. 2012). Of course, the FOID

review process must apply to every applicant because it is the way the Illinois

legislature has chosen to separate dangerous would-be-gun-owners from the larger

“law-abiding” body of applicants. Its ultimate goal, preventing high-risk classes of

people from obtaining firearms, likely does not implicate the Second Amendment. See

Ezell v. City of Chicago, 651 F.3d 684, 702 (7th Cir. 2011). The delays are a byproduct

of this constitutionally legitimate purpose. They are thus distinct from Moore, where

the law at issue was intended to prevent almost all people from exercising a core

right. See 702 F.3d at 934.

Without a comparable case, we must reason by imperfect analogy. In order to

determine the appropriate level of scrutiny, the Court looks to “how close the law

comes to the core of the Second Amendment right and the severity of the law's burden

on the right.” Ezell, 651 F.3d at 703. Here, the burden is significantly less than that

of Ezell and Moore. Instead of broadly and permanently restricting a core Second

Amendment right, the ISP’s process temporarily postpones its exercise as to each

individual proper gun owner. The burden of this delay on exercising a right is

probably more fairly equated with a select prohibition, like those in Kanter and Meza-

Rodriguez. Two other factors also counsel an intermediate review: that the delay is

the byproduct of a purpose that that does not burden the Second Amendment, (i.e.,

preventing prohibited persons from possessing guns); and that it is taking place in

the context of an international public health emergency to which state agencies have

had to rapidly adjust with limited resources.

The plaintiffs argue that even a temporary delay in granting FOID cards

constitutes a “severe” burden requiring stricter scrutiny. In support of this claim, the

plaintiffs cite First Amendment case law. Courts have recognized that that even

temporary delays in exercising one’s speech rights can, in certain contexts, impose a

severe burden because “[w]here spontaneity is part of the message, dissemination

delayed is dissemination denied.” N.A.A.C.P., W. Region v. City of Richmond, 743

F.2d 1346, 1356 (9th Cir. 1984). The Second Amendment, they argue, is similarly

burdened when an individual urgently desires a gun for self-defense and is forced to

wait before buying one. See John O. McGinnis, Gun Rights Delayed Can Be Gun

Rights Denied, 304 U. Ill. L.J. Online 302, 317 (2020) (expanding on this analogy).

The plaintiffs provide no citations to Second Amendment cases adopting the

principle that even temporary delays to exercising the right necessarily constitute a

severe burden. Of course, there are examples of other important constitutional rights,

such as the right to a speedy trial, where considerably longer delays are

constitutionally acceptable. See Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L.

Ed. 2d 101 (1972) (holding that a five-year delay between arrest and trial was

constitutional). The Seventh Circuit has suggested that the Second Amendment

exists somewhere along this “spectrum,” but has yet to resolve where it falls. Rhein

v. Coffman, 825 F.3d 823, 827 (7th Cir. 2016). The long historical precedent of states

requiring background checks and permits to purchase firearms, meanwhile, pushes

against the view that delays constitute a per se severe burden. See David B. Kopel,

Background Checks for Firearms Sales and Loans: Law, History, and Policy, 53 Harv.

J. on Legis. 303, 343 (2016) (describing early-20th century permitting requirements).

Given that no court appears to have adopted the plaintiff’s proposed approach, the

Court focuses on Ezell’s standard for determining the appropriate level of scrutiny.

651 F.3d at 703. As discussed above, the Seventh Circuit cases suggest an

intermediate review is appropriate here. As a result, the Court will employ the

standard “akin to intermediate scrutiny” described in Kanter, asking whether the

challenged practice “is substantially related to an important governmental objective.”

The parties agree that the FOID process serves an important government

interest—preventing unqualified people from obtaining firearms. See United States

v. Meza-Rodriguez, 798 F.3d 664, 673 (7th Cir. 2015) (“[T]he government has a strong

interest in preventing people who already have disrespected the law (including, in

addition to aliens unlawfully in the country, felons, fugitives, and those convicted of

misdemeanor crimes of domestic violence from possessing guns.”)). From there, the

analysis is straightforward. The defendants’ declarations describe a thorough review

process that checks to make sure an applicant is legally permitted to possess a

firearm. Dkt. 67-1, Hacker Decl. ¶¶ 4-15. Besides for some vague statements in their

Reply, the plaintiffs have not alleged that the ISP does not actually follow its

described procedure or that it intentionally delays applications. A process that

reviews all relevant databases to ensure that an applicant is qualified to possess a

firearm is clearly “substantially related” to the government’s interest in preventing

unqualified people from possessing firearms.

The plaintiffs argue that with more funding or alternative procedures, the ISP

could process the applications within 30 days. That may well be the case. But so long

as it is substantially related to an important government interest, current practice is

not rendered unconstitutional by the possibility of a better (and more expensive)

approach. The plaintiffs also argue that the delays must be unconstitutional because

only Massachusetts and Illinois require permits before one may purchase any

firearm. But, of course, a statute’s constitutionality is not dependent on its

widespread adoption. In Moore, the fact that only Illinois had a statute of the type at

issue was used to support the conclusion that there was not a close fit between the

statute and the government interest. Moore v. Madigan, 702 F.3d 933, 940 (7th Cir.

2012). However, as we have discussed, Moore involved a higher standard of scrutiny

than is appropriate for this case.

Finally, the defendants say that the plaintiffs have not shown that the FOID

process actually advances public safety. While some dangerous individuals are

prevented from obtaining guns which might have been used for violent crime, law-

abiding individuals also have to wait longer before they have a gun to defend

themselves, perhaps making crime more likely. But the government’s interest in

limiting the gun-possession to qualified individuals cannot be reduced to a single

variable. For example, in Meza-Rodriguez, the Seventh Circuit recognized an

important government interest in preventing unauthorized immigrants from

obtaining firearms because they “are able purposefully to evade detection by law

enforcement,” even if they are no more likely to commit violent crime. 798 F.3d at

673. The government also likely has an interest in preventing people convicted of

domestic violence crimes from obtaining a firearm, even if the firearm is never used

to commit a violent crime, because of the added power it may give an abuser over the

members of their household. Given the varied and interconnected safety values the

FOID process promotes, there is a clear connection between it and the government

interest.

The FOID process is substantially related to an important government interest.

Although the delays are a burden on the Second Amendment rights of the applicants,

they are not so severe as to render the process unconstitutional. Thus, it is unlikely

that the plaintiffs will succeed on the merits of their Second Amendment claim.

C. The Plaintiffs Have Not Demonstrated a Likelihood of Success on the

Merits of Their Fourteenth Amendment Claim

Along with their Second Amendment claim, the plaintiffs assert that the ISP’s

delays in granting FOID cards violate their right to procedural due process under the

Fourteenth Amendment. To establish a due process violation, “the plaintiffs must

establish that there is ‘(1) a cognizable property interest; (2) a deprivation of that

property interest; and (3) a denial of due process.’” Hudson v. City of Chicago, 374

F.3d 554, 559 (7th Cir. 2004) (quoting Buttitta v. City of Chicago, 9 F.3d 1198, 1201

(7th Cir.1993)). The defendants do not contest the first two elements. Instead, they

focus on whether the ISP procedure and delays amount to a denial of due process.

Due process is a “flexible” concept that varies based on the demands of a given

situation. Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 334 (1976)). In determining

a process’s constitutionality, the Court balances three factors: “[f]irst, the private

interest that will be affected by the official action; second, the risk of an erroneous

deprivation of such interest through the procedures used, and the probable value, if

any, of additional or substitute procedural safe-guards; and finally, the Government’s

interest.” Id. at 559-560 (quoting Gilbert v. Homar, 520 U.S. 924, 931–32 (1997)).

In this case, both the government and the plaintiffs have important interests at

stake. The ISP has a duty to prevent ineligible individuals from obtaining firearms,

and the plaintiffs have a constitutionally protected right to keep firearms for self-

defense. Unusually, there does not appear to be a risk of erroneous deprivation in this

case. The plaintiffs have not alleged that they have been wrongly denied an FOID

card. Instead, the problem is the length of time it takes for a card to be issued. It thus

seems unlikely that additional procedures would be useful. In fact, the plaintiffs seek

a functional elimination of process—requiring ISP to issue FOID cards to all

applicants who belong to the organizational plaintiffs and applied more than 30 days

ago. In practice, the plaintiffs do not appear to have an issue with the procedures of

the FOID process, but with their pace.

Perhaps aware of the poor fit between their claim and its structure, the plaintiffs

largely ignore the due process balancing framework. Instead, they argue that, when

the state requires a license to exercise a constitutional right, due process requires

that it be issued or denied within a “specified brief period.” Freedman v. State of Md.,

380 U.S. 51, 59 (1965); see also Staub v. City of Baxley, 355 U.S. 313, 322 (1958) (also

cited by the plaintiffs). But the cases cited by the plaintiffs deal with prior restraints

on speech, a First Amendment issue. In Freedman, the Supreme Court held that a

Maryland film censorship statute was unconstitutional because, in part, it required

the submission of films to a censorship board that had no time limit on its review.

Freedman, 380 U.S. at 54-55. The Court reasoned that, because only a judicial

decision may impose a final restraint on speech, an agency review must be time-

limited so as to prevent an end-run around the judiciary. Id. at 58.

The plaintiffs assume, without argument, that the “specified brief period” of

review requirement is secured by due process and is applicable to interests other than

those protected by the First Amendment. In actuality, the opinion is clear that this

is a requirement imposed by the First Amendment, and the Court has been unable to

find a Seventh Circuit or Supreme Court case that has invoked this principle in a

non-First Amendment case. The Court sees no reason to extend Freedman to the

Second Amendment. The judiciary is not ultimately responsible for determining who

may possess a firearm, and so the same end-running concerns do not apply. The

balance of interests, meanwhile, suggest that the FOID process is adequate from a

due process perspective. Thus, the plaintiffs are unlikely to succeed on this claim as

well.

Although they have standing, the organizational plaintiffs have failed to

demonstrate that they are likely to succeed on the merits. As a result, they cannot

satisfy the threshold requirements and the Court must deny their Motion for a

Preliminary Injunction. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the

U.S.A., Inc., 549 F.3d 1079, 1086 (7th Cir. 2008).

CONCLUSION

For the stated reasons, the plaintiffs’ motion for preliminary injunction [47] is

denied.

ENTER:

Dated: June 9, 2021 Marg [Vi bo L/

“MARYM.ROWLAND

United States District Judge

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