Tempest HORSLEY, Plaintiff-Appellant, v. Jessica TRAME, in her official capacity as Chief of the Illinois State Police Firearms Services Bureau, Defendant-Appellee.
No. 14-2846.
United States Court of Appeals, Seventh Circuit.
Decided Dec. 14, 2015.
Argued April 17, 2015.
808 F.3d 1126
WILLIAMS, Circuit Judge.
III. CONCLUSION
Therefore, we VACATE the convictions for counts 2, 3, 5, and 6 because they are multiplicitous and REMAND this case to the district court for resentencing. We AFFIRM all other issues raised on appeal.
Thomas G. Maag, Maag Law Firm, LLC, Wood River, IL, for Plaintiff-Appellant.
Stephen Soltanzadeh, Office of the Attorney General, Chicago, IL, for Defendant-Appellee.
Before POSNER and WILLIAMS, Circuit Judges, and WOOD, District Judge.1
WILLIAMS, Circuit Judge.
I. BACKGROUND
A few months after Tempest Horsley turned 18, she mailed in an application for an Illinois FOID card along with the requisite check for $10. Horsley‘s application was returned to her. The accompanying cover letter informed her that the application was incomplete because she was not yet 21 years old and her application did not contain the signature of a parent or guardian. Horsley did not appeal or seek further review from the Director of the Illinois State Police.
Instead, Horsley filed this lawsuit against Jessica Trame, the Chief of the Illinois State Police Firearms Services Bureau, under
Both parties filed motions for summary judgment, and they stipulated that the legal issue to be resolved by the court was whether the age provision in Illinois‘s FOID Card Act is constitutional. After a hearing, the district court granted Trame‘s motion for summary judgment and denied Horsley‘s motion. Horsley appeals.
II. ANALYSIS
In Illinois, most persons may not lawfully possess or acquire a firearm without a FOID card issued by the Illinois Department of State Police.
he or she has the written consent of his or her parent or legal guardian to possess and acquire firearms and firearm ammunition ... provided, however, that such parent or guardian is not an individual prohibited from having a Firearm Owner‘s Identification Card....
Horsley‘s application was rejected because she was under 21 years old and her application did not contain the written consent of a parent or guardian. See
We review the district court‘s grant of summary judgment in Trame‘s favor de novo. Spierer v. Rossman, 798 F.3d 502, 507 (7th Cir.2015). In doing so, we use the familiar standard that summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Trame first argues that Horsley‘s case is not ripe for our review because Horsley did not ask the Director of State Police to grant her a FOID card after her application was returned to her. “Ripeness is a justiciability doctrine designed ‘to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been been formalized and its effects felt in a concrete way by the challenging parties.‘” Nat‘l Park Hospitality Ass‘n v. Dep‘t of Interior, 538 U.S. 803, 806, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (citation omitted).
Although she did not appeal to the Director, it is clear that the Department of State Police will not process Horsley‘s application in the same way that it will process applications that contain parent or guardian signatures. Applications with such signatures can only be denied by the Department of State Police on certain statutorily enumerated grounds.
In addition, to the extent that Trame is arguing that we should not review this case on the basis that Horsley failed to exhaust her administrative remedies, we disagree. An “exhaustion requirement generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate.” Williamson Cnty. Reg‘l Planning Comm‘n v. Hamilton Bank, 473 U.S. 172, 193, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). There is no general duty to exhaust state judicial or administrative remedies before pursuing an action under
Trame argues that the rule the Supreme Court pronounced in Patsy does not control here, and she points to our decision in Daniels v. Area Plan Commission of Allen County, 306 F.3d 445 (7th Cir.2002) for the proposition that exhaustion of state court remedies is sometimes a prerequisite to a § 1983 claim. But Daniels is a Takings Clause case. Id. at 454. Suits alleging Takings Clause claims are one of the few exceptions the Supreme Court has recognized to the general rule it announced in Patsy that § 1983 suits do not require exhaustion of remedies. See Peters v. Village of Clifton, 498 F.3d 727, 730 n. 4 (7th Cir.2007). The exhaustion requirement in Takings Clause cases “stems from the Fifth Amendment‘s proviso that only takings without ‘just compensation’ infringe that Amendment.” Suitum v. Tahoe Reg‘l Planning Agency, 520 U.S. 725, 734, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997); see also Williamson Cnty., 473 U.S. at 186-87, 105 S.Ct. 3108. And the exhaustion requirement in the other exception, prisoner suits alleging constitutional deprivations while incarcerated, comes straight from a statute,
We now turn to the merits. The Second Amendment of the United States Constitution provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep
Our court‘s review of a Second Amendment claim typically begins with the threshold question of whether “the restricted activity [is] protected by the Second Amendment in the first place.” Ezell v. City of Chicago, 651 F.3d 684, 701 (7th Cir.2011). If the challenged law regulates activity that falls outside the scope of the Second Amendment at the historically relevant time, then the regulated activity is not protected, and the analysis stops there. Id. at 702-03.
Trame argues that the challenged statute does not regulate activity protected by the Second Amendment because, she contends, a right to firearm possession by a person under 21 is not within the amendment‘s scope. Heller tells us that the Second Amendment codified a “pre-existing right,” and it analyzed the amendment‘s historical background and understanding at the time of the founding. See 554 U.S. at 592, 128 S.Ct. 2783 (emphasis in original); id. at e.g., 592-94, 128 S.Ct. 2783.
Trame argues that the Second Amendment was not originally understood to include minors, and that minors during the founding era were understood to be persons under the age of 21. From there she reasons that persons who are presently under the age of 21 do not have a Second Amendment right to possess a firearm.
The Constitution does not set forth an age of majority. During the founding era, persons under 21 were considered minors or “infants.” See Nat‘l Rifle Ass‘n v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 202 (5th Cir.2012). According to Blackstone, for example, “full age in male or female is twenty-one years,” and “till that time is an infant, and so stiled in law.” 1 Commentaries on the Laws of England 463 (St. George Tucker ed. 1803); see Heller, 554 U.S. at 593-94, 128 S.Ct. 2783 (stating that Blackstone “‘constituted the preeminent authority on English law for the founding generation’ “) (citation omitted). The age of majority was 21 until the 1970s. Nat‘l Rifle Ass‘n, 700 F.3d at 202. So most right-to-bear-arms laws were passed while 18-to-20-year-olds were minors. And Trame points to authority for the proposition that states could bar the sale of firearms to minors, such as Thomas Cooley‘s treatise that Heller called “massively popular” in which Cooley writes that the states “may prohibit the sale of arms to minors” pursuant to their police power. Thomas M. Cooley, Treatise on Constitutional Limitations 740 n.4 (5th ed. 1883); Heller, 554 U.S. at 616, 128 S.Ct. 2783.
The Fifth Circuit considered historical and other evidence and concluded that a prohibition on carrying a handgun in public by 18-to-20-year-olds likely falls outside the Second Amendment‘s protection. Nat‘l Rifle Ass‘n, 700 F.3d at 204 (“Modern restrictions on the ability of persons under 21 to purchase handguns—and the
Horsley, on the other hand, maintains that firearm possession by 18-to-20-year-olds falls within the scope of the Second Amendment. She emphasizes that persons over 18 can vote and serve in the military, get married without parental consent, and own land. Even though the age of majority was for many years 21, it is now 18, and so she argues that present-day 18-year-olds cannot be restricted from possessing firearms based on age alone. She points to historical evidence that she contends favors her position as well. The First Militia Act enacted by the United States Congress in 1792, for example, included 18-year-old men in the scope of those eligible for the militia. Because a minor could be a member of the militia and be armed, she reasons that the Second Amendment gives these persons a right to bear arms.
We need not decide today whether 18-, 19-, and 20-year-olds are within the scope of the Second Amendment. Cf. Nat‘l Rifle Ass‘n, 700 F.3d 185 at 204-05 (also declining to resolve issue). Even if they are, our next step would be to turn to means-ends scrutiny of the regulation. Ezell, 651 F.3d at 703. In this analysis we “evaluate the regulatory means the government has chosen and the public-benefits end it seeks to achieve.” Id. The level of scrutiny we apply “will depend on how close the law comes to the core of the Second Amendment right and the severity of the law‘s burden on the right.” Id. “[L]aws restricting activity lying closer to the margins of the Second Amendment right, laws that merely regulate rather than restrict, and modest burdens on the right may be more easily justified.” Id. at 708.
The Supreme Court has said that the “need for defense of self, family, and property is most acute” in the home. Heller, 554 U.S. at 628, 128 S.Ct. 2783. As Horsley emphasizes, the Illinois statute here implicates self-defense in the home. It also implicates self-defense in the home using handguns, the weapon at issue in Heller. That said, the Supreme Court explained in Heller that not all regulations of firearm possession, even of handguns in the home, are invalid. The Court made clear, for example, that nothing in its opinion “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Id. at 626-27, 128 S.Ct. 2783; see also Moore v. Madigan, 702 F.3d 933, 940-41 (7th Cir.2012) (listing “the usual prohibitions of gun ownership by children, felons, illegal aliens, lunatics, and in sensitive places like public schools, the propriety of which was not questioned in Heller“).
Significantly, although Horsley‘s arguments treat the challenged statute as a categorical ban on firearm possession, the
So the lack of a parent signature does not bar Horsley from possessing a firearm, despite her arguments to the contrary.3 Nor does it impose a bar on gun possession on an 18-to-20-year-old whose parents have passed away or are disqualified from owning guns. The absence of a blanket ban makes the Illinois FOID Card Act much different from the blanket ban on firearm possession present in Heller. That there is not a categorical ban here also distinguishes this case from Planned Parenthood v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), to which Horsley points. There the Supreme Court struck down a “blanket provision” requiring the consent of a parent or person in loco parentis before an unmarried minor could have an abortion during her first 12 weeks of pregnancy unless necessary to preserve the mother‘s life. Id. at 74, 96 S.Ct. 2831.
The absence of a parent or guardian signature is not a “veto” on the ability of a person between 18 and 21 to get a FOID card in Illinois. And the Illinois scheme is not a regulatory means that imposes “severe burdens” because it “[does not] leave open ample alternative channels’ “; rather it is a restriction that “impose[s] only modest burdens (because [it does] leave open ample alternative channels‘).” Heller v. District of Columbia, 670 F.3d 1244, 1262 (D.C.Cir.2011) (quoting Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443 (2009)).
In addition to reviewing Illinois‘s chosen regulatory means, we also consider the public-benefits end it seeks to achieve. Ezell, 651 F.3d at 703. It is clear that Illinois has an important and compelling interest in its citizens’ safety. See Schall v. Martin, 467 U.S. 253, 264, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984) (“The ‘legitimate and compelling state interest’ in protecting the community from crime cannot be doubted.“). Illinois‘s interest in protecting the public from firearms violence underlies the challenged statute. The Illinois FOID Card Act also reflects an interest in ensuring sufficient compensation for injuries caused by an applicant‘s firearms use, as parents or guardians who give consent on a FOID card application can be civilly liable for damages resulting from the applicant‘s firearms use. See
The Illinois statute is substantially related to the achievement of the state‘s inter-
More recent data reflects similar trends. An FBI analysis of crime in 2014 reflects that 18-to-20-year-olds were responsible for more than 15.8% of all charges issued for murder and nonnegligent manslaughter. When forcible rape, robbery, and aggravated assault are added, 18-to-20-year-olds account for about 11% of charges brought for violent crime. U.S. Dep‘t of Justice & Fed. Bureau of Investigation, Crime in the United States 2014, Table 38: Arrests by Age, https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s./2014/crime-in-the-u.s.-2014/tables/table-38. That is true even though that age group represented only about 4.1% of the country‘s total population and 5.4% of the population over the age of 14. See Nat‘l Rifle Ass‘n, 700 F.3d at 210 & n. 20. Congressional investigations around the time that Illinois passed the challenged statute in 1967 reflect similar patterns. Those investigations concluded that minors under the age of 21 accounted for 64% of arrests for “serious crimes” in the United States, S. Rep. 90-1097, at 77 (1968), including 21% of the arrests for murder, 114 Cong. Rec. 12279, 12309 (1968) (statement of Sen. Thomas J. Dodd). These crime figures reflect important benefits to the public interest in limiting firearm possession by persons in the age group that is the subject of the challenged statute.
Trame also points to scholarly research on development through early adulthood that supports a conclusion that the Illinois FOID card application procedure for persons under 21 fits the state‘s compelling interest in public safety. Dr. Ruben C. Gur, a neuropsychologist and Director of the Brain Behavior Laboratory at the University of Pennsylvania, for example, explains: “The evidence now is strong that the brain does not cease to mature until the early 20s in those relevant parts that govern impulsivity, judgment, planning for the future, foresight of consequences, and other characteristics that make people morally culpable.” Declaration of Ruben C. Gur, Ph.D., http://www.americanbar.org/content/dam/aba/publishing/criminal_justice_section_newsletter/crimjust_juvjus_Gur_affidavit.authcheckdam.pdf; see also, e.g., Adam Ortiz, Adolescence, Brain Development and Legal Culpability, American Bar Association, Juvenile Justice Center (2004) (collecting studies). We also note that Illinois is not alone in directing additional measures for persons under 21. Federal law prohibits federally licensed dealers from selling handguns to persons under 21.
III. CONCLUSION
The judgment of the district court is AFFIRMED.
WILLIAMS
Circuit Judge