Kromeich v. City of Chicago

• Decision Date: 12 January 1994
• Docket Number: No. 1-92-0688,1-92-0688
• Parties: , 196 Ill.Dec. 748 Raymond L. KROMEICH, Plaintiff-Appellant, v. CITY OF CHICAGO, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 913

630 N.E.2d 913

258 Ill.App.3d 606, 196 Ill.Dec. 748

Raymond L. KROMEICH, Plaintiff-Appellant, v. CITY OF CHICAGO, Defendant-Appellee.

No. 1-92-0688.

Appellate Court of Illinois,

First District,

Third Division.

Jan. 12, 1994.

Rehearing Denied March 3, 1994.

Victor D. Quilici, Chicago, for plaintiff-appellant.

Kelly R. Welsh, Corp. Counsel of the City of Chicago, Chicago (Lawrence Rosenthal, Benna Ruth Solomon, Frederick S. Rhine, of counsel), for defendant-appellee.

Justice CERDA delivered the opinion of the court:

Plaintiff, Raymond L. Kromeich, brought a replevin action to recover nine firearms seized by the Chicago police pursuant to chapter 8-20 of the Chicago Municipal Code. The circuit court entered a judgment in favor of the City of Chicago (City). On appeal, plaintiff asserts that (1) municipal ordinance 8-20-040(b)(5) is void for vagueness; (2) municipal ordinance 8-20-220 is unconstitutional on its face in that it gives unlawful delegation of authority to the superintendent of police; (3) People v. Ziomek (1989), 179 Ill.App.3d 303, 128 Ill.Dec. 356, 534 N.E.2d 538, was incorrectly decided; and (4) the trial court's decision is erroneous in that it misconstrues the safeguards under the State constitution and applicable State law. We affirm.

On July 31, 1990, Chicago police officers A. Torres and G. Parker received information from an informant that plaintiff possessed unregistered firearms. The officers went to 1946 North Lockwood Street, Chicago, which is plaintiff's mother's house.

According to plaintiff, who is 61 years old and employed as a chauffeur for the director of Cook County Hospital, he resided in Wood Dale, Illinois, on July 31, 1990, and was temporarily staying with his mother. When plaintiff arrived at his mother's house at 6:30 p.m., the officers approached him and flashed a badge. After the police questioned plaintiff about his firearms, he voluntarily let the officers into the house and gave them eight rifles and shotguns, a .22 caliber revolver, gun cases, and a holster. Plaintiff then went to the police station with the officers, who gave him inventory receipts for the weapons.

Plaintiff testified that all the guns were registered in Wood Dale and he had valid State and Federal firearm identification cards. Plaintiff used the guns for hunting and target practice. He brought the guns to his mother's house three weeks earlier so that he could clean and oil them before having them insured. He was planning to then take them to his son's house, which was not in Chicago.

According to the testimony of both plaintiff and Officer Torres, plaintiff was never given his Miranda warnings and he was not arrested or charged with any crime.

On October 31, 1990, plaintiff filed a complaint in replevin seeking the return of the nine weapons. Following a bench trial and a hearing on plaintiff's motion for reconsideration, the trial court entered judgment in favor of the City.

On appeal, plaintiff asserts that Chicago's municipal ordinance 8-20-040(b)(5) is so vague and uncertain that it violates due process rights. Section 8-2-040 of the Chicago Municipal Code states that:

"(a) All firearms located in the City of Chicago shall be registered in accordance with the provisions of this Chapter. It shall be the duty of a person owning or possessing a firearm to cause such firearm to be registered. No person within the City of Chicago, shall possess, harbor, have under his control, transfer, offer for sale, sell, give, deliver, or accept any firearm unless such person is the holder of a valid registration certificate of such firearm.

* * * * * *

(b) This section shall not apply to:

* * * * * *

(5) Any non-resident of the City of Chicago participating in any lawful recreational firearm-related activity in the City, or on his way to or from such activity in another jurisdiction; provided, that such weapon shall be unloaded and securely wrapped and that his possession or control of such firearm is lawful in the jurisdiction in which he resides."

Plaintiff claims that the ordinance does not clearly define "lawful recreational firearm-related activity" nor does it give any guidelines relating to time. Thus, plaintiff maintains that he did not have fair and adequate warning that he was required to register the firearms or was doing anything illegal. In addition, plaintiff argues that he falls within the exemption because he is a non-resident participating in the legal firearm-related activities of hunting and target shooting and the time frame of the exemption is "any reasonable amount of time."

In response, the State asserts that the ordinance is not vague because its language is unambiguous and self-explanatory. We agree.

Although legislative enactments carry a strong presumption of constitutionality and all doubts must be resolved in favor of its validity, (People v. Esposito (1988), 121 Ill.2d 491, 497, 118 Ill.Dec. 396, 521 N.E.2d 873), due process requires that a statute not be so vague that a person of ordinary intelligence must necessarily guess at its meaning. (Opyt's Amoco, Inc. v. Village of South Holland (1992), 149 Ill.2d 265, 277, 172 Ill.Dec. 390, 595 N.E.2d 1060.) A law is not vague if it does not reach constitutionally protected conduct and is reasonably clear in its application to the complainant. (Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362.) Vagueness challenges must be examined in light of the facts of the case. (United States v. Mazurie (1975), 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706.) In addition, a person who deals with dangerous firearms bears some of the responsibility for determining whether his possession of the weapon falls within the legislative prohibition. United States v. Freed (1971), 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356; United States v. Drasen (7th Cir.1988), 845 F.2d 731.

We hold that section 8-20-040 of the Chicago Municipal Code is not unconstitutionally vague. The ordinance does not involve constitutionally protected rights (see Sklar v. Byrne (7th Cir.1984), 727 F.2d 633) and is reasonably clear in its application to plaintiff. The ordinance's language is unambiguous and self-explanatory. Although plaintiff's intended use of the firearms for hunting and target practices does not violate the ordinance, he clearly was not en route to or from hunting or target practice in another jurisdiction.

Next, plaintiff asserts that municipal ordinance 8-20-220 is unconstitutional on its face because there is an unlawful delegation of authority to the superintendent of police. Section 8-20-220 states:

"Destruction of weapons confiscated:

Whenever any firearm or ammunition is surrendered or confiscated pursuant to the terms of this Chapter, the Superintendent shall ascertain whether such firearm or ammunition is needed as evidence in any matter.

If such firearm or ammunition is not required for evidence it shall be destroyed at the direction of the Superintendent."

Plaintiff argues that this ordinance gives the superintendent unbridled discretion to destroy firearms without judicial determination of their classification as "contraband per se " in situations where there is no arrest or charges. Furthermore, plaintiff maintains that the Chicago city council did not give intelligible guidelines to ensure non-arbitrary enforcement and did not make a clear statement regarding retention of property seized or surrendered pursuant to the ordinance.

Plaintiff further argues that the ordinance unlawfully delegates discretionary power to the superintendent because he has the power to determine what the law shall be and to whom it shall be applied. Plaintiff relies upon Village of Arlington Heights v. Schroeder (1975), 28 Ill.App.3d 1, 328 N.E.2d 74. In that case, the Village of Arlington Heights ordinance made it unlawful for any lot owner to permit an "improper growth of weeds or grasses."

The ordinance defined "improper growth of weeds or grasses" as "all weeds or grasses over 12 inches in height from the ground." It also provided that "[l]ands under agricultural cultivation may be exempted from the ordinance upon written request to the Director of Health Services." The court stated that the Director of Health had the discretion to determine whether a plant was a weed without any guidelines as to what constituted a weed. The court held that the ordinance was void because it constituted an unlawful delegation of legislative authority. The Director of Health could determine whether any plant was a weed and therefore a violation of the ordinance would be based only on his decision.

In the case before us, the chapter 8-20-030 of the Municipal Code contains a definition of a firearm and chapter 8-20-220 provides that the superintendent of police must destroy confiscated weapons not needed as evidence.

We reject plaintiff's argument. Contrary to his assertion, the ordinance does not delegate to the superintendent the council's inherent function of determining what the law shall be and to whom it shall be applied. Instead, it directs the superintendent to ascertain whether the seized firearms are needed as evidence. The superintendent's role is to contact the State, City, and Federal prosecutors to determine whether they plan to use the firearms as evidence.

The superintendent of police cannot make a decision as to whether a firearm is needed as evidence in a trial. That decision is properly one that a prosecutor makes on a case by case basis. The ordinance obligates the superintendent of police to inquire whether a firearm is needed as evidence. Once a firearm is no longer needed as evidence, the superintendent has no discretion, but must see that the firearm is destroyed. Thus, we conclude that municipal ordinance 8-20-220 does not unconstitutionally delegate authority to the superintendent of police.

Next, plaintiff asserts that the trial court's decision is erroneous in that...