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 hand-‐‑
drawn 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 con-‐‑
clude that the licensee’s “mental condition is of such a na-‐‑
ture 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 hap-‐‑
pened. 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 charac-‐‑
ter 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. Coun-‐‑
sel 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 (Hi-‐‑
ram 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 opin-‐‑
ion 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) at-‐‑
tached a memorandum detailing the reason for the summary
revocation and the status of the investigation on Rhein’s re-‐‑
quest 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, con-‐‑
tending 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 on-‐‑
ly 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 responsi-‐‑
ble 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 prosecu-‐‑
tor 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 Consti-‐‑
tution 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 provi-‐‑
sions 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 com-‐‑
ing from a person represented by counsel in the administra-‐‑
tive process. Rhein’s lawyer could have found §1230.70 and
used the procedures it affords.
Another possibility is that Coffman prevented the Direc-‐‑
tor 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 de-‐‑
manding 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 rec-‐‑
ommended that Rhein submit three character references and
a psychologist’s report. A reputable psychologist or psychia-‐‑
trist 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 immedi-‐‑
ate 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 Febru-‐‑
ary 2011 that his threats to kill DeLuca had been meant only
“to get people’s attention.” 118 F. Supp. 3d at 1098. But nei-‐‑
ther the Second Amendment nor the Due Process Clause re-‐‑
quires 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 eve-‐‑
ry 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 Su-‐‑
preme 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 Amend-‐‑
ment 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 custo-‐‑
dy. 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 crim-‐‑
inal prosecution. As far as we can see, courts have not estab-‐‑
lished time limits for holding hearings and making decisions
on motions to return firearms. We need not resolve the tim-‐‑
ing question in this case either.
AFFIRMED