David RHEIN, Plaintiff-Appellant, v. John COFFMAN, Defendant-Appellee.
No. 15-2867
United States Court of Appeals, Seventh Circuit.
Argued May 31, 2016. Decided June 17, 2016
823 F.3d 823
Frank Henry Bieszczat, Attorney, Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendant-Appellee.
Before EASTERBROOK and WILLIAMS, Circuit Judges, and YANDLE, District Judge.*
EASTERBROOK, Circuit Judge.
David Rhein began calling and sending packets of papers to the office of Anthony DeLuca, a member of Illinois‘s House of Representatives. The packets accused DeLuca of violating the constitutions of the
DeLuca‘s staff reported these events to the Illinois State Police. Lieutenant John Coffman, then the Chief of its Bureau of Firearms Services, discovered that Rhein was licensed to own firearms and had some registered in his name. Illinois calls the license a Firearm Owners Identification Card or FOID Card; we call it a Card. State lаw permits summary revocation of a Card, with hearing to follow, if officials conclude that the licensee‘s “mental condition is of such a nature that it poses a clear and prеsent danger to ... any other person“.
Coffman sent Rhein a letter explaining what had happened. The letter told Rhein that he could apply to have the Card reinstated, and local police told Rhein that his firearms would be returned if the Card were reinstated. Coffman‘s letter “strongly encouraged” Rhein to include three character references plus a report from a рsychologist certifying that he is mentally fit to possess guns.
Six months later (on August 1, 2011) Rhein‘s lawyer sent Coffman a letter requesting the Card‘s reinstatement. Coun
The regulations provided that the Director may convene a conference (at which the applicant may be represented by counsel) and grant or deny relief without a hearing, and that if the Director does not reinstate the Card the affected person may request a formal hearing.
Rhein then sued Coffman under
Our descriptiоn of the regulations reveals the principal problem with this argument: The Director of the State Police, not the Chief of the Bureau of Firearms Services, is responsible for deciding whether to restore a Card (and, if necessary, whether and when to hold a hearing). Indeed, Coffman was barred from holding a hearing; he had acted as the prosecutor by revoking Rhein‘s Card and could not have served as the judge of his own actions. See, e.g., Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Coffman need not depend on a defense of immunity when he is not the person responsible in the first place. The Cоnstitution does not create vicarious liability, so Coffman cannot be liable for delay by other parts of the State Police. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 675–77, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Vance v. Rumsfeld, 701 F.3d 193, 203–05 (7th Cir. 2012) (en banc).
Coffman‘s liability, if any, depends exclusively on his own decisions and actions. Rhein might have contended that the Constitution required Coffman to alert him to the provisions of
Another possibility is that Coffman prevented the Director from acting once Rhein made a request. Yet Rhein does nоt contend that Coffman delayed in transmitting the file once he received the letter of January 2012. Rhein hints that Coffman took too long to investigate after counsel‘s letter of August 2011, but he did not develop in discovery just what Coffman was doing from August through December 2011—and the letter of August 2011 had not asked for an expedited investigation. Section 1230.70 shows that Rhein had a right to bypass Coffman, and, when Rhein exercised that right in January 2012, Coffman promptly stepped aside. Coffman cannot be required to pay damages for investigating in order to be able to make a recommеndation when, at last, Rhein asked for a decision from the Director.
Rhein‘s principal theory is that Coffman is liable for demanding information that would take so long to assemble that the constitutional limit for a timely decision would have passed before it could be produced. Coffman‘s letter recommended that Rhein submit three character references and a рsychologist‘s report. A reputable psychologist or psychiatrist will want to gather information and observe a person repeatedly before offering an opinion, so obtаining such a report inevitably entails delay.
Now a recommendation, even an emphatic one, is not a command. Rhein was free to ask the Director for an immediate hearing. Coffman‘s letter did not block that path. But Rhein did not take it. Having repeatedly threatened a state legislator with violence, Rhein surely understood that he was not going to get his Card back just by рromising to keep guns out of political disputes. Rhein told Coffman in February 2011 that his threats to kill DeLuca had been meant only “to get people‘s attention.” 118 F.Supp.3d at 1098. But neither the Second Amendment nor the Due Process Clause requires public officials to be credulous.
Rhein does not deny that his statements were “true threats” within the meaning of Virginia v. Black, 538 U.S. 343, 359–60, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003), and Watts v. United States, 394 U.S. 705, 707–08, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969), so he could have been convictеd for making them. A felony conviction would have established a long-term bar to gun ownership. See
We conclude that Coffman is not liable on the merits. This makes it unnecessary to consider whether it is “clearly established” (the central issue for an immunity defense) that the Illinois State Police as a whole took too long. Thе Supreme Court observed in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), that many details about how to implement the Second Amendment need to be worked out. The timing of hearings on requests for the restoration of firearms is among those details. We know from Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 124 S.Ct. 2219, 159 L.Ed.2d 84 (2004), and similar decisions that the First Amendment requires prompt decisions when the question is whether speech can occur. Meanwhile Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and similar decisions hold that the Speedy Trial Clause of the Sixth Amendment allows years to pass before a criminal trial, even when the defendant is in custody. Where the Second Amendment fits on this spectrum is a novel question. Thе closest parallel may be a motion under
AFFIRMED