John H. Baer, Individually and D/B/A Liberty Guns v. The City of Wauwatosa

716 F.2d 1117, 1983 U.S. App. LEXIS 24652
Court of Appeals for the Seventh Circuit·Decided August 22, 1983·No. 83-1087·Published·Cited by 69 cases

Opinions

POSNER, Circuit Judge.

John Baer brought this civil rights suit under 42 U.S.C. § 1983 against the City of Wauwatosa (Wisconsin), its mayor, and the members of its council, alleging that, by taking away Baer’s license to sell guns, the defendants had deprived him of property without due process of law, and denied him the equal protection of the laws, in violation of the Fourteenth Amendment. The district judge entered judgment for the defendants after a bench trial, and Baer appeals.

Section 6.84.020(A) of the Wauwatosa ordinances provides that “no person shall engage in the business of selling any dangerous weapon or gun without obtaining a license as provided in this chapter ... . ” Section 6.84.030 requires anyone wanting a license to apply in writing to the city clerk. The application must contain the applicant’s name and address and the address of the location from which he wants to sell guns. “Upon the receipt of such application, the common council [Wauwatosa’s city council] may direct the city clerk to issue such license to the applicant, upon his payment to the city treasurer of an annual license fee of ten dollars.” The ordinances do not specify the term of the license, and contain no standards for denying licenses and no provisions relating to revocation or renewal.

The latest of Baer’s series of one-year licenses was due to expire on June 30,1980, when on March 6,1980, he was convicted of second-degree sexual assault (a felony) for consensual sex acts with a 14-year-old girl. Baer was sentenced to five years probation and fined $1,000. The girl lived near his [1121] shop, which had become a hangout for teenagers, and the sex acts had occurred in the shop. On April 23 the city attorney of Wauwatosa notified Baer that the common council’s committee on permits and licenses had scheduled a hearing for May 13 to consider what to do about his gun license in light of his conviction. Baer, represented by counsel, testified at the hearing. The committee recommended to the common council that Baer’s license be revoked. On May 20 the council held a public hearing, at which Baer, again represented by counsel, testified among other things that he would sell assault guns to “anybody who wants to buy them.” He was allowed to cross-examine the girl’s mother, and asked her, “Did she say it was lovely?” She replied, “She might have but again she is a child. She is a fourteen year old child who has had her mind twisted.” The council cut off the cross-examination at that point.

The council voted unanimously to revoke Baer’s license, adopting the committee’s conclusion that his “conviction constitutes a violation involving moral turpitude, which substantially relates to the licensee’s moral character and it is considered no longer appropriate for the licensee to possess a license for the sale of dangerous weapons.” Baer’s lawyer, however, told the council that his client would continue to sell guns, without a license, under section 6.84.020(B) of the ordinances. This subsection provides that the license requirement in subsection A “does not apply to rifles or shotguns used for hunting purposes, target-practice weapons, or any sporting-goods item defined as any of those items which further interest in the commonly accepted fields of sports.... ” Realizing that this was a glaring loophole in the city’s regulation of the gun business, the common council promptly repealed subsection B. On June 5, the day the repeal took effect, the police told Baer, “you’re out of the gun business.” Baer closed the shop and brought this suit.

Baer seeks damages but not return of his gun license; as his counsel acknowledged at oral argument, Baer’s conviction made him ineligible for a federal license to sell guns. See 18 U.S.C. §§ 923(d)(1)(B), 922(g)(1), (h)(1). His acknowledged ineligibility for a federal license makes it rather hard to see how he has been injured in a tort sense even if we assume there would have been a substantial delay before his federal license was actually revoked. A tort injury is an injury to a lawful interest. Cf. Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir.1983). Baer therefore cannot obtain damages under 42 U.S.C. § 1983 — a tort statute, 707 F.2d at 290-91, albeit a constitutional-tort statute — for the loss of his municipal license, when federal law forbids him to sell guns. But as the defendants have not made this argument, we shall not base our decision on it.

Another issue of causation lurks in the case. A plaintiff must prove a causal link between the violation and the injury for which he is seeking damages; and, by itself, the revocation of Baer’s license did not cause any injury to him, because (ignoring the question of the federal license) he could and did continue, without a city license, to sell all the guns he wanted to sell, thanks to section 6.84.020(B). This suggests that what hurt Baer was not the revocation of a license that he did not need but the repeal of the part of the ordinance that had made a license unnecessary. However, the suggestion is not entirely accurate. Baer is complaining about the repeal of the ordinance as well as about the revocation of the license; and if he can prove that the repeal was unlawful, he can complain about the revocation as well, for if his license had not been revoked the repeal would not have affected him. The repeal and revocation were the joint causes of his injury. If both were wrongful, the defendants are liable. If only one was wrongful, they are not liable, for in that case the plaintiff would have suffered the same loss even if there had been no wrongdoing, and thus he could not prove a wrongful injury, as he must in order to prevail.

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John H. Baer, Individually and D/B/A Liberty Guns v. The City of Wauwatosa, 716 F.2d 1117, 1983 U.S. App. LEXIS 24652 (7th Cir. 1983).

716 F.2d 1117 (John H. Baer, Individually and D/B/A Liberty Guns v. The City of Wauwatosa) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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