Dorman v. Haine

2024 IL App (5th) 230969-U

• Court: Appellate Court of Illinois
• Decided: August 13, 2024
• Docket: 5-23-0969
• Status: Unpublished

Opinion

NOTICE 2024 IL App (5th) 230969-U NOTICE Decision filed 08/13/24. The This order was filed under text of this decision may be NO. 5-23-0969 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

ROBERT DORMAN, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Madison County. ) v. ) No. 22-CH-39 ) THOMAS HAINE and BRENDAN KELLY, ) in Their Official Capacities, ) Honorable ) Ronald S. Motil, Defendants-Appellees. ) Judge, presiding. ______________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court. Justices Boie and McHaney concurred in the judgment.

ORDER

¶1 Held: The circuit court’s granting of judgment on the pleadings, pursuant to 735 ILCS 5/2-615(e), in favor of defendant Kelly was not error where the complained-of provision prohibiting the possession of “short-barreled rifles” did not violate the second amendment or fourteenth amendment to the United States Constitution. In addition, we find that the plaintiff forfeited any claim against defendant Haine where he failed to present any argument in his opening brief.

¶2 The plaintiff, Robert Dorman, appeals the October 12, 2023, final order of the circuit court

of Madison County that dismissed the plaintiff’s complaint in its entirety in favor of the defendants.

For the following reasons, we affirm the October 12, 2023, order.

¶3 I. BACKGROUND

¶4 This appeal stems from the circuit court’s order that, inter alia, granted judgment on the

pleadings in favor of Brendan F. Kelly, Director of the Illinois State Police (Kelly), and granted a

1 motion to dismiss in favor of Thomas A. Haine, Madison County State’s Attorney (Haine), on the

plaintiff’s claims brought pursuant to 42 U.S.C. § 1983 that alleged section 24-1(a)(7)(ii) of the

Criminal Code of 2012 (Code) (720 ILCS 5/24-1(a)(7)(ii) (West 2022)) violated the plaintiff’s

rights under the second and fourteenth amendments to the United States Constitution. The

plaintiff’s complaint alleged two additional claims; however, the plaintiff has expressly abandoned

those claims on appeal.

¶5 The relevant provision the plaintiff complains of in his complaint is section 24-1 of the

Code, which provides, in relevant part:

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

***

(7) Sells, manufactures, purchases, possesses or carries:

(ii) any rifle having one or more barrels less than 16 inches in length

or a shotgun having one or more barrels less than 18 inches in length or any

weapon made from a rifle or shotgun, whether by alteration, modification,

or otherwise, if such a weapon as modified has an overall length of less than

26 inches[.]” 720 ILCS 5/24-1(a)(7)(ii) (West 2022).

¶6 In his complaint, Dorman alleges that he is a citizen and resident of Madison County,

Illinois, and possesses a valid Illinois Firearm Owners Identification Card. He alleges that

“possession of a rifle with a barrel of less than 16 inches and/or an overall length of less than 26

inches is facially protected by the second and fourteenth amendments.” He acknowledged that the

challenged provision includes exceptions for possession by licensed reenactors, collectors, and law

enforcement, but claimed that restricting possession by others unlawfully restricted the right to

2 individual self-defense. Dorman alleged that he “wishes to acquire” two weapons: a “model 1911

style *** pistol[ ] with an attachable shoulder stock, with a barrel length of about 5.5 inches and

an overall length of less than 26 inches,” and a “model 224 rifle *** with a[ ] 14.5 inch barrel and

an overall length of more than 26 inches.” He sought a declaration that the prohibitions on

possessing a rifle “with a barrel of less than 16 inches” and a rifle “with an overall length of less

than 26 inches” were unconstitutional and a corresponding injunction. In addition, Dorman alleges

that Haine is the State’s Attorney of Madison County. He claims that “in recent memory,” the

Madison County State’s Attorney has “actually filed charges against persons for alleged firearms

of the type described.” Further, he claims that he “fears arrest and prosecution” by the state’s

attorney’s office should he acquire any of the described firearms.

¶7 In Haine’s motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735

ILCS 5/2-619 (West 2022)), he argued that Dorman lacked standing and his claims are not ripe for

judicial review, because Dorman does not possess a short-barreled rifle and is not being

investigated, charged, or prosecuted by Haine. Thus, Dorman has not sustained, or is in the

immediate danger of sustaining, a distinct and palpable injury that is fairly traceable to the actions

of Haine, and his claims are premature and based on contingent future events. Dorman did not file

a response directed at this motion in the circuit court.

¶8 In Kelly’s motion for judgment on the pleadings pursuant to section 2-615(e) of the Code

of Civil Procedure (id. § 2-615(e)), he argued that because the United States Supreme Court had

determined that short-barreled shotguns fell outside of the protection of the second amendment,

short-barreled rifles did as well. He explained that short-barreled rifles are similarly concealable

weapons that are likely to be used for criminal purposes.

3 ¶9 The circuit court ultimately agreed, holding that short-barreled rifles are not covered by the

second amendment. Recognizing that federal courts have consistently held that short-barreled

rifles are not protected by the second amendment, the court gave considerable weight to the

uniform body of federal case law that had developed on the issue and found those cases to be

highly persuasive. The court further noted that every court to consider whether there is a

constitutionally relevant distinction between short-barreled rifles and short-barreled shotguns had

declined to find such a distinction. Moreover, the court found that Dorman failed to allege any

facts or make any arguments that would materially distinguish short-barreled rifles from short-

barreled shotguns. Lastly, the court found that Dorman lacked standing in his remaining claims to

seek a declaratory judgment.

¶ 10 This timely appeal followed, and we include additional facts below in our analysis where

relevant.

¶ 11 II. ANALYSIS

¶ 12 As an initial matter, the plaintiff only appeals the claim alleged in count II of his complaint

and expressly abandons any claims alleged under counts I and III. In addition, he has failed to

articulate any argument in his opening brief to assert standing for his claim against Haine. While

he raises and argues his claims against Haine in his reply brief, which this court allowed to be filed

late, his failure to do so in his opening brief results in forfeiture of his claims as it pertains to Haine.

See Kim v. St. Elizabeth’s Hospital of the Hospital Sisters of the Third Order of St. Francis, 395

Ill. App. 3d 1086, 1092 (2009); Ill. S. Ct. R. 341(h)(7) (Oct. 1, 2020) (“Points not argued are

forfeited and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”).

“A reviewing court is entitled to have the issues on appeal clearly defined with pertinent authority

cited and a cohesive legal argument presented.” Thrall Car Manufacturing Co. v. Lindquist, 145

4 Ill. App. 3d 712, 719 (1986). “The appellate court is not a depository in which the appellant may

dump the burden of argument and research.” Id. Thus, the only issue properly before us is count

II regarding the constitutionality of section 24-1(a)(7)(ii) against Kelly.

¶ 13 Turning now to the issue before us, we first examine our standard of review. Judgment on

the pleadings “is proper where the pleadings disclose no genuine issue of material fact and the

movant is entitled to judgment as a matter of law.” Strowmatt v. Sentry Insurance, 2020 IL App

(5th) 190537, ¶ 15. On such a motion, “all well-pleaded facts set forth in the pleadings of the

nonmoving party are taken as true along with any fair inferences drawn therefrom.” Id. This court

“review[s] de novo a constitutional challenge to a statute because it presents a question of law.”

People v. Masterson, 2011 IL 110072, ¶ 23. “The party challenging the constitutionality of the

statute has the burden to prove its invalidity.” Id. Given statutes’ ”strong presumption of

constitutionality,” courts must “uphold the constitutionality of a statute whenever reasonably

possible.” Id. And to succeed on a facial challenge to a statute, the plaintiff must establish that

there are “no set of circumstances under which the statute would be valid.” People v. Bochenek,

2021 IL 125889, ¶ 10 (facial challenge poses “particularly heavy burden”); see Burns v. Municipal

Officers Electoral Board of the Village of Elk Grove Village, 2020 IL 125714, ¶ 13 (“facial

challenge to a statute is the most difficult challenge”).

¶ 14 The plaintiff argues that the second amendment presumptively protects an individual’s

right to possess all instruments that constitute bearable arms, which includes short-barreled rifles.

Specifically, he argues that section 24-1(a)(7)(ii) of the Code (720 ILCS 5/24-1(a)(7)(ii) (West

2022)) violated his right to bear arms under the second and fourteenth amendments to the United

States Constitution. U.S. Const., amends. II, XIV. The plaintiff contends that the portion of the

statute that prohibits the possession of “rifles with barrels of less than 16 inches and/or overall

5 lengths of less than 26 inches” is facially unconstitutional under the second amendment due to its

“near total ban.” He contends that a short-barreled rifle is prima facie protected, because it is a

bearable arm within the meaning of the second amendment. See District of Columbia v. Heller,

554 U.S. 570, 582 (2008) (“[T]he Second Amendment extends, prima facie, to all instruments that

constitute bearable arms, even those that were not in existence at the time of the founding.”). He

further contends that the U.S. Supreme Court’s decision that the second amendment does not

protect short-barreled shotguns in United States v. Miller, 307 U.S. 174 (1939), is not relevant to

this matter, because “this case is not about shotguns of any variety.” In addition, he argues that

short-barreled rifles are “in common use, both at this time and at the time of the Revolution, and

during times in between.” He asserts that the “U.S. M4 carbine uses a sub-16 inch barrel,” that the

Madison County Sheriff’s Department issues a sub-16-inch barrel rifle to its deputies, and that

short-barreled rifles are “broadly permitted in most of the 49 other United States.”

¶ 15 The defendant responds that short-barreled rifles do not “fall into the category of protected

bearable arms,” because the U.S. Supreme Court has held that short-barreled shotguns, “which are

materially the same type of weapon,” fall outside the scope of the second amendment. In addition,

he argues that short-barreled rifles, like short-barreled shotguns, are “concealable weapons that are

likely to be used for criminal purpose rather than lawful activity.” Moreover, he contends that

“every court” that has considered this issue has held that, under the second amendment, short-

barreled rifles are treated no differently than short-barreled shotguns and there is no meaningful

constitutional distinction. Lastly, he argues that the plaintiff failed to assert that short-barreled

rifles are commonly used for self-defense, which is the only purpose that affords protection under

the second amendment, and instead asserted that the weapons are commonly possessed outside

Illinois.

6 ¶ 16 When challenging a law under the second amendment, the plaintiff must first show that

“the Second Amendment’s plain text covers” the “proposed course of conduct.” New York State

Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17, 32 (2022). If the plaintiff satisfies that burden, then

at the second step, “the government must demonstrate that the regulation is consistent with this

Nation’s historical tradition of firearm regulation.” Id. at 17. Thus, we first must determine whether

the plain text of the second amendment covers the conduct at issue here, i.e., whether the second

amendment protects an individual’s right to possess short-barreled rifles.

¶ 17 The Supreme Court has recognized that, “[l]ike most rights, the right secured by the Second

Amendment is not unlimited.” Heller, 554 U.S. at 626. “From Blackstone through the 19th-century

cases, commentators and courts routinely explained that the right was not a right to keep and carry

any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. In Heller, the

Court recognized an “important limitation on the right to keep and carry arms,” based on the nature

of the arms. Id. at 627. Specifically, the “sorts of weapons protected [by the second amendment

are] those in common use at the time,” which is “fairly supported by the historical tradition of

prohibiting the carrying of dangerous and unusual weapons.” (Internal quotation marks omitted.)

Id.

¶ 18 In considering what types of weapons are covered by the second amendment, the Heller

Court examined its decision in Miller. See id. at 624. In Miller, the Court held that the second

amendment did not guarantee the right to keep and bear short-barreled shotguns “[i]n the absence

of any evidence tending to show that possession or use of a [short-barreled shotgun] at this time

has some reasonable relationship to the preservation or efficiency of a well regulated militia.”

Miller, 307 U.S. at 178. The Heller Court “read Miller to say only that the Second Amendment

7 does not protect those weapons not typically possessed by law-abiding citizens for lawful

purposes, such as short-barreled shotguns.” Heller, 554 U.S. at 623, 625.

¶ 19 The plaintiff argues that Miller was remanded based on an absence of factual findings not

within judicial notice of the Court that short-barreled shotguns were ordinary military equipment.

Further, he asserts that this underlying basis for the decision in Miller is a significant distinction

from “simply overruling and ending a case.” In addition, he argues that the outcome in Miller, and

Heller’s interpretation thereof, is not relevant to this matter, because he is challenging the

provision of the statute that prohibits possession of short-barreled rifles, not shotguns. However,

the Supreme Court in United States v. Thompson/Center Arms Co., 504 U.S. 505 (1992), while

considering whether a pistol distributed with a conversion kit, which could be made into a short-

barreled rifle, constituted an assembled and regulated “firearm” under the National Firearms Act,

has observed that “the regulation of short-barreled rifles, for example, addresses a concealable

weapon likely to be [used for criminal purposes].” Id. at 517. This language acknowledges that

short-barreled rifles are not typically possessed for lawful purposes and is keenly similar to the

Supreme Court’s interpretation of Miller in Heller when determining that the second amendment

does not protect weapons that are not typically possessed for lawful purposes, like short-barreled

shotguns. While the plaintiff argues that handguns, which are protected under the second

amendment, are similar to short-barreled rifles in that they are both concealable, the Supreme Court

has recognized that short-barreled rifles are weapons not typically possessed for lawful purposes,

e.g., self-defense, unlike handguns. Id. This supports the defendant’s position that there is no

meaningful constitutional distinction between short-barreled rifles and short-barreled shotguns

and, thus, the second amendment does not protect either.

8 ¶ 20 In addition, the courts that have considered this issue have held that, under the second

amendment, short-barreled rifles are treated no differently than short-barreled shotguns. In People

v. Smith, the First District held that “the plain text of the second amendment does not encompass

an individual’s right to possess short-barreled firearms,” referring to both short-barreled shotguns

and rifles. People v. Smith, 2024 IL App (1st) 221455, ¶ 16. In addition, the Tenth Circuit has also

held that there is “no meaningful distinction” between short-barreled rifles and short-barreled

shotguns under the second amendment. United States v. Cox, 906 F.3d 1170, 1186 (10th Cir.

2018). Also, the federal district courts that have had the opportunity to consider the issue after

Bruen have uniformly held that short-barreled rifles are not covered by the second amendment.

See, e.g., United States v. Rush, No. 22-CR-40008-JPG, 2023 WL 403774, at *3 (S.D. Ill. Jan. 25,

2023). “Heller assures that keeping and bearing ‘dangerous and unusual firearms’—like short-

barreled shotguns or rifles or other weapons not typically possessed by law-abiding citizens for

lawful purposes—are outside the bounds of Second Amendment protection because such weapons

are not in common use by law-abiding citizens for self-defense.” Id. Based upon the uniform body

of case law developed on this issue in Illinois and federal courts, and the Illinois Supreme Court’s

acknowledgment that “if the lower federal courts are uniform on their interpretation of a federal

[law], [Illinois courts], in the interest of preserving unity, will give considerable weight to those

courts’ interpretation of federal law and find them to be highly persuasive,” we find that short-

barreled rifles fall outside the scope of the second amendment and decline to find any meaningful

constitutional distinction between short-barreled rifles and short-barreled shotguns. (Emphasis in

original.) State Bank of Cherry v. CGB Enterprises, Inc., 2013 IL 113836, ¶ 35.

¶ 21 Further, even when we consider the plaintiff’s claim that short-barreled rifles are

“common,” and therefore not “dangerous and unusual” as true, as required under the statute

9 regarding judgment on the pleadings, we would still find that the plaintiff’s argument fails where

there is a uniform body of case law developed in the federal courts and elsewhere that the second

amendment does not protect short-barreled rifles. Since plaintiff’s claim fails under the first step

of review under Bruen, our analysis ends, and we do not reach the second step.

¶ 22 III. CONCLUSION

¶ 23 For the foregoing reasons, we affirm the October 12, 2023, order declining to declare the

restrictions set forth in section 24-1(a)(7)(ii) on the possession of short-barreled rifles

unconstitutional.

¶ 24 Affirmed.