Federal Firearms Licenses of Illinois (FFL-IL) is asking U.S. District Judge Stephen McGlynn for leave to file an amended constitutional challenge to the Protect Illinois Communities Act (PICA), arguing that the registration deadline should be extended in light of the Seventh Circuit’s delay in ruling on injunctive relief.
Attorney Carl Michel of Michel & Associates in Long Beach, Calif., filed the motion on Oct. 25. McGlynn gave the state defendants until Nov. 6 to file a response.
“The registration requirements potentially affect thousands of Illinoisans in life-altering ways,” Michel wrote. “Those who fail to register become criminals overnight. Not allowing the community of firearm owners affected by the law to review proposed regulations and weigh in on them before they became effective is unjustifiable,” Michel wrote in the proposed amended complaint.
Michel wrote that the case has remained on appeal without a ruling for several months. More specifically, McGlynn granted a statewide injunction for four consolidated gun ban challenges on April 28 in the Southern District of Illinois. The defendants appealed the ruling to the Seventh Circuit. Oral arguments were heard on June 29, but an appellate ruling has not yet been announced.
Michel argues that regardless of the ruling, additional review will likely be sought which will lead to further delay.
“Despite this ongoing litigation and the clear uncertainty around the constitutionality of its ban on common firearms, the State of Illinois has decided to nevertheless proceed with its requirement that covered firearms and parts be registered by Jan. 1, 2024,” he wrote.
Michel wrote that the plaintiffs waited to challenge the registration requirement until it became necessary. The plaintiffs held out to see if the state would “do the reasonable thing” and delay the registration while awaiting the appellate court’s decision.
However, the Illinois State Police released the PICA Rules for registration on Sept. 15, indicating it “had no intention of delaying the registration requirement and that there would be no clarification of the statute’s vague terms.”
“Why the Illinois State Police waited over nine months from when the Firearms Ban Act was adopted to file emergency rules, rather than making ‘proposed rules’ under the normal process earlier is not explained,” Michel wrote.
“And the delay is more egregious in light of the fact that the PICA Rules largely just re-state the statutory provisions without providing any clarity. Why it took so long to simply restate the law is a mystery,” he added.
The motion states that the Illinois Joint Committee on Administrative Rules (JCAR) addressed the registration during its Oct. 17 meeting, resulting in a 5-5 vote to stop the implementation of the PICA Rules. Because the vote was tied, the rules were left in place.
With the Jan. 1 deadline approaching, the plaintiffs claim they can no longer wait to seek relief from the registration requirement.
“If they do not act now,” Michel wrote, “they will be barred from relief permanently.”
In addition to their original constitutional claims against the Protect Illinois Communities Act, the plaintiffs argue in their proposed amended complaint that the “registration scheme “violates the Second and Fourteenth Amendments.
Specifically, they argue that a registration requirement as a precondition to keep a legally owned firearm is a violation of the Second Amendment.
The plaintiffs claim the gun ban also violates the Due Process Clause of the Fourteenth Amendment for failure to provide adequate notice.
“Illinois is not requiring that new purchasers of so-called “assault weapons” register them moving forward, where purchasers could be given actual notice of the requirement at the time of purchase. Rather, it is requiring that people who have previously purchased legal firearms register them, even if they acquired those firearms a decade or more ago,” Michel wrote.
He adds that firearm owners have only two and a half months to comply with the registration requirement, but Illinois has only provided notice of the registration through announcements online.
The FFL’s motion argues that the insufficient registration notice is concerning for a law that subjects individuals to criminal penalties for firearms they purchased legally sometime before PICA was enacted.
“That is insufficient; particularly for a law that prescribes serious criminal consequences for failing to take steps presently for previously completed transactions that were lawful at the time,” Michel wrote.
He wrote that “actual notice” is even more critical in this situation because the general public may not be aware that registration is still required due to the appellate review of injunctive relief.
“There is no excuse for moving so quickly with such a short window when what is at issue is the reclassification of already lawfully-owned property into property possession of which can result in serious criminal consequences if affirmative steps are not taken with the government to avoid that fate,” Michel wrote.
“If the State Police were simply going to restate the law, they could have done that in March and let the process of public comment play out, which would have allowed them time not only to revise the rules based on the comments but given them more time to provide sufficient notice,” he added.
The plaintiff adds that even if gun owners were provided with sufficient notice, the registration requirement is vague.
The vagueness argument was first introduced by Wood River attorney Thomas Maag, who claims the statute is “so vague and ambiguous and to be indecipherable, not just by lay persons, but even by experts.”
FFL now argues that the registration requirement is also vague, including what must be registered.
“In sum, even if registration was permissible under the Second Amendment generally, both the law at issue and the recently released Illinois State Police Rules fail to give sufficient notice and are unacceptably vague as to what exactly must be registered,” Michel wrote.
He added that the “lack of clarity invites discriminatory, inconsistent enforcement of the registration requirement.”