The state defendants accused of violating the rights of law-abiding gun owners in Illinois seek to dismiss the new due process claims raised in the amended complaint filed by gun advocates, which allege citizens did not receive proper notice of the vague “assault weapons” ban rules.
Attorney Chris Wells filed the motion to dismiss and supporting memorandum on Dec. 1 in the U.S. District Court for the Southern District of Illinois on behalf of Gov. J.B. Pritzker, Illinois Attorney General Kwame Raoul and Illinois State Police Director Brendan Kelly.
The defendants argue that the plaintiffs’ inadequate notice claim and vagueness allegations are insufficient.
“Plaintiffs say their new request is different: This time they claim to be targeting only the process for registering grandfathered ‘assault weapon[s]’ regulated by the Act,” Wells wrote. “But their prior injunction request - and this court’s prior injunction order - included the registration process. Not only that, in the consolidated appellate proceedings, the Seventh Circuit already considered whether to preliminarily enjoin the registration process specifically and decided against it.”
The plaintiffs seek preliminary injunction for the second time after the Seventh Circuit vacated previous injunctive relief on Second Amendment grounds, which had been granted by U.S. District Judge Stephen McGlynn. The Seventh Circuit waited more than four months to release their decision after arguments were heard in June.
The state defendants argue in their motion to dismiss that the plaintiffs are asking the court to “subvert” the Seventh Circuit’s ruling.
“Sowing confusion about whether the Act remains in effect—when the Seventh Circuit has just said it is—benefits no one. Plaintiffs’ new injunction request should be denied and their new due process claims should be dismissed,” Wells wrote.
In regards to the plaintiffs’ argument that sufficient notice was not provided, Wells argues that “public notice of the Act has more than satisfied constitutional due process.”
In regards to the plaintiffs’ argument that the statutory terms are “hopelessly vague,” Wells asserts that “the Act’s definition has a core of meaning that defeats plaintiffs’ facial vagueness challenge …”
“With those two decoy claims as cover, plaintiffs proceed with their true objective: litigating whether the Second Amendment protects the ‘assault weapon[s]’ regulated by the Act,” Wells wrote.
The state defendants argue that the plaintiffs are trying to sidestep the Seventh Circuit’s ruling “with an argument that defies logic: They claim that the parts of an assault weapon are protected by the Second Amendment even though the Seventh Circuit just said the weapons as a whole are probably not.”
“Plaintiffs quickly give up the ruse, however, and proceed to openly argue that the registration requirement must be preliminarily enjoined because assault weapons are protected by the Second Amendment,” Wells wrote. “Plaintiffs remain free to press for preliminary injunctive relief based on that belief - just not in this court.”
“Given this procedural posture, what plaintiffs ask this court to do is truly extraordinary,” he added. “They want this court to overrule the Seventh Circuit’s decision declining to preliminarily enjoin the Act.”
The state defendants further argue that an injunction would “inflict the very harm plaintiffs claim to want to prevent.”
“The registration process allows people to continue lawfully possessing grandfathered assault weapons,” Wells wrote. “If this court enjoins that process, and that injunction is later vacated, non-parties may miss their window to register.”
Attorney C.D. Michel, of Long Beach, Calif., filed the amended complaint and new request for injunctive relief from the Protect Illinois Communities Act (PICA) on Nov. 13 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.”
In addition to their original constitutional claims against PICA, the FFL plaintiffs argue in their amended complaint that the “registration scheme” violates the Second and Fourteenth Amendments.
They now seek to preliminarily enjoin Gov. J.B. Pritzker, Attorney General Kwame Raoul and Illinois State Police Director Brendan Kelly from enforcing the Jan. 1, 2024, registration deadline.
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 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.
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.
The state defendants asked for an extension of time to respond to the plaintiffs’ amended complaint and request for injunctive relief, but McGlynn rejected their request.