### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 15

- 2867
D AVID R HEIN , Plaintiff

- Appellant
,

v.
J OHN C OFFMAN , Defendant

- Appellee

.

____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 C 843

— Gary Feinerman , Judge

.

____________________
A RGUED M AY 31, 2016

— D ECIDED J UNE 17, 2016

____________________

Before E ASTERBROOK and W ILLIAMS , Circuit Judges , and Y ANDLE , District Judge

. *
E ASTERBROOK , 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 a ccused DeLuca of violating the c onstitutions of

* Of the Southern District of Illinois, sitting by designation.2 No. 15

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the United States and Illinois and threate ned violence unless DeLuca changed his ways. One document asserted, among other things: “ Now you know why so many of you people

or going to be shot because your too selfish too understand the truth.” (E rrors in original.) Two page s included hand

drawn cros shair s. Rhein visited DeLuca’s local office and, in the course of what the manager described as an hour

- long rant, said that he was “ready to start shooting people.” 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 Owne rs Identification Card or FOID Card ; we call it a Card. State law permits summary revocation of a Card, with hearing to follow, if officials co nclude that the licensee’s “mental condition is of such a n ature that it poses a clear and present danger to ... any other person”. 430 ILCS 65/8(f). Coffman concluded that Rhein’s
statemen ts meet this standard and on February 3, 2011, summarily revoked Rhein’s Card. Police called at his house the next day and removed his weapons.
Coffman sent Rhein a letter explaining what had ha ppened . 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 chara cter references plus a report from a psychologist certifying that he is mentall y fit to possess guns.

Six months later (on August 1, 2011) Rhein’s lawyer sent Coffman a letter requesting the Card’s reinstatement. Cou nsel included three character references p lus a psychologist’sN o. 15

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report concluding , in essence, that Rhein is all bark and no bite. The regulations in force in 2011 and 2012 committed the reinstatem ent decision to the Director of the State Police (H iram Grau at the time ) rather than to Coffman or any other subordinate, 20 Ill. Admin. Code §1230.70(c), but coun sel did
not send his request to the Director. (Throughout this opi nion we cite the 2003 version of the regulations. The 2013 amendments do not affect this litigation.) The regulations provided that the Director may convene a conference (at which the applic ant 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. Id . at §1230.70(c) to (f ). Rhein’s lawyer did not request such a conferenc e. But on January 16 , 2012, coun sel sent a letter addressed to Grau asking for a hearing. Coffman promptly sent the file to the agency’s legal department, and his superior (Colonel Patrick Keen) a ttached a memorandum detailing the reason for the summary

re vocation and the status of the investigation on Rhein’s r equest for reinstatement. Coffman left the Bureau of Firearms Services a month later and had nothing more to do with Rhein’s situation. On June 5, 2012, Director Grau reinstated Rhein’s Card without convening a hearing, and the firearms were returned on August 29, 2012.

R hein then sued Coffman under 42 U.S.C. §1983, co ntending that he had violated the Second Ame ndment and the Due Process Cla use of the Fourteenth Amendment by revoking the Card without a hearing and taking more than a year to restore the guns. The district court granted summary judgment in Coffman’s favor. 118 F. Supp. 3d 1093 (N.D. Ill. 2015). First it held that summary revocation, with hearing to4 No. 15

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follow, is proper when delay poses unac ceptable risks. Id . at 1099

– 1103. Then it held that Coffman is entitled to qualified immunity on the delay

- in

- restoration theory, because courts have yet to determine how quickly governmental bodies must act when the right to keep firearms is at stake. Id

. at 1103

– 06. On appeal Rhein abandons the argument that a hearing had to precede the revocation. He now contends o nly that the Constitution required Coffman to return his guns more quickly. Our description of the regulations reveals the principal problem with this argument: The Director of the State Police, not the Chief of the Bureau of Firearms Ser vices, is respons ible for deciding whether to restore a Card (and, if necessary, whether and when to hold a hear ing). Indeed, Coffman was barred from holding a hearing; he had acted as the prosec utor 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 (1972); Goldberg v. Kelly , 397 U.S. 254, 271 (1970)

. Coffman need not depend on a defe nse of immunity when he is not the person responsible in the first place. The Const itution 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 (20 09); 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 prov isions of 2 0 Ill. Admin. Code §1230.70, notwithstanding the norm that publication of a law or regulation is all the notice a government need supply. Some decisions, such as Wolff v. McDonnell , 418 U.S. 539, 563

– 65 (1974) , hold that gover n-N o. 15

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mental bodies must notify per sons of their right to a hearing and how to go about asserting that right. But Rhein does not make an argument along these lines (his counsel expressly disclaimed it at oral argument ), and it would be weak co ming from a person represented by counsel in the administr ative process. Rhein’s lawyer could have found §1230.70 and

use d the procedures it affords.
Another possibility is that Coffman prevented the D ir e ctor from acting once Rhein mad e a request. Yet Rhein does not contend that Coffman delayed in transmit ting 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 s tepped aside. Coffman cannot be required to pay damages for investigating in order to be able to make a recommendation when, at last, Rhein asked for a decision from the Director. Rhein’s princip al theory is that Coffman is liable for d emanding 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 re commended that Rhein submit three character references and a psychologist’s report. A reputable psych ologist or psychi atrist will want to gather information and observe a person repeatedly before offer ing an opinion, so obtaining such a report inevitably entails delay.6 No. 15

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Now a recommendation, even an emphatic one, is not a command. Rhein was free to ask the Director for an i mmed iate hearing

. Coff man’s letter did not block that path . But Rhein did not take it. Having repeatedly threatened a state legislator with violence, Rhein surely understood th at he was not going to get his C ard back just by promising to keep guns out of political disputes. Rhein told Coffman in Febr uary 2011 that his threats to kill DeLuca had been meant only “to get people’s attention.” 118 F. Supp. 3d at 1098. But ne ither the Second Amendment nor the Due Process Clause r equires public o fficials 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 ( 2003 ), and Watts v. United States , 394 U.S. 705, 707

– 08 (1969), so h e could have been convicted for making them . A felony conviction would have established a long

- term bar to gun ownership. See 18 U.S.C. §922(g)(1); United States v. Skoien , 614 F.3d 638 (7th Cir. 2010) (en banc)

. Rhein had ev ery right to a prompt hearing, but if he had exercised that right with out first assembling the sort of evidence Coff man had recommended , he was doomed to lose. Giving sound advice cannot be a source of constitutional liability.
We conclude that Coffman is not liable on the merits. This makes it unnecess ary to consider whethe r it is “clearly established” (the central issue for an immunity defense) that the Illinois State Police as a whole took too long. The S upreme Court observed in District of Columbia v. Heller , 554 U.S. 570 (2008) , and McDonald v. Chicago , 561 U.S. 742 (201 0) , that many details about how to implement the Second Amendment need to be worked out. The timing of he arings on requests for the restoration of firearms is among thoseN o. 15

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details. W e know from Littleton v. Z.J. Gifts D

- 4, L.L.C. , 541 U.S. 774 (2004), and s imilar decisions that the First Amen dment requires prompt decisions when the question is whether speech can occur . Meanwhile Barker v. Wingo , 407 U.S. 514 (1972), and similar decisions hold that the Speedy Trial Clause of the Sixth Amendment allows years t o pass before a criminal trial , even when the defendant is in cust ody . Where the Second Amendment fits on this spectrum i s a novel question

. The c losest parallel may be a motion under Fed. R. Crim. P. 41(g) for the re turn of guns seized in a cri minal prose cution. As far as we can see, courts have not esta blished time limits for holding hearings and making decisions

on motions to return firearms . We need not resolve the ti ming question in this case either.
A FFIRMED