Flood of lawsuits over concealed carry denials
Review board has denied more than 800 applications in secret and without explanation
July 04, 2014|By Kim Geiger and Dahleen Glanton, Tribune reporter
Former Air Force reservist Michael Thomas says he doesn't know why a special review board denied his application for a concealed carry license. "I have never been arrested or convicted of any offense, either misdemeanor or felony, in the state of Illinois or any other state,” Thomas said in a follow-up letter to state police. "I have no criminal record of any type.”
Former Air Force reservist Michael Thomas says he doesn't know why a special review board denied his application for a concealed carry license. "I have never been arrested or convicted of any offense, either misdemeanor or felony, in the state of Illinois or any other state,” Thomas said in a follow-up letter to state police. "I have no criminal record of any type.” (Alex Garcia, Chicago Tribune)
After taking a firearms training course, paying a host of fees, and submitting fingerprints for a background check that he ultimately passed, Michael Thomas was puzzled when he was notified earlier this year that a special review board had denied his application for a concealed carry license.
Thomas, a former Air Force reservist who said he routinely carried a gun during military service and has never had a run-in with the law, is one of more than 800 people who have been denied licenses by the board, which meets behind closed doors and keeps its records and reasoning secret, even from applicants who are denied.
Figuring that his was a case of mistaken identity, Thomas wrote to the Illinois State Police to request a review of the decision.
"I have never been arrested or convicted of any offense, either misdemeanor or felony, in the state of Illinois or any other state," Thomas said in his letter. "I have no criminal record of any type."
But the state police, in a letter responding to his appeal request, didn't say why he was denied, and told him that the board's decisions couldn't be reviewed and that he would have to petition a court in order to appeal.
So Thomas joined 193 other Illinoisans who have filed lawsuits against the state police to try and peel back the secrecy of the decision-making process.
The state police review every application and can automatically deny any applicant who does not follow application rules, pay appropriate fees or meet standard background requirements. A provision in the law also allows local police and other officials to object to a person's application after the applicant has passed a fingerprint background check and met the other requirements for a license.
The Concealed Carry Licensing Review Board, a panel with law enforcement backgrounds, considers the objections in private and is not required to explain the reasons behind its decisions except under order from a court, according to the state police's interpretation of the statute.
Officials won't say why Thomas' application was flagged for denial, or by whom. Thomas insists that he has a clean record. A search of Cook County court records turned up no charges. An Air Force spokesman told the Tribune that Thomas was honorably discharged in 2012 and that his military record does not contain any unfavorable information.
The lawsuits, including two backed by the National Rifle Association, claim that applicants were denied due process because they weren't given a reason for the board's decision and have no recourse for challenging its findings. Lawyers involved in the cases say the issue is not whether applicants are qualified for the licenses, but whether the licensing process is too secretive and arbitrary.
"There are law-abiding citizens in the state of Illinois who are fully eligible to carry, and they are denied the right and not given any notice as to why," said David Thompson, a Washington, D.C., attorney hired by the NRA to file companion lawsuits in Illinois state court and U.S. District Court. "We want a process established that gives people notice of what evidence the state used to make the determination … and an opportunity to rebut by putting in their own evidence."
The NRA-backed lawsuits ask the courts to vacate the denials and offer any other remedies the courts deem proper.
Some gun-control advocates, however, view the wave of lawsuits as an effort by pro-gun advocates to loosen restrictions in the state's concealed carry statute, which was hastily cobbled in the General Assembly after a U.S. appellate court struck down the concealed carry ban in December 2012.
Law enforcement review was a compromise needed to get the law through the legislature, according to representatives from both sides who were involved in the debate.
"It's the NRA's game plan across the country. When there's not legislation pending, they file lawsuits," said Mark Walsh, campaign director for the Illinois Council Against Handgun Violence. "They never liked this part of the bill. But in a lot of communities, local law enforcement knows a lot more about whether someone should have a concealed carry permit. They know if they're going to someone's house every two weeks on a domestic violence call."
Federal law prohibits convicted felons and convicted domestic abusers from obtaining firearms. Illinois takes the additional step of denying concealed carry licenses to those who have been convicted of a misdemeanor involving the use of force or violence, those who have had two or more violations related to driving under the influence, or those who have been in residential or court-ordered treatment for substance abuse, each within five years of applying for the license.
Additionally, the law compels state police to refer for review any applicant who has five or more arrests within the past seven years or more than three arrests on gang-related charges.
The law also allows county sheriffs, state's attorneys, local police and the attorney general to raise objections "based upon a reasonable suspicion that the applicant is a danger to himself or herself or others, or a threat to public safety." The review board investigates the objections and makes a final decision. The law stipulates that the board's meetings are not subject to the Open Meetings Act and its records are not subject to the Freedom of Information Act.
Applicants denied by the board receive a two-paragraph letter from the state police, which informs them that the board "has determined by a preponderance of the evidence" that the person poses a risk, and that any appeals must be directed to the applicant's local circuit court.
A Tribune review of about two dozen lawsuits found that some plaintiffs have had brushes with the law.
One man, for example, was convicted of misdemeanor battery in 2007 and misdemeanor resisting a peace officer and criminal damage to property in 2001. But his lawyer urged the man to file lawsuits in both Cook County and federal court, because the convictions don't meet the standards for denial that are spelled out in the concealed carry law.
That man's federal lawsuit, along with a few others, seeks to challenge the constitutionality of the review board portion of the concealed carry law, said his lawyer, J.D. Obenberger.
"It doesn't matter to me … whether (any of my) clients personally deserves the right to carry a gun," Obenberger said. "Because I think it's a right, and I don't think that right can be taken away without due process of the law. These people are not felons. They've never been found guilty of domestic battery either. … Whatever imperfections they have, their right should never be taken away, particularly by a secret tribunal."
State police spokeswoman Monique Bond said the department is "only at liberty to inform the applicant that the (board) has sustained the law enforcement objection."
Similarly, the board, which is an entity within the state police, "is not empowered to provide any additional information on a sustained denial," Bond said, citing the concealed carry law.
The law, however, contains contradictory language that leaves the question open to interpretation. It states that in the event of a denial, state police "must notify the applicant stating the grounds for the denial." But it also says that, "all board decisions and voting records shall be kept confidential and all materials considered by the board shall be exempt from inspection except upon order of a court."
Rep. Brandon Phelps, the Downstate Democrat who sponsored the concealed carry bill, acknowledged that the language in the bill is too vague. He said he expects that during the next session, legislation will be introduced to tighten rules for the review board.
"The problem is that we gave the review board the benefit of the doubt, and we didn't give them any rules to operate by," said Phelps. "Right now, they are too secretive, and that's not the way we wanted it. We wanted them to be an extra layer of security to make sure people who don't deserve a concealed carry license don't get one."
So far, the state police have received 79,207 applications and issued 62,258 licenses, according to data provided by the department. The state automatically denied more than 1,620 applicants for failing to follow application rules or meet basic requirements. There have also been more than 2,400 objections lodged by local law enforcement officials and 809 applicants who were denied because objections were sustained by the review board.
More than half of the objections — 1,461 — have come from Cook County Sheriff Tom Dart. An outspoken critic of the concealed carry law, Dart came under fire earlier this year when he said he would object to any applicant who has been arrested even once in the past seven years for domestic violence, gun possession or gang crimes.
Dart said he is confident that his office did not make mistakes and that it only targeted people who records showed should not be allowed to carry guns. Still, he said he expected litigation to follow.
"We brought it up loud and clear to everyone that they were setting up a system that would be impossible for law enforcement to get involved with and in the end would lead to lawsuits," said Dart. "When they passed this convoluted train wreck of a bill, we knew it would be very difficult to implement."
Asked if Dart was the official who had objected to Thomas' application, a spokeswoman in the sheriff's office said that state law prohibited her from revealing that information.
Review board chair Robinzina Bryant seemed to welcome the legal challenges.
"We are self-correcting along the way and the nature of the beast will sometimes entail legal precedent to assist in removing some of the kinks we encounter along the way and/or validating what works well," she said in a statement.
According to pro-gun supporters, the extra layers of bureaucracy make it even more difficult for law-abiding citizens to obtain permits.
Thomas, who lives on Chicago's South Side and drives an 18-wheeler semi for Waste Management, said the review process "seems like a racket."
"You have people take the class, they pay the money, only to find out they can't get the license," Thomas said.
Taking the matter to court has brought the total cost of his effort to obtain a concealed carry license to nearly $800, he said.
Thomas said he has never been in a substance abuse program or been charged with driving under the influence — other offenses that could warrant a denial. A Tribune review of his Illinois driving record found no serious infractions.
Richard Pearson, executive director of the Illinois State Rifle Association, a plaintiff in the NRA lawsuit filed in U.S. District Court in Chicago, said some of the denials are likely mistakes.
"A lot of people have been denied wrongly, perhaps because of mistaken identity, inefficient court records or records that weren't filled out properly," said Pearson. "We've got cases of people who never had an (domestic abuse) order of protection issued against them, but someone who had a similar name did. The purpose is to get all this straightened out and run things more accurately."
Hal Baskin Sr., a former gang member who is now an Englewood community activist, would not speculate as to why his application was denied.
A Tribune review of Baskin's criminal record in Cook County found that he was convicted in 2003 of misdemeanor resisting/obstructing a police officer in an incident that occurred in 1998. He was sentenced to six months of court supervision.
Records also show that Baskin has been arrested four times in the past 10 years. The arrests largely resulted in misdemeanor charges involving altercations with police. In each case, the charges were either dropped or he was found not guilty. Baskin said the arrests were related to his work as an activist.
Part of being an activist involves the occasional run-in with police, he said, but he believes his record shouldn't disqualify him from carrying a gun.
"They know my activism all over this city," said Baskin, who has run unsuccessfully for alderman in the 16th Ward. "No matter what the sheriff thinks about Hal Baskin's background, Hal Baskin has no felony convictions."
The flurry of lawsuits is happening now because the law gives applicants only 35 days after being denied to petition a court for review, said David Sigale, a Chicago attorney who helped litigate McDonald v. Chicago, the Supreme Court case that forced the city to drop its handgun ban in 2010.
Pro-gun blogs have been buzzing recently as denial letters began hitting mailboxes. The State Rifle Association referred people to attorneys who could handle their cases. IllinoisCarry, a pro-gun advocacy group, also is a plaintiff in an NRA-backed lawsuit filed in Sangamon County.
Sigale, who is representing an applicant in a Cook County Circuit Court case, said the existing system, which forces applicants into court, is a "patently unfair process."
In court, applicants are expected to have an opportunity to hear the evidence the review board used to deny their permits. But they will not necessarily have a chance for rebuttal. >
Applicants who were denied are able to seek administrative review, which gives chancery judges few options for relief, said Sigale. Under the administrative review statute, the court's job is not to rehear the case but to look at the case and make sure the administrative proceedings were handled correctly. Only evidence that is already on record can be considered and it does not automatically allow for a hearing to present new evidence, Sigale said.
"Technically, all the court is going to do is consider whether the review board acted in an arbitrary manner. Whether there is an opportunity for the applicant to say this isn't true or it's blown out of proportion is up in the air," said Sigale. "But we're hoping the judge will look at the procedure and say it's not fair that the guy didn't get a chance to talk and give him the chance to talk here. Otherwise, the whole court process is ridiculous."
The attorney general's office is working with the state police to put together a record of evidence for each of the administrative review cases, said Ann Spillane, chief of staff in the attorney general's office. The record will be under court seal, but applicants will have access to it, Spillane said.
Plaintiffs who filed their lawsuits in May, including Thomas and Baskin, are due back in court in September.
kgeiger@tribune.com dglanton@tribune.com Twitter @kimgeiger
