Justice v. Town of Cicero

• Decision Date: 14 August 2009
• Docket Number: No. 07-3990.,07-3990.
• Citation: 577 F.3d 768
• Parties: John JUSTICE and Mike Woodward, Plaintiffs-Appellants, v. TOWN OF CICERO, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

577 F.3d 768

John JUSTICE and Mike Woodward, Plaintiffs-Appellants, v. TOWN OF CICERO, et al., Defendants-Appellees.

No. 07-3990.

United States Court of Appeals, Seventh Circuit.

Submitted October 23, 2008.^*

Decided August 14, 2009.

John C. Justice, Cicero, IL, Mike Woodward, Brigham City, UT, for Plaintiffs-Appellants.

Holly Tomchey, Attorney, Del Galdo Law Group, LLC, Berwyn, IL, for Defendants-Appellees.

Before BAUER, WOOD, and TINDER, Circuit Judges.

WOOD, Circuit Judge.

On February 24, 2006, police officers from the Town of Cicero, Illinois ("the Town"), searched a building owned by John Justice pursuant to a search warrant. A state judge had issued the warrant after finding probable cause that Justice was violating nine municipal ordinances, including one prohibiting the operation of a business without a license and one addressing the improper storage of hazardous chemicals. During the search, the police found six unregistered guns. The Town confiscated the guns, issued six tickets to Justice for possession of an unregistered firearm, and shut down the business for one week.

Justice responded by filing suit against the Town, Dennis Doe and Jerry Jarosz (city officials allegedly in charge of the business license department), and several unidentified Town employees. Michael Woodward, a security guard who worked for Justice, joined the suit. In the Third Amended Complaint ("the Complaint"), Justice challenges the Town's business license ordinance, the Town's ordinance requiring registration of firearms, and the probable cause for the search of his business. Justice also tacks on an allegation that the Town's water department is violating federal and state antitrust law by requiring a separate water meter for his sprinkler system and by charging a minimum fee and imposing a 33% late fee. After methodically explaining the problems with each of Justice's allegations, the district court dismissed the entire complaint for failure to state a claim under FED.R.CIV.P. 12(b)(6). We agree with the district court and therefore affirm the judgment for the defendants.

I

We review an order granting a Rule 12(b)(6) motion to dismiss de novo and affirm if the complaint fails to include sufficient facts "to state a claim for relief that is plausible on its face." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Because we must "construe the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in her favor" our analysis relies on the facts in the Complaint and the warrant, of which the district court took judicial notice. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.2008).

Woodward's claim is easily eliminated. This court has no way of knowing the basis for Woodward's suit because his complaint is so sparse that it is impossible to discern any potential claim for relief, plausible or otherwise. Only one paragraph in the complaint mentions Woodward:

Plaintiff Mike Woodward, the business' 24 hour security guard was taking a nap at the time of the raid and suffered the start of his life when awakened by the commands of police officers with the laser sights pointed at his eyes. The officers intended to fire the weapons if he had moved mere inches.

Complaint, ¶ 46. The district court interpreted this paragraph as alleging a claim of excessive force under 42 U.S.C. § 1983, but even under that generous reading the court found that the facts failed to establish a plausible claim. We agree. With Woodward out of the picture, we focus the rest of this opinion on the four theories raised by Justice.

Count one alleges civil rights violations by the Town and its officers; Justice has sued the officers in their individual and official capacities. To state a § 1983 claim, Justice must establish that the defendants deprived him of a right secured by the U.S. Constitution or laws. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Justice alleges the following four violations: (1) violation of his Fourth Amendment rights because the business license ordinance is overbroad and not tied to a valid regulatory purpose; (2) violation of his Fourth Amendment rights because the officers executing the warrant knew or should have known that the warrant lacked probable cause; (3) violation of his Second Amendment right to bear arms because the Town prohibits the possession of unregistered firearms; and (4) violation of his Fourteenth Amendment rights (for reasons unstated).

We first address the business license ordinance. The Town requires that any person engaging in or managing a business obtain a business license. CICERO ILL., CODE OF ORDINANCES § 26-31 (2008). Illinois law permits the Town to require businesses to have licenses. The Town qualifies as a home-rule unit under the Illinois Constitution, ILL. CONST. art. VII, § 6(a), and so it has the power to regulate for the protection of public health, safety, morals, and welfare, and the power to license. Illinois explicitly grants municipalities the authority to issue and revoke licenses. 65 ILCS 5/11-60-1. Justice argues that the purpose of the licensing ordinance is limited to revenue gathering, but the district court found that the purpose was more broadly to protect the general health and welfare of the Town's citizens. We agree with the district court.

Justice also argues that the ordinance is overbroad; he relies on § 26-326, which states, "Without first having obtained a license for the operation of such a business from the town, no person shall conduct or operate any of the following: ... (22) Manufacturing or treatment or distribution or storage of any products of any nature whatsoever." Justice asserts that this section requires a homeowner storing gas for a lawnmower to obtain a business license. But this argument ignores the context of the subsection, which indicates that it pertains only to people operating a business. So read, there is no conceivable argument that the business license ordinance has strayed beyond constitutional boundaries. As Justice has not alleged facts showing that the business ordinance violates federal law, his § 1983 claim fails. Because count two reiterates Justice's argument about the business license ordinance, it fails to state a claim for the same reasons.

Justice's claim that the search violated the Fourth Amendment was properly rejected because he admits that the police searched his business pursuant to a warrant. The district court took judicial notice of the fact that a judge of the Cook County Circuit Court issued that warrant upon a finding of probable cause to believe that Justice was violating numerous local ordinances. The issuing judge relied on the affidavit of Larry Hibbert, a business license and building inspector for the Town. The affidavit included the following assertions: Hibbert has many years of experience in the chemical industry and inspecting manufacturing and industrial properties; Hibbert smelled chemicals while at Justice's business, and, based on his experience, believes the chemicals are likely solvents; Justice has previously refused to allow inspections, in violation of an order from an administrative judge; Justice admitted to operating a business without a license.

Justice has attempted to attack the basis of the state judge's probable cause finding, but to no avail. He argues that Hibbert lacked the experience to identify the smell as a solvent, but this argument makes little sense given Hibbert's asserted "many years of experience" in the chemical industry. Justice also alleges that Hibbert intentionally excluded a 2005 finding by the Town's fire chief that Justice's building substantially complied with building and fire codes. Even if we assume that Hibbert deliberately excluded the information, an inspection almost a year old does not negate probable cause based on events subsequent to the inspection—particularly when those events include Justice's admitting to violating one of the nine ordinances and refusing to permit an inspection despite the order of an administrative judge. Justice's final argument—that the warrant lacks probable cause because Hibbert spelled the name of the business as "Microsales" rather than "Microcosm"—similarly fails to undermine the finding of probable cause. Finally, Justice claims that the warrant is invalid because it was amended to list a second address for the same building without referencing the first warrant or Hibbert's affidavit. This is simply false; the issuing judge explicitly stated that he issued the amended warrant after examining the original warrant. Taking into account these incontrovertible facts, we conclude that Justice is not entitled to proceed on his claim that his Fourth Amendment rights were violated by the search.

The district court noted additional reasons why the Complaint fails to state a claim for a violation of Justice's Fourth Amendment rights. In order to do so for his official-capacity and municipal liability theory, Justice had to show that the violation occurred because of "(1) the enforcement of an express policy of the City, (2) a widespread practice that is so permanent and well settled as to constitute a custom or usage with the force of law, or (3) a person with final policymaking authority." Latuszkin v. City of Chicago, 250 F.3d 502, 504 (7th Cir.2001); see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Complaint's sole mention of a policy or practice appears in Paragraph 30: "[t]he Town of Cicero has a policy and practice of shutting down businesses that do not purchase business licenses." Justice's failure to allege any policy or practice causing the allegedly illegal search is fatal to his claim against the Town and the...