IN THE UNTED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

 

JAMES D. ROBINSON; JOHN M. MARSZALEK; )

NATALIA E. LaVALLIE; )

MATTHEW D. SORENSON; )

ILLINOIS STATE RIFLE ASSOCIATION; and )

SECOND AMENDMENT FOUNDATION, INC. )

)

Plaintiffs, )

) No. 1:20 CV 4270

v. )

)

BRENDAN F. KELLY, in his official capacity as )

Director of the Illinois State Police; and )

JAROD INGEBRIGTSEN, in his official capacity )

as Bureau Chief of the Illinois State Police ) 

Firearms Services Bureau, )

)

Defendants. )

PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSE TO PLAINTIFFS’ 

MOTION FOR PRELIMINARY INJUNCTION

COME NOW the Plaintiffs, ILLINOIS STATE RIFLE ASSOCIATION and 

SECOND AMENDMENT FOUNDATION, INC., by and through undersigned 

counsel, and for their Reply to Defendants’ Response to their Motion for the entry of 

a Preliminary Injunction, states as follows:

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i

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................. i

TABLE OF AUTHORITIES ...................................................................................... ii

INTRODUCTION .......................................................................................................1

ARGUMENT ...............................................................................................................2

I. Plaintiffs are likely to succeed on the merits of their constitutional claims. ......2

A. Plaintiffs are likely to succeed on the merits of their Second Amendment 

claim. . ...............................................................................................................2

1. Defendants’ delays infringe a right within the scope of the Second 

Amendment. ................................................................................................2

2. Defendants have not met their burden to establish a close fit between 

indefinitely delaying all citizens’ constitutional rights and preventing 

potentially dangerous people from obtaining firearms. ............................4

B. Plaintiffs are likely to succeed on the merits of their due process 

claim. . .............................................................................................................10

C. The Organizational Plaintiffs have standing. .........................................13

1. The ISRA has a sufficient cognizable injury that satisfies standing. 13

2. The ISRA and SAF have standing to pursue claims for their 

membership. ..............................................................................................16

D. COVID-19 does not excuse or justify Defendants’ violations of 

constitutional rights. ......................................................................................21

II. Plaintiffs will suffer irreparable harm without an injunction. .........................24

III. The balance of harms favors an injunction. .....................................................24

IV. Plaintiffs may obtain relief through a preliminary injunction. .......................29

 A. Federal case law does not call for abstention from injunctive relief. .....29

B. Preliminary injunctive relief is practical. ................................................31

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TABLE OF AUTHORITIES

Cases

Big Tyme Investments, LLC v. Edwards, 

__ F.3d __, 2021 WL 118628 (5th Cir. 2021)............................................................... 22

Calvary Chapel Dayton Valley v. Sisolak, 

140 S. Ct. 2604 (2020).................................................................................................. 22

Charleston v. Bd. of Trs. of Univ. of Ill. at Chi., 

741 F.3d 769 (7th Cir. 2013)........................................................................................ 12

Courthouse News Service v. Brown,

908 F.3d 1063 (7th Cir. 2018)...................................................................................... 29

Craig v. Boren, 

429 U.S. 190 (1976)...................................................................................................... 15

Disability Rights Wisc. Inc. v. Walworth Cty. Bd. of Supervisors, 

522 F.3d 796 (7th Cir. 2008)........................................................................................ 17

District of Columbia v. Heller, 

554 U.S. 570 (2008).............................................................................................. 2, 3, 31

Doe v. E. St. Louis Housing Auth., 

No. 3:18-cv-00545 (S.D. Ill. 2019)................................................................................ 28

Eldridge v. Challenging Law Enforcement Official, 

No. 17-cv-4241, 2018 WL 1561729 (N.D. Ill. Mar. 30, 2018) ..................................... 11

Elrod v. Burns, 

427 U.S. 347 (1976)........................................................................................................ 4

Ex Parte Young,

209 U.S. 123 (1908)...................................................................................................... 25

Ezell v. City of Chicago, 

651 F.3d 684 (7th Cir. 2011)................................................................................ passim

Hosp. Council of W. Pa. v. City of Pittsburgh, 

949 F.2d 83 (3d Cir. 1991) ........................................................................................... 20

Ill. Ass’n of Firearms Retailers v. City of Chicago, 

961 F.Supp.2d 928 (N.D. Ill. 2014)................................................................................ 6

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Jacobson v. Commonwealth of Massachusetts, 

197 U.S. 11 (1905)............................................................................................ 21, 22, 23

Joelner v. Vill. of Wash. Park, 

378 F.3d 613 (7th Cir. 2004)........................................................................................ 26

Kanter v. Barr, 

919 F.3d 437 (7th Cir. 2019).......................................................................................... 3

Mainstreet Org. of Realtors v. Calumet City, 

505 F.3d 742 (7th Cir. 2007)........................................................................................ 15

Marin-Garcia v. Holder, 

647 F.3d 666 (7th Cir. 2011)........................................................................................ 19

Moore v. Madigan, 

702 F.3d 933 (7th Cir. 2012).................................................................................. 6, 8, 9

NAACP v. City of Richmond, 

743 F.2d 1346 (9th Cir. 1994)........................................................................................ 5

Newsom v. Albemarle County. Sch. Bd., 

354 F.3d 249 (4th Cir. 2003)........................................................................................ 26

Nken v. Holder, 

556 U.S. 418 (2009)...................................................................................................... 26

Pennhurst State School and Hospital v. Halderman, 

465 U.S. 89 (1984)........................................................................................................ 30

Porter v. Nussle, 

534 U.S. 516 (2002)...................................................................................................... 11

Proft v. Madigan, 

340 F.Supp.3d 683 (N.D. Ill. 2018).............................................................................. 25

Retired Chi. Police Ass’n v. City of Chicago, 

7 F.3d 584 (7th Cir. 1989)............................................................................................ 20

Rhein v. Coffman, 

825 F.3d 823 (7th Cir. 2017)........................................................................................ 11

Rizzo v. Goode, 

423 U.S. 362 (1976)...................................................................................................... 29

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Roman Catholic Diocese of Brooklyn v. Cuomo, 

141 S. Ct. 63 (2020)...................................................................................................... 22

Summers v. Earth Island Inst., 

555 U.S. 488 (2009)................................................................................................ 17, 18

Sw. Suburban Bd. of Realtors, Inc. v. Beverly Area Planning Ass'n, 

830 F.2d 1374 (7th Cir.1987)....................................................................................... 18

Tent City Organizers v. City of Chicago Dept. of Admin. Hearings, 

No 17 C 4518, 2018 WL 2709431 (N.D. Ill. June 5, 2018) ......................................... 19

United States v. Skoien, 

614 F.3d 638 (7th Cir. 2010).......................................................................................... 3

United States v. Williams, 

616 F.3d 685 (7th Cir. 2010).......................................................................................... 3

Warth v. Seldin, 

422 U.S. 490 (1975)...................................................................................................... 20

Statutes

18 U.S.C. § 922(t)......................................................................................................... 27

42 U.S.C. § 1983........................................................................................................... 30

430 ILCS 65/10....................................................................................................... 11, 12

430 ILCS 65/14............................................................................................................. 16

430 ILCS 65/4............................................................................................................... 25

430 ILCS 65/8............................................................................................................... 27

430 ILCS 65/9.5............................................................................................................ 27

430 ILCS 66/5............................................................................................................... 32

Other Authorities

Amended Complaint (Doc. 16), Thomas v. Kelly, No. 1:20 CV 734 (N.D. Ill. June 16, 

2020).......................................................................................................................... 12

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Gary Kleck and Mark Gertz, Armed Resistance To Crime: The Prevalence and 

Nature of Self-Defense With A Gun, Nw. J. Criminal Law and Criminology, Vol. 86 

(1995) .................................................................................................................. 27, 28

Gary Kleck, The Frequency of Defensive Gun Use, Armed (2001) ............................. 27

Illinois Gun Buyers Now Waiting More Than 60 Days for FOID Card, CBS Chicago, 

Mar. 27, 2013............................................................................................................ 21

John O. McGinnis, Gun Rights Delayed Can Be Gun Rights Denied, 304 U. Ill. L.J. 

Online 302 (2020) ............................................................................................. passim

Kavahn Mansouri, Judge Rules Ban on Gun Ownership in East St. Louis Housing is 

Unconstitutional, Belleville News-Democrat, Apr. 11, 2019 .................................. 28

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INTRODUCTION

The Court should grant Plaintiffs’ motion for preliminary injunction. 

Plaintiffs are likely to succeed on the merits of their Second Amendment claim 

because Defendants have failed justify indefinitely, completely depriving lawabiding citizens of their Second Amendment rights. Defendants’ violations of Second 

Amendment rights inflict irreparable constitutional harm, and the balance of harms 

favors an injunction. 

Defendants’ suggestions that their failure to timely process Firearm Owners

Identification (“FOID”) cards is temporary, due to COVID-19, or improving cannot 

justify denying an injunction. See Resp. 7-8. The Defendants’ delays long predate 

the COVID-19 pandemic, and Defendants have presented no reason to believe that 

their addition of just four more staff members to process FOID card applications 

will end the delays in the near future or ever. Plaintiffs’ members’ Second 

Amendment rights will only be protected if this Court enters an injunction. 

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ARGUMENT

I. Plaintiffs are likely to succeed on the merits of their constitutional claims. 

 

A. Plaintiffs are likely to succeed on the merits of their Second 

Amendment claim. 

 

 Plaintiffs are likely to succeed on the merits of their Second Amendment 

claim. Contrary to Defendants’ assertions, the Defendants’ FOID delays affect a 

right within the scope of the Second Amendment: namely, the right of law-abiding 

citizens to possess a firearm for self-defense in the home. And the state’s interest in 

keeping firearms out of the hands of potentially dangerous individuals, though 

important, cannot justify that severe infringement. 

1. Defendants’ delays infringe a right within the scope of the 

Second Amendment. 

 

Defendants argue that Plaintiffs lose at step one of the Second Amendment 

analysis, which considers whether the government can show that the challenged 

statute or actions “regulate[] activity falling outside the scope of the Second 

Amendment.” Ezell v. City of Chicago, 651 F.3d 684, 702-03 (7th Cir. 2011). 

Defendants assert that their delays in issuing FOID cards do not affect any right 

within the scope of the Second Amendment because they occur as part of a 

“regulatory mechanism ... to ensure that dangerous persons—such as felons and the 

mentally ill—do not possess firearms,” citing District of Columbia v. Heller, 554 

U.S. 570, 626-27 & n.26 (2008). Resp. 20-21. 

But neither the Supreme Court nor the Seventh Circuit has held that felons 

and the mentally ill are entirely outside the Second Amendment’s protection, so 

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that any restriction on their possession of firearms is per se exempt from Second 

Amendment scrutiny. “Heller did not answer this question,” and the Seventh 

Circuit has declined to do so. Kanter v. Barr, 919 F.3d 437, 445-47 (7th Cir. 2019);

but see id. at 451-53 (Barrett, J., dissenting) (concluding that felons’ rights are 

within the Second Amendment’s scope). See also United States v. Williams, 616 

F.3d 685, 691-94 (7th Cir. 2010) (applying Second Amendment scrutiny in challenge 

to felon-in-possession statute); United States v. Skoien, 614 F.3d 638, 639-40 (7th 

Cir. 2010) (same).

In any event, the Court need not resolve that issue here because the state’s 

FOID delays do not only affect felons and the mentally ill; they also—primarily—

severely infringe the Second Amendment rights of all Illinoisans who want to 

possess a firearm in the state by prohibiting them from doing so unless and until 

the state satisfies itself that they are not disqualified. Indeed, it is certain that the 

overwhelming majority of people whose rights are affected by these delays are—like 

every individual who has been a Plaintiff or has been identified as a member of the 

Organizational Plaintiffs in this case—not felons or mentally ill.

Thus, the Defendants’ actions infringe the rights of law-abiding, otherwise 

qualified citizens to possess a firearm for self-defense in the home—a right that is 

not just within the Second Amendment’s scope, but at its core.1 See Heller, 554 U.S. 

at 630. Whether the state can justify that infringement based on its interest in 

1 In their argument on Plaintiffs’ due process claim, Defendants admit that “the 

right at issue is fundamental.” Resp. 26.

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keeping guns out of the hands of potentially dangerous people is a separate

question, which the Court must analyze in the second part of its analysis. 

2. Defendants have not met their burden to establish a close fit 

between indefinitely delaying all citizens’ constitutional rights 

and preventing potentially dangerous people from obtaining 

firearms. 

Because Defendants’ FOID delays affect rights within the Second 

Amendment’s scope, the Court must “inquir[e] into the strength of the government’s 

justification for restricting or regulating the exercise of Second Amendment rights,” 

considering the “regulatory means the government has chosen and the publicbenefits end it seeks to achieve.” Ezell, 651 F.3d at 703. A “severe burden” requires 

an “extremely strong public-interest justification and a close fit between the 

government’s means and its end.” Id. at 708. Here, the government asserts an 

important interest—preventing dangerous people from possessing firearms—but 

cannot show that the means it has used—a permitting process that indefinitely

deprives law-abiding citizens of all Second Amendment rights—are justified. 

Defendants’ failure to timely issue FOID cards severely burdens law-abiding 

citizens’ Second Amendment rights because it completely and indefinitely deprives 

them of their right to keep and bear arms for self-defense in the home. Defendants 

downplay the severity of that restriction by describing it as “temporary” and “shortterm.” Resp. 23. But a temporary total deprivation of constitutional rights is still a 

deprivation and still inflicts severe injury. Cf. Elrod v. Burns, 427 U.S. 347, 373 

(1976) (“The loss of First Amendment freedoms, for even minimal periods of time, 

unquestionably constitutes irreparable injury.”); Ezell, 651 F.3d at 699 (violations of 

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Second Amendment rights inherently inflict irreparable harm). And often, a right 

delayed is a right totally denied. In the First Amendment context,

simple delay may permanently vitiate the expressive 

content of a demonstration. A spontaneous parade 

expressing a viewpoint on a topical issue will almost 

inevitably attract more participants and more press 

attention ... than the ‘same’ parade 20 days later. The 

later parade can never be the same. Where spontaneity is 

part of the message, dissemination delayed is 

dissemination denied.

NAACP v. City of Richmond, 743 F.2d 1346, 1356 (9th Cir. 1994). And “[j]ust as the 

First Amendment can be abridged by an unreasonable time to get permits to 

demonstrate, so can also the Second Amendment be infringed by an unreasonable 

time to get a gun license. In the first case, the citizen loses the opportunity for 

timely speech and in the second for timely protection.” John O. McGinnis, Gun 

Rights Delayed Can Be Gun Rights Denied, 304 U. Ill. L.J. Online 302, 317 (2020). 

Defendants try to justify their infringement of law-abiding citizens’ rights by 

citing the State’s interest in preventing potentially dangerous people from obtaining 

firearms. But that is not enough, even under less-than-strict Second Amendment 

scrutiny: Defendants must establish, not only that their impingement on Second 

Amendment rights serves an important interest, but also that there is “a close fit 

between the [restriction] and the actual public interests it serves.” Ezell, 651 F.3d 

at 708-09. 

Defendants have not met their burden. Where the government restricts the 

rights of “the entire law-abiding adult population of Illinois,” not just the rights of 

potentially dangerous people, it must make a “stronger showing” that its restriction 

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is “vital to public safety.” Moore v. Madigan, 702 F.3d 933, 940 (7th Cir. 2012). It is 

not enough that the restriction is a “rational” means of serving the government’s 

interest, and Defendants cannot prevail simply because “the public might benefit on 

balance” from the delays. Id. Rather, Defendants must show with evidence that 

public safety justifies the restriction on the rights of the overwhelming majority of 

Illinoisans who are law abiding and not presumptively dangerous. Id. at 939-40. 

Applying these principles, the Seventh Circuit struck down the state’s ban on 

the carrying of loaded firearms in Moore. The Court acknowledged that the ban 

would prevent some violent crimes from occurring, but concluded that “the mere 

possibility that allowing guns to be carried in public would increase the crime or 

death rates” could not “suffice[] to justify a ban.” Id. at 939. Instead, the government 

had to establish that its restriction was actually necessary, and that it could not 

serve its interests by less restrictive means. Id. at 939-40. The Court struck down 

the ban, concluding that “Illinois has lots of options for protecting its people from 

being shot without having to eliminate all possibility of armed self-defense in 

public.” Id. at 940.

Similarly, when this Court struck down Chicago’s ban on gun stores, it 

concluded that the means the City chose—“banning the entire category of legitimate 

businesses”—was not a proportionate means of addressing “the potential threat 

that some otherwise-legitimate businesses may break the law.” Ill. Ass’n of 

Firearms Retailers v. City of Chicago, 961 F.Supp.2d 928, 940 (N.D. Ill. 2014). The 

Court noted that the City could “enact more appropriately tailored ... regulations—

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short of the complete ban—on sales and transfers of firearms to minimize the access 

of criminals to firearms and to track the ownership of firearms,” but a “flat ban ...

[did] not fit closely with those goals.” Id. at 946-47. 

Here, Defendants argue as though FOID delays are essential to prevent 

dangerous people from obtaining firearms. But it has not established that with 

evidence, and there are strong reasons to doubt this claim. 

Presumably Defendants could timely process FOID applications if the State

simply devoted sufficient resources toward that end. The Illinois General Assembly 

made the judgment that Defendants could do so when it imposed the FOID Card 

Act’s 30-day time limit. And Defendants have not argued that timely processing 

applications is impossible. They make excuses for why they have not timely 

processed applications, and identify some measures they have taken to attempt to 

mitigate the problem, but that only shows that what the State has done so far is not 

enough; in a phrase, “too little too late.” That this would cost more money cannot 

justify Defendants’ denial of Plaintiffs’ constitutional rights, just as “[t]he cost of 

processing licenses for demonstrations protected under the First Amendment would 

never conceivably be held as justification for delay.” McGinnis, supra at 317. 

Defendants say that some delays are the result of having to wait for 

information from out-of-state law enforcement agencies. MTD 6. But Defendants 

have presented no evidence that such delays account for the majority of FOID 

delays or the 122-day average wait time. And if Illinoisans’ ability to exercise their 

Second Amendment rights depends on unknown officials of other states taking 

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action, with no time limit and no accountability to the people of Illinois, that hardly 

bolsters the case for the FOID delays’ constitutionality.

Further, there is no evidence that adequately (at least preliminarily) 

checking someone’s background should actually have to take more than 30 days, or 

much time at all. In fact, the federal government’s National Instant Criminal 

Background System for gun purchases now requires no waiting period at all. 

McGinnis, supra at 318. 

Another reason to believe that a permitting process of indefinite duration is 

not essential to protect the public from dangerous people is because 48 other states 

serve that interest without any law comparable to the FOID Card Act—let alone a 

permitting process of indefinite duration. Only Illinois and Massachusetts require 

citizens to obtain a permit to possess any type of firearm.

In striking down Illinois’s ban on carrying ready-to-use firearms, the Seventh 

Circuit noted that Illinois was the only state to have such a law. Moore, 702 F.2d at 

940. The court observed: “It is not that all states but Illinois [were] indifferent to the 

dangers that widespread public carrying of guns may pose,” but other states had 

struck a different “balance” by using means that did not restrict the rights of 

“responsible persons.” Id. And Illinois had no “unique characteristic of criminal 

activity” that could “justif[y] the state’s taking a different approach from the other 

49 states.” Id. 

Here, other states’ laws suggest that Illinois does not need a permitting 

process that indefinitely deprives all law-abiding citizens of all of their Second 

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Amendment rights unless and until the State gets around to satisfying itself that 

they are qualified. Defendants—who bear the burden to justify their infringement of 

Second Amendment rights—have presented no evidence to the contrary. As it is, the 

State’s broken system is just a ban by another name.

Finally, Defendants have not even shown that the FOID delays actually serve 

public safety on balance. On the one hand, the delays (i.e., Defendants’ practice of 

completing their usual process before issuing a FOID card, rather than just issuing 

cards to people who have not been found to be disqualified within 30 days) could 

prevent some dangerous people from obtaining guns and thus might prevent some 

violent crimes from occurring. On the other hand, the delays also prevent many lawabiding qualified citizens from obtaining guns to use in self-defense, and thus might 

prevent some individuals from defending themselves against violent crime. The 

latter effect could be especially large “in a period of civil unrest” when “more law 

abiding, wholly sane adults will feel the need for protection.” McGinnis, supra at 

318.

In sum, Defendants have not established—or provided any reason to believe 

that they are likely to establish—the required “fit” between the state’s total 

restriction of all citizens’ constitutional rights while FOID card applications are 

pending longer than 30 days and its interest in preventing a relatively few 

potentially dangerous individuals from obtaining firearms. Cf. Moore, 702 F.3d at 

940. Plaintiffs therefore are likely to succeed on the merits of their Second 

Amendment claim.

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B. Plaintiffs are likely to succeed on the merits of their due process claim. 

Plaintiffs are also likely to succeed on the merits of their claim that 

Defendants’ indefinite delays in considering FOID card applications violate the Due 

Process Clause of the Fourteenth Amendment.

Defendants argue that Plaintiffs are unlikely to succeed on this claim 

because they supposedly “have not provided any suggestion as to what process is 

appropriate outside of their demand that all cards be processed within thirty days 

and that all affected SAF and ISRA members be immediately issued FOID cards.” 

Resp. 26. In fact, Plaintiffs have explained what is appropriate: processing

applications within 30 days, because due process demands (among other things) 

that where a fundamental right is at stake, the government grant or deny a license 

or permit to exercise the right within a specific and brief period. See Mot. 14.

Defendants assert that “provid[ing] another layer” of procedural due process 

would impose an “untenable burden” on them. Resp. 26. But the Illinois General 

Assembly has determined that processing FOID card applications within 30 days is

a burden Defendants can and should bear. And, again, Defendants have offered no 

reason to believe that timely processing applications would impose an impossible

burden if the State were to devote sufficient resources to the task. 

Defendants also suggest (id. at 27) that individuals do not have a due process 

right to have their FOID card applications timely processed based on a district court 

decision that concluded that “there does not appear to be a clearly established 

constitutional right regarding the timing of decisions that impact gun-possession 

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rights.” Eldridge v. Challenging Law Enforcement Official, No. 17-cv-4241, 2018 WL 

1561729, *6 (N.D. Ill. Mar. 30, 2018). But that decision only considered whether a

right to have a concealed carry license application timely processed was “clearly 

established” for purposes of qualified immunity. Id at *5. An inquiry into whether 

qualified immunity protects a government official from personal liability turns on 

whether there is already controlling case law, or a “clear trend” in non-controlling 

case law, establishing a constitutional right in a “particularized sense.” Id. A

determination that a right is not “clearly established” for purposes of qualified 

immunity is not a ruling on the merits of a plaintiff’s constitutional claim. See id.

Thus, Eldridge concluded that constitutional right at issue was not “clearly 

established” because the Seventh Circuit had expressly declined to address it, so it 

still “need[ed] to be worked out” by the courts. See id. at *5-6 (quoting Rhein v. 

Coffman, 825 F.3d 823, 826-27 (7th Cir. 2017)). The Court expressed no opinion on 

the merits. See id.

Defendants also argue that “Plaintiffs should not be allowed to pursue their 

due process challenge” because they did not seek to appeal Defendants’ failure to act 

on their applications to the Director of State police as state law, 430 ILCS 65/10, 

allows. Resp. 28. But Defendants then admit that this argument has no merit, 

stating correctly that “Plaintiffs do not generally need to exhaust their 

administrative remedies before filing suit under section 1983. See Porter v. Nussle, 

534 U.S. 516, 524 (2002) (noting only prisoners must exhaust administrative 

remedies under section 1983).” Resp. 28. Besides, pursuing the statutory appeal 

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process would be futile and would not remedy Plaintiffs’ Due Process Clause injury

because (1) the statute imposes no time limit for resolution of a FOID card 

application appeal, see 430 ILCS 65/10, and (2) the state’s delays in processing 

FOID card appeals are even longer than its delays in processing FOID card 

applications and are therefore the subject of their own Second Amendment and Due 

Process Clause challenges in the “related” case the Court is considering together 

with this case. See Amended Complaint (Doc. 16), Thomas v. Kelly, No. 1:20 CV 734 

(N.D. Ill. June 16, 2020). This argument is both meritless and disingenuous.

Finally, Defendants argue that their failure to comply with the statutory 30-

day time limit cannot give rise to a due process claim because violations of state 

procedural laws “do not amount to a federal due process claim.” Resp. 28. And it is 

true that procedures prescribed by a state statute cannot give rise to an

“independent substantive right” to have the state follow its own rules. Charleston v. 

Bd. of Trs. of Univ. of Ill. at Chi., 741 F.3d 769, 773 (7th Cir. 2013). But Plaintiffs do 

not argue that the FOID Card Act independently creates a substantive right.

Rather, they are seeking to enforce their right under the Due Process Clause to 

have their applications to exercise their constitutional rights decided within a 

specific and brief time period—a right that would exist even if the FOID Card Act 

imposed no time limit on Defendants.

As it happens, the FOID Card Act provides for a specific and (arguably) brief 

time period of 30 days—so if the Defendants obeyed that statute, Plaintiffs 

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(arguendo) would not have a Due Process Clause claim.2 But because Defendants 

disregard the statutory deadline, the State does not provide a specific and brief time 

within which FOID card applicants will have their applications approved or denied; 

it is as though the statutory time limit does not exist. Plaintiffs’ Due Process Clause 

injury arises out of the resulting lack of any specific, brief time limit for licensing 

decisions—not out of Defendants’ failure to comply with state law, per se.

Because all of Defendants’ arguments on the merits of Plaintiffs’ due process 

claim fail, Defendants have not shown that Plaintiffs are not likely to succeed on 

the merits of their Due Process claim. 

C. The Organizational Plaintiffs have standing. 

 

There is no merit in Defendants’ arguments that the Organizational 

Plaintiffs lack standing. The ISRA has standing on its own behalf, and both 

Organizational Plaintiffs have associational standing on their members’ behalf. 

1. The ISRA has a sufficient cognizable injury that satisfies 

standing. 

The ISRA has standing on its own behalf because it operates a firing range in 

Bonfield, Illinois (the “Bonfield Range”), from which it earns revenue from the fees 

ISRA members must pay for separate range membership, and possession of a valid 

FOID card is a prerequisite to range membership. The Defendants’ failure to timely 

process FOID card applications harms ISRA because it deprives ISRA of revenue it 

2 Plaintiffs assume for the sake of argument that 30 days is a sufficiently brief time 

period to comport with the Due Process Clause. One could, however, argue that the 

Second Amendment calls for an even shorter time limit, particularly where 

circumstances present an urgent need for self-defense. See McGinnis, supra at 316-

17.

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would otherwise receive while would-be members wait to receive their FOID cards. 

Amended Complaint (“AC”), Dkt 40, ¶¶ 16 and 55. 

The Defendants’ arguments, purportedly based on Ezell v. City of Chicago, 

651 F.3d 684 (7th Cir. 2011), suggest that, because the Bonfield Range is distant 

from Chicago and is not the only range in Illinois (in supposed contrast with the 

range in Ezell, which was to be the only range in Chicago), the ISRA cannot claim 

an Article III injury. See Response, p. 15. This novel theory, however, does not 

comport with Ezell or the myriad other cases addressing independent 

organizational injury. Indeed, the Seventh Circuit resoundingly rejected virtually 

identical arguments in Ezell, 651 F.3d at 696-97. In that case, the district court had 

denied a preliminary injunction against Chicago’s ban on firing ranges because “the 

plaintiffs [had] failed to produce ‘evidence of any one resident [of Chicago] who has 

been unable to travel to ... a range [or] has been unable to obtain [the] range 

training’ required for a Permit.” Id. at 696. The Court deemed that “irrelevant” 

because standing does not “depend[] on this kind of evidence.” Id. “The availability 

of range training outside the city” could not defeat the plaintiffs’ claims or standing: 

The question is not whether or how easily Chicago residents can 

comply with the range-training requirement by traveling outside 

the city; the plaintiffs are not seeking an injunction against the 

range-training requirement. The pertinent question is whether 

the Second Amendment prevents the City Council from banning 

firing ranges everywhere in the city; that ranges are present in 

neighboring jurisdictions has no bearing on this question.

Id.

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Here, the pertinent question is not whether individuals have traveled or will 

travel to the Bonfield Range due to its “isolated” location but whether the reduction 

in the number of FOID card holders, because of the Defendants’ failure to timely 

issue FOID cards, presents the possibility of injury to the ISRA through loss of 

revenue from the Bonfield Range.

The precedents are clear that injury claims like ISRA’s satisfy the injury 

requirement for Article III standing. Summarizing the law on and addressing the 

issue of organizational injury, the Seventh Circuit stated that “standing in the 

Article III sense does not require a certainty or even a very high probability that the 

plaintiff is complaining about a real injury, suffered or threatened.” Mainstreet Org. 

of Realtors v. Calumet City, 505 F.3d 742, 744 (7th Cir. 2007). The court further 

explained that standings exists “as long as there is some nonnegligible, 

nontheoretical, probability of harm that the plaintiff's suit if successful would 

redress. As we have noted repeatedly, the fact that a loss or other harm on which a 

suit is based is probabilistic rather than certain does not defeat standing.” Id. at 

745. “All that a plaintiff need show to establish standing to sue [in the Article III 

sense] is a reasonable probability—not a certainty—of suffering tangible harm 

unless he obtains the relief that he is seeking in the suit.” Id.

Further, the Supreme Court has long recognized that a vendor has standing 

to pursue constitutional claims challenging prohibitions on sales to a particular 

group of consumers. In Craig v. Boren, 429 U.S. 190, 194-95 (1976), the Court held 

that a beer vendor was injured by a ban on the sale of 3.2% beer to young males 

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16

because she was forced to choose between following the law and subjecting herself 

to sanctions by disobeying it. Because the ban injured the vendor, she was “entitled 

to assert those concomitant rights of third parties that would be ‘diluted or 

adversely affected’ should her constitutional challenge fail.” Id. at 195. The ISRA is 

in the same position: if it were to knowingly allow individuals who lack FOID cards 

(due to delay) to use its range, it could suffer severe sanctions for aiding and 

abetting criminal conduct. Cf. 430 ILCS 65/14 (providing criminal penalties for 

possession of a firearm without a FOID card). Therefore, the Defendants’ FOID 

delays injure the ISRA and it is entitled to assert the “concomitant rights” of its 

would-be patrons. 

Thus, the Defendants’ argument that the ISRA does not have standing in its 

own right to pursue redress for its independent injury is simply wrong.

2. The ISRA and SAF have standing to pursue claims for their 

membership. 

The ISRA and SAF also have standing on behalf of their affected members. 

An association has standing on its members’ behalf if: (1) the association’s members 

would otherwise have standing to sue in their own right; (2) the interests the 

associations seek to protect are germane to their organizational purposes; and (3) 

neither the claim asserted nor the relief requested requires the participation of 

individual association members in the lawsuit. Ezell, 651 F.3d at 696. As in Ezell,

both the ISRA and SAF have satisfied these elements.

The ISRA and SAF have shown that the first criteria is satisfied here: the 

ISRA has provided the pertinent details of two of its members who have been 

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17

waiting for extended periods of time to obtain their FOID cards, and SAF has 

likewise identified a member who has not received his FOID card notwithstanding 

his application in June 2020. See Pearson Declaration (Dkt 48-2), ¶¶ 7 and 8; 

Declaration of Julianne H. Versnel (Dkt 48-3), ¶6. Both declarants also state they 

have received telephone calls and emails from other members of their respective 

organizations likewise complaining that they have not received their FOID cards 

after waiting longer than the 30-day statutory period. 

The Defendants, while acknowledging that such members may remain 

anonymous under Disability Rights Wisc. Inc. v. Walworth Cty. Bd. of Supervisors, 

522 F.3d 796 (7th Cir. 2008), argue that the allegations are not sufficient but are 

“blanket and conclusory assertion of harm to two unnamed members.” Response, p. 

18. In support of this, the Defendants rely on Summers v. Earth Island Inst., 555 

U.S. 488 (2009). Yet, on examination, Summers is inapposite. 

The organizations in Summers challenged certain Forest Service internal 

regulations, not a law or rule directly affecting the organizations or their members. 

This aspect alone distinguishes Summers from the instant case because, as the 

Supreme Court noted, id at 493: “[W]hen the plaintiff is not himself the object of the 

government action or inaction he challenges, standing is not precluded, but it is 

ordinarily ‘substantially more difficult’ to establish.” Here, the ISRA’s and SAF’s 

affected members are in fact the object of the FOID card system: the FOID Card Act 

prohibits them from possessing a firearm or ammunition without the card for which 

they applied and have waited well beyond the 30-day time period. 

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In addition, the organizational plaintiffs in Summers, unlike the 

Organizational Plaintiffs here, could not establish harm to their members. The 

Summers organizations could not show by way of affidavit that any of their 

members had tried to or planned to visit lands actually subject to the contested 

regulations. An affidavit alleging past injury from development on Forest Service 

land could not suffice because it did not identify a particular site, and “because it 

relate[d] to past injury rather than imminent future injury that is sought to be 

enjoined.” Id. at 495.

Unlike the Summers affiant, the individuals identified in the ISRA and SAF 

declarations are directly affected by the government inaction they challenge: they 

have actually applied for a FOID card and have not received it within the 30-day 

statutory time limit.3 This establishes the injury—a deprivation of the ability to 

exercise their Second Amendment right to keep and bear arms.

Plaintiffs have also established the second associational standing element: 

that the interests they seek to protect are germane to their organizations’ purposes. 

In attempting to refute this, Defendants provide no more than a general case 

citation and a statement that this element is not satisfied; they provide no analysis 

or statement of why Plaintiffs’ claims are insufficient. Cf. Sw. Suburban Bd. of 

Realtors, Inc. v. Beverly Area Planning Ass'n, 830 F.2d 1374 (7th Cir.1987) 

3 As of January 29, 2021, the 55-year old ISRA and SAF member who applied for a 

FOID card in June, 2020, still has not received it. See Declaration of Richard 

Pearson, attached hereto as Exhibit 1. Plaintiffs also attach Declarations from 

additional affected ISRA members, Alexey Alekseev, Andrew T. Schamaun, 

Benjamin T. Kirkland, and Pamela S. DiCarlantonio, as Group Exhibit 2.

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(association failed second prong because of conflict of interest between association 

and some of its members). Moreover, the relationship between the Organizational 

Plaintiffs’ purposes and constitutional claims is obvious, and Defendants’ assertion 

to the contrary borders on the spurious. Defendants do not dispute that the ISRA’s 

“organizational purposes []include securing the constitutional right to privately own 

and possess firearms within Illinois, through education, outreach, and litigation,”

AC ¶ 15 (emphasis added), and that the SAF’s “organizational purposes [] include 

education, research, publishing, and legal action focusing on the constitutional right

privately to own and possess firearms,” AC ¶ 19 (emphasis added). Defendants 

apparently assert that they know what serves the Organizational Plaintiffs’ 

interests better than the organizations do, arguing that Defendants’ 

implementation of the FOID Card Act actually serves the Organizational Plaintiffs’ 

purposes. Resp. 19. But that is plainly not true: the organizations favor private 

possession of firearms, and they challenge Defendants’ interference with it. The 

Plaintiffs stand on their own allegations of organization purpose.

Finally, the Organizational Plaintiffs satisfy the third prong of associational 

standing because neither the claim asserted nor the relief requested requires the 

participation of individual members in the lawsuit. Defendants errantly rely on 

“third party plaintiff” precedents that cause it to conflate pure third party standing 

with associational standing. Indeed, neither of the cases relied on by the 

Defendants, Tent City Organizers v. City of Chicago Dept. of Admin. Hearings, No 

17 C 4518, 2018 WL 2709431 (N.D. Ill. June 5, 2018) and Marin-Garcia v. Holder, 

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647 F.3d 666 (7th Cir. 2011), involved claims made by associations representing 

their membership. 

On point on this third element is Retired Chi. Police Ass’n v. City of Chicago, 

7 F.3d 584 (7th Cir. 1989). In that case, the Seventh Circuit conducted a thorough 

analysis of the elements of associational standing, particularly the third element. 

The court noted that the Supreme Court had held that “‘so long as the nature of the 

claim and the relief sought does not make individual participation of each injured 

party indispensable to proper resolution of the cause, the association may be an 

appropriate representative of its members, entitled to invoke the court's 

jurisdiction.’” Id. at 601 (quoting Warth v. Seldin, 422 U.S. 490, 511 (1975) 

(emphasis added)). But the court concluded that an organization does not lack 

standing simply because some members might have to participate. Id. at 601-02

(citing Hosp. Council of W. Pa. v. City of Pittsburgh, 949 F.2d 83, 89 (3d Cir. 1991) 

(Alito, J.)). 

Here, Defendants have presented no basis to conclude that each affected 

ISRA and SAF member would have to participate in this litigation based either on 

the nature of their claims or on the relief requested. The issues in this case do not 

pertain to disputed issues of fact regarding any affected individual, and the relief 

requested is the same as to all affected individuals. 

Because the ISRA and SAF can effectively litigate the constitutional claims it 

has raised on behalf of its members without the participation of each affected 

member, and the Defendants have made no substantive challenge as to why they 

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cannot, the Defendants’ argument that the ISRA and SAF lack association standing 

is incorrect.

D. COVID-19 does not excuse or justify Defendants’ violations of 

constitutional rights. 

 

 The COVID-19 pandemic does not justify or excuse Defendants’ failure to 

timely process FOID card applications. 

Defendants’ persistent failure to issue FOID cards within 30 days, as state 

law requires, long predates the COVID-19 pandemic. It has been well known for 

years. See, e.g., Illinois Gun Buyers Now Waiting More Than 60 Days for FOID 

Card, CBS Chicago, Mar. 27, 2013 (noting an average delay of at least 64 days and 

a backlog of 70,000 applications).4

Of course Defendants’ longstanding failure to implement procedures for the 

timely processing of FOID card applications made the delay problem even worse 

once the pandemic and the surge of applications arrived in 2020.

5 But that is a 

reason why the time has come to remedy that failure—not a reason to excuse it or 

rationalize it. Defendants should not be allowed to use COVID-19 to escape 

accountability for violations of constitutional rights they have been committing for 

nearly a decade.

Defendants cannot avoid their constitutional responsibilities by just citing 

Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 29 (1905), which stated 

4 https://chicago.cbslocal.com/2013/03/27/illinois-gun-buyers-now-waiting-morethan-60-days-for-foid-card/

5 If anything, the surge in applications due to civil unrest and increased crime 

makes the timely processing of FOID Card applications more essential under the 

Second Amendment. See McGinnis, supra at 317. 

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that “the rights of the individual in respect to his liberty may at times, under the 

pressure of great dangers, be subjected to such restraint, to be enforced by 

reasonable regulations, as the safety of the general public may demand.” 

Although some courts have cited Jacobson in deferring to restrictions 

imposed to mitigate the COVID-19 pandemic, that case does not provide an 

appropriate standard for judging emergency public health measures in 2021. When 

the Supreme Court recently enjoined New York’s restrictions on religious 

gatherings, it applied strict scrutiny and made no reference to Jacobson. See Roman 

Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 69 (2020); "; but see id. at 70 

(Gorsuch, J.) (“Jacobson hardly supports cutting the Constitution loose during a 

pandemic.”).

6

In an earlier case presenting a similar issue (which the Court declined to 

hear), Justice Alito stated that it would be “a mistake to take language in Jacobson

as the last word on what the Constitution allows public officials to do during the 

COVID-19 pandemic.” Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2604, 

2608 (2020) (mem.) (Alito, J., dissenting from summary denial of application for 

injunctive relief). He explained that Jacobson “primarily involved a substantive due 

process challenge to a local ordinance requiring residents to be vaccinated for 

smallpox,” so it would be a “considerable stretch” to read it “as establishing the test 

6 Cuomo involved a restriction on religious gatherings, but there is no reason why a 

restriction on Second Amendment rights should receive greater deference. After all, 

there may be “reasonable alternatives” to in-person gatherings through which 

individuals might exercise their First Amendment rights, such as Zoom conferences. 

But citizens who have been totally deprived of their Second Amendment rights have 

no reasonable alternative. See McGinnis, supra at 319-20.

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to be applied when statewide measures of indefinite duration are challenged 

under... [constitutional] provisions not at issue in that case.” Id. See also Big Tyme 

Investments, LLC v. Edwards, __ F.3d __, 2021 WL 118628, *10 (5th Cir. 2021) 

(Willett, J., concurring) (stating that Jacobson should not “suppl[y] the standard by 

which courts in 2021 must assess emergency public health measures” because it 

“predates modern constitutional analysis, particularly the ... tiers of scrutiny that 

distinguish between strongly and weakly protected rights”). 

Moreover, Jacobson calls, at most, for deference when courts consider

emergency public health measures, such as the mandatory vaccines at issue in that 

case, or measures specifically directed at mitigating the COVID-19 pandemic. 

Defendants have not cited any case in which a court has relied on Jacobson to 

justify a violation of constitutional rights that was not specifically directed at 

mitigating the pandemic or a similar emergency. 

And in any event, there is no reason why the COVID-19 pandemic—which 

began nearly a year ago, and to which other government agencies, most schools, and 

the private sector have long since adapted—should excuse Defendants’ ongoing 

delays. In the face of the pandemic, necessary activities, and many non-essential 

activities, have gone on as usual. The government still provides other essential (and

non-essential) services. Consumer goods of all kinds are still produced; store shelves 

remain fully stocked.

So if Defendants have had difficulty timely processing FOID card 

applications during the pandemic, it is for the same reason that they failed to timely 

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process FOID card applications for many years before the pandemic: because the 

State has been unwilling to devote the necessary resources to the task. Defendants 

have provided no evidence that the State’s use of resources for COVID-19-related 

activities made it impossible for the State to provide Defendants with sufficient 

resources to timely process FOID card applications. Defendants have provided no 

evidence for the (implausible) notion that, since the pandemic, the State has only or 

mostly devoted its resources to purposes that are more important than the 

protection of fundamental constitutional rights. 

II. Plaintiffs will suffer irreparable harm without an injunction. 

 

 Unless the Court enters an injunction, Plaintiffs will suffer irreparable harm. 

Defendants argue that an infringement of Second Amendment rights does not 

“automatically” constitute an irreparable harm. Resp. 31. But the Seventh Circuit 

has said otherwise: Ezell held that the Second Amendment protects “intangible and 

unquantifiable interests” and that infringements of “the right to possess firearms 

for protection ... cannot be compensated by damages” and therefore inherently 

inflict irreparable injury. 651 F.3d at 699. 

III. The balance of harms favors an injunction. 

 

 The balance of harms favors an injunction. As Plaintiffs argued in support of 

their motion (at 20), Plaintiffs will suffer irreparable harm from continued 

deprivation of their Second Amendment rights, but Defendants will suffer no 

cognizable harm from being required to obey state law and respect law-abiding 

citizens’ constitutional rights.

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Defendants do not articulate any specific harm that Defendants would suffer 

if the Court were to grant Plaintiffs’ motion, except to argue that “any time a State 

is enjoined from effectuating statutes enacted by representatives of its people, it 

suffers a form of irreparable injury.” Resp. 32 (quoting Proft v. Madigan, 340 

F.Supp.3d 683, 695 (N.D. Ill. 2018)). But of course Plaintiffs filed this lawsuit 

because Defendants have failed to effectuate state law, and Plaintiffs ask the Court 

for declaratory and injunctive relief to compel Defendants to obey state law,7 which 

would eliminate Plaintiffs’ constitutional injury. (As discussed above and below, 

however, Plaintiffs’ claims arise under federal law because Plaintiffs seek to enjoin 

violations of their federal constitutional rights, as the Eleventh Amendment and Ex 

Parte Young, 209 U.S. 123 (1908), allow.)

True, Plaintiffs seek a preliminary injunction to have the state issue their 

FOID cards immediately, even if the State does not complete its usual process to 

confirm that Plaintiffs are not disqualified. But Plaintiffs have submitted affidavits 

to confirm that they are qualified under the statute. In fact, in the statutorily 

mandated application, FOID card applicants must affirm, among other things, that 

she/he is not a convicted felon, has not been a patient in a mental health facility in 

the past five years, and is not addicted to narcotics. 430 ILCS 65/4(ii) – (iv). 

Defendants’ assertion that the “public interest” is necessarily identical to 

(“merged with”) the government’s interest is false. See Resp. 32. The case on which 

7 As discussed above, Plaintiffs’ claim is based on federal law, not state law, but 

Defendants could eliminate the federal constitutional violations by obeying state 

law. 

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Defendants rely for this argument did not address the criteria for issuing a 

preliminary injunction; it addressed the factors for issuing a stay of removal of an 

alien from the country under a federal immigration statute. Nken v. Holder, 556

U.S. 418, 435 (2009). 

Courts have not held that the government’s asserted interests are identical to 

the public interest where a plaintiff seeks a preliminary injunction against state or 

local laws alleged to be unconstitutional (let alone where, as here, plaintiffs seek an 

injunction against violations of state law alleged to be unconstitutional). To the 

contrary, courts have often held that the protection of constitutional rights against 

infringement by the government serves the public interest. See, e.g., Joelner v. Vill. 

of Wash. Park, 378 F.3d 613, 620 (7th Cir. 2004) (“[I]t is always in the public 

interest to protect First Amendment liberties.”); Newsom v. Albemarle County Sch. 

Bd., 354 F.3d 249, 261 (4th Cir. 2003) (“Surely, upholding constitutional rights 

serves the public interest.”). That only makes sense in a system of government in 

which the Constitution—not the will of government officials—is supreme. 

Defendants argue that the public interest disfavors an injunction because of 

the risk that they could issue a FOID card to a Plaintiff who is not qualified to have 

one. But Defendants overstate that risk. Again, 48 states protect public safety 

without requiring citizens to obtain a license before they can possess a firearm at 

home, so an injunction would simply put Illinois in the same position as those other 

states with respect to these particular individuals. And, this position need not be 

permanent; the ability to process applications faster, and within the required 30 

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days, is in the Defendants’ own hands. Cf. Ezell, 651 F.3d at 711 (“regulatory 

vacuum” resulting from preliminary injunction did not warrant denying the 

injunction because government could “move[] with dispatch” to address it).

Moreover, federal law provides several layers of protection against the very 

concerns the Defendants raise. Foremost, federal background checks ensure that 

disqualified persons cannot purchase a firearm. See 18 U.S.C. § 922(t). Also, there is 

little risk that the Plaintiffs are dangerous felons or other prohibited persons 

because, if they were, federal law would prohibit them from possessing a firearm, 

and it therefore would make no sense for them to pursue a firearm through lawful 

channels, which requires an application under oath with criminal penalties for lying 

(this is also true of the FOID application). And even if the State were to issue a 

FOID card to a disqualified individual, it could quickly remedy that error upon 

completing its background checks and revoking the individual’s card, and then 

contacting local police for any required enforcement regarding the retrieval of 

revoked FOID cards and any firearms, just as it does for other FOID card holders 

after discovering that they are disqualified. See 430 ILCS 65/8, 65/9.5.

Further, Defendants largely ignore the potential harm to public safety that 

could result from not issuing Plaintiffs their FOID cards—i.e., the possibility that, if 

the Plaintiffs do not immediately receive a FOID card, one or more of them might 

face a need to defend themselves and be unable to do so. At least nineteen 

professionally conducted national surveys have specifically asked respondents

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28

whether they had used a gun for self-protection. Despite wide variation in the 

details of the surveys, all indicated huge numbers of defensive gun uses each year, 

ranging from 800,000 to 3.6 million. Gary Kleck, The Frequency of Defensive Gun 

Use, Armed, Ch. 6, pp. 214-229 (2001). The most technically sound of the surveys 

indicated there were 2.5 million defensive gun uses in 1992. Gary Kleck and Mark 

Gertz, Armed Resistance To Crime: The Prevalence and Nature of Self-Defense 

With A Gun, Nw. J. Criminal Law and Criminology, Vol. 86, p.164 (1995). 

On a more personal level, and as only one example, there is the terrifying 

story of N. Doe, who sued the East St. Louis Housing Authority anonymously—

because she was afraid of the ex-paramour convicted of attempted murder who 

threatened to kill her if he ever found her—who was only saved from a sexual 

assault in her own home because her son went to get the gun they kept in the 

house. The ESLHA then threatened to evict her for possessing a firearm in her own 

home, but a Court injunction preserved her ability to defend herself and her family. 

See Kavahn Mansouri, Judge Rules Ban on Gun Ownership in East St. Louis 

Housing is Unconstitutional, Belleville News-Democrat, Apr. 11, 2019.8 . The 

lawsuit was docketed as Doe v. E. St. Louis Housing Auth., No. 3:18-cv-00545 (S.D. 

Ill. 2019).

Further, Defendants have not presented any reason to believe that there is a 

greater risk that one of the Plaintiffs (a) is not qualified to receive a card and (b) 

would commit a violent crime if he or she received a card in the relatively short time 

8 https://www.bnd.com/news/local/article229129134.html

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period during which the State completed its process to confirm that the Plaintiffs 

are qualified. Defendants accuse the Plaintiffs of fear-mongering, but that (plus 

bureaucratic inefficiency) is actually the Defendants’ entire argument.

IV. Plaintiffs may obtain relief through a preliminary injunction. 

Finally, the Court should reject Defendants’ arguments that injunctive relief 

is improper based on the relief that Plaintiffs seek. 

A. Federal case law does not call for abstention from injunctive relief. 

There is no merit in Defendants’ argument that the Court “should abstain 

from providing [preliminary injunctive] relief under Rizzo v. Goode, 423 U.S. 362 

(1976),” in which the Supreme Court recognized “that the Government has 

traditionally been granted widest latitude in the ‘dispatch of its own internal 

affairs.’” Resp. 12 (quoting Rizzo, 423 U.S. at 378-79).

Rizzo is nothing like this case. There, the plaintiffs literally sought to have 

federal courts tell the Philadelphia Police Department how to run its internal 

affairs. They asked a district court to impose “prophylactic procedures” to reduce 

police misconduct, and the injunction the court entered “significantly revis[ed] the 

internal procedures of the Philadelphia police department.” Rizzo, 423 U.S. at 378-

79. 

Here, in contrast, Plaintiffs are not asking the Court to manage the 

Defendants’ internal affairs. Plaintiffs are not asking to tell Defendants how they 

should process FOID card applications, except that they should do so—by some 

effective means—within 30 days. 

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Defendants’ argument receives no support from the other case they cite, 

Courthouse News Service v. Brown, 908 F.3d 1063 (7th Cir. 2018). In that case, the 

plaintiff sought an injunction to direct the clerk of the Cook County Circuit Court to 

make newly filed complaints available to the media immediately after they are filed, 

rather than after the clerk had processed them. Id. at 1065. The Court abstained 

from hearing the plaintiff’s constitutional claim—something Defendants do not 

argue is warranted here—because “the principle of comity takes on special force 

when federal courts are asked to decide how state courts should conduct their 

business.” Id. at 1074 (emphasis added). 

There is also no merit in Defendants’ argument that Plaintiffs’ motion for a 

preliminary injunction is an attempt to enforce state law in federal court that 

violates the Eleventh Amendment under Pennhurst State School and Hospital v. 

Halderman, 465 U.S. 89 (1984). Resp. 12. It is well established that plaintiffs may 

obtain a federal court injunction against state official to prevent violations of federal 

constitutional rights, based on the supremacy of the U.S. Constitution. See 

Pennhurst, 465 U.S. at 104-05 (citing Ex Parte Young, 209 U.S. at 160). In 

Pennhurst, the Court held that plaintiffs may not obtain relief against state officials 

on the basis of state law because that would “not vindicate the supreme authority of 

federal law.” Id. at 106. 

Here, Plaintiffs found their claims exclusively on federal law—the Second 

Amendment, the Due Process Clause of the Fourteenth Amendment, and 42 U.S.C. 

§ 1983—not state law. True, the federal constitutional violations Plaintiffs seek to 

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31

enjoin are the result of Defendants’ failure to comply with state law, so that, as it 

happens, Defendants could remedy the federal constitutional violations by 

conforming their conduct to state law. But state law does not provide the basis for 

relief. If the FOID Card Act did not impose a deadline for processing FOID card 

applications, but were otherwise the same, Plaintiffs would still have the same 

causes of action based on Defendants’ failure to issue FOID cards within a 

reasonable time. 

B. Preliminary injunctive relief is practical. 

Defendants lack any basis for their assertion that it would be “virtually 

impossible” for the Court to grant the relief that Plaintiffs seek. Resp. 13. Plaintiffs 

seek FOID cards for qualified members of the ISRA and SAF who have applied for 

cards but have not received their cards within 30 days. Plaintiffs are prepared to 

identify those members on a rolling basis—through affidavits from each affected 

member confirming his or her eligibility—so that Defendants may promptly issue 

their cards. 

Defendants say that doing this would be “in violation of the eligibility 

requirements of the FOID Card Act and possibly federal law.” Id. But where 

fundamental federal constitutional rights (including the Second Amendment right 

to possess a firearm within the home) and state law conflict, constitutional rights 

should take priority. See Heller, 554 U.S. at 635 (holding that the Second 

Amendment “surely elevates above all other interests the right of law-abiding, 

responsible citizens to use arms in defense of hearth and home”). And there is no 

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32

basis for Defendants’ assertion that this would “possibly” violate federal law. 

Federal law does not require states to have a permitting system for mere possession 

of any firearm in the home, and 48 states lack any such system. Again, if those 

states can protect the public safety without any FOID-like scheme, there is no 

reason to believe that the State of Illinois could not issue these individuals FOID 

cards for the brief period of time between an individual’s filing of an application and

Defendants’ approval or denial of the application. And if the State finds that 

distasteful, it can avoid it by just doing what it takes to timely process all 

applications. 

WHEREFORE, the Plaintiffs, ILLINOIS STATE RIFLE ASSOCIATION and 

SECOND AMENDMENT FOUNDATION, INC., respectfully request that this 

Court enter an order:

1. Preliminarily enjoining Defendants, their officers, agents, servants, 

employees, and all persons in active concert or participation with them who receive 

actual notice of the injunction, from failing to comply with the 30-day FOID 

application processing requirement of 430 ILCS 66/5;

2. Requiring Defendants, their officers, agents, servants, employees, and 

all persons in active concert or participation with them who receive actual notice of 

the injunction, to immediately issue FOID cards to the affected members of ISRA 

and SAF.

Case: 1:20-cv-04270 Document #: 73 Filed: 02/02/21 Page 38 of 39 PageID #:432
33

Dated: February 2, 2021 Respectfully submitted,

By: /s/ David G. Sigale

David G. Sigale

By: /s/ Gregory A. Bedell

Gregory A. Bedell

By: /s/ Jacob Huebert

Jacob Huebert

Attorneys for Plaintiffs

David G. Sigale (Atty. ID# 6238103) 

LAW FIRM OF DAVID G. SIGALE, P.C. 

430 West Roosevelt Road 

Wheaton, IL 60187 

630.452.4547 

dsigale@sigalelaw.com

Gregory A. Bedell (Atty. ID# 6189762) 

KNABE & BEDELL

33 North Dearborn Street 

10th Floor 

Chicago, Illinois 60602 

312.977.9119 

gbedell@kkbchicago.com

Jacob Huebert (Atty. ID# 6305339)

Martha Astor (pro hac vice)

Scharf-Norton Center for Constitutional Litigation at the

GOLDWATER INSTITUTE

500 E. Coronado Road

Phoenix, Arizona 85004

Telephone: 602.462.5000

litigation@goldwaterinstitute.org

Attorneys for Plaintiffs

Case: 1:20-cv-04270 Document #: 73 Filed: 02/02/21 Page 39 of 39 PageID #:433