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The Public Servant
The newsletter of the ISBA’s Standing Committee on Government Lawyers

March 2017, vol. 18, no. 3

What may the Concealed Carry License Review Board properly consider when granting or denying a permit?

In 2013, the law in Illinois changed to permit the concealed carrying of firearms. Since that time, disputes have arisen regarding the denial of applications for conceal carry permits. A recent case involves the denial of an application for plaintiff Benjamin Perez (Perez), who applied for a license to carry a concealed firearm pursuant to the Firearm Concealed Carry Act, 430 ILCS 66/1 et seq. (the Act).

The Cook County Sheriff and the Chicago Police Department filed objections to Perez’s application with the Illinois State Police. The objection of the Chicago Police Department was based on a domestic violence report in February 2007 which did not result in an arrest. The report noted, however, that the responding officers saw evidence of injury to Perez’s girlfriend and that there were 14 past instances of abuse involving Perez. The objection of the Cook County Sheriff was based on Perez’s arrest in August 2011 for aggravated assault to a police/sheriff employee for which Perez was found not guilty after a bench trial.

Perez also had a criminal history including a juvenile arrest, as well and four vehicle-related offenses, including criminal trespass and driving without a license.

The Illinois State Police advised Perez of the objections to his application, to which Perez responded that there was no competent evidence of domestic violence or aggravated assault. Perez asserted that the finding of not guilty of aggravated assault was evidence of his innocence and that the lack of an arrest for domestic violence was evidence that he did not perform those acts.

In December 2014, the Concealed Carry Licensing Review Board (the Board) denied Perez’s application, finding by a preponderance of evidence that Perez was a danger to himself or others or posed a threat to public safety. Perez sought Administrative Review in circuit court claiming that: (1) the Board’s decision was against the manifest weight of the evidence; (2) the Board’s findings were based on inadmissible and unreliable hearsay; and (3) the Board failed to conduct an evidentiary hearing. The circuit court affirmed the Board’s order denying the application.

Perez sought appellate review of the circuit court’s decision. In Perez v. The Illinois Concealed Carry Licensing Review Bd., 2016 IL App. (1st) 152087, the Appellate Court (the court) affirmed the circuit court’s decision. The court held that the acquittal of aggravated assault did not prove that Perez was innocent, but rather that the prosecution was not able to prove Perez’s guilt beyond a reasonable doubt. Id. at ¶ 18, citing People ex rel. City of Chicago v. Le Mirage, Inc., 2013 IL App (1st) 093547-B, ¶ 134.

The Act allows the Board to consider Perez’s entire criminal history, as well as objections of law enforcement agencies. The legislature did not limit the consideration of an applicant’s background to convictions. Rather, the broad language of the Act reflects the legislative intent for a full consideration of criminal history. Id. at ¶ 21. The Board’s decision was not contrary to the manifest weight of all of the evidence submitted to the Board, which included Perez’s written communications.

Moreover, the criminal history of Perez was not inadmissible hearsay. Perez failed to object to the Board giving consideration to his prior criminal history. In addition, the Act provides that the Illinois State Police and the Board may consider criminal history, as well as arrests, in reviewing an application. Id. at ¶ 24; see also, 430 ILCS 66/15(a), 20(e) and 35(2).

Perez also argued that the burden of proof should be clear and convincing evidence. However, the court held that the standard of proof is preponderance of evidence, as found in the Act. 40 ILCS 66/20 (g). The court also relied on the decision of the Seventh Circuit in Berron v. Illinois Concealed Carry Licensing Review Bd., 825 F.3d 843 (7th Cir. 2016). The court agreed with the Seventh Circuit in Berron, finding that the language of the Act controls the standard of evidence before the Board.

Perez also claimed that his due process rights were violated when the Board did not conduct an evidentiary hearing on his application. The court held that an administrative proceeding does not require a hearing in order to comply with due process. Perez at ¶ 27, citing Hayashi v. Illinois Department of Financial & Processional Regulation, 2014 IL 116023, ¶ 40. The rules adopted by the Board did not require a hearing where the Board could resolve the application through written communications with the parties. Id. at ¶ 27, citing 20 Ill. Adm. Code §2900. 140(c). Perez was notified of the objections to his application and was given the opportunity to respond; Perez responded in writing.

Perez did not request a hearing after he was notified of the law enforcement objections and did not challenge the administrative process that allows denial of an application without an evidentiary hearing. Id. at ¶ 28. The failure to raise the issue before the administrative board results in forfeiture of the issue on appeal. Cinkus v. Village of Stickney Municipal Officers Electoral Bd., 228 Ill. 2d 200, 213 (2008). Perez consented to the administrative proceedings being heard upon the written communications.

Perez also waived his other due process claims on appeal where he failed to develop those arguments before the Board, as well as on appeal. Perez at ¶29; Ill. S. Ct. R. 341 (h)(7).

The court’s ruling provides direction as to what information may be considered when approving or denying a conceal carry permit application.