Gillespie v. City of Indianapolis PD., No. 98-2691

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore CUDAHY, RIPPLE and ROVNER; ILANA DIAMOND ROVNER; Finally
Citation185 F.3d 693
Parties(7th Cir. 1999) JERALD GILLESPIE, Plaintiff-Appellant, v. CITY OF INDIANAPOLIS, INDIANAPOLIS POLICE DEPARTMENT, and MICHAEL ZUNK, CHIEF OF POLICE, Defendants-Appellees, and UNITED STATES OF AMERICA, Intervenor-Appellee
Docket NumberNo. 98-2691
Decision Date09 July 1999

Page 693

185 F.3d 693 (7th Cir. 1999)
JERALD GILLESPIE, Plaintiff-Appellant,
v.
CITY OF INDIANAPOLIS, INDIANAPOLIS POLICE DEPARTMENT, and MICHAEL ZUNK, CHIEF OF POLICE, Defendants-Appellees,
and
UNITED STATES OF AMERICA, Intervenor-Appellee.
No. 98-2691
United States Court of Appeals, Seventh Circuit
Argued December 3, 1998
Decided July 9, 1999

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 98 C 266--Sarah Evans Barker, Chief Judge.

Page 694

Copyrighted Material Omitted

Page 695

Copyrighted Material Omitted

Page 696

Copyrighted Material Omitted

Page 697

Before CUDAHY, RIPPLE and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

By virtue of 1996 amendments to the Gun Control Act of 1968 which prohibit persons convicted of domestic violence offenses from possessing firearms in or affecting commerce, Jerald Gillespie can no longer carry a firearm. See 18 U.S.C. sec. 922(g)(9). As a result, he has lost his job as a police officer. Gillespie filed suit against the City of Indianapolis1 seeking to have the statute declared unconstitutional and his employment with the Indianapolis Police Department preserved. The United States intervened to defend the constitutionality of the statute. The district court dismissed Gillespie's complaint, rejecting each of his constitutional arguments. Gillespie v. City of Indianapolis, 13 F. Supp. 2d 811 (S.D. Ind. 1998). Gillespie appeals, renewing his arguments that the statute violates the Tenth Amendment, the equal protection component of the Fifth Amendment's due process clause, and the Second Amendment. We affirm.

I.

Gillespie has worked as an Indianapolis police officer for more than twenty-five years. Not surprisingly, the responsibilities of that job have required him to carry and on occasion use a firearm issued to him by the Indianapolis Police Department, although never outside the state of Indiana. As a local police officer, Gillespie is subject under certain circumstances to the Indiana governor's call to serve in the state's militia (more commonly referred to as the Indiana National Guard). See Ind. Const. art. 5, sec. 12, art. 12, sec. 1; Ind. Code sec.sec. 10-2-3-1, 10-2- 3-2, 36-8-3-15.

In 1996, Congress approved, and the President signed into law, a number of amendments to the Gun Control Act of 1968. Among them was an amendment sponsored by New Jersey Senator Frank Lautenberg, which as codified provides that "[i]t shall be unlawful for any person . . . who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." 18 U.S.C.

Page 698

sec. 922(g)(9).2 The amendment took effect immediately. A separate provision of the Gun Control Act exempts the state and federal governments from most of the firearms disabilities specified in the statute, thereby allowing members of the armed services and law enforcement agencies who might otherwise be prohibited from carrying firearms to do so in connection with their public responsibilities. 18 U.S.C. sec. 925(a)(1). However, by its express terms, that provision of the statute does not apply to the firearms disability set forth in section 922(g)(9). Therefore, although an individual with a prior felony conviction, see 18 U.S.C. sec. 922(g)(1), might theoretically be able by virtue of this exemption to carry a gun in connection with federal or state employment, a person previously convicted of a misdemeanor crime of domestic violence cannot.

In October 1995, Gillespie pleaded guilty to a misdemeanor charge of battery involving his former wife. It is undisputed that this offense constitutes a "misdemeanor crime of domestic violence" for purposes of section 922(g)(9). See n.2, supra. Consequently, federal law renders it a felony for Gillespie to possess a firearm in or affecting commerce. Although the complaint does not allege that the gun issued to Gillespie by the Indianapolis Police Department ever moved in interstate commerce, it appears to concede that point (R. 1 para. 91), and Gillespie makes no argument that his service weapon might never have moved across state lines. We shall therefore assume, as Gillespie himself does, that Gillespie's possession of a service weapon would be "in or affecting commerce" and therefore within the proscription of the federal statute. See, e.g., United States v. Wilson, 159 F.3d 280, 286-87 (7th Cir. 1998), cert. denied, 119 S.Ct. 2371 (1999).

The Indianapolis Police Department itself has concluded that Gillespie can no longer carry a firearm. Because department policy requires that every police officer be trained and equipped to possess and use a firearm, the department has further concluded that Gillespie is no longer eligible to serve as a police officer. It has accordingly notified him that he will be terminated from the department's employ.

Gillespie's complaint challenged the new federal firearms ban on several constitutional grounds, each of which the district court rejected in its thorough opinion. We

Page 699

address only the portions of Judge Barker's decision addressing claims that Gillespie pursues on appeal.

Judge Barker found that the enactment of section 922(g)(9) did not exceed the authority of Congress to regulate interstate commerce. She reasoned that because the government must in every prosecution establish that the firearm in question either was shipped or transported "in interstate or foreign commerce" or was possessed "in or affecting commerce," the firearms ban has the requisite jurisdictional nexus to interstate commerce. 13 F. Supp. 2d at 822.

She also did not believe that the legislation intruded upon state sovereignty in violation of the Tenth Amendment. In her view, the statute did not supplant state domestic violence law, as Gillespie suggested. "[S]tates remain free to define and punish domestic violence crimes as they wish; however, the federal government imposes a federal firearms disability in addition to any action taken or not taken by the states." Id. at 819. Neither was Congress effectively dictating the qualifications of state and local officials by imposing the firearms ban. Although, as a result of the new ban, state and local law enforcement agencies might well decline to employ persons with domestic violence convictions, the federal government was not compelling that decision: "Such agencies may reassign officers to different divisions or 'desk jobs,' create special non-firearm units that use other weapons like nightsticks or remain unarmed, or even change the firearms requirement for on-duty officers." Id. at 820. Nor, finally, was Congress forcing the states to administer or enforce a federal regulatory program. "[Section] 922(g)(9) regulates the behavior of private individuals, not states, for individuals will be [federally] prosecuted for violation of the statute and there is no federal mandate for states to assist in regulation and enforcement." Id. at 821.

After determining that the statute implicated no fundamental right (id. at 823), Judge Barker next concluded that the firearms ban did not deprive those convicted of domestic violence crimes of equal protection. "[P]reventing domestic violence misdemeanants from possessing a firearm is reasonably related to the legitimate government purposes of keeping firearms out of the hands of potentially dangerous or irresponsible persons and protecting victims of domestic violence from being murdered by their attackers." Id. at 824. She rejected Gillespie's contention that the statute has an impermissibly disproportionate impact on law enforcement officials, noting that the statute is facially neutral and that the legislative history evinces no discriminatory intent. Id.

Finally, Judge Barker concluded that section 922(g)(9) did not violate any rights that the Second Amendment might bestow upon Gillespie, either as an individual or in his capacity as a police officer. She found it unnecessary to decide whether the Constitution preserved a collective or individual right to bear arms or what level of scrutiny a court must apply to a restriction on that right, for she was confident that the statute would survive even strict scrutiny. The underlying government interests that she had identified (again, disarming persons that Congress reasonably believed to be dangerous or irresponsible, and protecting the victims of domestic violence from being killed) were compelling. The law was also narrowly tailored to serve those interests in the sense that the firearms ban applied only to those already convicted of domestic violence offenses. Id. at 827.

II.

A.

The system of government established by our Constitution is one of dual sovereignty in which the States, having ceded considerable authority to the federal government, nonetheless retain "a residuary and inviolable sovereignty." Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365,

Page 700

2376 (1997) (quoting The Federalist No. 39, at 245 (J. Madison)). A number of constitutional provisions reflect the conservation of state sovereignty, see id. at 2376-77, but at the heart of them lies the Tenth Amendment, which provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X.

Gillespie asserts that section 922(g)(9) violates the Tenth Amendment's guarantee of state sovereignty by rendering individuals with convictions for misdemeanor domestic violence unable to carry firearms and, as a result, ineligible to participate in state militias. (Recall that as an Indianapolis police officer, Gillespie is subject to the Governor's call to serve in the Indiana militia.) Gillespie...

To continue reading

Request your trial
94 practice notes
  • Colo. Outfitters Ass'n v. Hickenlooper, Civil Action No. 13–cv–01300–MSK–MJW
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • June 26, 2014
    ...of a well regulated militia.” See, e.g., United States v. Haney, 264 F.3d 1161, 1164–66 (10th Cir.2001); Gillespie v. Indianapolis, 185 F.3d 693, 710–11 (7th Cir.1999); Stevens v. United States, 440 F.2d 144, 149 (6th Cir.1971); but see United States v. Emerson, 270 F.3d 203 (5th Cir.2001).......
  • Hodgkins v. Peterson, IP 01-1032-C T/K.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • November 6, 2001
    ...government interest. See Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Gillespie v. City of Indianapolis, 185 F.3d 693, 708 (7th Cir. 1999), cert. denied, 528 U.S. 1116, 120 S.Ct. 934, 145 L.Ed.2d 813 (2000). The State's interest in protecting its youth from victi......
  • Rupf v. Yan, No. A089051.
    • United States
    • California Court of Appeals
    • December 11, 2000
    ...557, 565-66; San Diego Gun Rights Committee v. Reno (9th Cir.1996) 98 F.3d 1121, 1124; Gillespie v. City of Indianapolis (7th Cir.1999) 185 F.3d 693, 709; Love v. Pepersack (4th Cir.1995) 47 F.3d 120, 124; U.S. v. Warin (6th Cir. 1976) 530 F.2d 103, 106-107; Cases v. U.S. (1st Cir.1942) 131......
  • Warren v. United States ., 06-CV-226S
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • March 12, 2012
    ...whether private parties have standing to challenge a federal act on Tenth Amendment grounds. See, e.g., Gillespie v. City of Indianapolis, 185 F.3d 693, 703-04 (7th Cir. 1999), cert. denied, 528 U.S. 1116 (2000) (allowing private party to bring Tenth Amendment challenge); Medeiros v. Vincen......
  • Request a trial to view additional results
94 cases
  • Colo. Outfitters Ass'n v. Hickenlooper, Civil Action No. 13–cv–01300–MSK–MJW
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • June 26, 2014
    ...of a well regulated militia.” See, e.g., United States v. Haney, 264 F.3d 1161, 1164–66 (10th Cir.2001); Gillespie v. Indianapolis, 185 F.3d 693, 710–11 (7th Cir.1999); Stevens v. United States, 440 F.2d 144, 149 (6th Cir.1971); but see United States v. Emerson, 270 F.3d 203 (5th Cir.2001).......
  • Hodgkins v. Peterson, IP 01-1032-C T/K.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • November 6, 2001
    ...government interest. See Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Gillespie v. City of Indianapolis, 185 F.3d 693, 708 (7th Cir. 1999), cert. denied, 528 U.S. 1116, 120 S.Ct. 934, 145 L.Ed.2d 813 (2000). The State's interest in protecting its youth from victi......
  • Rupf v. Yan, No. A089051.
    • United States
    • California Court of Appeals
    • December 11, 2000
    ...557, 565-66; San Diego Gun Rights Committee v. Reno (9th Cir.1996) 98 F.3d 1121, 1124; Gillespie v. City of Indianapolis (7th Cir.1999) 185 F.3d 693, 709; Love v. Pepersack (4th Cir.1995) 47 F.3d 120, 124; U.S. v. Warin (6th Cir. 1976) 530 F.2d 103, 106-107; Cases v. U.S. (1st Cir.1942) 131......
  • Warren v. United States ., 06-CV-226S
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • March 12, 2012
    ...whether private parties have standing to challenge a federal act on Tenth Amendment grounds. See, e.g., Gillespie v. City of Indianapolis, 185 F.3d 693, 703-04 (7th Cir. 1999), cert. denied, 528 U.S. 1116 (2000) (allowing private party to bring Tenth Amendment challenge); Medeiros v. Vincen......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT