Moore v. Madigan

• Citation: 842 F.Supp.2d 1092
• Decision Date: 03 February 2012
• Docket Number: No. 11–cv–03134.,11–cv–03134.
• Parties: Michael MOORE, Charles Hooks, Peggy Fechter, Jon Maier, Second Amendment Foundation, Inc., and Illinois Carry, Plaintiffs, v. Lisa MADIGAN, in her official capacity as Attorney General for the State of Illinois, and Hiram Grau, in his official capacity as Director of the Illinois State Police, Defendants.
• Court: U.S. District Court — Central District of Illinois

842 F.Supp.2d 1092

Michael MOORE, Charles Hooks, Peggy Fechter, Jon Maier, Second Amendment Foundation, Inc., and Illinois Carry, Plaintiffs,

v.Lisa MADIGAN, in her official capacity as Attorney General for the State of Illinois, and Hiram Grau, in his official capacity as Director of the Illinois State Police, Defendants.

No. 11–cv–03134.

United States District Court, C.D. Illinois.

Feb. 3, 2012.

David Jensen, David Jensen PLLC, New York, NY, David Sigale, Law Firm of David Sigale, P.C., Glen Ellyn, IL, for Plaintiff.

Terrence J. Corrigan, David Andrew Simpson, and Karen L. McNaught, Illinois Attorney General, Springfield, IL, for Defendant.

Robert J. Harris, Harris Winick LLP, Chicago, IL, for Amicus, Brady Center to Prevent Gun Violence.

OPINION

SUE E. MYERSCOUGH, District Judge:

This matter is before the Court on the Motion for Preliminary and/or Permanent Injunction (the “Injunction Motion”) of Plaintiffs Michael Moore, Charles Hooks, Peggy Fechter, Jon Maier, Second Amendment Foundation, Inc., and Illinois Carry. See d/e 13. The Court also considers Defendants Lisa Madigan and Hiram Grau's Motion to Dismiss. See d/e 24. This Court finds that the Illinois “Unlawful Use of Weapons” and “Aggravated Unlawful Use of a Weapon” statutes do not violate Plaintiffs' Second Amendment rights. The United States Supreme Court and the Seventh Circuit have recognized only a Second Amendment core individual right to bear arms inside the home. Further, even if this Court recognized a Second Amendment right to bear arms outside of the home and an interference with that right, the statutes nonetheless survive constitutional scrutiny. Therefore, Plaintiffs cannot show a likelihood of success on the merits of their claim and thus cannot succeed on the Injunction Motion. For reasons further discussed below, the Injunction Motion is DENIED and the Motion to Dismiss is GRANTED.

I. BACKGROUND

On May 19, 2011, Plaintiffs filed a one-count Amended Complaint alleging that the Illinois Unlawful Use of Weapons (“UUW”) statute (720 ILCS 5/24–1) and the Aggravated Unlawful Use of a Weapon (“AUUW”) statute (720 ILCS 5/24–1.6) violate the Second Amendment. Specifically, Plaintiffs allege that 720 ILCS 5/24–1(a)(4), 720 ILCS 5/24–1(a)(10), and 720 ILCS 5/24–1.6(a) are unconstitutional as applied because the statutes prohibit the carry of loaded and operable firearms in public and thereby violate Plaintiffs' rights under the Second Amendment as recognized by District of Columbia v. Heller, 554 U.S. 570, 592, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and made applicable to the States by McDonald v. Chicago, ––– U.S. ––––, 130 S.Ct. 3020, 3026, 177 L.Ed.2d 894 (2010). Plaintiffs argue that the Second Amendment, as interpreted by the Supreme Court, allows Plaintiffs to carry firearms, concealed or otherwise, in public.

Plaintiffs first challenge the Illinois “Unlawful Use of Weapons” statute, 720 ILCS 5/24–1, which criminalizes the carrying or possession of a firearm outside of the home except under certain circumstances. The statute provides, in pertinent part:

(a) A person commits the offense of unlawful use of weapons when he knowingly:

* * *

(4) Carries or possesses in any vehicle or concealed on or about his person except when on his land or in his own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person's permission, any pistol, revolver, stun gun or taser or other firearm, except that this subsection (a)(4) does not apply to or affect transportation of weapons that meet one of the following conditions:

(i) are broken down in a non-functioning state; or

(ii) are not immediately accessible; or

(iii) are unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a person who has been issued a currently valid Firearm Owner's Identification Card; or ...

* * *

(10) Carries or possesses on or about his person, upon any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town, except when an invitee thereon or therein, for the purpose of the display of such weapon or the lawful commerce in weapons, or except when on his land or in his own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person's permission, any pistol, revolver, stun gun or taser or other firearm....

(b) Sentence. A person convicted of a violation of subsection 24–1(a)(1) through (5), subsection 24–1(a)(10), subsection 24–1(a)(11), or subsection 24–1(a)(13) commits a Class A misdemeanor....

Plaintiffs also challenge the Illinois “Aggravated Unlawful Use of a Weapon” statute, 720 ILCS 5/24–1.6, which criminalizes the carrying or possession of a firearm outside of the home when the firearm is loaded and accessible or when the firearm is unloaded but ammunition is immediately accessible. The statute provides, in pertinent part:

(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:

(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person's permission, any pistol, revolver, stun gun or taser or other firearm; or

(2) Carries or possesses on or about his or her person, upon any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town, except when an invitee thereon or therein, for the purpose of the display of such weapon or the lawful commerce in weapons, or except when on his or her own land or in his or her own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person's permission, any pistol, revolver, stun gun or taser or other firearm; and

(3) One of the following factors is present:

(A) the firearm possessed was uncased, loaded and immediately accessible at the time of the offense; or

(B) the firearm possessed was uncased, unloaded and the ammunition for the weapon was immediately accessible at the time of the offense

* * *

(d) Sentence.

(1) Aggravated unlawful use of a weapon is a Class 4 felony; a second or subsequent offense is a Class 2 felony for which the person shall be sentenced to a term of imprisonment of not less than 3 years and not more than 7 years.

Plaintiffs claim that the UUW and AUUW statutes criminalize the carrying of a functional firearm on one's person in public and, therefore, violate their Second Amendment right to bear arms.

On July 7, 2011, Plaintiffs filed the Injunction Motion. Plaintiffs argue the Supreme Court ruled in Heller, 554 U.S. at 592, 128 S.Ct. 2783, that the Second Amendment “guarantee[s] the right to possess and carry weapons in case of confrontation.” See Pls.' Mem. Supp. Prelim. and/or Perm. Inj. (d/e 14) at 1. Plaintiffs cite McDonald, 130 S.Ct. at 3026, for the proposition that the Supreme Court incorporated that right “fully” against the States. Plaintiffs further contend that, because Illinois' prohibitions on the carrying of guns necessarily violates Plaintiffs' Second Amendment rights, an injunction must be issued against Defendants according to Ezell v. City of Chicago, 651 F.3d 684 (7th Cir.2011).

At the August 4, 2011 hearing on the Injunction Motion, Defense counsel stated that they do not contest Plaintiffs' assertion that Lisa Madigan and Hiram Grau are properly named as Defendants. See Prelim. Inj. Hr'g Tr. (d/e 37) at 33–34, Aug. 4, 2011. Additionally, Defendants offered as evidence reports about the efficacy of firearms control. Id. at 4. Plaintiffs objected to the reports' relevance under Federal Rule of Evidence 401, and this Court reserved ruling. Id. This Court now finds that the reports offered by Defendants at the August 4, 2011 hearing are relevant to the Injunction Motion in that they affect this Court's analysis of whether the UUW and AUUW statutes survive constitutional scrutiny. Therefore, the Court accepts the reports into evidence and now rules on the remaining issues.

II. JURISDICTION & VENUE

The federal question posed by Plaintiffs' claimed violation of their Second Amendment rights gives this Court subject matter jurisdiction. See28 U.S.C. § 1331. Personal jurisdiction and venue requirements are satisfied because the relevant acts occurred in this judicial district. See World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (stating that personal jurisdiction exists where a defendant “purposefully avail[ed] [himself or herself] of the privilege of conducting activities” in the forum state); 28 U.S.C. § 1391(b) (providing that venue in non-diversity cases is proper in a judicial district where any defendant resides, if all defendants reside in the same State).

III. STANDING

“Standing exists when the plaintiff suffers an actual or impending injury, no matter how small; the injury is caused by the defendant's acts; and a judicial decision in the plaintiff's favor would redress the injury.” See Ezell, 651 F.3d at 695 (quoting Bauer v. Shepard, 620 F.3d 704, 708 (7th Cir.2010)) (internal quotation marks omitted). By asserting that the Second Amendment gives them a right to carry firearms in public and that Illinois' UUW and AUUW statutes deprive them of that right, the four individual Plaintiffs have clearly alleged injury and causation. Because a decision enjoining enforcement of the UUW and AUUW statutes would redress Plaintiffs' alleged injury, Plaintiffs have also satisfied the requirement that a judicial decision in their favor would redress their injury.

Just as the four individual Plaintiffs have standing to seek injunctive relief, so, too, do associational Plaintiffs Second Amendment...