Matthew F. Kennelly
Matthew F. Kennelly

A federal judge dismissed an Army officer’s lawsuit challenging the constitutionality of an Illinois law that allows police and relatives to seek emergency orders barring certain people from possessing firearms.

In a written opinion last week, U.S. District Judge Matthew F. Kennelly did not rule on the merits of Charles Gudbrandsen’s argument that the Firearms Restraining Order Act violates the Second Amendment.

Instead, Kennelly held Gudbrandsen lacks standing under Article III of the U.S. Constitution to pursue his suit.

The act allows law enforcement officials and family members to petition for emergency restraining orders against people who constitute “an immediate and present danger of causing personal injury” to themselves or others.

Judges who grant such petitions must issue restraining orders barring the named individuals from possessing firearms and requiring them to turn over their Firearm Owners’ Identification Cards or concealed carry licenses.

The act also requires Illinois courts to recognize similar restraining orders issued in other jurisdictions if those orders are filed with the court clerk.

The act went into effect Jan. 1.

About 10 days before that, Gudbrandsen filed a suit in federal court contending the ex parte procedure for seeking orders and the recognition of out-of-state orders leave him vulnerable to being falsely labeled as psychologically unstable or violent.

If proceedings under the act are initiated against him, he could lose his security clearance and his job as an Army officer, Gudbrandsen contended.

The state of Illinois was the only defendant named in the initial complaint.

After the state argued it was protected by sovereign immunity, Gudbrandsen filed an amended complaint.

He dropped the state from the case and named as defendants the Sycamore Police Department and DeKalb County Sheriff Roger A. Scott in his official capacity.

Gudbrandsen lives in Sycamore, the county seat of DeKalb County.

The state intervened in the case in June to defend the constitutionality of the Firearms Restraining Order Act.

The case initially was assigned to U.S. District Judge Frederick J. Kapala. It was reassigned to Kennelly in May following Kapala’s retirement.

In his opinion Friday, Kennelly wrote a federal court may exercise jurisdiction over a case only if the plaintiff has standing.

Plaintiffs have standing if they allege “an injury in fact that is traceable to the defendant’s conduct and redressable by a favorable judicial decision,” Kennelly wrote, quoting Carello v. Aurora Policemen Credit Union, 930 F.3d 830 (7th Cir. 2019).

However, he wrote, Gudbrandsen does not allege an injury in fact.

The act has never been enforced against Gudbrandsen, Kennelly wrote.

And quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014), he wrote Gudbrandsen does not allege the existence of circumstances “that render the threatened enforcement sufficiently imminent.”

To make such a showing, a plaintiff must allege that he or she intends to engage in conduct “arguably affected with a constitutional interest, but proscribed by a statute” and that there is “a credible threat of prosecution” under the statute, Kennelly wrote, quoting Susan B. Anthony List.

Gudbrandsen does not allege he intends to pose a danger to himself or others, Kennelly wrote.

He wrote Gudbrandsen also does not allege he intends to engage in conduct that would lead someone to believe he is dangerous.

“Rather, he appears to contend that he will be falsely or mistakenly accused but does not allege any facts suggesting that this fear has any basis in reality,” Kennelly wrote.

He wrote the act helps protect against malicious or intentionally false accusations by providing that anyone who lies in seeking a restraining order is guilty of perjury.

The limited number of people who may seek a restraining order also reduces the possibility that an individual will be unfairly targeted, Kennelly wrote.

And he rejected the contention that Gudbrandsen has already suffered an injury in fact because he has been forced to avoid any conduct that could be misinterpreted.

“Gunderson has not identified any specific conduct from which he has had to refrain,” Kennelly wrote.

The case is Charles Gudbrandsen v. Roger A. Scott, et al., No. 18 C 50411.

Gudbrandsen, who represents himself in the case, thanked Kennelly for taking on the case.

“Managing a caseload and then having this case, along with several more, to manage after Judge Kapala retired undoubtedly has been quite a task,” Gudbrandsen said in an email.

“In light of that, I truly appreciate the due diligence and effort put forth in handling this matter.”

DeKalb County Assistant State’s Attorney David J. Berault, chief of the civil bureau, represents Scott.

“Plaintiff simply had no standing to bring this case against the DeKalb County sheriff,” Berault said in an email. “The lawsuit was essentially hypotheticals and supposition strung together to attempt creating a controversy and standing.”

Berault said Gudbrandsen made no allegations that officials or family members were planning to seek a restraining order against him.

And, as far as he knows, the act has not been enforced against any DeKalb County citizen, Berault said.

“As such,” he said, “this was not the proper plaintiff, defendants or fact pattern for such a test case to be brought.”

Jessica A. Harrill of Foster, Buick, Conklin & Lundgren LLC in Sycamore, who represents the police department, said the city is pleased with the ruling.

Erin Walsh of the Illinois Attorney General’s Office represents the state of Illinois.

A spokesperson for the attorney general’s office could not be reached for comment.

The case is Charles Gudbrandsen v. Roger A. Scott, et al., No. 18 C 50411.