In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 15-2867

DAVID RHEIN,

Plaintiff-Appellant,

v.

JOHN COFFMAN,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 13 C 843 — Gary Feinerman, Judge.

____________________

ARGUED MAY 31, 2016 — DECIDED JUNE 17, 2016

____________________

Before EASTERBROOK and WILLIAMS, Circuit Judges, and 

YANDLE, District Judge.

*

EASTERBROOK, Circuit Judge. David Rhein began calling 

and sending packets of papers to the office of Anthony 

DeLuca, a member of Illinois’s House of Representatives. 

The packets accused DeLuca of violating the constitutions of 

 * Of the Southern District of Illinois, sitting by designation.
2 No. 15-2867

the United States and Illinois and threatened 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.” (Errors in original.) Two pages included handdrawn crosshairs. 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 Owners Identification Card or 

FOID Card; we call it a Card. State law permits summary 

revocation of a Card, with hearing to follow, if officials conclude that the licensee’s “mental condition is of such a nature that it poses a clear and present danger to ... any other 

person”. 430 ILCS 65/8(f). Coffman concluded that Rhein’s 

statements 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 happened. The letter told Rhein that he could apply to have the 

Card reinstated, and local police told Rhein that his firearms 

would be returned if the Card were reinstated. Coffman’s

letter “strongly encouraged” Rhein to include three character references plus a report from a psychologist certifying 

that he is mentally fit to possess guns.

Six months later (on August 1, 2011) Rhein’s lawyer sent 

Coffman a letter requesting the Card’s reinstatement. Counsel included three character references plus a psychologist’s 
No. 15-2867 3

report concluding, in essence, that Rhein is all bark and no 

bite. The regulations in force in 2011 and 2012 committed the 

reinstatement decision to the Director of the State Police (Hiram Grau at the time) rather than to Coffman or any other 

subordinate, 20 Ill. Admin. Code §1230.70(c), but counsel did 

not send his request to the Director. (Throughout this opinion 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 applicant may be represented by 

counsel) and grant or deny relief without a hearing, and that 

if the Director does not reinstate the Card the affected person 

may request a formal hearing. Id. at §1230.70(c) to (f). Rhein’s 

lawyer did not request such a conference. But on January 16, 

2012, counsel 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) attached a memorandum detailing the reason for the summary 

revocation and the status of the investigation on Rhein’s request 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.

Rhein then sued Coffman under 42 U.S.C. §1983, contending that he had violated the Second Amendment and 

the Due Process Clause 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 to 
4 No. 15-2867

follow, is proper when delay poses unacceptable 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 only 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 Services, is responsible for deciding whether to restore a Card (and, if necessary, 

whether and when to hold a hearing). Indeed, Coffman was

barred from holding a hearing; he had acted as the prosecutor by revoking Rhein’s Card and could not have served as 

the judge of his own actions. See, e.g., Morrissey v. Brewer, 

408 U.S. 471 (1972); Goldberg v. Kelly, 397 U.S. 254, 271 (1970). 

Coffman need not depend on a defense of immunity when 

he is not the person responsible in the first place. The Constitution 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 (2009); Vance v. 

Rumsfeld, 701 F.3d 193, 203–05 (7th Cir. 2012) (en banc).

Coffman’s liability, if any, depends exclusively on his 

own decisions and actions. Rhein might have contended that 

the Constitution required Coffman to alert him to the provisions of 20 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 govern-
No. 15-2867 5

mental bodies must notify persons 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 coming from a person represented by counsel in the administrative process. Rhein’s lawyer could have found §1230.70 and 

used the procedures it affords.

Another possibility is that Coffman prevented the Director from acting once Rhein made a request. Yet Rhein does 

not contend that Coffman delayed in transmitting the file 

once he received the letter of January 2012. Rhein hints that 

Coffman took too long to investigate after counsel’s letter of 

August 2011, but he did not develop in discovery just what 

Coffman was doing from August through December 2011—

and the letter of August 2011 had not asked for an expedited 

investigation. Section 1230.70 shows that Rhein had a right 

to bypass Coffman, and, when Rhein exercised that right in 

January 2012, Coffman promptly stepped aside. Coffman 

cannot be required to pay damages for investigating in order 

to be able to make a recommendation when, at last, Rhein 

asked for a decision from the Director.

Rhein’s principal theory is that Coffman is liable for demanding information that would take so long to assemble 

that the constitutional limit for a timely decision would have 

passed before it could be produced. Coffman’s letter recommended that Rhein submit three character references and 

a psychologist’s report. A reputable psychologist or psychiatrist will want to gather information and observe a person 

repeatedly before offering an opinion, so obtaining such a 

report inevitably entails delay.
6 No. 15-2867

Now a recommendation, even an emphatic one, is not a 

command. Rhein was free to ask the Director for an immediate hearing. Coffman’s letter did not block that path. But 

Rhein did not take it. Having repeatedly threatened a state 

legislator with violence, Rhein surely understood that he 

was not going to get his Card back just by promising to keep 

guns out of political disputes. Rhein told Coffman in February 2011 that his threats to kill DeLuca had been meant only 

“to get people’s attention.” 118 F. Supp. 3d at 1098. But neither the Second Amendment nor the Due Process Clause requires public officials to be credulous.

Rhein does not deny that his statements were “true 

threats” within the meaning of Virginia v. Black, 538 U.S. 343, 

359–60 (2003), and Watts v. United States, 394 U.S. 705, 707–08

(1969), so he 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 every right to a prompt hearing, but if he had exercised that 

right without first assembling the sort of evidence Coffman 

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 unnecessary to consider whether it is “clearly 

established” (the central issue for an immunity defense) that 

the Illinois State Police as a whole took too long. The Supreme Court observed in District of Columbia v. Heller, 554 

U.S. 570 (2008), and McDonald v. Chicago, 561 U.S. 742 (2010), 

that many details about how to implement the Second 

Amendment need to be worked out. The timing of hearings 

on requests for the restoration of firearms is among those 
No. 15-2867 7

details. We know from Littleton v. Z.J. Gifts D-4, L.L.C., 541 

U.S. 774 (2004), and similar decisions that the First Amendment requires prompt decisions when the question is 

whether speech can occur. Meanwhile Barker v. Wingo, 407 

U.S. 514 (1972), and similar decisions hold that the Speedy 

Trial Clause of the Sixth Amendment allows years to pass

before a criminal trial, even when the defendant is in custody. Where the Second Amendment fits on this spectrum is a 

novel question. The closest parallel may be a motion under 

Fed. R. Crim. P. 41(g) for the return of guns seized in a criminal prosecution. As far as we can see, courts have not established time limits for holding hearings and making decisions 

on motions to return firearms. We need not resolve the timing question in this case either.

AFFIRMED