Jankovich v. The Illinois State Police

2017 IL App (1st) 160706

• Court: Appellate Court of Illinois
• Decided: April 28, 2017
• Docket: 1-16-0706
• Status: Unpublished

Opinion

2017 IL App (1st) 160706

FOURTH DIVISION April 27, 2017

No. 1-16-0706

MICHAEL JANKOVICH, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 14 CH 11615 ) THE ILLINOIS STATE POLICE and )

THE ILLINOIS CONCEALED CARRY )

LICENSING REVIEW BOARD, ) Honorable

) Moshe Jacobius, Defendants-Appellees. ) Judge Presiding.

PRESIDING JUSTICE ELLIS delivered the judgment of the court, with opinion. Justices Howse and Burke concurred in the judgment and opinion.

OPINION

¶1 Plaintiff Michael Jankovich appeals from the rejection of his application for a concealed-

carry license under the Firearm Concealed Carry Act (Act) (430 ILCS 66/1 et seq. (West 2014))

by defendants the Illinois State Police (ISP) and the Concealed Carry Licensing Review Board

(Board) (collectively, defendants). The Chicago police department and Cook County sheriff’s

office filed objections to plaintiff’s application, which the Board affirmed. Plaintiff then filed a

petition for review of the Board’s decision in the circuit court of Cook County, which the circuit

court denied.

¶2 On appeal, plaintiff argues (1) that the trial court incorrectly found that the second

amendment does not protect the right to carry a concealed firearm and, as a result, applied the

improper level of scrutiny to the Act; (2) that the Board improperly relied on a rap sheet and

police reports, which were inadmissible hearsay; (3) that the standard applied by the Board in

denying his license violates the second amendment and is unconstitutionally vague; and (4) if the No. 1-16-0706

Board could rely on hearsay evidence under the Act, the Act’s allowing such reliance violates his

constitutional rights.

¶3 We affirm. We hold that the Board did not err in considering the rap sheet or police

reports, as the Act contemplates the Board relying on such evidence. We hold that the Act’s

standard for denying a license, based on an applicant posing a danger to himself or others or a

threat to public safety, is consistent with the second amendment and is not unconstitutionally

vague. We finally hold that plaintiff’s inadequate argument that the Board’s reliance on hearsay

violated his constitutional rights merits no consideration.

¶4 I. BACKGROUND

¶5 In order to provide better context for the facts and procedural history of this case, we first

explain the statutory scheme for issuing concealed carry licenses under the Act.

¶6 A. The Act

¶7 The Act charges ISP with issuing and denying licenses to carry concealed firearms. 430

ILCS 66/10 (West 2014). The Board, which exists within ISP, is composed of seven

commissioners with specific qualifications: one with at least five years’ service as a federal

judge, two with at least five years’ experience as attorneys in the United States Department of

Justice, three with at least five years’ experience as federal agents, and one with at least five

years’ experience as a licensed physician or clinical psychologist with expertise in mental illness.

430 ILCS 66/20(a) (West 2014).

¶8 Under section 25 of the Act (430 ILCS 66/25 (West 2014)), an applicant for a concealed

carry license must have six qualifications: (1) be at least 21 years old; (2) have a current, valid

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Firearm Owner’s Identification (FOID) Card and meet the requirements for the issuance of a

FOID Card; (3) have not been convicted of a misdemeanor involving the use or threat of physical

force or violence or two or more drug- or alcohol-related offenses in the past five years; (4) not

be subject to a pending arrest warrant or prosecution; (5) have not been in residential or court-

ordered alcohol or drug treatment for the last five years; and (6) have completed firearms

training and education under the Act. Id.

¶9 The Act further provides that the ISP “shall issue a license to carry a concealed firearm”

to an applicant who:

“(1) meets the qualifications of Section 25 of [the] Act;

(2) has provided the application and documentation required in *** this Act;

(3) has submitted the requisite fees; and

(4) does not pose a danger to himself, herself, or others, or a threat to public

safety as determined by the *** Board in accordance with Section 20.” (Emphasis

added.) 430 ILCS 66/10(a) (West 2014).

¶ 10 Once an application is filed, ISP must perform a background check on the applicant. 430

ILCS 66/35 (West 2014). Additionally, “[a]ny law enforcement agency may submit an objection

to a license applicant based upon a reasonable suspicion that the applicant is a danger to himself

or herself or others, or a threat to public safety.” 430 ILCS 66/15(a) (West 2014).

¶ 11 The Board is tasked with hearing any law enforcement objections to an application. 430

ILCS 66/20(a), (e) (West 2014). The Board can request additional information from the law

enforcement agency that submitted the objection, ISP, or the applicant. 430 ILCS 66/20(e) (West

2014). The Board “shall affirm the objection” and deny the applicant a license “[i]f the Board

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determines by a preponderance of the evidence that the applicant poses a danger to himself or

herself or others, or is a threat to public safety.” 430 ILCS 66/20(g) (West 2014).

¶ 12 When the Board denies an application, the applicant may petition the circuit court for a

hearing on the denial. 430 ILCS 66/87(a) (West 2014). The Administrative Review Law (735

ILCS 5/3-101 et seq. (West 2014)) governs the review of Board decisions in circuit court. 430

ILCS 66/87(b) (West 2014).

¶ 13 B. Procedural History of This Case

¶ 14 Plaintiff filed his application on April 14, 2014. The application included 15 questions

relating to plaintiff’s criminal history, history of substance use, and mental capacity. Plaintiff

answered “no” to all of the questions, indicating that he met most of the six qualifications for a

concealed carry license under section 25.

¶ 15 As part of its background check, ISP compiled defendant’s rap sheet from the Law

Enforcement Agencies Data System (LEADS). See 20 Ill. Adm. Code 1240.10(a) (1999)

(describing LEADS as “a statewide, computerized telecommunications system designed to

provide services, information, and capabilities to the law enforcement and criminal justice

community in *** Illinois”).

¶ 16 The Chicago police department objected to plaintiff’s application, saying that the

department had a reasonable suspicion to believe that plaintiff was a threat to public safety. In

support of its objection, the department attached police reports relating to three incidents

involving plaintiff.

¶ 17 The first incident occurred on July 13, 2010, when plaintiff allegedly kicked and punched

an individual using “metal knuckles.” The victim said that plaintiff “caused injury to his face”

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and cracked one of his teeth. The officer reported that he “observed swelling.” A supplementary

report indicated that the officers could not reach the victim by phone or at his address. The

officer recommended that the case be suspended pending contact with the victim.

¶ 18 The second incident occurred on February 7, 2011. The report said that the victim had

damaged some of plaintiff’s signs for his campaign for alderman of the 43rd ward of Chicago. In

response, defendant allegedly called the victim and said:

“I am going to have some officers come over there and arrest you if you do not pay and if

not, I’m gonna [sic] have some of my guys come over there and bust your head open and

break your legs while I’m eating my dinner … it’s nothing to me.”

A supplementary report said that the victim did not want to have plaintiff arrested and charged

because “he had heard from people in the Bridgeport neighborhood that [plaintiff] would make

good on his threats.” The victim eventually stopped returning the detective’s calls, and the

detective recommended that the investigation be suspended.

¶ 19 The third incident occurred on September 17, 2012, when plaintiff allegedly called one of

his employees and said, “I’m going to put you in a wood chipper and six feet underground if you

don’t stop calling about the money.” A detective recommended suspending the investigation

because the victim said that the calls stopped and that he did not need any further police

assistance.

¶ 20 The Cook County Sheriff objected shortly after the Chicago police, also claiming a

reasonable suspicion that plaintiff was a danger to others and a threat to public safety. The sheriff

attached a Chicago police criminal history report for defendant to support its objection. That

report indicated that plaintiff had been arrested 18 times. But only one of those arrests led to a

conviction: a 1992 conviction for criminal damage to property, for which plaintiff received

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probation. The sheriff highlighted four arrests which did not lead to convictions: a 2009 arrest for

assault, 1990 and 1991 arrests for battery, and a 1989 arrest for assault. The State nol-prossed the

2009 assault charge and the other three charges were all stricken off of the docket with leave to

reinstate.

¶ 21 Based on these objections, the Board initially denied plaintiff’s application for a license,

and plaintiff sought administrative review of that decision in circuit court. Instead of answering

the complaint, defendants sought remand of the matter to the Board in light of new

administrative rules promulgated by ISP, which required the Board to notify applicants of any

objections to license applications and to give licensees the opportunity to respond to those

objections. See 20 Ill. Adm. Code 2900.140(e)(1) (2015). The circuit court remanded the matter

to the Board. 1

¶ 22 Then, in a letter dated May 7, 2015, in accordance with the new administrative rules, the

Board formally notified plaintiff that it had received these objections from the Chicago police

department and Cook County Sheriff. The Board detailed the specifics of these objections, not

materially differently than we have described above, and informed plaintiff as follows:

“After the Board receives an objection, it statutorily has 30 days to issue a

decision. However, when the Board requests additional information from the applicant, it

has 30 days from the date that it receives such information to issue a decision. A majority

of the Board determined that the objection filed against you appears sustainable and that

1 Plaintiff objected to the remand, even though the remand gave plaintiff an opportunity, under the new ISP administrative rules, to respond to the objections raised by the law enforcement agencies. In any event, plaintiff does not raise the initial remand by the circuit court as a point of error before us, nor does he raise any challenge to the application of those new administrative rules to his case.

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it needs additional information from you in order to reach an informed decision

concerning your application. ***

Pursuant to 20 Ill. Admin. Code 2900.140(e)(1), you now have 15 days from the

date of receipt of this notice to submit any relevant evidence to the Board for its

consideration before a final administrative decision is rendered regarding your

application.” (Emphasis added.)

¶ 23 On May 16, 2015, plaintiff wrote a 2-sentence response to the Board. In his first

sentence, he wrote that he “has not been CONVICTED OR FOUND GUILTY as noted in the

Statute” (emphasis in original) and then quoted a portion of section 25 of the Act which, as we

recited above (supra ¶ 8), provides the preliminary qualifications for licensure, including that the

applicant not have been convicted of a misdemeanor involving the use or threat of physical force

or violence or two or more drug- or alcohol-related offenses in the past five years. See 430 ILCS

66/25 (West 2014).

¶ 24 In his second sentence, plaintiff wrote: “There being no basis in the Statute, and

[plaintiff] is not a danger to safety, we ask for a hearing.”

¶ 25 On June 13, 2014, the Board notified plaintiff that it had affirmed the objections and

“determined that [plaintiff was] a danger to [himself], [was] a danger to others, or pose[d] a

threat to public safety.” Plaintiff filed an amended petition for administrative review in the

circuit court.

¶ 26 Plaintiff argued that the Board improperly relied on hearsay evidence in reaching its

decision, that the record supported his application for a license, and that the Board’s reliance on

hearsay infringed on his right to bear arms under the second amendment. Defendants argued that

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there was sufficient evidence to support the Board’s finding based on the reports submitted with

the objections, and that the Board could base its decision on those reports.

¶ 27 The court denied plaintiff’s petition. The court found that “the right to carry a concealed

firearm in public is not an interest specifically protected by the Second Amendment.” The court

also found that, even if the second amendment protected the right to carry a concealed firearm,

the Act “would pass intermediate scrutiny,” noting that the application review process protected

Illinois’s strong interest in “preserv[ing] the general safety of its citizens in public spaces.” The

court found that sufficient evidence supported the Board’s decision to deny plaintiff’s

application.

¶ 28 Plaintiff filed this appeal.

¶ 29 II. ANALYSIS

¶ 30 As we noted above, judicial review of the denial of a concealed carry license by the

Board proceeds under the Administrative Review Law. 430 ILCS 66/87(b) (West 2014). In cases

arising under the Administrative Review Law, we review the administrative agency’s decision,

not the decision of the circuit court. Exelon Corp. v. Department of Revenue, 234 Ill. 2d 266, 272

(2009). Our standard of review turns on whether the issue resolved by the agency was a question

of fact, a question of law, or a mixed question of law and fact. Comprehensive Community

Solutions, Inc. v. Rockford School District No. 205, 216 Ill. 2d 455, 471 (2005).

¶ 31 We review an agency’s conclusion on a question of law de novo. Id. When the agency

resolves a question of fact, we defer to that resolution and will reverse it only if it is against the

manifest weight of the evidence. Id. at 471-72. When the issue involves a mixed question of law

and fact, i.e., “whether established facts satisfy applicable legal rules,” we apply a clear-error

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standard, which defers “to an agency’s experience in construing and applying the statutes that it

administers.” Id. at 472.

¶ 32 Plaintiff raises several challenges both to the circuit court’s decision and the Board’s

decision: (1) that the trial court incorrectly found that the second amendment does not protect the

right to carry a concealed firearm and, as a result, applied the improper level of scrutiny to the

Act; (2) that the Board improperly relied on the LEADS rap sheet and the Chicago police

department reports, which were inadmissible hearsay; (3) that the Act’s dangerousness standard

violates the second amendment and is unconstitutionally vague; and (4) if the Board could rely

on hearsay evidence under the Act, the Act’s allowing such reliance violates his constitutional

rights. We address each of these arguments in turn.

¶ 33 1. Circuit Court’s Second Amendment Analysis

¶ 34 Plaintiff raises two arguments relating to the trial court’s findings. First, he argues that

the trial court incorrectly found that the second amendment does not protect a right to carry a

concealed firearm outside the home. Second, he claims that the trial court incorrectly applied the

intermediate-scrutiny standard in its second-amendment analysis. In fact, the heading of every

single argument begins with an explanation of how the “circuit court erred.”

¶ 35 As we noted above, on administrative review, our concern is not the trial court’s analysis;

it is the administrative agency’s decision. Exelon Corp., 234 Ill. 2d at 272. Thus, the accuracy of

the circuit court’s second-amendment analysis in this case has no bearing on the outcome.

¶ 36 Plaintiff does not contend that some error by the circuit court deprived him of his ability

to obtain circuit court review under the Administrative Review Law. Nor does he request a new

circuit court hearing. He only takes issue with the merits of the Board’s appeal as analyzed by

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the trial court. Because the trial court’s analysis is unimportant in resolving the merits of

plaintiff’s arguments, we decline to address it.

¶ 37 2. Reliance on LEADS Rap Sheet and Police Reports

¶ 38 Next, plaintiff contends that the Board improperly relied on ISP’s LEADS rap sheet and

police reports in denying his application. Plaintiff claims that these documents contained hearsay

and that the Board may not consider hearsay, both under its own rules and under general

principles of administrative law. For purposes of this section, we do not address plaintiff’s

argument that the use of hearsay violates his second amendment rights; we reserve the

constitutional issues for a later section.

¶ 39 Whether the Act permits the agency to consider both the rap sheet and the reports in its

determination requires us to interpret the Act, questions of law we review de novo. Brunton v.

Kruger, 2015 IL 117663, ¶ 24.

¶ 40 a. LEADS Rap Sheet

¶ 41 We turn first to the use of the LEADS rap sheet. Plaintiff contends that the Board’s own

rules prohibit it from relying on LEADS. We find, however, that plaintiff’s argument reflects a

fundamental misunderstanding of the applicable administrative rule.

¶ 42 To explain why, we must first clarify that the Act differentiates between the ISP and

other “law enforcement agencies.” Specifically, the Act defines the “ ‘Department’ ” as ISP,

whereas a “ ‘Law enforcement agency’ ” is defined as “any federal, State, or local law

enforcement agency, including offices of State’s Attorneys and the Office of the Attorney

General.” 430 ILCS 66/5 (West 2014).

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¶ 43 These bodies play different roles. The ISP must conduct a background check on every

applicant for a license. 430 ILCS 66/35 (West 2014) (“The Department shall conduct a

background check of the applicant to ensure compliance with the requirements of this Act and all

federal, State, and local laws.”). “Law enforcement agencies,” on the other hand, may file

objections to the license application with ISP if that objection is “based upon a reasonable

suspicion that the applicant is a danger to himself or herself or others, or a threat to public

safety.” 430 ILCS 66/15(a) (West 2014). 2

¶ 44 Sticking for the moment with the ISP’s role, section 35 of the Act directs ISP, in

conducting that mandatory background check, to use, among other sources, “all available state

and local criminal history record information files.” 430 ILCS 66/35(2) (West 2014). And

LEADS “is a statewide, computerized telecommunications system designed to provide services,

information, and capabilities to the law enforcement and criminal justice community in the State

of Illinois.” (Emphasis added.) 20 Ill. Adm. Code 1240.10(a) (1999). All policing bodies in the

State of Illinois must transmit information concerning arrests, charges, and dispositions of

charges to ISP. 20 ILCS 2630/2.1(a)-(c) (West 2014). Moreover, various statutes require

agencies to submit a host of other information to LEADS. See, e.g., 50 ILCS 722/10(a)(3)(A)

(West 2014) (missing persons information); 55 ILCS 5/3-6019 (West 2014) (warrants); 740

ILCS 22/302(a) (West 2014) (civil no contact orders); 750 ILCS 60/302(a) (West 2014) (orders

of protection).

¶ 45 Because section 35 requires ISP to search all available state criminal history information

files, and LEADS is a compilation of criminal justice information, it follows that, as part of the

background check in section 35, the ISP is authorized to check LEADS.

2 For the sake of complete accuracy, the ISP may also object to a license application, but only in limited instances not relevant to this case. See 430 ILCS 66/15(b) (West 2014).

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¶ 46 And it thus also follows that the Board may consider LEADS information when called

upon to consider objections to the license application—the whole reason for the Board’s

existence. The Act provides as much in more than one place in the statutory scheme. Section 15

provides that “[i]f a law enforcement agency submits an objection [to a license application] ***,

the Department shall submit the objection and all information available to the Board under State

and federal law related to the application to the Board within 10 days of completing all

necessary background checks.” (Emphasis added.) 430 ILCS 66/15(a) (West 2014). Likewise,

section 20 provides that the Board, in considering objections by law enforcement agencies, may

“consider information submitted by the Department, a law enforcement agency, or the

applicant.” (Emphasis added.) 430 ILCS 66/20(e) (West 2014). Thus, contrary to plaintiff’s

claim, the Board may consider LEADS information as much as it may consider any other

relevant information.

¶ 47 Plaintiff’s claim that the Board is prohibited from considering LEADS information is

based on this administrative rule:

“Criminal history background checks for all [license] applicants will be conducted by the

Department. Law enforcement officials who wish to raise an objection to an ***

applicant shall not use LEADS to run background checks to determine *** eligibility.”

20 Ill. Adm. Code 1231.70(a) (2014).

¶ 48 First of all, that rule says nothing about what the Board can or cannot consider. It is not a

limitation on the Board whatsoever. Second, the passage on which plaintiff relies does not

restrain what the ISP—“the Department”—may use when conducting its mandatory background

check; it only constrains what the other law enforcement agencies may use in determining

whether to submit an objection to the license application. The ISP easily could have written this

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rule to constrain itself, and the Board, similarly, had it wished to do so. The plain language of the

rule does not support plaintiff’s position.

¶ 49 And restricting outside law enforcement agencies to information other than LEADS data

makes sense. If ISP must run a background check of every applicant, and ISP has a duty to check

all available state criminal history information when doing so, then ISP will likely check

LEADS—its own criminal history database. Prohibiting other law enforcement agencies from

“us[ing] LEADS to run background checks” is doing nothing more than preventing the Board

from receiving duplicative data, a perfectly reasonable aim of an administrative rule.

¶ 50 Here, the LEADS rap sheet delivered to the Board was not included with the objections

filed by the Chicago police or the Cook County sheriff. Rather, it was part of ISP’s background

check on plaintiff. Because the rule restrains only the use of LEADS rap sheets in making

objections, which is a distinct procedure from ISP’s background checks, ISP’s submission of the

rap sheet in this case did not run afoul of its rules, nor did the Board’s consideration of that

information.

¶ 51 b. Police Reports

¶ 52 Plaintiff also contends that the Board erred in relying on the police and arrest reports

submitted by the Chicago police department and Cook County sheriff in support of their

objections to his application. Plaintiff contends that hearsay is inadmissible in administrative

proceedings and that police reports and arrest reports do not fall into any recognized exceptions

to the rule against hearsay.

¶ 53 At the outset, we agree with plaintiff that the police reports submitted by the Chicago

police department and the criminal history report submitted by the Cook County sheriff

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contained hearsay evidence. Those documents consisted of outside statements that could only be

relevant if they were true. See Ill. R. Evid. 801(c) (eff. Jan. 1, 2011) (“ ‘Hearsay’ is a statement,

other than one made by the declarant while testifying at the trial or hearing, offered in evidence

to prove the truth of the matter asserted.”).

¶ 54 We also recognize that, as a general matter, hearsay evidence is not admissible in an

administrative proceeding. Abrahamson v. Illinois Department of Professional Regulation, 153

Ill. 2d 76, 94 (1992); see also 5 ILCS 100/10-40(a) (West 2014) (in administrative proceedings,

agencies should follow rules of evidence applicable in civil cases in circuit courts). But

administrative agencies are creatures of statute (County of Knox ex rel. Masterson v. The

Highlands, L.L.C., 188 Ill. 2d 546, 554 (1999)), and, as such, the legislature may define or alter

the rules of evidence applicable to an agency’s proceedings. See, e.g., Cook County Board of

Review v. Property Tax Appeal Board, 339 Ill. App. 3d 529, 535 (2002) (enabling statute for

property tax appeal board “ ‘eliminate[d] formal rules of pleading, practice and evidence’ ”

(quoting 35 ILCS 200/16-180 (West 2000))).

¶ 55 So the question is whether the Act allows the Board to consider hearsay evidence

submitted with a law enforcement agency’s objection to a concealed carry license. In our recent

decision in Perez v. Illinois Concealed Carry Licensing Review Board, 2016 IL App (1st)

152087, ¶ 24, we held that “the Act establishes the intent to permit the admission of hearsay

evidence before the Board for considering a concealed carry license application.” Looking to

several provisions of the Act, we found that “the Act permits *** an exception [to the rule

against hearsay] because it requires the [ISP] as well as the Board to consider an applicant’s

criminal history, including arrests, when reviewing an application.” Id. (citing 430 ILCS

66/15(a), 20(e), 35(2) (West 2014)).

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¶ 56 We adhere to our holding in Perez. The Act says that, when considering a law

enforcement objection, the Board should “review the materials received with the objection from

the law enforcement agency.” 430 ILCS 66/20(e) (West 2014). And it says that, when making an

objection, a law enforcement agency “must include any information relevant to the objection.”

430 ILCS 66/15(a) (West 2014). Thus, the Act contemplates the submission of a wide range of

information by law enforcement.

¶ 57 Moreover, section 15(b) of the Act (430 ILCS 66/15(b) (West 2014)) expressly

contemplates that, in a specific context, the Board should consider arrest records. That section

states that, when an applicant has five or more arrests in the seven years preceding his

application, ISP “shall object and submit the applicant’s arrest record *** and any additional

information submitted by a law enforcement agency to the Board.” (Emphasis added.) Id. Thus,

the legislature authorized the Board to consider arrest records when an applicant has a certain

number of arrests. It stands to reason that, even when an applicant has fewer arrests in his

background, such records would still be among the wide variety of information the Board could

consider in weighing an objection. If the Act specifically contemplates the use of arrest records

when the applicant has a certain number of them within a recent time frame, it would be

nonsensical to read the statute as categorically barring them as inadmissible hearsay simply

because there are less of them, or because they happened earlier in time.

¶ 58 Plaintiff contends that Perez is distinguishable because the plaintiff in that case had

forfeited his hearsay argument. While plaintiff is correct that the plaintiff in Perez forfeited his

hearsay argument (Perez, 2016 IL App (1st) 152087, ¶ 23), the court still reached the merits of

that argument (id. ¶ 24). And as we explained above, we find the analysis of Perez to be

persuasive in light of the language of the Act.

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¶ 59 Plaintiff also claims that Perez is distinguishable because the hearsay evidence in Perez

was “from 2011, and at most from 2007,” whereas the arrests at issue in this case were much

older. But plaintiff has not explained how the age of a document affects a hearsay objection, why

a more recent document should be able to overcome a hearsay objection but an older document

should not. Plaintiff also ignores that, in this case, the Chicago police department’s objection

cited three incidents occurring between 2010 and 2012. The Cook County sheriff cited four

arrests occurring in 2009, 1991, 1990, and 1989. Thus, contrary to plaintiff’s claim, the evidence

supporting the objections was not “desk reports some 30-years old.”

¶ 60 We hold that the Board properly considered the police reports and criminal history report

submitted by the Chicago police department and the Cook County sheriff.

¶ 61 3. The Dangerousness Standard

¶ 62 Plaintiff raises two constitutional challenges to the Act’s standard for assessing law

enforcement objections, found in section 20(g) of the Act:

“If the Board determines by a preponderance of the evidence that the applicant poses a

danger to himself or herself or others, or is a threat to public safety, then the Board shall

affirm the objection of the law enforcement agency or the Department and shall notify the

Department that the applicant is ineligible for a license.” 430 ILCS 66/20(g) (West 2014).

Plaintiff contends that this dangerousness standard violates both his right to bear arms under the

second amendment to the United States Constitution (U.S. Const., amend. II), and his

constitutional rights to due process of law (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2)

because it is impermissibly vague.

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¶ 63 Statutes are presumed to be constitutional, and the party challenging the constitutionality

of a statute bears the burden of proving that the statute is unconstitutional. People v. Aguilar,

2013 IL 112116, ¶ 15. We have a duty to construe any statute in a manner that upholds the

statute’s constitutionality. Id. We apply de novo review. Id. We now turn to each of plaintiff’s

arguments.

¶ 64 a. Right to Bear Arms

¶ 65 Plaintiff argues that the dangerousness standard violates his right to bear arms because it

is not a “concrete standard” justifying the State’s intrusion on his right to bear arms. He contends

that the standard is not narrowly circumscribed to serve the State’s interest in preserving public

safety.

¶ 66 At the outset, plaintiff never clarifies for us whether he is mounting a facial or as-applied

challenge to the Act. Without ever once specifying one challenge or the other, his argument

seems to veer between the two concepts. We would be within our rights to declare this argument

forfeited for failing to properly focus our attention on the appropriate challenge, but instead we

will address each challenge.

¶ 67 A party challenging the facial constitutionality of a statute bears the burden of showing

that the statute is unconstitutional in all its applications—that under no set of circumstances

could the statute be applied in a constitutional manner. People v. Burns, 2015 IL 117387, ¶ 27;

People v. Wiggins, 2016 IL App (1st) 153163, ¶ 75. An “ ‘as applied’ ” constitutional challenge,

on the other hand, requires a defendant to show that the statute violates the constitution as it

applies to him. People v. Garvin, 219 Ill. 2d 104, 125 (2006); Wiggins, 2016 IL App (1st)

153163, ¶ 75. Of course, if a statute is constitutional as applied to a plaintiff, a facial challenge

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will necessarily fail, too, because that means there is at least one set of facts where the statute

may be constitutionally applied. Garvin, 219 Ill. 2d at 117. Thus, it makes sense to begin with

consideration of an as-applied challenge, because if we find that the Act was applied

constitutionally to plaintiff, then the facial challenge will necessarily fail as well; we will have

found at least one set of circumstances where the Act was applied constitutionally. See Wiggins,

2016 IL App (1st) 153163, ¶¶ 75, 87. 3

¶ 68 We apply a two-step approach to a second-amendment challenge. People v. Mosley, 2015

IL 115872, ¶ 34. First, we look to the text and history of the second amendment “to determine

whether the challenged law imposes a burden on conduct that was understood to be within the

scope of the second amendment’s protection at the time of ratification.” Id. If the conduct is not

within the scope of the second amendment, then the regulated activity “is categorically

unprotected.” Id. But if the historical evidence is inconclusive or suggests that the regulated

activity is not unprotected, then we apply “the appropriate level of means-ends scrutiny” and

consider “the strength of the government’s justification for restricting or regulating the exercise

of second amendment rights.” Id.

¶ 69 With respect to the first step, in Aguilar, 2013 IL 112116, ¶ 21, our supreme court

recognized that “the second amendment protects the right to possess and use a firearm for self-

defense outside the home.” Thus, the second amendment generally protects plaintiff’s right to

3 At oral argument, plaintiff’s counsel said he was mounting a facial challenge to the Act, though he did not address whether he was raising an as-applied challenge, too. It makes no difference. It still makes sense to begin with an as-applied challenge, because if it is unsuccessful, it represents an example where the Act could be constitutionally applied, thereby defeating the facial challenge.

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carry a ready-to-use gun outside the home. The question, then, is whether the Act’s

dangerousness standard impermissibly encroaches on that right.

¶ 70 Plaintiff does not claim that the existence of the licensing scheme, in and of itself,

violates the second amendment. And for good reason. It is well established that, as a general

matter, requiring an individual to obtain a license to possess a firearm—whether inside the home

or beyond—is a reasonable regulation of the right to bear arms. Mosley, 2015 IL 115872, ¶ 36;

Wiggins, 2016 IL App (1st) 153163, ¶¶ 79-81. And in Berron v. Illinois Concealed Carry

Licensing Review Board, 825 F.3d 843, 847 (7th Cir. 2016), the Seventh Circuit Court of

Appeals held that requiring individuals to obtain concealed carry licenses under the Act did not

violate the second amendment. Thus, the mere fact that plaintiff had to apply for a license before

he could carry a concealed firearm did not, by itself, violate plaintiff’s rights under the second

amendment.

¶ 71 Nor does plaintiff claim that the State would violate the second amendment by

prohibiting a person who truly poses a danger or threat to society from carrying a gun outside the

home. Again, for good reason. Since District of Columbia v. Heller, 554 U.S. 570, 626-27

(2008), the U.S. Supreme Court has emphasized that second amendment rights are not absolute,

and that traditional prohibitions on gun ownership for people such as felons or the mentally ill

were almost certainly constitutional. Our supreme court in Aguilar, in determining that minors

could be prevented from possessing guns, relied on our country’s “ ‘longstanding practice of

prohibiting certain classes of individuals from possessing firearms—those whose possession

poses a particular danger to the public.’ ” (Emphasis added.) Aguilar, 2013 IL 112116, ¶ 27

(quoting United States v. Rene E., 583 F.3d 8, 15 (1st Cir. 2009)). It is hard to imagine a person

who falls more squarely into the group of individuals who “pose[ ] a particular danger to the

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public” (internal quotation marks omitted) (id.) than one who is found by the Board, by a

preponderance of the evidence, to “pose[ ] a danger to himself or herself or others” or to be a

“threat to public safety.” 430 ILCS 66/20(g) (West 2014).

¶ 72 But while plaintiff does not object to a licensure regimen, or to the denial of licenses to

people who are truly dangerous, he maintains that section 20(g) violates the second amendment

because the standard—“that the applicant poses a danger to himself or herself or others, or is a

threat to public safety” (430 ILCS 66/20(g) (West 2014))—“is a ‘standard without standards’

which leaves the State with unfettered discretion to interdict a Constitutional right.” (Emphasis in

original.)

¶ 73 The problem for plaintiff, however, is that in an as-applied challenge, plaintiff must show

that this standard was applied unconstitutionally to his case (Garvin, 219 Ill. 2d at 117; Wiggins,

2016 IL App (1st) 153163, ¶ 75), but he did next to nothing to challenge the strength or

soundness of the Board’s finding of dangerousness below.

¶ 74 As we chronicled above (supra ¶¶ 21-24), the case was remanded to the Board so that

plaintiff would receive specific notice of the objections made by law enforcement agencies, and

so plaintiff would have the opportunity to respond. The Board listed out the specific objections to

plaintiff’s application and gave him 15 days “to submit any relevant evidence to the Board for its

consideration.”

¶ 75 To say the very least, plaintiff did not appropriately seize this opportunity. He responded

with a two-sentence letter to the Board. The first sentence was not “relevant evidence” at all. It

was a legal argument, claiming that because he was never convicted of those incidents cited by

law enforcement agencies, they had no bearing on the qualification factors in section 25 of the

Act. That argument was wrong as a legal proposition—apart from section 25, section 20 of the

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Act spells out that the Board must deny an application if the applicant is deemed a danger to

himself or others after law enforcement officials object (430 ILCS 66/20(g) (West 2014))—but

the bigger point is that this legal argument did not even remotely address, as a factual matter, the

information submitted by the two objecting law enforcement agencies. And the second sentence

was even less helpful—plaintiff merely stated that, “There being no basis in the Statute, and

[plaintiff] is not a danger to safety, we ask for a hearing.”

¶ 76 So on the one hand, the Board had been presented with information from two law

enforcement agencies that plaintiff was alleged to have committed the following acts: (1) he

threatened to put an individual “in a wood chipper and six feet underground” if that individual

did not stop bothering plaintiff about an issue concerning money in 2012; (2) he threatened to

“bust [a man’s] head open” and “break [his] legs” for damaging some of plaintiff’s campaign

signs in 2011; (3) he kicked and punched an individual with brass knuckles in 2010; and (4) he

had been arrested 18 times, including a 1992 conviction for criminal damage to property and

arrests for assault and for battery.

¶ 77 No doubt, none of these acts (save one) led to a conviction, and many were not charged at

all. But it is fair to say that Board members might have found some of these allegations to be

particularly disturbing about a man seeking now to arm himself in public. And that is precisely

why plaintiff’s response—his opportunity “to submit any relevant evidence to the Board for its

consideration”—was so crucial.

¶ 78 Plaintiff could have said in response, for example, that he did not commit any of these

acts, that he was utterly innocent. He could have said that some or all of these incidents were

accompanied by specific circumstances that mitigated his actions or absolved him entirely. He

might have explained that the alleged victims had ulterior motives—grudges or reasons to

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fabricate their stories. He could have submitted the names of, if not affidavits or statements from,

eyewitnesses who would exonerate him. He might have made the case that the past was the past,

that he was a changed man. He could have done any number of things to attempt to convince the

Board that he did not, at this time, “pose[ ] a danger to himself *** or others” and that he was not

“a threat to public safety.” 430 ILCS 66/20(g) (West 2014).

¶ 79 But instead, plaintiff merely responded that those allegations were not legally relevant

(which, as we have explained, was incorrect) and then nakedly announced that he was “not a

danger to safety.” Short of a confession to those disturbing allegations, it is hard to imagine how

plaintiff’s response could have been less helpful to his cause.

¶ 80 And plaintiff now claims that the standard of dangerousness-or-threat-to-public-safety

was unconstitutionally applied against him. Given that he essentially lay down in the face of the

standard, plaintiff cannot plausibly complain that the Board’s ultimate decision to find him a

danger and threat to public safety was a complete abandonment of the standard or an exercise of

unfettered discretion. To the contrary, a reasonable member of the Board could have rationally

determined that defendant’s effective silence in the face of these shocking allegations was

deafening, maybe even tantamount to an admission.

¶ 81 It is true that plaintiff requested a hearing, but the Board was not required to give him

one. Hearings before the Board “shall be limited to circumstances that cannot be resolved to the

CCLRB’s satisfaction through written communication with the parties.” 20 Ill. Adm. Code

§ 2900.140(c) (2015). Plaintiff has not complained to this court that he was improperly denied a

hearing, and we would have to agree with the Board that plaintiff gave it no reason whatsoever to

provide one. Plaintiff’s chance to put his best foot forward was in his written submission, and he

wholly failed to do so.

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¶ 82 Even if plaintiff could make the case that the words “danger” and “threat to public

safety” are less than perfectly precise in theory—an argument we do not address—they were

sufficiently definite as applied to the facts of this case. Hitting someone with brass knuckles is

“dangerous” under the narrowest of definitions. Threatening people with a stint in a wood

chipper, or with busting their heads open and breaking their legs, would make anyone’s list of a

“danger” or “threat.” And given that plaintiff did absolutely nothing to disabuse the Board of the

notion that he actually committed these acts, we cannot fault the Board for making the

determination, by a preponderance of the evidence, that plaintiff posed a danger to himself or

others and was a threat to public safety.

¶ 83 Because the state has the right to deny a concealed carry license to someone who is a

danger or threat to public safety (Aguilar, 2013 IL 112116, ¶ 27), and because plaintiff made

virtually no attempt to deny the allegations that led to the Board’s finding of dangerousness or

threat to public safety, he cannot establish that the denial of his license violated the second

amendment. His as-applied second amendment challenge fails. As such, his facial challenge

fails, too, because we need look no further than the case before us to find a constitutional

application of the standard. See Garvin, 219 Ill. 2d at 125; Wiggins, 2016 IL App (1st) 153163,

¶¶ 75, 87.

¶ 84 b. Vagueness

¶ 85 Plaintiff also contends that the dangerousness standard violates his right to due process of

law. While plaintiff couches this argument in terms of procedural due process, for reasons we

explain more fully below, he has actually presented us with an argument that the dangerousness

standard of section 20(g) is unconstitutionally vague.

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¶ 86 The doctrines of procedural due process and vagueness are both rooted in due process

principles. See Mathews v. Eldridge, 424 U.S. 319, 332 (1976); Giaccio v. Pennsylvania, 382

U.S. 399, 402-03 (1966). But while procedural due process and vagueness have similar origins,

the tests we apply in analyzing the two doctrines differ. For a procedural due process claim, we

apply the framework laid out in Mathews, in which we consider the individual’s interest, the

government’s interests, and the risk of erroneous deprivation of the individual’s interest under

the existing procedures. Lyon v. Department of Children & Family Services, 209 Ill. 2d 264, 277

(2004) (citing Mathews, 424 U.S. at 335). For a vagueness challenge, we consider two factors:

(1) whether the law fails to provide people of ordinary intelligence a reasonable opportunity to

understand what conduct it prohibits so that they may act accordingly and (2) whether the law

provides reasonable standards to law enforcement to ensure against authorizing or even

encouraging arbitrary and discriminatory enforcement. Wilson v. County of Cook, 2012 IL

112026, ¶ 21; see also Hill v. Colorado, 530 U.S. 703, 732 (2000).

¶ 87 In this case, plaintiff relies on the vagueness standard, expressly quoting our supreme

court’s recitation of that standard in Wilson. His argument focuses on how the Act fails to

provide an applicant of notice of the conduct that will prevent him from getting a concealed carry

license, and that the Act grants the Board “virtually limitless discretion” to deny a license. These

arguments more appropriately fit within the vagueness rubric. Moreover, he does not recite or

balance the Mathews factors or explain what additional procedures should be in place to protect

his right to carry a concealed firearm. Thus, plaintiff’s argument is properly styled as a

vagueness challenge, and we will consider it as such.

¶ 88 Having properly characterized plaintiff’s argument, we now address its merits.

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¶ 89 First, like other constitutional challenges, a vagueness challenge can take the form of a

facial challenge or an as-applied challenge. Wilson, 2012 IL 112026, ¶ 23; People v. Einoder,

209 Ill. 2d 443, 448 (2004). Again, plaintiff does not specify the form his challenge takes, but if

the as-applied challenge fails, then the facial one does by extension, as we have already

explained. See Garvin, 219 Ill. 2d at 125; Wiggins, 2016 IL App (1st) 153163, ¶¶ 75, 87.

¶ 90 So we begin with the as-applied challenge. We examine whether the language of the

statute is vague “ ‘in light of the particular facts of the case.’ ” Einoder, 209 Ill. 2d at 451

(quoting People v. Greco, 204 Ill. 2d 400, 416 (2003)). “ ‘When the statute is examined in the

light of the facts of the case and the statute clearly applies to the party’s conduct, then a

challenge to the statute’s constitutionality based upon vagueness will be unsuccessful.’ ”

Einoder, 209 Ill. 2d at 451-52 (quoting People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 291-92

(2003)).

¶ 91 Our analysis here will sound familiar, because even though plaintiff couched his first

constitutional challenge under the second amendment, in substance his argument was that his

right to bear arms was violated by an impermissibly vague standard that allowed the Board to

deny him his license based on its own subjective whim, not any meaningful criteria. We rejected

that challenge, as applied to plaintiff, because we held that any reasonable definition of “danger”

or “threat” would include the alarming conduct plaintiff was alleged to have committed, and

which the Board found sufficient to deem him a danger and threat to public safety.

¶ 92 Our reasoning is not materially different here. Plaintiff claims that the Act failed to

provide him notice of the conduct that would deny him a concealed carry license. But reading the

Act, he was given clear notice that (1) the ISP would run a background check on him; (2) other

law enforcement agencies would have the opportunity to weigh in on his application and, if they

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objected, to provide the basis of their objections to the ISP and the Board; and (3) if, after

consideration of any possible objection, he was deemed to pose a threat to himself or others or a

threat to public safety, his application would be denied.

¶ 93 And he certainly knew his own past. He might not have known if his alleged past conduct

would ever be brought to light, but he cannot plausibly argue that he did not appreciate that, if it

did, that allegations involving beatings with brass knuckles, threats to maim and kill in graphic

terms, and 18 separate arrests might lead to a conclusion that he was “dangerous” or a “threat to

public safety.” As we have said before, even if the outermost boundaries of words like “danger”

and “threat to public safety” were theoretically imprecise, what should have been perfectly clear

to a reasonable person in plaintiff’s shoes is that the allegations concerning his past conduct

could comfortably fall within the heart of those definitions.

¶ 94 Because the challenged standard of dangerousness and threat to public safety clearly

applied to the conduct of which plaintiff was accused, his as-applied vagueness challenge fails.

As such, so does his facial challenge.

¶ 95 4. Consideration of Hearsay as Constitutional Violation

¶ 96 Finally, plaintiff argues that, even if the Act permitted the Board to consider hearsay

evidence, “such an interpretation violates [plaintiff’s] Constitutional rights.” Plaintiff says

“[u]sing hearsay documents and summaries from some thirty-years [sic] ago as the foundation to

interdict [plaintiff’s] right to bear and keep arms is outrageous and unacceptable and violates his

due process rights.”

¶ 97 The entirety of plaintiff’s argument is one-half of a page, with no citation to any

authority. We fail to see how plaintiff could have possibly thought that a constitutional argument

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of this magnitude merited that minimal level of discussion. In fact, it is not even clear from his

argument whether he claims that the use of hearsay violates his due process rights, his second

amendment rights, or both. His argument merits no discussion on appeal. See People v. Oglesby,

2016 IL App (1st) 141477, ¶ 205 (“The failure to cite any authority or to articulate an argument

will result in forfeiture of that argument on appeal.”).

¶ 98 III. CONCLUSION

¶ 99 For the reasons stated, we affirm the judgment of the circuit court.

¶ 100 Affirmed.

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