U.S District Judge Stephen McGlynn denied the state’s request for additional time to respond to a motion by gun advocates seeking injunctive relief from the approaching firearm registration deadline, but he granted their request to file a lengthy response “due to the complexity of the arguments in the motion for preliminary injunction.”
During a Nov. 21 status conference, McGlynn granted a motion by Gov. J.B. Pritzker, Attorney General Kwame Raoul and Illinois State Police Director Brendan Kelly to exceed the 20 page limit in their response to the motion for preliminary injunction from the Protect Illinois Communities Act (PICA). They’ve been directed to file their response by Dec. 1, after McGlynn previously denied their request for more time.
He also set a motion hearing for Dec. 12 at 2:30 p.m.
The motion for preliminary injunction was filed by attorney C.D. Michel, of Long Beach, Calif., on Nov. 13 in the U.S. District Court for the Southern District of Illinois, on behalf of plaintiffs Federal Firearms Licenses of Illinois (FFL-IL), Guns Save Life, Gun Owners of America, Gun Owners Foundation, Piasa Armory, Cumberland County resident Debra Clark, Madison County resident Jasmine Young and Hardin County resident Chris Moore, referred to as “FFL plaintiffs.”
They seek to enjoin the state from enforcing the Jan. 1, 2024, firearm registration deadline.
“Given the State’s insistence on enforcing [the Jan. 1, 2024] deadline, despite this litigation, Plaintiffs bring this motion to protect their rights and those of the public in the meantime,” the motion states.
They argue that the “registration scheme is unconstitutional thrice over.”
First, despite serious criminal consequences being threatened for failure to register, the state did not provide sufficient notice under the Due Process Clause. Michel wrote that the registration requirements were “merely” posted online in hopes that the public sees them.
Second, the FFL plaintiffs argue that the statutory terms used for identifying which firearms or parts must be registered are “hopelessly vague.”
Third, they claim the registration requirement violates their Second Amendment rights because there is no historical tradition of requiring individuals to register all firearms of a certain type with the government.
“In light of the irreparable harm that it will inflict on Plaintiffs and other Illinoisans who own a firearm or part potentially subject to it, the Court should enjoin enforcement of the unconstitutional registration to protect these rights and maintain the status quo pending litigation of Plaintiffs’ claims,” Michel wrote.
The emergency rules to implement PICA (PICA Rules) were filed by the Illinois State Police on Sept. 15 and “provide virtually no clarification of critical statutory terms for determining what firearms or parts must be registered,” Michel wrote.
Michel previously argued in the FFL plaintiffs' amended complaint that despite proper notice, the registration requirement affects Illinoisans in “life-altering ways.”
“Those who fail to register become criminals overnight,” Michel wrote. “Not allowing the community of firearm owners affected by the law to review proposed regulations and weigh in on them before they become effective is unjustifiable. “That is especially so given that emergency rules expire after 150 days, which here takes us beyond the January 1st deadline because the PICA Rules were first published in September. The State’s emergency rules are thus effectively permanent rules without ever having complied with the permanent rule process.”
He added that organizational plaintiffs, such as Guns Save Life, Gun Owners of America and Gun Owners Foundation represent members who may not have received any notice of the registration requirement and are likely unsure which items need to be registered and how to register them.
“The state did not provide direct notice to firearm owners about what items must be registered. Apparently, the state assumes that people will just learn about the registration requirement via the news or internet. That is unacceptable,” he wrote.
Michel wrote that even if proper notice had been given and sufficient time to comply provided, the terms are too vague to make sense of.
“Nearly every definition of a critical term of a Regulated Item is vague,” he wrote.
As for their Second Amendment claims in their motion for injunctive relief, the FFL plaintiffs argue that the registration requirement “flunks Bruen’s straightforward test.”
The Supreme Court upheld the Second Amendment in its 2022 ruling in New York State Rifle & Pistol Association v Bruen, which the FFL plaintiffs claim established there is no tradition of banning commonly possessed firearms. Further, they argue that the registration requirement “has no historical pedigree.”
“The Second Amendment was written by people who had just revolted against a tyrannical government,” Michel wrote. “They sought to guarantee the People had a final recourse should the new government they were forming turn tyrannical.”
The FFL plaintiffs argue that the Seventh Circuit provided a superficial preliminary assessment of the unconstitutionality of registration.
“The court’s doubt rested primarily on its (erroneous) conclusion that regulated items are outside the Second Amendment text,” Michel wrote.
“Plaintiffs are sensitive to the complexities of deciding legal issues that are sub judice by a higher court. But Illinois imposed an unconstitutional registration mandate on an equally unconstitutional timeframe. Plaintiffs have no other choice but to seek relief now,” he continued.
The FFL plaintiffs also argue that relief is warranted because the “infringement on plaintiffs’ rights is real and imminent.”
“People who fail to register because of a lack of notice about the requirement, or because the vagueness described above makes them uncertain about what needs to be registered, are turned into criminals overnight. There is no un-ringing that bell,” he wrote.
In response, the state defendants filed a motion for an extension of time to respond on Nov. 14.
They had previously agreed to a schedule in order to sufficiently argue the issues before the Jan. 1 deadline. They explained in their motion that the plaintiffs were expected to file their motion for preliminary injunction on Nov. 3, but that was pushed back when the Seventh Circuit released its delayed decision vacating injunctive relief on Second Amendment grounds that same day.
“At 8:11 p.m. on November 3, counsel for the FFL plaintiffs emailed counsel for the State Defendants stating in relevant part: As I am sure you can understand, the Seventh Circuit’s unexpected release of its opinion on the first preliminary injunction in this matter just hours ago will require our review to determine to what extent it impacts the preliminary injunction we intended to file today. We will review that opinion over the weekend and hope to have our motion on file by Monday. We will let you know if that changes,” the motion stated.
The state defendants claimed they should be given additional time to respond because the injunction request wasn’t filed until Nov. 13.
“The State Defendants understand and acknowledge that the unanticipated timing of the issuance of the Seventh Circuit’s opinion had a disruptive effect on counsel for the FFL plaintiffs’ timeline for filing their Second Preliminary Injunction Motion. But the FFL plaintiffs’ 10-day delay in filing their Second Preliminary Injunction Motion should not deprive the State Defendants of the time they need to prepare a response,” the motion stated.
McGlynn denied their request for an extension of time.