Wood River attorney Thomas Maag supports his motion for partial summary judgment in one of four consolidated gun ban lawsuits filed in the Southern District of Illinois, arguing that the registration requirement violates gun owners’ Constitutional privilege against self-incrimination.
Maag filed his motion against the "misnamed" Protect Illinois Communities Act (PICA) on Feb. 13 in response to Illinois State Police Director Brendan Kelly’s cross motion for summary judgment. Maag’s pleading was filed on behalf of the Langley plaintiffs, which includes Jeremy Langley, Timothy Jones and Matthew Wilson.
Maag seeks injunctive relief from the endorsement affidavit portion of the registration as “the crux of this regulation is to criminalize the possession of unregistered PICA regulated firearms.”
“PICA, as written, at least the registration related components, violate the Fifth Amendment,” Maag wrote. “It is the duty of this court, in fact, all courts, to interpret the law, and if an act is repugnant to the Constitution, to decare (sic) it to be so.”
“To that end, plaintiffs renew their request for summary judgment in their favor on the Self Incrimination (5th Amendment) issue, enjoining defendants, and those acting in concert with, or under the authority of defendants, from enforcing or administering any portion of the registration provisions of PICA, or related to possessing unregistered firearms, accessories or ammunition,” he added.
Maag explains that under PICA, Illinoisans who possessed newly regulated firearms, accessories and ammunition were required to register or properly dispose of the items by Jan. 1. Possession of these items without registration “is, drum roll, a crime,” Maag wrote.
“Defendant argue[s] about past conduct and incrimination. What past conduct can the “registration affidavit”, an Orwellian euphemism for a firearm registration form, provide, that might incriminate the registration? How about the most obvious? The same situation that existed under the original National Firearms Act,” he added.
U.S. District Judge Stephen McGlynn is presiding over the case and has scheduled a hearing for Feb. 28 at 1 p.m.
Maag first filed his newest motion for partial summary judgment on Dec. 20, 2023, arguing that individuals “who may not lawfully possess firearms, or the particular firearm (such as persons without FOID cards), may not be prosecuted for failing to register a firearm,” as it “may tend to incriminate them as same would violate 5th Amendment rights.”
“It must be emphasized that the issue in this motion and under the 5th Amendment count is not whether the state has authority under the Constitution to regulate the manufacture, transfer, or possession of firearms; nor is it whether the state may, as an abstract concept, require registration of firearms or other items, Second Amendment issues aside,” he wrote.
“Rather, this motion and this count simply seeks adjudication of whether the Protect Illinois Communities Act, or PICA, regulations, that purport to require the registration of certain firearms and related items, despite assertion of the privilege against self-incrimination, is constitutionally permissible, as the statute is and is to be applied,” he continued.
Maag explains that the PICA registration requirement is an involuntary testimonial communication made to disclose information under oath, and it carries serious criminal penalties for failing to comply. Therefore, he argues that PICA clearly violates the Fifth Amendment.
He adds that certain municipalities have their own bans and regulations on the same firearms regulated by PICA. Because those municipalities have access to the PICA registration database, complying with registration could be self incriminating.
“Likewise, if plaintiffs, through inadvertent or omission, fail to timely renew their FOID cards, are (sic) become the victim of a frivolous or malicious ‘order of protection’ the information can be used against them,” Maag wrote.
Maag argues that the self-incrimination clause of the Fifth Amendment offers an American right “hard won and retained with spilled blood at Lexington, Concord, and places since that most people never heard of and some cannot pronounce.”
“But the battlefield is not the only place this right has been fought over,” he added. “By their very nature, even the most benign governments will always seek to enlarge it (sic) own power against its people. ‘Another tool in the toolbox’ against this evil or that evil, the politician or prosecutor is often quoted as saying.”
“Regardless, we have a constitution, and we wrote it down, so that we cannot forget it,” Maag continued.
Maag notes that out of 2,415,481 FOID card holders in Illinois, only 6,141 gun owners have registered 12,086 firearms as of December, which is a compliance rate of about 0.02%.
“Why such low compliance?” he wrote. “Of course, Americans, as a people, tend to resist impositions on their liberty, whether or not the powers that be actually recognize that liberty.”
“Could it be that residents of Cook County or Naperville, who own such firearms are afraid that local police will look at the registry, and arrest them, for violating local bans? Nothing in the PICA statute would prohibit that,” he added.
Maag took it a step further when he suggested gun owners may be hesitant to register their firearms because they do not trust the government not to use the registry to potentially “round up firearms in a soon to be announced ban.”
Kelly's cross-motion
Kelly filed a cross-motion for summary judgment on Jan. 19 through Assistant Attorney General Darren Kinkead of Chicago.
Kinkead argues that the registration - specifically the endorsement affidavit - does not violate the privilege of self-incrimination.
He argues that the endorsement affidavit is a voluntary benefit exempting owners of “assault weapons” from criminal penalties but does not implicate the Fifth Amendment because it is not directed at a criminal suspect nor does it compel confession of criminal activity.
“[I]t is not directed at the criminally suspect, and the act of submitting an affidavit does not constitute a confession of criminality,” he wrote.
“Because the affidavit is directed to law-abiding gun owners who wish to continue lawfully possessing their exempt assault weapons - rather than ‘a select group suspected of criminal activities’ - it does not violate the privilege against self incrimination,” Kinkead added in a memorandum supporting Kelly’s cross motion.
Kinkead also argues that no one is compelled to submit an affidavit, saying “the government has no authority to impose any criminal or economic penalty on residents who are eligible to submit an affidavit but, for whatever reason, decline to do so.”
However, he admitted that gun owners may face penalties if they decline to submit affidavits and then also possess assault weapons in Illinois.
“People who do not wish to submit an affidavit have other options available to avoid criminally possessing their exempt assault weapons in Illinois; they can sell the firearm to an eligible purchaser, retain ownership but move it out of state, give the firearm to law enforcement, or permanently disable or destroy it,” he wrote.
“At most, then, people who decline to submit an endorsement affidavit forego the opportunity to continue lawfully possessing exempt assault weapons,” he continued.
Kinkead further argues that plaintiffs will not be prosecuted based on the information contained within their affidavits.
Kinkead asserts that the plaintiffs refer to a due process claim concerning the endorsement affidavits for the first time in their summary judgment motion and should not be granted leave to add the new claim.
“Plaintiffs have not shown (or even asserted) they were affected by the registration issues discussed in their motion . Thus, they have not established a personal injury as required to invoke the federal courts’ jurisdiction over a new due process claim,” he wrote.
Maag responds
In response, Maag filed his motion in support of his previous request for summary judgment, arguing that none of Kelly’s arguments “hold any water” and “border on the legally and factually frivolous.”
Maag argues that Kelly’s assertion that registration is voluntary is untrue.
“Said in plain English, the state simply has to show that the registration form was not timely filed, and then submit the registration form, and that is enough to convict you,” he wrote.
Similarly, Maag argues that Kelly’s assertion that no one is compelled to register is untrue.
“This statement is carefully crafted to attempt a literal truism, but it still tastes a falsehood,” he wrote. “In the sense that no one is, ultimately, compelled to continue to breath (sic), the statement is literally true. But just as failing to breath has an obvious consequence, so does failure to register a possessed PICA regulated firearm under PICA, assuming no exemption.”
He added that if the criminal penalty is not compulsion, then nothing is.
Lastly, Maag counters that there is a real and substantial possibility of prosecution for unregistered firearms regulated under PICA.