Calderone v. City of Chi., 19-2858
| Decision Date | 05 November 2020 |
| Docket Number | No. 19-2858,19-2858 |
| Citation | 979 F.3d 1156 |
| Parties | Keli CALDERONE, Plaintiff-Appellant, v. CITY OF CHICAGO, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Cass T. Casper, Attorney, Disparti Law Group, P.A., Chicago, IL, for Plaintiff - Appellant.
Elizabeth Tisher, Attorney, City of Chicago Law Department, Chicago, IL, for Defendants-Appellees.
Before Flaum, Rovner, and Wood, Circuit Judges.
Caught in a fit of road rage, Keli Calderone shot another driver with her handgun. An Illinois grand jury subsequently indicted her for attempted murder. Calderone's employer—the City of Chicago ("the City")—administratively charged her for violating its personnel rules. At her later criminal bench trial, Calderone argued self-defense; an Illinois judge agreed and acquitted her. Soon thereafter, the City reinstated Calderone.
Calderone then sued the City and her supervisors in federal court, claiming, among other things, that the City fired her in retaliation for her exercise of her Second Amendment rights. The City moved to dismiss the claims, arguing that Calderone's conduct was not within the scope of activity protected by the Second Amendment. The district court granted the motion, reasoning that even if Calderone does have a constitutional right to discharge her firearm in self-defense, qualified immunity shielded her supervisors from suit because caselaw has not clearly established that right. We affirm the district court on the sole ground that Calderone's supervisors are entitled to qualified immunity.
Keli Calderone is a police communications operator at the City of Chicago's Office of Emergency Management and Communications ("OEMC"). On July 19, 2017, Calderone was off duty and out driving her car. While idling alongside Calderone at a red light, motorist Selene Garcia threw a drink into Calderone's vehicle and then pulled to the side of the road. Calderone followed Garcia and stopped right behind Garcia's car.
Both Calderone and Garcia exited their cars and argued. After a minute or so, Garcia returned to her vehicle and tried to drive away. Calderone, however, stood in front of Garcia's car, thus barring any exit. When Garcia attempted to drive around Calderone, Calderone moved to stop her. Garcia again got out of her vehicle. She pushed Calderone several times, eventually grabbing Calderone by the hair and throwing her to the ground. Calderone then shot Garcia with her handgun, which she was legally permitted to carry on her person.
Police officers subsequently arrived on the scene, where they arrested Calderone. As for Garcia, the bullet lacerated several of her vital organs, including her heart. Doctors later removed portions of Garcia's liver, pancreas, and gallbladder, as well as one kidney. Garcia was hospitalized for several months because of those injuries. The bullet remains lodged near Garcia's spine because it is too dangerous to remove.
An Illinois grand jury indicted Calderone for attempted murder in August 2017. Following the initiation of Calderone's criminal case, the City administratively charged her with violation of Personnel Rule XVIII, Section 1, Subsections 15, 23, and 50:
Calderone's principal response to the charges was that the shooting constituted "self-defense with a lawful firearm," a response she feels the City "entirely disregarded."
OEMC's Deputy Director of Legal/Labor, Tenaya Williams, informed Calderone that OEMC was seeking Calderone's termination. The City then held a pre-termination hearing. Calderone characterizes this hearing as a "sham ... pervaded by negative animus [and] hype from negative press about the shooting, [and] hype and bias and concern based on unrelated police shootings such as the Van Dyke case." After the hearing, OEMC's Executive Director, Alicia Tate-Nadeau, fired Calderone, effective December 6, 2017. Calderone asserts the City did not respond to her claim that the discharge was in self-defense and instead relied "exclusively on the arrest reports" and "the video of the incident."
In October 2018, the Illinois state court held a bench trial on Calderone's attempted murder charge. The trial judge acquitted Calderone based on self-defense. The court stated that Garcia was the "original aggressor" because she had "le[ft] her vehicle first" and "ma[de] bodily contact with" Calderone. The court found Calderone had shot Garcia after she had been pushed to the ground, which left Calderone "in a vulnerable position to be further injured and subjected to additional great bodily harm." Accordingly, the court concluded that the shooting of Garcia was justified. The City subsequently reinstated Calderone. An arbitrator presided over a hearing to determine back pay owed to Calderone.
Calderone sued the City, Williams, and Tate-Nadeau in federal court. She alleges that her termination deprived her of her Second Amendment right to keep and bear arms. Calderone cited District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and more importantly, Moore v. Madigan , 702 F.3d 933 (7th Cir. 2012), for the proposition that she has a Second Amendment right to use her gun in self-defense. Calderone also alleged that the City deprived her of property and liberty rights without due process, and that the City Personnel Rules were void-for-vagueness (or overbroad).
The district court dismissed all of Calderone's claims. The court reasoned that Heller and Moore only hold that there is a right to possess a gun—but not a distinct right to use a gun—for self-defense. The court explained that the Second Amendment leaves the question of whether an actual use of a gun constitutes self-defense to criminal and tort law. The court also ruled that Williams and Tate-Nadeau were entitled to qualified immunity because the Second Amendment does not clearly establish a right to use a gun in self-defense, if it encompasses such a right at all. Finally, the court concluded that Calderone did not allege the City's "extensive grievance and arbitration procedures" fell short of constitutional commands. Moreover, Calderone received notice of the charges, an explanation of the evidence (at her hearing), and an opportunity to respond. The court viewed Calderone's allegation that bias infected this process as "conclusory."
Calderone appealed.
We review de novo a district court's grant of a motion to dismiss for failure to state a claim. Shipley v. Chicago Bd. of Election Comm'rs , 947 F.3d 1056, 1060 (7th Cir. 2020). "We accept well-pleaded facts as true and draw all reasonable inferences in the plaintiff[’s] favor." Id. at 1060–61. To withstand a motion to dismiss, a complaint must "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
Calderone challenges the district court's dismissal of her Second Amendment retaliation claims against her supervisors and the City. She asserts (among other arguments) that the individual supervisors do not deserve qualified immunity because Moore v. Madigan , 702 F.3d 933 (7th Cir. 2012), clearly established the right to use a gun in self-defense. She also argues that the City should be liable under Monell v. Department of Social Services of New York , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Finally, Calderone challenges the district court's dismissal of her procedural due process claim. We turn first to the Second Amendment retaliation claims. Then, we address Calderone's procedural due process claim.
The Second Amendment to the Constitution 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. The Supreme Court has interpreted the Second Amendment to "guarantee the individual right to possess and carry weapons in case of confrontation." District of Columbia v. Heller , 554 U.S. 570, 592, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). Calderone alleges that the City, through her supervisors, fired her for exercising her Second Amendment right to use a firearm in self-defense. The district court, however, concluded that Calderone's supervisors were protected by qualified immunity and the City was not liable under Monell . Because Calderone's retaliation claims cannot survive if her supervisors are entitled to qualified immunity and Monell does not apply, we address these issues first.
Public officials enjoy immunity from civil liability for conduct that "[1] does not violate [2] clearly...
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