Wilson v. Cook County , 407 Ill. App. 3d 759 ( 2011 )

THIRD DIVISION
February 9, 2011
No. 1-08-1202
MATTHEW D. WILSON, TROY EDHLUND, ) Appeal from the Circuit Court
and JOSEPH MESSINEO, ) of Cook County, Illinois.
)
Plaintiffs-Appellants, )
)
v. ) No. 07 CH 4848
)
COOK COUNTY, a Public Body and Corporate, ) Honorable Mary K. Rochford,
TODD STROGER, Board President, in His Official ) Judge Presiding.
Capacity, and its Board of Commissioners in Their )
Official Capacities, namely: EARLEAN COLLINS, )
ROBERT STEELE, JERRY BUTLER, WILLIAM )
M. BEAVERS, DEBORAH SIMS, JOAN )
PATRICIA MURPHY, JOSEPH MARIO )
MORENO, ROBERT MALDONADO, PETER N. )
SILVESTRI, MIKE QUIGLEY, JOHN P. )
DALEY, FOREST CLAYPOOL, LARRY )
SUFFREDIN, GREGG GOSLIN, TIMOTHY O. )
SCHNEIDER, ANTHONY J. PERAICA, )
ELIZABETH ANN DOODY GORMAN, and )
THOMAS DART, Sheriff of Cook County, in his )
Official Capacity, )
)
Defendants-Appellees. )
JUSTICE MURPHY delivered the judgment of the court, with opinion.
Presiding Justice Quinn and Justice Neville concurred in the judgment and opinion.
This appeal arises from the dismissal of plaintiffs’ (Matthew D. Wilson, Troy Edhlund, and
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Joseph Messineo) amended complaint seeking declaratory judgment and injunctive relief against
defendants (Cook County, the Cook County commissioners, and Cook County Sheriff Tom
Dart). Specifically, plaintiffs sought a declaration that the Blair Holt Assault Weapons Ban (Cook
County Ordinance No. 06-O-50 (Nov. 14, 2006), amending Cook County, Illinois, Code of
Ordinances §54–211 et seq. (eff. Jan. 1, 1994)) (Ordinance) was unconstitutional. On April 29,
2008, the trial court dismissed plaintiffs’ first amended complaint pursuant to section 2-615 of the
Code of Civil Procedure. 735 ILCS 5/2-615 (West 2006). The trial court found that: (1) the
Ordinance is not unconstitutionally vague or overbroad; (2) plaintiffs did not state a cause of
action for violation of the due process and equal protection clauses of the United States
Constitution; (3) the Ordinance did not violate article I, section 22, of the Illinois Constitution (Ill.
Const. 1970, art. I, §22) or the second amendment of the United States Constitution (U.S. Const.,
amend. II); and the county properly exercised its police powers in enacting the Ordinance.
Plaintiffs appealed and advanced several arguments. This court held that the United States
Supreme Court’s holding in District of Columbia v. Heller, 554 U.S.__, 128 S. Ct. 2783 (2008),
provided that the second amendment grants a right to bear arms within the home for self-defense
and limited application of the right to federal laws. Wilson v. Cook County, 394 Ill. App. 3d 534,
537-42 (2009). We held that the Heller Court did not announce that the second amendment
provides a fundamental right to bear arms and rejected plaintiffs’ argument that it must be
incorporated under the fourteenth amendment and applied to the states. Based on this finding and
Heller’s limited federal reach, we found that Illinois precedent on this issue stood and affirmed the
dismissal of plaintiffs’ complaint as the individual right to bear arms remained subject to the police
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power. Wilson, 394 Ill. App. 3d at 542-44. We also found that, without an announced standard
of strict scrutiny review, the trial court properly denied plaintiff’s argument the Ordinance was
vague and overly broad - a doctrine not considered out of the first amendment context by Illinois
courts. Wilson, 394 Ill. App. 3d at 544-46. Finally, denial of plaintiff’s equal protection and
waiver claims was affirmed for plaintiff’s failure to sufficiently plead facts in support. Wilson, 394
Ill. App. 3d 546-47.
Following denial of plaintiff’s petition for rehearing, this court corrected its opinion and
plaintiff filed a petition for leave to appeal before our supreme court. While that petition was
pending, the United States Supreme Court issued McDonald v. City of Chicago, __ U.S. __, 130
S. Ct. 3020 (2010). Our supreme court entered a supervisory order directing this court to vacate
our prior holding and reconsider the judgment in light of McDonald. Wilson v. Cook County, 237
Ill. 2d 593 (2010). That judgment was vacated. Both parties provided supplemental briefs. For
the following reasons, we affirm the trial court’s dismissal of the remaining counts in plaintiffs’
complaint.
I. BACKGROUND
The Ordinance was originally enacted in 1993 by the Cook County Board of
Commissioners (Commissioners) as the Cook County Deadly Weapons Dealer Control Ordinance
to ban certain assault weapons and assault ammunition. Cook County Ordinance No. 93-O-37
(eff. Jan. 1, 1994). In the prefatory clauses, the Commissioners cited to the public health, safety,
and welfare concerns caused by both assault weapons and guns in general. The Ordinance set
forth several supporting facts, including: 1,000 of the 4,500 trauma cases handled by Cook
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County Hospital that year were due to gunshot wounds; there were more federally licensed gun
dealers in Cook County than gas stations; an estimated 1 in 20 high school students had carried a
gun in the prior month; and assault weapons are 20 times more likely to be used in the
commission of a crime than other kinds of weapons. In addition, the Commissioners stated that
there was no legitimate sporting purpose for the military-style assault weapons used on the
streets.
Prior to its effective date, the Ordinance was amended to remove the prohibitions on the
sale, transfer, acquisition, or possession of assault ammunition. Cook County Ordinance No. 93-
O-46 (amended Nov. 16, 1993). The Ordinance prohibited the sale, transfer, acquisition,
ownership, or possession of assault weapons, defined as 1 of a list of 60 types or models of high
capacity, rapid-fire rifles or pistols. The Ordinance required any owners of the defined assault
weapons to remove them from Cook County, modify them, or surrender them to the Cook
County sheriff within 14 days of the enactment. Failure to comply with the Ordinance would
result in a criminal penalty including a fine and possible imprisonment.
The Ordinance was amended again in 1999 to modify sections not at issue in this appeal;
however, additional prefatory language was included to support the ban as necessary to protect
the public welfare by reducing violent crime and the huge costs associated with those crimes. The
Commissioners indicated that the revisions were based not only on the prolific black-market sales
of weapons, but those by licensed dealers. The Commissioners cited undercover investigations
and studies conducted by Cook County, the City of Chicago, the Cook County State’s Attorney’s
office, and the Bureau of Alcohol, Tobacco and Firearms, which indicated that weapons utilized
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in the commission of crimes are traced to licensed gun dealerships. Cook County Ordinance No.
99-O-27 (amended November 23, 1999).
On November 14, 2006, the Ordinance was amended to apply to both assault weapons
and large capacity magazines and expand the list of banned weapons and definition of those
weapons. In addition, the time period for removal, surrender, or rendering inoperable was
expanded from 14 to 90 days. Cook County Ordinance No. 06-O-50 (amended Nov. 14, 2006).
The Ordinance was also amended in 2007 to change the name to the Blair Holt Assault Weapons
Ban. Cook County Ordinance No. 07-O-36 (adopted June 19, 2007).
As for the specific provisions, section 54-211 of the Ordinance provides these definitions,
followed by a nonexhaustive list of specifically banned weapons:
“Assault weapon means:
(1) A semiautomatic rifle that has the capacity to accept a large capacity
magazine detachable or otherwise and one or more of the following:
(A) Only a pistol grip without a stock attached;
(B) Any feature capable of functioning as a protruding grip that
can be held by the non-trigger hand;
(C) A folding, telescoping or thumbhole stock;
(D) A shroud attached to the barrel, or that partially or completely
encircles the barrel, allowing the bearer to hold the firearm with the non-
trigger hand without being burned, but excluding a slide that encloses the
barrel; or
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(E) A muzzle brake or muzzle compensator;
(2) A semiautomatic pistol or any semi-automatic rifle that has a fixed
magazine, that has the capacity to accept more than ten rounds of ammunition;
(3) A semiautomatic pistol that has the capacity to accept a detachable
magazine and has one or more of the following:
(A) Any feature capable of functioning as a protruding grip that
can be held by the non-trigger hand;
(B) A folding, telescoping or thumbhole stock;
(C) A shroud attached to the barrel, or that partially or completely
encircles the barrel, allowing the bearer to hold the firearm with the non-
trigger hand without being burned, but excluding a slide that encloses the
barrel;
(D) A muzzle brake or muzzle compensator; or
(E) The capacity to accept a detachable magazine at some location
outside of the pistol grip.
(4) A semiautomatic shotgun that has one or more of the following:
(A) Only a pistol grip without a stock attached;
(B) Any feature capable of functioning as a protruding grip that can
be held by the non-trigger hand;
(C) A folding, telescoping or thumbhole stock;
(D) A fixed magazine capacity in excess of five rounds; or
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(E) An ability to accept a detachable magazine;
(5) Any shotgun with a revolving cylinder.
(6) Conversion kit, part or combination of parts, from which an assault
weapon can be assembled if those parts are in the possession or under the control
of the same person.” Cook County, Illinois, Code of Ordinances §54–211
(amended Nov. 14, 2006).
The Ordinance specifically excludes “any firearm that has been made permanently inoperable ***
‘antique firearm[s]’ *** or weapons designed for Olympic target shooting events.” Cook County,
Illinois, Code of Ordinances §54–211 (amended Nov. 14, 2006). In addition, section 54-211
provides further detailed definitions:
“Detachable magazine means any ammunition feeding device, the function
of which is to deliver one or more ammunition cartridges into the firing chamber,
which can be removed from the firearm without the use of any tool, including a
bullet or ammunition cartridge.
Large capacity magazine means any ammunition feeding device with the
capacity to accept more than ten rounds, but shall not be construed to include the
following:
(1) A feeding device that has been permanently altered so that it
cannot accommodate more than ten rounds.
(2) A 22 caliber tube ammunition feeding device.
(3) A tubular magazine that is contained in a lever-action firearm.
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Muzzle brake means a device attached to the muzzle of a weapon that
utilizes escaping gas to reduce recoil.
Muzzle compensator means a device attached to the muzzle of a weapon
that utilizes escaping gas to control muzzle movement.” Cook County, Illinois,
Code of Ordinances §54–211 (amended Nov. 14, 2006).
Plaintiffs filed the instant cause of action as law-abiding residents of Cook County. Each
plaintiff indicated that he had never been convicted of a crime, had a properly issued firearm
owner’s identification card, and had legally purchased guns that were subject to the Ordinance’s
ban. Plaintiffs indicated the guns were owned as part of collections, for self-defense, or for
recreational purposes. This appeal followed the trial court’s dismissal of plaintiffs’ complaint
pursuant to section 2-615 of the Code of Civil Procedure.
II. ANALYSIS
A motion to dismiss under section 2-615 of the Code of Civil Procedure challenges the
legal sufficiency of a complaint based on facial defects of the complaint. Borowiec v. Gateway
2000, Inc., 209 Ill. 2d 376, 413 (2004). This court conducts a de novo review of a trial court’s
ruling on the sufficiency of a motion to dismiss. U.S. Bank National Ass’n v. Clark, 216 Ill. 2d
334, 342 (2005). While allegations in the complaint are viewed in a light most favorable to the
plaintiff, the decision to dismiss a case may be affirmed on any basis contained in the record.
Gallagher Corp. v. Russ, 309 Ill. App. 3d 192, 196 (1999). As noted above, plaintiffs’ claims
that the Ordinance violated the equal protection clause and failed to provide a scienter
requirement were previously rejected by this court based on plaintiffs’ pleadings and are not
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affected by the ruling in McDonald. Therefore, we begin with a discussion of the holdings in
Heller and McDonald prior to addressing plaintiffs’ surviving arguments in turn.
A. District of Columbia v. Heller and McDonald v. City of Chicago
The second amendment provides: “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
U.S. Const., amend. II. In Heller, the Supreme Court considered the District of Columbia’s
handgun ban that “totally bans handgun possession in the home.” Heller, 554 U.S. at__, 128 S.
Ct. at 2817. The ban required that any lawful firearm in the home be either dissembled or
rendered inoperable by a trigger lock. Heller, 554 U.S. at__, 128 S. Ct. at 2817. Both the
majority and the dissent embarked on extensive reviews of the history and meaning of the second
amendment in coming to opposite conclusions regarding the original meaning and understanding
of the amendment.
For our purposes, we are not concerned with the majority’s use of plain meaning
originalism or the basis of the dissent’s position. Only the conclusions of the majority are
important. First, the majority found that the original understanding of the amendment was
grounded in the belief that the right to bear arms ensured not only that a militia could easily be
formed if needed, but inherently that it provided protection from tyranny. Heller, 554 U.S. at__,
128 S. Ct. at 2801-02. The majority concluded that it was also popularly understood as an
individual right to self-defense- -unconnected to militia service- -particularly for the defense of
one’s home and hearth. Heller, 554 U.S. at__, 128 S. Ct. at 2802-12.
Looking to precedents covering the second amendment, the Court concluded that its
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holding that an individual right to self-defense was not foreclosed by its earlier holdings in United
States v. Cruikshank, 92 U.S. 542 (1875), Presser v. Illinois, 116 U.S. 252 (1886), and Miller v.
Texas, 153 U.S. 535 (1894). As in those cases, the Court did not examine the meaning or scope
of the second amendment. Heller, 554 U.S. at__, 128 S. Ct. at 2812-13. The Heller majority
held that the second amendment provides the individual right to bear arms typically possessed by
law-abiding citizens for lawful purposes, such as self-defense in the home. Heller, 554 U.S. at__,
__, 128 S. Ct. at 2801-02, 2815-16. The court concluded that the ban at issue amounted to a
prohibition of an entire class of arms that was “overwhelmingly” accepted and properly utilized
for self-defense in the home by the general population. Heller, 554 U.S. at__, 128 S. Ct. at 2821-
22. As such, the District of Columbia’s ban on handgun possession in the home, as well as its
requirement that any lawful firearm be rendered inoperable while in the home, was found to be
unconstitutional. Heller, 554 U.S. at__, 128 S. Ct. at 2817-22.
It is important to note that the Court explicitly acknowledged and stated that this was its
first in-depth analysis of the second amendment and that “one should not expect it to clarify the
entire field.” Heller, 554 U.S. at__, 128 S. Ct. at 2821. Along those lines, the opinion allowed
that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by [a nonexhaustive list of categories such as] felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places such as schools and government
buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Heller,
554 U.S. at__, 128 S. Ct. at 2816-17. These types of measures were further identified as
“presumptively lawful regulatory measures.” Heller, 554 U.S. at__ n.26, 128 S. Ct. at 2817 n.26.
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The Supreme Court recently considered its holding in Heller when it issued its decision in
McDonald. In McDonald, a plurality of the Court followed Heller in holding that the right to
possess a handgun in the home for the purpose of self-defense is protected by the second
amendment as a fundamental right. As foreshadowed by Heller, the McDonald Court found that
the right was applicable to the states under the due process clause of the fourteenth amendment.
McDonald, __ U.S. __, 130 S. Ct. at 3050. Therefore, the Supreme Court struck down
ordinances from the City of Chicago and City of Oak Park, Illinois. The ordinances prohibited
any person within the city to possess any handgun unless the handgun had been registered by the
owner. For Chicago, the handgun had to be registered with the city prior to March 30, 1982, and
the handgun had to have trigger lock and load indicator devices. The McDonald Court focused
on the incorporation issue, refusing to expand the Heller Court’s interpretation and leaving
unclear the appropriate standard of review to follow for reviewing restrictions of the second
amendment right.
B. The Standard of Review
Several federal district courts and courts of appeal have addressed the proper standard of
review to apply to legal prohibitions which might violate a citizen’s rights under the second
amendment. In United States v. Chester, No. 09-4084, (4th Cir. Dec. 30, 2010), the Fourth
Circuit Court of Appeals considered a federal statute prohibiting persons convicted of a
misdemeanor crime of domestic violence from possessing firearms. 18 U.S.C. §922(g)(9) (2006).
In upholding the ban, the Chester court held:
“Thus, a two-part approach to Second Amendment claims seems
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appropriate under Heller, as explained by the Third Circuit Court of Appeals,
[United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010)] ***. The first
question is ‘whether the challenged law imposes a burden on conduct falling within
the scope of the Second Amendment’s guarantee.’ Id. This historical inquiry
seeks to determine whether the conduct at issue was understood to be within the
scope of the right at the time of ratification. See Heller, 128 S. Ct. at 2816. If it
was not, then the challenged law is valid. See Marzzarella, 614 F.3d at 89. If the
challenged regulation burdens conduct that was within the scope of the Second
Amendment as historically understood, then we move to the second step of
applying an appropriate form of means-end scrutiny. See id. Heller left open the
issue of the standard of review, rejecting only rational-basis review. Accordingly,
unless the conduct at issue is not protected by the Second Amendment at all, the
Government bears the burden of justifying the constitutional validity of the law.”
Chester, slip op. at 11-12.
In upholding a federal statute prohibiting the possession of firearms with obliterated serial
numbers, the Marzzarella court found that the proper standard of review depended on the type of
law challenged and the extent of the restriction imposed. Marzzarella, 614 F.3d at 96-97. In
United States v. Reese, 627 F.3d 792 (10th Cir. 2010), the Tenth Circuit Court of Appeals upheld
a section of the same statute considered in Chester. In doing so, the court also extensively cited
to Marzzarella:
“In recent months, both the Third and Seventh Circuits have applied
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intermediate scrutiny to Second Amendment challenges to federal firearm laws. In
Marzzarella, the Third Circuit, citing analogous First Amendment cases,
concluded that ‘[w]hether or not strict scrutiny may apply to particular Second
Amendment challenges, it is not the case that it must be applied to all Second
Amendment challenges.’ [Marzzarella, 614 F.3d at 96.] In other words, the Third
Circuit concluded, ‘the Second Amendment can trigger more than one particular
standard of scrutiny,’ depending, at least in part, upon ‘the type of law challenged
and the type of [Second Amendment restriction] at issue.’ [Marzzarella, 614 F.3d
at 97.] The Third Circuit in turn concluded that the specific statute it was
reviewing, 18 U.S.C. § 922(k), which prohibits the possession of firearms with
obliterated serial numbers, ‘should be evaluated under intermediate scrutiny’
because ‘[t]he burden imposed by the law [did] not severely limit the possession of
firearms,’ as did ‘[t]he District of Columbia's handgun ban’ that was at issue in
Heller. Id. Turning again to analogous First Amendment cases, the Third Circuit
framed the intermediate scrutiny inquiry in this way: whether the challenged law
served a ‘significant,’ ‘substantial,’ or ‘important’ governmental interest, and, if so,
whether the ‘fit between the challenged [law] and the asserted objective [wa]s
reasonable, not perfect.’ [Citation.]” Reese, 627 F.3d at 801.
The Seventh Circuit utilized a similar test when it considered the prohibitions of 18 U.S.C.
§922(g)(9) in United States v. Skoien, 614 F.3d 638 (7th Cir. 2010). The statute prohibits any
person convicted of a misdemeanor crime of domestic violence from possessing firearms. Skoien,
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614 F.3d at 642. In applying intermediate scrutiny to its review of the law, the Skoien court took
from Heller “the message that exclusions need not mirror limits that were on the books in 1791.”
Skoien, 614 F.3d at 641. The court added that “some categorical disqualifications are
permissible: Congress is not limited to case-by-case exclusions of persons who have been shown
to be untrustworthy with weapons, nor need these limits be established by evidence presented in
court. Heller did not suggest that disqualifications would be effective only if the statute’s benefits
are first established by admissible evidence.” Skoien, 614 F.3d at 641. Noting that categorical
limits on the possession of firearms would not be a constitutional anomaly by citing categorical
limits on free speech such as obscenity and defamation, the court found that both “logic and data
establish a substantial relation between” the statute and the objective of preventing armed
mayhem. Skoien, 614 F.3d at 642. The Seventh Circuit also applied intermediate scrutiny to a
statute barring felons from firearm possession, United States v. Williams, 616 F.3d 685 (7th Cir.
2010) and to a statute barring controlled substance addicts from possessing firearms in United
States v. Yancey, 621 F.3d 681 (7th Cir. 2010).
We adopt the District of Columbia District Court’s overview provided in Heller v. District
of Columbia, 698 F. Supp. 2d 179 (D.D.C. 2010) (Heller II), where the plaintiffs’ challenged the
firearm restrictions passed by the District of Columbia council in response to Heller:
“[T]he majority of courts to have considered this issue [hold] that intermediate
scrutiny is the most appropriate standard of review to apply to the challenged laws.
This standard satisfies the Heller Court's directive that courts apply an exacting
measure of scrutiny to laws limiting the exercise of this specific, constitutionally
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enumerated right, see Heller, [554 U.S. at__ & n.27, 128 S. Ct. at 2817 & n.27],
while avoiding the inconsistencies that would arise were it to apply strict scrutiny,
see, e.g., Marzzarella, 595 F. Supp. 2d at 604. Intermediate scrutiny will come
into play, of course, only in cases in which the law implicates the core Second
Amendment right, namely, ‘the right of law-abiding, responsible citizens to use
arms in defense of hearth and home.’ [Citation.]
In sum, to assess the constitutionality of each of the challenged provisions,
the court will begin by determining whether the provision at issue implicates the
core Second Amendment right. If it does not, then the court will uphold the
regulation. If the regulation does, however, implicate the core Second
Amendment right, the court will apply intermediate scrutiny to determine whether
the measure is substantially related to an important governmental interest.” Heller
II, 698 F. Supp. 2d at 188.
C. The Scope of Protected Conduct Under Heller and McDonald
Unlike the blanket prohibitions of handguns in Heller and McDonald, the Ordinance bans
a smaller subgroup of firearms and attachments. Applying the rationales found in the
aforementioned federal cases, we first consider “whether the challenged law imposes a burden on
conduct falling within the scope of the Second Amendment’s guarantee.” Marzzarella, 614 F.3d
at 89. In doing so, we need to determine whether the conduct at issue was understood to be
within the scope of the right at the time the second amendment was ratified. Chester, slip op. at
12, citing Heller, 554 U.S. at__, 128 S. Ct. at 2816.
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Heller addressed which types of firearms may be protected by the second amendment as
follows:
“The 18th-Century meaning [of “arms”] is no different than the meaning today. ***
The term was applied, then as now, to weapons that were not specifically
designed for military use and were not employed in a military capacity. ***
*** Just as the First Amendment protects modern forms of communications, e.g.,
Reno v. American Civil Liberties Union, 521 U.S. 844, 849 (1997), and the
Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United
States, 533 U.S. 27, 35-36 (2001), the Second Amendment extends, prima facie,
to all instruments that constitute bearable arms, even those that were not in
existence at the time of the founding.” Heller, 554 U.S. at__, 128 S.Ct. at 2791-
92.
Therefore, the Heller Court “read Miller to say only that the Second Amendment does not
protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as
short-barreled shotguns.” Heller, 554 U.S. at__, 128 S. Ct. at 2815-16, citing Miller, 307 U.S.
174, 179 (1939). The Heller Court specifically mentioned that M-16 rifles and other weapons
most useful in military service may be banned. Heller, 554 U.S. at__, 128 S. Ct. at 2817.
In United States v. Fincher, 538 F.3d 868 (8th Cir. 2008), the Eighth Circuit Court of
Appeals reviewed the defendant’s conviction for possessing a machine gun and a sawed-off
shotgun, holding: “Accordingly, under Heller [, 554 U.S. at__, 128 S. Ct. at 2815-16], Fincher’s
possession of the guns is not protected by the Second Amendment. Machine guns are not in
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common use by law-abiding citizens for lawful purposes and therefore fall within the category of
dangerous and unusual weapons that the government can prohibit for individual use.” Fincher,
538 F.3d at 874.
In People v. James, 94 Cal. Rptr. 3d 576 (Cal. Ct. App. 2009), the Court of Appeal of
California considered Heller’s impact on California’s Roberti-Roos Assault Weapons Control Act
of 1989. (Cal. Penal Code §§12280(b), (c) (West 2006) (Act). Section 12276 of the Act defined
“assault weapon” in the same manner as the Ordinance - mentioning weapons by both
manufacturer and model and by type. Section 12276.1(5) included “a semiautomatic pistol with a
fixed magazine that has the capacity to accept more than 10 rounds.” Cal. Penal Code
§12276.1(5) (West 2006). In interpreting Heller, the James court held:
“Accordingly, ‘the right secured by the Second Amendment is not...a right
to keep and carry any weapon whatsoever in any manner whatsoever and for
whatever purpose.’ [Heller, 554 U.S. at__, 128 S. Ct. at 2816.] Rather, it is the
right to possess and carry weapons typically possessed by law-abiding citizens for
lawful purposes such as self defense. [Heller, 554 U.S. at__, 128 S. Ct. at 2816.]
It protects the right to possess a handgun in one’s home because handguns are a
‘class of “arms” that is overwhelmingly chosen by American society’ for the lawful
purpose of self-defense. [Heller, 554 U.S. at__, 128 S. Ct. at 2817.]” James, 94
Cal. Rptr. 3d at 585.
The court then considered that, in enacting the Act, “the Legislature was specifically
concerned with the unusual and dangerous nature of these weapons. An assault weapon ‘has such
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a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational
firearm is substantially outweighed by the danger that it can be used to kill and injure human
beings.’ *** These are not the types of weapons that are typically possessed by law-abiding
citizens for lawful purposes such as sport hunting or self-defense; rather, these are weapons of
war.” James, 94 Cal. Rptr. 3d at 585-86, quoting Cal. Penal Code §75.5(a) (West 2006). The
court continued:
“While the fully-automatic nature of a machine gun renders such a weapon
arguably more dangerous and unusual than a semiautomatic assault weapon, that
observation does not negate the fact that assault weapons, like machine guns, are
not in common use by law-abiding citizens for lawful purposes and likewise fall
within the category of dangerous and unusual weapons that the government can
prohibit for individual use.” James, 94 Cal. Rptr. 3d at 586.
Therefore, the James court concluded that the relevant portion of the Act did not prohibit
conduct protected by the second amendment as defined in Heller. James, 94 Cal. Rptr. 3d at 586.
In Heller II, the court considered the challenge to new restrictions passed by the council
of District of the Columbia in response to the holding in Heller. The laws at issue were very
similar to the Ordinance before us, as well as the statute considered in James. The Heller II
plaintiffs pursued a similar challenge to the new laws containing: (1) firearm registration
procedures; (2) a prohibition on assault weapons; and (3) a prohibition on large capacity
ammunition feeding devices. Heller II, 698 F. Supp. 2d 179. While the Heller II court upheld all
of the challenged provisions, we will review only its holding as to the prohibitions on assault
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weapons and large capacity ammunition feeding devices.
The District of Columbia law defined “large capacity ammunition feeding device” as
including magazines that have “ ‘a capacity of, or that can be readily restored or converted to
accept, more than 10 rounds of ammunition.’ ” Heller II, 698 F. Supp. 2d at 193 n.14 (quoting
D.C. Code §7-2506.01(b) (2009)). As the plaintiffs do before us, the plaintiffs in Heller II argued
that assault weapons “ ‘are not made or designed for offensive military use,’ ” “ ‘are not
disproportionately used in crime,’ ” and in fact are commonly used for lawful purposes, such as
target shooting, hunting and personal protection. Heller II, 698 F. Supp. 2d at 194. However,
the court noted that the right defined in Heller was not conferred to any type of firearm in self-
defense, but those “ ‘in common use’ ” and “ ‘typically possessed by law-abiding citizens for
lawful purposes’ ” as opposed to “dangerous and unusual weapons.” Heller II, 698 F. Supp. 2d
at 193 (quoting Heller, 554 U.S. at __, 128 S. Ct. at 2815-16). The court continued:
“The plaintiffs also analogize the ban on large capacity ammunition feeding
devices to the District's previous requirement, invalidated in Heller, that firearms
be bound by a trigger lock and unloaded at all times. Pls.’ Opp’n at 30. The
plaintiffs assert that requiring an individual to pause to reload a firearm after
discharging ten rounds of ammunition, like the invalidated trigger lock regulation,
‘makes it impossible for citizens to use [firearms] for the core lawful purpose of
self-defense and is hence unconstitutional.’ Id. (quoting Heller, 128 S. Ct. at
2818). This argument borders on the absurd. The trigger lock regulation made it
functionally impossible to exercise the right of armed self-defense by ‘rendering
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[the firearm] inoperable.’ Heller, 128 S. Ct. at 2817. The ban on large capacity
ammunition feeding devices, on the other hand, imposes a slight burden on
individuals seeking to fire more than ten rounds of ammunition by requiring them
to pause for a few seconds to reload the weapon. This plainly does not render a
firearm ‘inoperable,’ any more than the burden of having to pull the trigger
repeatedly to discharge each successive round of ammunition renders a
semiautomatic firearm ‘inoperable’ in comparison to a fully automatic machine
gun.” Heller II, 698 F. Supp. 2d at 194.
The court concluded that it would not overrule the council’s findings that “assault
weapons and large capacity ammunition feeding devices constitute weapons that are not in
common use, are not typically possessed by law-abiding citizens for lawful purposes and are
‘dangerous and unusual’ within the meaning of Heller.” Heller II, 698 F. Supp. 2d at 194.
Therefore, on this issue, the Heller II court cited the holdings in Fincher, James, and Marzzarella
and concluded that intermediate scrutiny review was unnecessary. However, it added that, as it is
“beyond dispute” that public safety is a compelling government interest, the committee report
detailing the dangers of assault weapons demonstrated a substantial fit between the ban and the
compelling goal. Heller II, 698 F. Supp. 2d at 194-95.
D. Plaintiffs’ Due Process and Overbreadth Challenges of the Ordinance
Plaintiffs’ challenges do not result from a specific conviction for possession of a certain
firearm as in Fincher and James. Nor are plaintiffs’ challenges the same as in Heller or
McDonald where a categorical ban of all handguns was overturned. Plaintiffs argue that the term
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“assault weapon” is a relatively recent pejorative term created by legislators in efforts to demonize
guns and gun owners. They assert that the Ordinance improperly implicates commonly used
handguns and it is therefore violative of the protections of the second amendment as defined in
Heller and McDonald under either strict or intermediate scrutiny. As such, plaintiffs argue that
the Ordinance violates the second amendment, is overbroad and violates their due process rights
as vague and undefined.
Protection of the public from the brutality and expense that can occur from the
proliferation of assault weaponry is the stated purpose of the Ordinance as laid out in its prefatory
statements. As addressed above, courts from Heller down have made clear the obvious harm
certain weaponry and citizens may cause and restricting some categories is not only an important
governmental objective, but may be presumptively valid. We follow these holdings and consider
whether the scope of the right announced in Heller reaches the Ordinance’s restrictions such that
they are an improper ban of protected firearms which are not substantially related to an important
government interest.
Plaintiffs contend that the Ordinance is not narrowly tailored or substantially related to the
stated goal. They cite to studies that note the minimal use of assault weapons in gun crimes as
well as how many of the defined guns and gun attributes that are banned under the ordinance are
not the type of advanced weaponry utilized by the military. Plaintiffs conclude that many of the
banned guns are commonly owned and utilized in homes as part of the deeply rooted history of
our country for the fundamental right of self-defense that is fundamental to our scheme of ordered
liberty.
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Plaintiffs also argue that the Ordinance is so vague and overbroad that it must be stricken
generally under the overbreadth doctrine. Plaintiffs contend that no evidence was provided to
support defendants’ claim that firearms for hunting, recreational use and protection were allowed.
Conversely, plaintiffs argue that their pleadings fully demonstrated that commonly used firearms
were banned and that the Ordinance violates due process due to being unconstitutionally vague as
arbitrary, and capricious in its content and enforcement. Kolender v. Lawson, 461 U.S. 352, 358
(1983).
Plaintiffs argue that the ordinance is void on its face. As our supreme court has explained,
“a statute is normally not unconstitutional on its face unless it provides no standard of conduct at
all, i.e., the ambiguity is so pervasive that it is incapable of any valid application. [Citation.]
Facial challenges to legislation are generally disfavored.” City of Chicago v. Pooh Bah
Enterprises, Inc., 224 Ill. 2d 390, 442 (2006). However, plaintiffs assert that the Ordinance may
be found impermissibly vague, even if it does not reach protected conduct, if it does not establish
sufficient enforcement standards. Kolender, 461 U.S. at 358. Plaintiffs claim that they
established before the trial court that the list of banned firearms and other definitions are vague
and, as a result, they cannot determine whether certain firearms are banned. They contend that
the inclusion of “copies” or “duplicates” does not provide any clarity or eliminate the vagueness
of the Ordinance, but adds to the confusion as to what firearms are actually banned. Plaintiffs
also argue that the Ordinance lacks guidelines for enforcement.
The Ordinance is similar to those that withstood challenges in Heller II and James. The
Heller Court and subsequent interpretations of that decision made clear that the second
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amendment in no way provides protections from restrictions on uncommon or unusually
dangerous weapons. As found in James, Heller II, and Fincher, the second amendment right
does not extend to assault weapons. Whether or not this is a recently manufactured pejorative
term, the Ordinance withstands challenge as long as it is sufficiently tailored like the restrictions in
these cases.
As detailed above, the Ordinance is not a blanket prohibition on common handguns as that
before the Heller and McDonald courts. Rather, the Ordinance is a ban on a subcategory of
weapons that advance beyond ordinary handguns utilized for self-defense in an attempt to reduce
the rate and intensity of crimes and associated costs. The James and Heller II courts reviewed
bans on nearly identical weapons as in the Ordinance, and the legislative findings in James and
Heller II mirror those cited in the Ordinance. In the instant case, the trial court reviewed and
detailed the Ordinance’s specific list of weapons and detailed definitions of what constitutes an
assault weapon in its extensive 14-page order.
The aforementioned definitions and examples constitute objective criteria for enforcement.
We agree with the trial court that the terms “copies” and “duplicates” in the Ordinance are not
vague, but have plain and ordinary meanings. These weapons, or attributes of weaponry, advance
beyond the common handgun, rifle, or shotgun, and are substantially related to the purpose of the
Ordinance. The fundamental right to firearm ownership for self-defense purposes in the home is
subject to “important” limitations, such as the “historical tradition of prohibiting the carrying of
‘dangerous and unusual weapons.’ ” Heller, 554 U.S. at__, 128 S. Ct. at 2817. As in James and
Heller II, the restrictions of the Ordinance are fairly supported by this historical tradition and
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allow for continued protected use of common firearms and do not violate plaintiffs’ constitutional
rights.
As for plaintiffs’ other claims, the overbreadth doctrine was judicially created as an
extraordinary tool to protect first amendment rights from the chilling effect of an overbroad
statute. City of Chicago v. Pooh Bah Enterprises, Inc., 224 Ill. 2d 390, 436 (2006). Under this
doctrine, the challenger to a statute has the burden of proving that substantial overbreadth exists
based on the text of that particular law and facts as well as proving that a substantial amount of
protected conduct is impacted. Pooh Bah, 224 Ill. 2d at 437, 442. However, as defendants
argue, even if plaintiffs could prove this, Illinois courts have not recognized this doctrine outside
of the first amendment context. People v. Greco, 204 Ill. 2d 400, 407 (2003).
We will not extend this doctrine in the instant matter. Further, plaintiffs’ assertion that it
should be applied in this case in light of Heller also fails. As described above, Heller did not
pronounce the second amendment right as fundamental for any and all weaponry. As discussed,
the Ordinance properly limits its restriction to delineated arms that are rapid-firing or high-
capacity. Accordingly, plaintiffs’ overbreadth argument fails.
The trial court properly reviewed the language of the Ordinance and found it sufficiently
tailored to not be considered impermissibly vague to violate due process. Furthermore, the
important consideration on a vagueness review is whether the Ordinance provided specific
standards such that a person of ordinary intelligence could understand the prohibitions and it
could be properly enforced. Defendants admit that the Ordinance is broadly drawn, and it is, but
that does not make it impermissibly vague. The trial court properly found that plaintiffs did not
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state a cause of action based on the plain meaning and adequate detail provided in the Ordinance.
The Ordinance is sufficiently detailed and substantially related to an important government
objective.
E. Equal Protection Claim
Plaintiffs next contend that the Ordinance violates the equal protection clause of the
fourteenth amendment. Plaintiffs argue that the Ordinance treats similarly situated persons
differently based on the type of firearms owned. Plaintiffs conclude that, because the second
amendment right is a fundamental right, examination of the claim that disparate treatment of
similarly situated persons requires more than the rational basis analysis utilized by the trial court.
However, plaintiffs’ argument here is insufficient to require such review. Citing
Nordlinger v. Hahn, 505 U.S. 1, 10 (1992), the trial court noted that not all classifications are
barred by the equal protection clause. Rather, the equal protection clause “simply keeps
governmental decision[-]makers from treating differently persons who are in all relevant respects
alike.” Nordlinger, 505 U.S. at 10. Suspect classifications include race, national origin, sex and
illegitimacy. People v. Botruff, 212 Ill. 2d 166, 176-77 (2004). Assault weapons owners do not
comprise a suspect classification. While a fundamental right to possess handguns in the home for
the purposes of self-defense has been announced, the Ordinance provides a nonexhaustive list of
weapons and the copies or duplicates of those weapons that are banned. Importantly, the
Ordinance also provides further specific guidelines and attributes to determine what types of
weapons are covered. Plaintiffs failed to allege any facts that two owners of similar firearms
would be treated differently under the Ordinance, the trial court properly dismissed plaintiffs’
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equal protection claim.
F. Waiver
Finally, the trial court also considered in detail plaintiffs’ argument that the Ordinance
failed to provide a scienter requirement and whether the Ordinance violates article I, section 22,
of the Illinois Constitution. Defendants argue that plaintiffs forfeited these arguments on appeal
for failing to raise the issues under Rule 341(h)(7). Ill. S. Ct. R. 341(h)(7) (eff. Sept. 1, 2006).
Plaintiffs respond that they appealed the entire dismissal order, the trial court discussed the
scienter issue extensively for four pages and they fully argued the Illinois Constitution before the
trial court. Plaintiffs claim that they “clearly addressed” these issues by arguing that Kalodimos
was overruled, citing to the Illinois Constitution in the appendix to their brief, and asserting the
trial court misconstrued their arguments on the scienter issue.
Plaintiffs do not raise these issues on their own merits or provide authority to support their
arguments. We will not conduct research or provide arguments for parties. Failure to establish
the facts and authority for an argument supports a finding that an issue is waived under Rule 341.
Feret v. Schillerstrom, 363 Ill. App. 3d 534, 541 (2006). Plaintiffs’ only mention of our
constitution is with respect to the argument involving Kalodimos. Likewise, plaintiffs’ only
mention of this issue is limited at best. In one sentence on page 14 of their brief, they claim that
the trial court “clearly misconstrued Plaintiffs[’] arguments regarding Staples v. U.S., 511 U.S.
600 (1993), as it distinguished U.S. v. Freed, 401 U.S. 601 (1971),” followed by citation to the
amended complaint and court order in the record. No discussion of the issue or these cases or
any analysis to support the contention that the court erred is provided. Plaintiffs’ one-sentence
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statement is inadequate, and their failure to provide support or analysis of these issues constitutes
waiver pursuant to the rules of our court.
III. CONCLUSION
For the foregoing reasons, the order of the trial court is affirmed.
Affirmed.
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Plea se Use REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT
Following
(Front Sheet to be Attached to Each Case)
Form:
Complete MATTHEW D. WILSON, TROY EDHLUND, and JOSEPH MESSINEO,
TITLE Plaintiffs-
of Case Appellants,
v.
COOK COUNTY, a public body and corporate, TODD STROGER, Board
President, in his official capacity, and its Board of Commissioners in their official
capacities, namely: EARLEAN COLLINS, ROBERT STEELE, JERRY BUTLER,
WILLIAM M. BEAVERS, DEBORAH SIMS, JOAN PATRICIA MURPHY,
JOSEPH MARIO MORENO, ROBERT MALDONADO, PETER N. SILVESTRI,
MIKE QUIGLEY, JOHN P. DALEY, FOREST CLAYPOOL, LARRY
SUFFREDIN, GREGG GOSLIN, TIMOTHY O. SCHNEIDER, ANTHONY J.
Docket No.
PERAICA, ELIZABETH ANN DOODY GORMAN, and THOMAS DART, Sheriff
of Cook County, in his official capacity,
COURT Defendants-
Appellees.
Opinion Nos. 1-08-1202
Filed Appellate Court of Illinois
First District, THIRD Division
JUSTICES February 9, 2011
(Give month, day and year)
PRESIDING JUSTICE MURPHY delivered the opinion of the court:
Quinn, Presiding Justice and Neville, J., concur
APPEAL from
the Circuit Ct. of [s]
Cook County,
Criminal Div.
Lower Court and Trial Judge(s) in form indicated in the margin:
For
APPELLANTS, The Honorable Mary K. Rochford , Judge Presiding.
John Doe, of
Chicago.
Indicate if attorney represents APPELLANTS or APPELLEES and include
attorneys of counsel. Indicate the word NONE if not represented.
Attorneys for Plaintiffs-Appellants: Victor D. Quilici
(Co-counsel) P.O. Box 428, River Grove, IL 60171
Phone: (847) 298-2566
Eric Swanson Edward Ronkowski
71 N. Ottawa St., Joliet, IL 60432 20821 Briarwood Lane, Mokena, IL 60448
Phone: (815) 723-1716 Phone: (708) 479-4417
For
APPELLEES,
Smith and Smith Patrick Cummings, Ciardelli & Cummings Of counsel: Stephen P. Hallbrook
of Chicago, 19 W. Jackson, 3rd Floor, Chicago, IL 3925 Chain Bridge Rd., Suite 403
Joseph Brown,
(of Counsel)
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No. 1-08-1202
Phone: (312) 346-2522 Fairfax, VA 22030 - Phone: (703)
352-7276
Attorneys for Defendants-Appellees: Anita Alvarez, State’s Attorney of Cook County
Of counsel: Patrick T. Driscoll, Jr., Deputy State’s
Attorney
Paula A. Castiglione, Marilyn Fusco Schlesinger
Asst. State’s Attorneys
500 Richard J. Daley Center, Chicago, IL 60602
Phone: (312) 603-3362
-29-