Wilson v. Cook Cnty.

• Decision Date: 29 August 2019
• Docket Number: No. 18-2686,18-2686
• Parties: Matthew D. WILSON, et al., Plaintiffs-Appellants, v. COOK COUNTY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

937 F.3d 1028

Matthew D. WILSON, et al., Plaintiffs-Appellants,

v.COOK COUNTY, et al., Defendants-Appellees.

No. 18-2686

United States Court of Appeals, Seventh Circuit.

Argued April 4, 2019

Decided August 29, 2019

Gregory Abbott Bedell, Attorney, Knabe, Kroning & Bedell, Edward J. Murphy, Attorney, Lipe Lyons Murphy Nahrstadt & Pontikis Ltd., Chicago, IL, David G. Sigale, Attorney, Glen Ellyn, IL, for Plaintiffs-Appellants.

Paul A. Castiglione, Attorney, Office of the Cook County State's Attorney, Federal Litigation Division, Jessica M. Scheller, Attorney, Office of the Cook County State's Attorney, Civil Actions Bureau, Chicago, IL, for Defendant-Appellee Cook County, Illinois.

Paul A. Castiglione, Attorney, Office of the Cook County State's Attorney, Federal Litigation Division, Chicago, IL, for Defendants-Appellees Thomas J. Dart, Cook County Sheriff, Toni Preckwinkle, Jerry Butler, Deborah Sims.

Deepak Gupta, Attorney, Gupta Wessler PLLC, Washington, DC, for Amicus Curiae Everytown for Gun Safety.

Clarence William Phillips, Attorney, Covington & Burling LLP, New York, NY, for Amicus Curiae Brady Center to Prevent Gun Violence.

Before Ripple, Hamilton, and St. Eve, Circuit Judges.

Per Curiam.

Two Cook County residents appeal the dismissal of their complaint, which raises a Second Amendment challenge to Cook County’s ban on assault rifles and large-capacity magazines. Less than five years ago, we upheld a materially indistinguishable ordinance against a Second Amendment challenge. See Friedman v. City of Highland Park , 784 F.3d 406 (7th Cir. 2015). The district court dismissed the plaintiffs’ complaint on the basis of Friedman . We agree with the district court that Friedman is controlling. Because the plaintiffs have not come forward with a compelling reason to revisit our previous decision, we affirm the judgment of the district court.

I.BACKGROUND

In November 2006, the Commissioners of Cook County enacted the Blair Holt Assault Weapons Ban ("the County Ordinance"), an amendment to the Cook County Deadly Weapons Dealer Control Ordinance. The amendment defines "assault weapon" and "large-capacity magazine," and makes it illegal to "manufacture, sell, offer or display for sale, give, lend, transfer ownership of, acquire, carry or possess" either item in Cook County. Cook County, Ill. Code §§ 54-211, 54-212(a). Any person who legally possessed an assault weapon or large-capacity magazine prior to enactment of the amendment must remove it from county limits, modify it to render it permanently inoperable, or surrender it to the Sheriff. Id. § 54-212(c).

When a weapon or magazine is surrendered or confiscated, the ordinance requires the Sheriff to determine if it is needed as evidence, and, if not, to destroy it. Id. § 54-213(a)–(b). Violation of the County Ordinance is a misdemeanor; it carries a fine ranging from $5,000 to $10,000 and a term of imprisonment of up to six months. Id. § 54-214(a).

In September 2007, three Cook County residents, including the plaintiffs, brought a pre-enforcement action in Illinois state court, challenging the County Ordinance and seeking declaratory and injunctive relief. The complaint named as defendants the County, the individual commissioners of the Cook County Board of Commissioners, and the Cook County Sheriff. The plaintiffs alleged that the ordinance violates the Due Process Clause because the definition of assault weapons is unconstitutionally vague (Count I); the ordinance fails to provide a scienter requirement and fails to give fair warning of the conduct proscribed (Count II); the ordinance is overbroad (Count III); the ordinance violates their right to bear arms under the Second Amendment (Count IV); the ordinance is an unconstitutional exercise of the County’s police powers (Count V); and the ordinance violates the Equal Protection Clause because it arbitrarily classifies certain firearms (Count VI). The Circuit Court of Cook County dismissed the complaint, and the Illinois Appellate Court upheld the dismissal. The Supreme Court of Illinois affirmed the dismissal of the due process and equal protection claims; however, it remanded for further proceedings the plaintiffs’ Second Amendment claim. See Wilson v. Cty. of Cook , 360 Ill.Dec. 148, 968 N.E.2d 641, 658 (Ill. 2012). Plaintiffs then voluntarily non-suited their Second Amendment claim prior to resolution on the merits.

In June 2013, the City of Highland Park, Illinois, also enacted an ordinance banning assault weapons and large-capacity magazines within city limits ("Highland Park Ordinance"). The Highland Park Ordinance defines "assault weapon" and "large-capacity magazine" in virtually identical terms as the County Ordinance does and proscribes the same conduct: it penalizes those who "manufacture, sell, offer or display for sale, give, lend, transfer ownership of, acquire or possess" any assault weapon or large-capacity magazine. Highland Park, Ill. Code § 136.005. The Highland Park Ordinance also requires those in possession of a banned item to remove it from city limits; to render it permanently inoperable or permanently alter it so that it no longer meets the definition of assault weapon or large-capacity magazine; or to surrender it to the Chief of Police. Id. § 136.020. The Chief of Police, like the Cook County Sheriff, must destroy any assault weapon or large-capacity magazine not needed as evidence. Id. § 136.025. Highland Park punishes a violation of its ordinance as a misdemeanor, and the violation carries a fine of $500 to $1,000 and a maximum term of six months’ imprisonment. Id. § 136.999. Shortly after the Highland Park Ordinance was adopted, a resident challenged the ordinance on Second Amendment grounds, and we upheld the Highland Park Ordinance against the constitutional challenge. See Friedman v. City of Highland Park , 784 F.3d 406 (7th Cir. 2015).

On July 28, 2017, Matthew Wilson and Troy Edhlund refiled their challenge to the County Ordinance in Illinois state court. As they had in their original complaint, they pleaded a Second Amendment claim as well as the previously dismissed due process and equal protection claims to "preserve[ ]" those claims "for appeal."¹

The defendants removed the action to federal court on September 28, 2017.

Once in federal court, the district court granted the defendants’ motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). The court observed that the Cook County Ordinance is "materially identical" to the Highland Park Ordinance at issue in Friedman² and that Friedman , therefore, required the dismissal of the plaintiffs’ Second Amendment claim.³ The plaintiffs filed a timely notice of appeal.⁴

II.DISCUSSION

The plaintiffs now submit to us that the district court should not have relied on Friedman . In their view, their situation is materially different from that of the Friedman plaintiffs, and they believe that they should have the opportunity to develop a factual record establishing those differences. In the alternative, they contend that Friedman was wrongly decided and that their claim should be evaluated under a test that tracks more closely the language that the Supreme Court employed in District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and that we employed in Ezell v. City of Chicago , 651 F.3d 684 (7th Cir. 2011). We begin our consideration of the plaintiffs’ claim by reviewing Heller , Ezell , and Friedman in the developing landscape of Second Amendment jurisprudence.

A .

In Heller , the Supreme Court considered the constitutionality of the District of Columbia’s ban on handguns. After reviewing the history of the Second Amendment, the Court explained that the right to bear arms "guarantee[s] the individual right to possess and carry weapons in case of confrontation." Heller , 554 U.S. at 592, 128 S.Ct. 2783. The Court further stated that the right was not unlimited: it "was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Id . at 626, 128 S.Ct. 2783. Consequently, the Court’s holding did not "cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Id . at 626–27, 128 S.Ct. 2783.

Moreover, the Court explained, the Second Amendment was meant to protect the possession of weapons "in common use at the time" the Amendment was adopted. Id . at 627, 128 S.Ct. 2783 (quoting United States v. Miller , 307 U.S. 174, 179, 59 S.Ct. 816, 83 L.Ed. 1206 (1939) ). It therefore did not preclude a ban on "the carrying of dangerous and unusual weapons." Id . (internal quotation marks omitted). The District of Columbia’s ban, however, did not fall into one of these categories. Instead, "[t]he handgun ban amount[ed] to a prohibition of an entire class of ‘arms’ that [wa]s overwhelmingly chosen by American society" for the lawful purpose of self-defense. Id. at 628, 128 S.Ct. 2783. Additionally, the prohibition extended to possession and use in the home, "where the need for defense of self, family, and property is most acute." Id . Consequently, the Court concluded that the District’s ban could not be reconciled with the guarantees of the Second Amendment.⁵

In Ezell , we applied Heller to the City of Chicago’s treatment of firing ranges. At the outset, we acknowledged that, although Heller provided "general direction," Ezell , 651 F.3d at 700, "the standards for evaluating Second Amendment claims [we]re just emerging," id . at 690. We nevertheless took from Heller "several key insights about judicial review of laws alleged to infringe Second Amendment rights. First, the threshold inquiry in some Second Amendment cases will be a ‘scope’ question: Is the restricted activity protected by the Second Amendment in the first place?" Id . at 701.

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