Moustakas v. Margolis

154 F. Supp. 3d 719, 2016 U.S. Dist. LEXIS 803, 2016 WL 47914
CourtDistrict Court, N.D. Illinois
DecidedJanuary 5, 2016
DocketNo. 14 C 9294
StatusPublished
Cited by3 cases

This text of 154 F. Supp. 3d 719 (Moustakas v. Margolis) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moustakas v. Margolis, 154 F. Supp. 3d 719, 2016 U.S. Dist. LEXIS 803, 2016 WL 47914 (N.D. Ill. 2016).

Opinion

MEMORANDUM OPINION AND ORDER

James B. Zagel,. United States District Judge

Before the Court is Defendants’ Motion to Dismiss pursuant to Federal Rules of CM Procedure 12(b)(1) arid 12(b)(6).’ fror the reasons' set forth below, Defendants’ Motiori is granted in full'

I. BACKGROUND

Plaintiff Fotios MoustakaSy’under the Firearm Concealed Carry Act, applied for but was denied a license to carry a concealed- weapon. 430' ILCS 66/1, et seq. Plaintiff then ’filed this suit on November 19, 2014 against the agents of the Illinois Concealed Carry Licensing -Review Board and agents of the ‘Illinois State Police (“ISP”), pursuant to 42 U.S.C. § 1983. Plaintiff alleges violations of his procedural düé process and Second Amendment rights, and seeks both preliminary and permanent injunctions.

[724]*724A. History of Concealed Carry Regulations in Illinois

On December 11, 2012, the Seventh Circuit invalidated the Illinois Unlawful Use of Weapons (UUW) and Illinois Aggravated Unlawful Use of a Weapon (AUUW) laws, finding the laws’ prohibitions against carrying a concealed weapon outside the home to be violations of the Second Amendment. Moore v. Madigan, 702 F.3d 933, 934, 942 (7th Cir.2012), rehearing den’d 708 F.3d 901 (7th Cir.2013). The Seventh Circuit stayed its decision for “180 days to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment. . .on the carrying of guns in public.” Id. at 942. Accordingly, the Illinois Legislature passed the Illinois Firearm Concealed Carry Act (“the Act”), which went into effect on July 9, 2013. 430 ILCS 66/1, et seq. The Act mandated that the State Police issue a license to carry a concealed firearm to any applicant who submits requisite documentations and fees and meets certain statutory qualifications.1

The relevant statutory qualification in this case is the requirement that the applicant “does not pose a danger to himself, herself, or others, or a threat to public safety.” 430 ILCS 66/10(a); Id. at 66/10(c). Under the old law, law enforcement agencies evaluating an applicant’s dangerousness reviewed their own records and the State Police database. If those records raised “a reasonable suspicion that the applicant is a danger to himself or herself or others, or a threat to public safety,” law enforcement agencies could file an objection to the Illinois Concealed Carry Licensing Review Board (“the Board”). 430 ILCS 66/15(a). The Board then voted on the applicant’s eligibility to obtain a concealed carry license (“CCL”) based on materials from the objecting law enforcement agency and any additional information that was requested or provided by the applicant. An applicant whose CCL was denied could seek judicial review in state courts under the Illinois Administrative Review Act. 430 ILCS 66/87; see also 735 ILCS 5/3-101 et seq.

Prior to Plaintiffs filing this lawsuit, the Illinois State Police promulgated a series of “Emergency Amendments” that modified the procedure for considering objections. 20 Ill. Admin Code § 1231.230 (2014). Under the revised procedure, which went into effect on July 10, 2014, the Board “shall send the applicant notice of the objection, including the basis of the objection and the agency submitting the objection, within ten calendar days.” Id. at § 1231.230(e). The applicant may then respond with “any additional material that the applicant wants [the Board] to consider.” Id. If the Board cannot come to a decision based solely on written submissions from the parties, it conducts a hearing at which both parties may testify. Id. at § 1231.230(c). The Board is required to notify the applicant of the date, time, and location of any hearing. Id. at § 1231.230(d).

B. Moustakas’ CCL Application

Plaintiff applied for a CCL in January 2014 before the Emergency Amendments were put in place. During the review process, a law enforcement agency raised an objection that led the Board to deny Mous-takas’ application in light of his failure to meet the public safety requirement. Under [725]*725the then-operative law, the Board was not required to — and did not — notify Mousta-kas of the objection or request additional evidence from him. The denial came without further explanation.

Instead of availing himself of the revised review process, Plaintiff filed this lawsuit alleging that Defendants violated Plaintiffs Second Amendment right to keep and bear arms as well as his Fourteenth Amendment due process rights. Defendant moved to dismiss on January 26, 2015. Plaintiff then filed a series of amended complaints, culminating in the Third Amended Complaint on May 8, 2015. Defendants renewed their Motion to Dismiss on May 29, 2015, and it is this motion that is presently before the court.

In . his Third Amended Complaint, Plaintiff states six causes of actions. Specifically, Plaintiff alleges that the Board’s procedure denied him adequate notice and opportunity to be heard (Count I); that the Board erroneously evaluated his application under a preponderance of the evidence standard when at least a clear and convincing evidence standard was called for (Count II); and that the Board failed to provide him with the nature,, degree, immediacy, or character of the “danger or threat” it felt he posed (Count III). Furthermore, Plaintiff claims that the CCL process itself is an excessive burden that is made redundant by the separate FOID card requirement (Count IV). Plaintiff also complains that the makeup of the Board, which expressly requires that five of its seven members have substantial law enforcement backgrounds or experience as government attorneys, ensures a bias against certain CCL applicants (Count V). Finally, Plaintiff argues that the CCL application process is a prior restraint on his . Second Amendment rights (Count VI).

Defendants move 'to dismiss all claims for failure to state a claim under Rule 12(b)(6) and for lack of jurisdiction under Rule 12(b)(1) and Younger v. Harris.

II. STANDARD OF REVIEW

A 12(b)(6) motion to dismiss challenges the sufficiency of the complaint. In considering such a motion, the court must accept as true all well-pleaded factual allegations in the complaint and draw, all reasonable inferences from those facts in favor of the Plaintiff. Dixon v. Page, 291 F.3d 485, 486 (7th Cir.2002), The complaint need only contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This “liberal notice pleading regime...is intended to .‘focus litigation on the merits of a claim’ rather than on technicalities that might keep plaintiffs out of court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir.2009) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506

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Bluebook (online)
154 F. Supp. 3d 719, 2016 U.S. Dist. LEXIS 803, 2016 WL 47914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moustakas-v-margolis-ilnd-2016.