Federal District Judge Joe Billy McDade has refused to dismiss a lawsuit against individual police officers for willful actions to deprive an Illinois man of his Second Amendment rights, under 42 U.S.C. § 1983. This civil rights case was filed in federal court on February 6, 2024. The plaintiff in the case is ROBERT K. KUHLMAN, the Attorney representing Mr. Kuhlman is David Sigale. David Sigale has had considerable success in representing clients in Second Amendment cases.
The allegations by the plaintiff, Robert K. Kuhlman are clear and significant. According to court documents, on July 17, 2023, Mr. Kuhlman's mother called both him and the police about an alleged tresspasser who would not leave her home. The trespasser was acting strangely. Kuhlman arrived at the home. He asked the intruder to leave. The intruder started to reach into a bag. Mr. Kuhlman drew his pistol and held the intruder for police. The incident occurred in Normal, Illinois.
The Normal, Illinois police showed up, searched the intruder, asked for and received Mr. Kuhlman's handgun, then returned it to him. They transported the intruder to a facility for mental evaluation. They did not arrest or charge Mr. Kuhlman.
Later, one of the police officers, Officer Nicholas Hines, and his supervisor, Officer Serena Cunningham, filed a report to the Illinois State Police, contending Mr. Kuhlman was a "clear and present danger" to himself and others. Mr. Kuhlman had his Firearms Owner Identification Card and his Concealed Carry License revoked. Mr. Kuhlman claims the report included significant and deliberate factual errors which resulted in the loss of his Second Amendment rights.
AmmoLand contributor Mark Smith discusses the case on video at the four boxes diner.
The State of Illinois attempted to grant immunity to people they require to report on gun owners. The immunity for make false claims under their Firearms Owners Identification Act applies to several different occupations, as listed below. From the order and opinion:
Illinois’s FOID Act establishes that “[t]he physician, clinical psychiatrist, qualified examiner, law enforcement officer, or school administrator making the [clear and present danger] determination or his or her employer shall not be held criminally, civilly, or professionally liable for making or not making the notification required under this subsection, except for willful or wanton misconduct.” 430 ILCS 65/8.1(d).
Judge Joe Billy McDade quotes a decision, Martinez v. State of Cal., 444 U.S. 277, 284 n.8 (1980), where states do not have the power to immunize state officials for violation of federal law. There is also the exception, for "willful or wanton misconduct", which is more difficult to prove. From the order and opinion, p. 11:
[c]onduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 or § 1985 cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise, and the supremacy clause of the Constitution insures that the proper construction may be enforced. See McLaughlin v. Tilendis, 398 F.2d 287, 290 (7th Cir. 1968). The immunity claim raises a question of federal law.
Because Judge Joe Billy McDade has refused to dismiss the case, it may now go forward with discovery. As nearly all the facts claimed by the plaintiffs should be a matter of public record, Mr. Kuhlman has a good chance of prevailing. It helps to have a skilled attorney, such as David Sigale, who has considerable experience and success in Second Amendment lawsuits.
Analysis: The Second Amendment is now well established as protecting fundamental civil rights in the United States. Expect more lawsuits to be brought to bear alleging violation of civil rights under color of law.
©2024 by Dean Weingarten: Permission to share is granted when this notice and link are included.
Gun Watch
No comments:
Post a Comment
Spammers: You are wasting your time. Irrelevant comments will not be published