Barnett v. Raoul

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

CALEB BARNETT, et al., Plaintiffs,

v. Case No. 23-cv-00209-SPM (Lead Case)

KWAME RAOUL, et al., Defendants.

DANE HARREL, et al., Plaintiffs,

v. Case No. 23-cv-00141-SPM

JEREMY W. LANGLEY, et al., Plaintiffs,

v. Case No. 23-cv-00192-SPM

BRENDAN KELLY, et al., Defendants.

FEDERAL FIREARMS LICENSEES OF ILLINOIS, et al., Plaintiffs,

v. Case No. 23-cv-00215-SPM

JAY ROBERT “J.B.” PRITZKER, et al., Defendants.

MEMORANDUM AND ORDER McGLYNN, District Judge: Pending before the Court are two motions for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The first is a Motion for

Partial Summary Judgment on Count I filed by plaintiffs Jeremy W. Langley, Timothy B. Jones, and Matthew Wilson (collectively the “Langley Plaintiffs”) (Doc. 133); the second is a Cross Motion for Partial Summary Judgment filed in response by Defendant Brendan Kelly, the Director of the Illinois State Police (“ISP”) (Doc. 151). Having been fully informed of the issues presented, this Court DENIES the Langley Plaintiffs’ Motion for Partial Summary Judgment arguing that the Protect Illinois Communities Act, Ill. Pub. Act 102-1116 § 1 (codified at 720 ILL. COMP. STAT.

5/24-1.9–1.10) (“PICA”) is unconstitutional under the Fifth and Fourteenth Amendments. Additionally, the Court GRANTS Director Kelly’s Cross Motion for Partial Summary Judgment. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND As this is the second Motion for Partial Summary Judgment submitted by the Langley Plaintiffs, the Court will not belabor the factual and procedural background

of the instant motions. As previously noted in this case, Illinois Governor J.B. Pritzker signed PICA within months of the Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen. See 142 S. Ct. 2111 (2022). Caleb Barnett, Brian Norman, Hoods Guns & More, Pro Gun and Indoor Range, and National Shooting Sports Foundation, Inc. (collectively the “Barnett Plaintiffs”), the Langley Plaintiffs, and various other citizen firearm owners, firearm retail establishments, and firearms advocacy organizations commenced four separate actions1 against various Illinois government actors in pursuit of declaratory judgment that PICA is unconstitutional under the Second, Fifth, and Fourteenth Amendments.

See Bruen, 142 S. Ct. 2111 (2022); see also McDonald v. City of Chicago, 561 U.S. 742 (2010); District of Columbia v. Heller, 554 U.S. 570 (2008). The Plaintiffs sought preliminary injunctions to enjoin the enforcement of PICA in each of the four cases,2 which were granted by this Court in Barnett on April 28, 2023. (Doc. 101). The Seventh Circuit vacated the initial preliminary injunction on November 3, 2023. See Bevis v. City of Naperville, 85 F.4th 1175 (7th Cir. Nov. 3, 2023). The Federal Firearms Licensees of Illinois Plaintiffs filed a second motion for

preliminary injunction on November 13, 2023, which this Court denied on December 22, 2023. See 23-cv-00215-SPM (Docs. 57, 75). Various Bevis Plaintiffs (including the Barnett and Langley Plaintiffs) concurrently filed petitions for rehearing by the same panel and rehearing en banc, see Bevis (Docs. 129, 139), which were denied by the Seventh Circuit on December 11, 2023. See id. (Docs. 146, 147). Three Bevis plaintiffs3 filed an application for writ of injunction with the Supreme Court—Justice Amy

Coney Barrett referred the application to the full Supreme Court, which denied it on December 14, 2023. See Nat’l Ass’n for Gun Rts. v. City of Naperville, No. 23A486

1 This Court consolidated the following four cases for purposes of discovery and injunctive relief: Harrel v. Raoul, 23-cv-00141-SPM; Langley v. Kelly, 23-cv-00192-SPM; Barnett v. Raoul, 23-cv-00209-SPM; and Fed. Firearms Licensees of Ill. v. Pritzker, 23-cv-00215-SPM. Barnett was designated as the lead case. (See Doc. 32). 2 See Harrel, 23-cv-00141-SPM (Doc. 16); Langley, 23-cv-00192-SPM (Doc. 6); Barnett, 23-cv-00209- SPM (Doc. 10); and Fed. Firearms Licensees of Ill., 23-cv-00215-SPM (Doc. 28). 3 The National Association for Gun Rights, Robert C. Bevis, and Law Weapons, Inc. d/b/a Law Weapons and Supply filed the application in question. See Nat’l Ass’n for Gun Rts. v. City of Naperville, No. 23A486 (Dec. 14, 2023). (Dec. 14, 2023). All four groups of plaintiffs also filed petitions for writs of certiorari before the Supreme Court; all of these petitions were denied on July 2, 2024. See Harrel v. Raoul, 144 S. Ct. 2491 (July 2, 2024) (Opinion of Thomas, J.); see also Harrel

v. Raoul, No. 23-877 (2024); Barnett v. Raoul, No. 23-879 (2024)4; Langley v. Kelly, No. 23-944 (2024). At present, Barnett is quickly moving toward a final adjudication on the merits, with the bench trial scheduled to begin on September 16, 2024. (See Docs. 195, 214). The Langley Plaintiffs filed their pending Motion for Summary Judgment on December 20, 2023. (Doc. 133). In the same vein as the Langley Plaintiffs’ previous Motion for Partial Summary Judgment (see Doc. 111), neither the Barnett Plaintiffs

nor the Harrel or Federal Firearms Licensees of Illinois Plaintiffs joined the motion. The pending Motion relates to Count 1 of the Langley Plaintiffs’ original Complaint, specifically the claim that the statutory and registration scheme implemented by PICA violates the Fifth Amendment’s privilege against self-incrimination. (See Doc. 133; see also Langley, 23-cv-00192-SPM (Doc. 1)). Director Kelly filed a Cross Motion for Partial Summary Judgment on January 19, 2024 (Doc. 151) to which the Langley

Plaintiffs responded on February 13, 2024 (Doc. 165). Director Kelly filed a Reply on February 23, 2024 (Doc. 167). APPLICABLE LAW AND LEGAL STANDARDS The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

4 The Barnett and FFL Plaintiffs jointly filed a petition for writ of certiorari. matter of law.” Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014) (quoting Fed. R. Civ. P. 56(a)). Once the moving party has set forth the basis for summary judgment, the burden then shifts to the nonmoving party who must go

beyond mere allegations and offer specific facts showing that there is a genuine issue of fact for trial. Fed. R. Civ. P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). Stated another way, the nonmoving party must offer more than “[c]onclusory allegations, unsupported by specific facts,” to establish a genuine issue of material fact. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)). In determining whether a genuine issue of fact exists, the Court must view the

evidence and draw all reasonable inferences in favor of the party opposing the motion. Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A genuine issue of material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for that party.” Faas v. Sears, Roebuck & Co., 532 F.3d 633, 640–41 (7th Cir. 2008) (quoting Springer v. Durflinger, 518 F.3d 479, 483 (7th Cir. 2008)).

The non-movant cannot simply rely on its pleadings; the non-movant must present admissible evidence that sufficiently shows the existence of each element of its case on which it will bear the burden of proof at trial. Midwest Imps., Ltd. v. Coval, 71 F.3d 1311, 1317 (7th Cir. 1995) (citing Serfecz v. Jewel Food Stores, 67 F.3d 591, 596 (7th Cir. 1995); Greater Rockford Energy & Tech. Corp. v. Shell Oil Co., 998 F.2d 391, 394 (7th Cir. 1993), cert. denied, 510 U.S. 1111 (1994); Celotex, 477 U.S. at 323–24). ANALYSIS To begin, the Court first notes that the issues before the Court are pure questions of law; as Director Kelly notes, “there are no relevant, material facts at

issue in connection with this cross-motion.” (Doc. 152, p. 1 n.1 (citing Jan. 12, 2024 Hr’g Tr. 25:24-26:3)). Turning to the analysis of the issues at hand, it is unconstitutional for a citizen “to be compelled in any criminal case to be a witness against himself.” U.S. CONST. amend V. The Fourteenth Amendment has been held to apply the Fifth Amendment’s protections for individuals against state governments. See, e.g., Gideon v. Wainwright, 372 U.S. 335, 342 (1963) (“[A] provision of the Bill of Rights which is ‘fundamental and essential to a fair trial’ is made

obligatory upon the States by the Fourteenth Amendment.”); see also U.S. CONST. amend XIV. The Langley Plaintiffs argue that the purported violation of the Fifth and Fourteenth Amendments is sufficient to render the PICA registration requirement unconstitutional and request this Court to “enjoin enforcement of all such registration requirements under the present statute, including but not limited to any

ban on possession of PICA regulated [sic] firearms (or accessories or ammunition) that have not been so registered.” (See Doc. 133, pp. 17–18). The Langley Plaintiffs argue that the PICA registration requirement is unconstitutional because submitted registration information “can be used against them.” (Doc. 133, p. 2). Their concern is that information stored in the registration database could hypothetically be used for criminal prosecution “if Plaintiffs, through inadvertence or omission, fail to timely renew their FOID cards . . . [or] become the victim of a frivolous or malicious ‘order of protection.’” (Id., p. 2). They argue that compliance with PICA “might well be admitting to a violation of a local ordinance.” (Id., p. 9–10). They also express concerns

that PICA registration information could be used as probable cause for law enforcement to conduct searches. (See id., p. 10 (citing People v. Ross, 682 NE.2d 87 (Ill. App. Ct. 1997))). The Langley Plaintiffs cite both Haynes v. United States, 390 U.S. 85 (1968) and United States v. Freed, 401 U.S. 601 (1971) as standing for the proposition that it would be unconstitutional for citizens to be compelled to register firearms under the National Firearms Act if doing so would expose them to criminal liability. (See

Doc. 133, pp. 6, 9, 15–16 (citing the same)). They argue that because Illinois “has not set forth an actual mechanism to truthfully register much of the PICA regulated firearms in actual circulation, thus requiring, either lack of registration, or a false statement by the would be [sic] registrant. But there is a right to remain silent to not be forced to commit perjury.” (Doc. 133, pp. 15–16). They argue that “even assuming a person is able to register a PICA firearm, they are being compelled, under penalty

of law, to provide testimonial evidence of their firearm possession (not just eligibility to possess, actual possession), which law enforcement around the state can use to justify probable cause to search their car.” (Id., p. 17). The Langley Plaintiffs also bring a claim not previously raised in their Complaint—they argue that the PICA-mandated registration system implemented by ISP complicates registration of certain types and models of firearms. (See id., pp. 11–14). They argue that, per Bryson v. United States, 396 U. S. 64, 72 (1969), “a citizen may decline to answer Government question [sic], or answer it honestly, but cannot with impunity knowingly and willfully answer it with a falsehood.” (Doc. 133,

p. 14 (citing Bryson at 72)). With this in mind, they claim that “the possessor of a PICA firearm made by an unlisted manufacturer must simply not provide the data, as there is no mechanism to produce it, and per Bryson, the possessor cannot provide false information, by, for instance, just listing a similar sounding manufacturer, or one at random.” (Id. (citing Bryson)). They thus argue that “in January 1, 2024, if you try to register an unregistered firearm, under PICA, you are admitting to a crime, and not afforded any immunity for same. That crime would be . . . possession of an

unregistered firearm.” (Id.). In his Cross Motion for Partial Summary Judgment, Director Kelly argues that the PICA registration requirement does not violate the Fifth Amendment privilege against self-incrimination for three reasons: first, the endorsement affidavit is a “voluntary benefit that exempts owners of certain assault weapons from otherwise applicable criminal penalties; it is not directed at the criminally suspect, and the act

of submitting an affidavit does not constitute a confession of criminality”; second, no one is compelled to submit an affidavit; the government has no authority to impose any criminal or economic penalty on residents who are eligible to submit an affidavit but, for whatever reason, decline to do so”; and, third, “the possibility plaintiffs will be prosecuted based on the information contained within their affidavits is not real and substantial.” (Doc. 152, pp. 3–4). Director Kelly first argues that “[r]egistration and disclosure provisions are common in federal and state statutes” and that “[t]hese types of provisions only implicate the Fifth Amendment if they are directed at the criminally suspect or

compel confession of criminal activity.” (Doc. 152, p. 4). He argues that the registration requirement created by PICA does not fit within “the narrow circumstances in which a disclosure or registration provision may infringe the Fifth Amendment right against self-incrimination.” (Id.). Director Kelly cites Marchetti v. United States, 390 U.S. 39, 42–44 (1968); Grosso v. United States, 390 U.S. 62, 64–65 (1968); and Haynes v. United States, 390 U.S. 85 (1968) as supporting this proposition. His key argument is that proscribed registration requirements

“constituted an Ipso facto confession of criminality” unlike the endorsement affidavit process at issue here. (Doc. 152, p. 6 (quoting United States v. Scherer, 523 F.2d 371, 375 (7th Cir. 1975))). Director Kelly argues that, because the registration requirement at issue here is “clearly directed at law-abiding persons as well as criminally suspect persons” and “is a voluntary benefit available to anyone who owned an assault weapon before January 10, 2023 . . . that allows them to maintain

possession of that weapon,” therefore, “[p]eople who choose to submit an affidavit do not confess to criminality or automatically become subject to criminal penalties.” (Doc. 152, pp. 7, 10 (quoting Lauchli v. United States, 481 F.2d 408, 411–12 (7th Cir. 1973))). Director Kelly next argues that the registration requirement here is permissible because “the privilege against self-incrimination is violated only when a person is ‘compelled in any criminal case to be a witness against himself.’” (Doc. 152, p. 10 (citing U.S. Const., amend V)). In comparison to cases in which the defendant faces direct criminal penalties from refusal to register, Director Kelly argues that,

here, “[t]he government . . . has no recourse against a person who is eligible to submit an endorsement affidavit but declines to do so” and, therefore “[t]he decision whether to submit an affidavit is entirely voluntary; choosing to refrain, on its own, does not expose anyone to any penalties at all.” (Doc. 152, p. 12). Instead, he argues that, here, Illinois citizens “who do not wish to submit an affidavit have other options available to avoid criminally possessing their exempt assault weapons in Illinois; they can sell the firearm to an eligible purchaser, retain ownership but move it out of state, give

the firearm to law enforcement, or permanently disable or destroy it.” (Id.). Even though firearm owners may find such alternatives to be “undesirable,” Director Kelly argues that government “pressure” does not equate to “compulsion” under the Fifth Amendment. (Id. (quoting Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 287–88 (1998))). Third, Director Kelly argues that while the “plaintiffs speculate their

endorsement affidavits ‘could be used and abused by the State government, and others, like the City of Chicago, with access to the information,’” they are “cagey about how they think this could be done” and “do not identify any past or present acts or omissions as to which information contained in their affidavits could be incriminating.” (Doc. 152, pp. 12–13 (citing Doc. 133, p. 7)). He argues that “the constitutional protection is confined to real danger . . . and does not extend to remote possibilities out of the ordinary course of law.” (Doc. 152, p. 13 (quoting Heike v. United States, 227 U.S. 131, 144 (1913))). Moreover, “to invoke the privilege, the claimant must identify a ‘possibility of prosecution which is more than fanciful.’” (Id.

(quoting In re Folding Carton Antitrust Litig., 609 F.2d 867, 871 (7th Cir. 1979))). Finally, Director Kelly also argues that the Langley Plaintiffs are attempting to fashion an additional due process claim regarding unnamed individuals having difficulty in registering specific weapons and attachments. (See Doc. 152, p. 17 (citing Doc. 133 at 11; id. Ex. 5)). He argues that, because the Langley Plaintiffs have not indicated conclusively that any of the named plaintiffs in this action have had difficulty registering weapons, they do not have standing to assert such claims. (See

Doc. 152, p. 18 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)) (quoting Speech First, Inc. v. Killeen, 968 F.3d 628, 638 (7th Cir. 2020); Bria Health Servs., LLC v. Eagleson, 950 F.3d 378, 384 (7th Cir. 2020); TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021); Casillas v. Madison Ave. Assocs., Inc., 926 F.3d 329, 333 (7th Cir. 2019))). In their Response (Doc. 165), the Langley Plaintiffs reiterate their argument

that the instant registration requirement is “an Orwellian euphemism for a firearm registration form” and is analogous to “the situation that existed under the original National Firearms Act, and ruled on in Haynes.” (Id., p. 3). They argue that the ISP’s website indicates that “failure to submit the required endorsement affidavit . . . prior to January 1, 2024, is a violation of Illinois law, specifically, the FOID Act and the Criminal Code of 2012 . . . . Persons who violate these requirements5 may be arrested and charged.” (Id., p. 4 (citing FAQ 30, PROTECT ILLINOIS COMMUNITIES ACT, REGULATION ON ASSAULT WEAPONS, ILL. STATE POLICE,

https://www.isp.illinois.gov/Home/AssaultWeapons [https://perma.cc/9RVL-ZY9S] (last visited Sept. 9, 2024))). They dispute Director Kelly’s argument that the registration affidavit is a “voluntary benefit,” insisting that “any perceived ‘benefit’ of registration, at this point, is illusory” because it only confers a “rebuttable presumption [which] provides no actual defense.” (Id., pp. 5–6 (citations omitted)). They argue that “the State simply has to show that the registration form was not timely filed, and then submit the registration form, and that is enough to convict

you.” (Id., p. 6). They argue that “just as failing to breath [sic] has an obvious consequence, so does failure to register a possessed PICA regulated firearm under PICA, assuming no exemption.” (Id.). The Langley Plaintiffs point to § 1230.15 of the Illinois Administrative Code which states that “[a] person convicted of failure to possess a FOID Card as required by Section 2 of the Act or complete an electronic endorsement affidavit as required by Section 24-1.9 of the Criminal Code of 2012,

commits a Class A misdemeanor or Class 3 or 4 felony depending upon the circumstances of the violation.” (Id., p. 7 (citing 430 ILL. COMP. STAT. 65/14; 720 ILL. COMP. STAT. 5/24-1(a)(15))). Finally, they argue that by “not offering immunity, and publishing the registration data on LEADS to every law enforcement agency at least in the State, the PICA statute fails, at least as to late registrations, for the same

5 There is a typographic error in the quotation used by the Langley Plaintiffs in their transcription of this quotation. The correct quotation is used here for clarity. reason that Haynes ruled the pre-1968 version of the National Firearms Act unconstitutional under the 5th [sic] Amendment.” (Id., p. 10). In his Reply (Doc. 167), Director Kelly further argues that he “first explained

registration and disclosure requirements violate the privilege against self- incrimination only if they are directed to people suspected of criminal activities and automatically subject those people to criminal penalties.” (Id., p. 2 (citing Doc. 152, pp. 2–8)). Director Kelly argues that the fact that (1) “Plaintiffs do not dispute the governing legal standard or offer any contrary reading of the cases Director Kelly cited in support,” (2) “[t]hey do not contend the affidavit is directed at the criminally suspect,” and (3) “they do not argue an affidavit submitted according to the

requirements of section 24-1.9(d) would automatically subject anyone to criminal penalties,” makes “[t]hese omissions . . . fatal to their claim.” (Id.). Director Kelly argues next that “the endorsement affidavit does not violate the privilege against self-incrimination because no one is compelled to submit one. A person who refuses is not exposed to penalties on that basis alone.” (Id. (citing Doc. 152, pp. 2–8)). He argues that the emergency rules cited by the Langley Plaintiffs (see

Doc. 165, p. 7) were superseded by final rules on February 8, 2024 which indicate that criminal penalties exist for “possession of an assault weapon without having completed an electronic endorsement affidavit.” (Doc. 167, p. 2 (quoting 48 Ill. Reg. 2731, 2881, 2900)); see also FAQ 30, PROTECT ILLINOIS COMMUNITIES ACT, REGULATION ON ASSAULT WEAPONS, ILL. STATE POLICE, https://www.isp.illinois.gov/Home/AssaultWeapons [https://perma.cc/9RVL-ZY9S] (last visited Sept. 9, 2024). He also argues that because “an Illinois agency cannot use its rulemaking authority to rewrite or expand a statute,” that “it is the text of the Criminal Code that matters.” (Id., p. 3 (citing Du-Mont Ventilating Co. v. Department

of Revenue, 73 Ill. 2d 243, 247-48, 383 N.E.2d 197, 200 (1978))). Once again, Director Kelly argues that because (1) “Plaintiffs do not deny that a person who declines to submit an endorsement affidavit has viable alternatives to avoid liability for possession” (2) “[n]or do they take issue with the caselaw holding mere pressure to speak in the hopes of obtaining a benefit does not make the speech compelled,” that “these omissions are fatal to their claim.” (Id., p. 3). Regarding Director Kelly’s argument “that the endorsement affidavit does not

violate the privilege against self-incrimination because the information it contains does not present a real and substantial risk of incrimination,” Director Kelly argues that “Plaintiffs do not deny their fears about traffic stops and targeting by the police are, under the caselaw, merely trifling or imaginary and thus insufficient to invoke the privilege.” (Id. (citing Doc. 152, pp. 11–15)). Overall, Director Kelly argues that “[t]he problem for plaintiffs is they have

not provided any evidence showing they have submitted (or intend to submit) untimely affidavits” and that “plaintiffs do not suggest, much less establish with evidence, that ‘they personally have been injured’ due to submitting an untimely affidavit.” (Id., pp. 3–4 (citing Warth v. Seldin, 422 U.S. 490, 502 (1975))). He insists that “there is no compulsion here because a person who declines to submit an untimely endorsement affidavit is not ‘risking serious punishments for refusing to do so’; in fact, there is no penalty at all.” (Id., pp. 4–5 (citing Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 76 (1965))). He also takes issue with the Langley Plaintiffs’ statements regarding the rebuttable presumption associated with a

registration affidavit (he argues that the Langley Plaintiffs have misinterpreted the law); with the Langley Plaintiffs’ argument that Director Kelly failed to include factual affidavits when facts are not in dispute; and states that the Langley Plaintiffs’ argument about the Illinois Constitution’s three-readings rule is not relevant to the instant claim. (Id., pp. 5–6). Finally, Director Kelly argues that “Plaintiffs make no mention of their new due process theory concerning a purported inability ‘to properly actually register many common firearms that are required to be registered.’” (Id., p.

6 (citing Doc. 133, p. 11)). Before diving into the analysis here, the Court notes that the Langley Plaintiffs challenge PICA’s registration scheme not under the Second Amendment, but under the Fifth Amendment; in other words, they are not claiming that the registration requirement is unconstitutional under Bruen or Bevis but, rather, that it offends the Fifth Amendment prohibition against self-incrimination. As this Court has

previously noted, the Supreme Court has expressly stated that “[f]acial challenges are disfavored for several reasons.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008). First, “[c]laims of facial invalidity often rest on speculation [and,] [a]s a consequence, they raise the risk of ‘premature interpretation of statutes on the basis of factually barebones records.’” Id. (quoting Sabri v. United States, 541 U.S. 600, 609 (2004)). Second, “[f]acial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither ‘anticipate a question of constitutional law in advance of the necessity of deciding it’ nor ‘formulate a rule of constitutional law broader than is required by the precise facts to which it

is to be applied.’” Id. (quoting Ashwander v. TVA, 297 U.S. 288, 346–347 (1936) (Brandeis, J., concurring)). Additionally, “facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution. We must keep in mind that ‘[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.’” Id. at 451 (quoting Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 329 (2006)).

Looking at the established caselaw, United States v. Scherer, 523 F.2d 371, 375 (7th Cir. 1975) expressly states that “[t]he objectionable feature of the statutes found in Marchetti and the related cases of Grosso v. United States, 390 U.S. 62 (1968), and Haynes v. United States, 390 U.S. 85 (1968), was that the act of registration itself constituted an Ipso facto confession of criminality.” (citing Marchetti, 390 U.S. 39). In Scherer, the Seventh Circuit ruled that “the mere act of recording the sales of firearms

or engaging in their transfer does not automatically subject a licensed firearms dealer to criminal penalties” because the individual is not “subject to the incriminating straight-jacket of alternatives created in the cases above.” Put simply, as the State Defendants have previously argued, Illinois FOID cardholders have other options besides registration under PICA: they can sell their weapons, house their weapons out of state, turn them into law enforcement, or destroy them. (See Doc. 152, p. 12). An endorsement affidavit merely allows them to continue to possess them in Illinois. With the above in mind, PICA does not impose any penalties whatsoever for

failure to submit an endorsement affidavit alone—criminal penalties arise from possession of a prohibited weapon or item and failure to submit a registration affidavit.6 See 720 ILL. COMP. STAT. 5/24-1.9(d), 24-1(a)(15), 24-1.9(c); (Doc. 152, p. 12 (citing the same)). As the State Defendants have argued previously and as this Court has discussed, the criminal penalties attach under PICA for “knowing” possession only. (See Doc. 136, p. 29 (citing Docs. 125, 132)). Both PICA itself and the final administrative rule adopted by the Illinois Legislature reflect this. See ILL. ADMIN.

CODE tit. 20 § 1230.15(f) (“Possession of a firearm without a FOID Card as required by Section 2 of the Act or possession of an assault weapon without having completed an electronic endorsement affidavit as required by Section 24-1.9 of the Criminal Code of 2012, is a Class A misdemeanor or Class 3 or 4 felony depending upon the circumstances of the violation.” (citing 430 ILL. COMP. STAT. 65/14; 720 ILL. COMP. STAT. 5/24-1(a)(15))). This mens rea requirement establishes that the Government

must meet their burden to prove the elements of the offense beyond a reasonable doubt. Therefore, any potential confusion regarding the manufacturer or type of weapon could be adjudicated in that fashion. Thus, while knowing possession of a

6 Additionally, the ISP has publicly declared that, because the law does not impose penalties for late registration, that they will keep the PICA registry open for the immediate future. See Greg Bishop, With Gun Ban Rules Sustained, Pritzker Says Registry Will Be ‘working the way it should’”, Ctr. Square (Jan. 17, 2024), https://www.thecentersquare.com/illinois/article_8d346d9e-b582-11ee-9dde- f32b9f050097.html [https://perma.cc/VK2S-VVS4]. prohibited item without an endorsement affidavit after January 1, 2024 imposes criminal penalties, late submission of an endorsement affidavit or wholesale failure to submit an endorsement affidavit does not by itself.

Moreover, as Director Kelly notes, this Court has previously addressed challenges brought on behalf of hypothetical, unnamed Illinois citizens. (See Doc. 152 (citing Doc. 136, p. 21)). The Langley Plaintiffs have not demonstrated personal injury sufficient to prove that they have standing to bring this claim—they have not demonstrated than any of them (1) have suffered an “injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555,

560 (1992) (citations and quotation marks omitted). They have not indicated that any of the named plaintiffs have filed endorsement affidavits or whether any of them have retained possession of weapons proscribed by PICA after January 1, 2024. As the Court has previously noted, it will not entertain arguments made on behalf of hypothetical Illinois citizens; the movants must present concrete evidence, not scattershot theories regarding how PICA and the associated administrative rules

might be interpreted. (See Doc. 136, p. 19). Should the Langley Plaintiffs wish to bring an as-applied challenge to the statute and demonstrate a concrete injury in accordance with the established standing doctrine, the Court would consider those arguments. However, what is currently before the Court does not rise to that level. Additionally, the Court notes that the Seventh Circuit stated in Bevis that, with the limited record before them, the PICA registration requirement “is no more onerous than many found in history.” Bevis at 1199. In fact, the plaintiff is Herrera v. Raoul, No. 23-CV-00532, 2023 WL 3074799 (N.D. Ill. Apr. 25, 2023) brought a similar challenge to that brought by the Langley Plaintiffs here. See Bevis at 1185–

86. While Herrera argued that the registration requirement was “a burden on his Second Amendment rights” and “worrie[d] that it may in the future lead to confiscatory acts on the part of the state,” the Seventh Circuit stated that “the registration requirement will be valid as long as it can withstand rational basis review” and that they saw “nothing particularly onerous about it, though as with everything we have said, this is a preliminary assessment.” Bevis at 1202. Moreover, “Herrera ha[d] until the end of 2023 to file the necessary forms, and if he does so, he

may retain all of the covered weapons he already owns; the Act will prohibit only his acquisition of additional assault weapons or high-capacity feeding devices.” Id. The Langley Plaintiffs’ challenge meets a similar end here. Regarding their detailed discussion of specific firearms, the Langley Plaintiffs appear to be using their second motion for summary judgment to argue a different facet of their facial vagueness argument from their first motion for summary

judgment; put differently, their claim that the ISP’s registration portal does not permit registration of specific firearms is another vehicle for them to argue that PICA does not appropriately classify and cover the firearms that it should. (See Doc. 111). They claim that, because the owner of specific firearms may be confused about how to register them on the FOID card portal or may register them incorrectly, that this will expose individual, unnamed, hypothetical Illinois citizens to criminal liability for failing to register or incorrectly registered their PICA-proscribed firearms, attachments, and ammunition. (See Doc. 133, pp. 11). However, as previously discussed, they have not demonstrated standing to bring this claim, either; the

Langley Plaintiffs provide examples of weapons they claim cannot be registered properly, yet do not indicate whether or not they possess or seek to register such weapons. With the limited record before them, both the Seventh Circuit and the Supreme Court determined that a full review on the merits must be conducted; this Court has jurisdiction to fully develop the evidentiary record on the merits. See Harrel v. Raoul, No. 23-1010, 2024 WL 3259606 (July 2, 2024) (Mem.); Bevis v. City of Naperville, 85

F.4th 1175 (7th Cir. Nov. 3, 2023). At this stage, the Langley Plaintiffs have failed to advance any arguments that indicate that the PICA-mandated registration requirement has, in fact, led to unconstitutional self-incrimination in violation of the Fifth Amendment. Late registration does not carry criminal penalties in accordance with PICA and the administrative rules. They do not argue that any specific individual or that any of the named Plaintiffs have been subjected to self-

incrimination in violation of the Fifth and Fourteenth Amendments. In fact, they do not dispute any of the material facts in question, as Director Kelly has indicated. Because there are no genuine issues of material fact in dispute, summary judgment is, therefore, appropriate. At this stage, the Court holds that the endorsement affidavit process provides a means for Illinois FOID cardholders to continue to keep weapons they are no longer able to purchase in Illinois. The Court will adjudicate the Second Amendment claims in its final review on the merits, during which the registration requirement will be assessed in accordance with the Second Amendment guidance set forth in Bevis and

in Bruen. In summary, the Langley Plaintiffs’ Fifth Amendment arguments are legally deficient and do not hold water with established caselaw. Because of this, the Langley Plaintiffs’ Motion must be dismissed and Director Kelly’s Cross-Motion must be granted. CONCLUSION For the reasons set forth above, the Langley Plaintiffs’ Motion for Summary Judgment (Doc. 133) is DENIED because they have failed to meet their burden to

prove that PICA-mandated registration requirement is unconstitutional under the Fifth and Fourteenth Amendments. Additionally, Director Kelly’s Cross Motion for Partial Summary Judgment (Doc. 151) is GRANTED. This ruling is confined to the Fifth and Fourteenth Amendment challenge brought by the Langley Plaintiffs in Count 1 of their Complaint only. (See Doc. 1). IT IS SO ORDERED.

DATED: September 10, 2024

/s/ Stephen P. McGlynn_ STEPHEN P. McGLYNN U.S. District Judge