Free speech, right to bear arms, search and seizure, and due process claims based on gun seizure can go forward

So holds Rhein v. Pryor (N.D. Ill. Mar. 20, 2014). At this stage of the proceedings, there has been no factfinding based on the plaintiffs’ allegations, so one cannot assume that the defendants indeed behaved the way the plaintiffs claim. I quote the case only to show what legal theories can be brought if government officials do indeed act in the ways the plaintiffs allege. Here are the factual allegations; note that a FOID card is a Firearm Owners Identification Card that is required under Illinois law to possess guns:

[Plaintiffs allege that, as] of February 3, 2011, Plaintiffs possessed FOID cards, owned firearms, and kept their firearms in their home. At some point before February 3, 2011, David expressed “unpopular political views … about his support of Second Amendment rights” to “a locally elected official.” That official, somebody in that official’s office, or one of the individual defendants falsely construed David’s comments “as evidence that [he] had a mental condition that made him dangerous.” On February 3, 2011, [Illinois State Police] Lieutenant [John] Coffman wrote a letter to David revoking his FOID card under § 8(f) of the Act based on the false and unreasonable assertion that David had a “mental condition” within the meaning of that provision. The letter was mailed on February 4, 2011, and David did not receive it until February 7, 2011.

On February 5, 2011, with Lieutenant Coffman’s approval, Agents Pryor and Summers entered Plaintiffs’ home without a warrant or consent, conducted a search, and seized Plaintiffs’ firearms, which Plaintiffs used for personal protection, hunting, investment, and enjoyment. These actions[, plaintiffs allege,] were taken even though “[t]here was no reasonable basis to conclude David Rhein had a mental condition that presented a clear and present danger to himself or anyone else.” It follows, the amended complaint claims, that the seizure of Plaintiff’s firearms and the revocation of David’s FOID card was “in no way … justified under this statute [§ 8(f)].” Kim’s FOID card was not revoked.

Plaintiffs hired an attorney, and in Summer 2012, as a result of a court order, their firearms were returned to them. Plaintiffs plan to continue engaging in political commentary in support of the Second Amendment, and they fear that their speech will put them at risk of being labeled “mentally unstable and dangerous” and having their firearms seized and FOID cards revoked.

Here’s the court’s analysis:

Plaintiffs allege that Defendants violated their First Amendment rights when they revoked David’s FOID card and seized their firearms because David had “express[ed] unpopular political views, specifically about his support of Second Amendment rights.”

To state a viable First Amendment retaliation claim, a plaintiff must allege that: “(1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the First Amendment activity was ‘at least a motivating factor’ in the Defendants’ decision to take the retaliatory action.” The amended complaint plainly alleges all three elements — David’s speech about the Second Amendment was protected by the First Amendment, having his FOID card and firearms taken away could deter him from engaging in that speech, and his FOID card and firearms were taken away because Defendants did not like his speech.

[Plaintiffs] allege that “[t]he actions taken against David Rhein … were done because of his political comments to a locally elected official some time before the illegal search and seizure that concerned David Rhein’s views about Americans’ Second Amendment rights that either the representative, someone in that representative’s office, and/or one of the Defendant Officers somehow construed (falsely) as evidence that David Rhein had a mental condition that made him dangerous”; that David “was unreasonably deemed mentally unfit based on the exercising of his free speech issues regarding the Second Amendment”; and that “[w]hile Coffman alleged in his letter that David Rhein had … a mental condition, this is totally without merit, [and] Coffman had no reasonable basis for making this conclusion.” These allegations are sufficient at this stage of the proceedings to support a claim that Defendants revoked David’s FOID card and took away his firearms in retaliation for his protected speech….

Plaintiffs also allege that the revocation of David’s FOID card and confiscation of their firearms violated the Second Amendment, which provides an individual right to firearms ownership. If David indeed had a mental condition of a nature that posed a clear danger to himself or others, then he likely would have suffered no Second Amendment deprivation. See Heller, 554 U.S. at 626 (observing that “the right secured by the Second Amendment is not unlimited,” and noting that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons or the mentally ill”). But Plaintiffs allege that David had no such mental condition and could not reasonably have been thought to have such a condition. Because those allegations are deemed true at the pleading stage, the individual capacity Second Amendment claim survives dismissal….

Plaintiffs allege that their Fourth Amendment rights were violated when “Defendants Pryor and Summers, without a warrant, the Plaintiffs’ valid and voluntary consent, or any other legal justification, entered … and illegally searched the Plaintiffs’ home, and, once inside, … illegally seized the Plaintiffs’ firearms….” The entry and search of a home without consent or a warrant presumptively violates the Fourth Amendment. An exception applies if exigent circumstances are present. Exigent circumstances may be present if there is a “need to protect or preserve life or avoid serious injury.”

Defendants contend that there were exigent circumstances here — namely, the “immediate risk of harm” posed by David’s “mental state that presented a clear and present danger to himself and others” and his possession of firearms. But again, Plaintiffs allege that the supposed concern about David’s mental condition was a ruse and a pretext to take his FOID card and guns in retaliation for his pro-Second Amendment speech. And even putting aside the allegation, taken as true at this stage, that the individual defendants did not subjectively believe that David’s mental condition posed an immediate danger, Defendants must prove that they “had an objectively reasonable belief that exigent circumstances existed at the time of their warrantless entry into [Plaintiffs'] residence.” The amended complaint alleges, plausibly, that any such belief would have been unreasonable, which is sufficient to defeat Defendants’ exigent circumstances argument at the pleading stage….

Plaintiffs allege that the revocation of his FOID card and seizure of his firearms violated his right to due process. Defendants’ brief does not mention the individual capacity due process claim, let alone seek its dismissal….

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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Eugene Volokh · March 24