Matthew Wilson v. Cook County

937 F.3d 1028

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 29, 2019
• Docket: 18-2686
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 18-2686 MATTHEW D. WILSON, et al., Plaintiffs-Appellants, v.

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

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:17-cv-07002 — Manish S. Shah, Judge. ____________________

ARGUED APRIL 4, 2019 — DECIDED AUGUST 29, 2019 ____________________

Before RIPPLE, HAMILTON, and ST. EVE, Circuit Judges. PER CURIAM. Two Cook County residents appeal the dismissal of their complaint, which raises a Second Amend- ment challenge to Cook County’s ban on assault rifles and large-capacity magazines. Less than five years ago, we up- held a materially indistinguishable ordinance against a Sec- ond Amendment challenge. See Friedman v. City of Highland Park, 784 F.3d 406 (7th Cir. 2015). The district court dis- missed the plaintiffs’ complaint on the basis of Friedman. We 2 No. 18-2686

agree with the district court that Friedman is controlling. Be- cause the plaintiffs have not come forward with a compel- ling 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 de- fines “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 pos- sess” 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 enact- ment 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 Ordi- nance 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, includ- ing the plaintiffs, brought a preenforcement 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 No. 18-2686 3

Cook County Board of Commissioners, and the Cook Coun- ty Sheriff. The plaintiffs alleged that the ordinance violates the Due Process Clause because the definition of assault weapons is unconstitutionally vague (Count I); the ordi- nance fails to provide a scienter requirement and fails to give fair warning of the conduct proscribed (Count II); the ordi- nance 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 cer- tain 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, 968 N.E.2d 641, 658 (Ill. 2012). Plaintiffs then voluntarily non-suited their Second Amendment claim prior to resolu- tion on the merits. In June 2013, the City of Highland Park, Illinois, also en- acted an ordinance banning assault weapons and large- capacity magazines within city limits (“Highland Park Ordi- nance”). The Highland Park Ordinance defines “assault weapon” and “large-capacity magazine” in virtually identi- cal terms as the County Ordinance does and proscribes the same conduct: it penalizes those who “manufacture, sell, of- fer or display for sale, give, lend, transfer ownership of, ac- quire or possess” any assault weapon or large-capacity mag- azine. 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 inop- 4 No. 18-2686

erable 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 as- sault weapon or large-capacity magazine not needed as evi- dence. 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 High- land 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 re- filed 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 dis- missed due process and equal protection claims to “pre- 1 serve[]” those claims “for appeal.” The defendants removed the action to federal court on September 28, 2017. Once in federal court, the district court granted the de- fendants’ 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

1 R.2-1 at 6. It is not clear to us why the plaintiffs repleaded their claims under the Due Process and Equal Protection Clauses. The Supreme Court of Illinois affirmed the dismissal of those claims. See Wilson v. Cty. of Cook, 968 N.E.2d 641, 658 (Ill. 2012). Any further review of those claims must be sought in the Supreme Court of the United States. See 28 U.S.C. § 1257(a). No. 18-2686 5

2 Highland Park Ordinance at issue in Friedman and that Friedman, therefore, required the dismissal of the plaintiffs’ 3 Second Amendment claim. The plaintiffs filed a timely no- 4 tice of appeal. II. DISCUSSION The plaintiffs now submit to us that the district court should not have relied on Friedman. In their view, their situa- tion is materially different from that of the Friedman plain- tiffs, 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 de- cided 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 (2008), and that we employed in Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011). We begin our consideration of the

2 R.30 at 3. 3 Id. at 7. Although the district court did not mention the plaintiffs’ other claims in its memorandum opinion, it dismissed the plaintiffs’ complaint in its entirety and entered a final judgment. See R.31. As previously not- ed, it is unclear what the plaintiffs were trying to accomplish by replead- ing their due process and equal protection claims. They made no men- tion of them either in their opposition to the defendants’ motion to dis- miss the complaint in the district court or in their briefing before this court. 4 The district court had jurisdiction over the plaintiffs’ constitutional claims pursuant to 28 U.S.C. §§ 1331, 1343. Our jurisdiction is secure un- der 28 U.S.C. § 1291. 6 No. 18-2686

plaintiffs’ claim by reviewing Heller, Ezell, and Friedman in the developing landscape of Second Amendment jurispru- dence. A. In Heller, the Supreme Court considered the constitution- ality 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 indi- vidual right to possess and carry weapons in case of con- frontation.” Heller, 554 U.S. at 592. 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 whatsoev- er and for whatever purpose.” Id. at 626. Consequently, the Court’s holding did not “cast doubt on longstanding prohi- bitions on the possession of firearms by felons and the men- tally ill, or laws forbidding the carrying of firearms in sensi- tive places such as schools and government buildings, or laws imposing conditions and qualifications on the commer- cial sale of arms.” Id. at 626–27. 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 (quoting United States v. Miller, 307 U.S. 174, 179 (1939)). It therefore did not preclude a ban on “the carrying of danger- ous 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. Additionally, the prohibition extended to possession and use in the home, No. 18-2686 7

“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 5 the Second Amendment. In Ezell, we applied Heller to the City of Chicago’s treat- ment 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. [I]f the government can establish that a chal- lenged firearms law regulates activity falling outside the scope of the Second Amendment right as it was understood at the relevant his- torical moment … the analysis can stop there; the regulated activity is categorically unpro- tected, and the law is not subject to further Second Amendment review. Id. at 702–03. If, however, the government cannot meet this burden, then the court must “inquir[e] into the strength of

5 In McDonald v. City of Chicago, 561 U.S. 742, 791 (2010), the Court held “that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller” and, consequently, states’ attempts to regulate the use of firearms must conform to the re- quirements of the Second Amendment. 8 No. 18-2686

the government’s justification for restricting or regulating the exercise of Second Amendment rights.” Id. at 703. The rigor of this inquiry “will depend on how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right.” Id. “[A] severe burden on the core Second Amendment right of armed self-defense will require an extremely strong public-interest justification and a close fit between the government’s means and its end.” Id. at 708. However, laws restricting activity lying closer to the margins of the Second Amendment right, laws that merely regulate rather than restrict, and modest burdens on the right may be more easi- ly justified. How much more easily depends on the relative severity of the burden and its prox- imity to the core of the right. Id. Applying this framework, we could not conclude that “range training is categorically unprotected by the Second Amendment.” Id. at 704. Moving to the second inquiry, we observed that “[t]he City’s firing-range ban is not merely regulatory; it prohibits the ‘law-abiding, responsible citizens’ of Chicago from engaging in target practice in the controlled environment of a firing range.” Id. at 708. “This,” we ex- plained, “[wa]s a serious encroachment on the right to main- tain proficiency in firearm use, an important corollary to the meaningful exercise of the core right to possess firearms for self-defense.” Id. The ban was especially problematic given that the City itself had placed special import on range train- ing by making it a requirement for obtaining a permit to possess a firearm. Id. We concluded, therefore, that “a more No. 18-2686 9

rigorous showing … should be required, if not quite ‘strict scrutiny.’” Id. The City, however, had “not come close to sat- isfying” its “burden of establishing a strong public-interest justification for its ban on range training” and a “close fit be- tween the range ban and the actual public interests it serves.” Id. at 708–09. Following Ezell, the question of the constitutionality of assault-weapons bans arose in two of our sister circuits, and those courts upheld the bans against Second Amendment challenges. As we had in Ezell, these courts considered “(1) how closely the law c[ame] to the core of the Second Amendment right; and (2) how severely, if at all, the law burden[ed] that right.” Fyock v. Sunnyvale, 779 F.3d 991, 998 (9th Cir. 2015); see also Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1257 (D.C. Cir. 2011) (noting that “the level of scrutiny applicable under the Second Amendment surely depends on the nature of the conduct being regulated and the degree to which the challenged law burdens the right” (internal quotation marks omitted)). Although these bans may have “implicate[d] the core of the Second Amend- ment,” the bans were “simply not as sweeping as the com- plete handgun ban at issue in Heller” and did “not affect the ability of law-abiding citizens to possess the quintessential self-defense weapon—the handgun.” Fyock, 779 F.3d at 999 (internal quotation marks omitted). These courts therefore concluded that intermediate scrutiny was appropriate and, applying that level of scrutiny, further concluded that the ordinance was “substantially related to the compelling gov- ernment interest in public safety.” Id. at 1000 (internal quota- tion marks omitted); see also Heller II, 670 F.3d at 1262–63 (noting a lack of evidence “that semi-automatic rifles and magazines … are well-suited to or preferred for the purpose 10 No. 18-2686

of self-defense or sport,” therefore applying intermediate scrutiny, and concluding that the evidence demonstrated that the ban was “likely to promote the Government’s inter- est in crime control in the densely populated urban area that is the District of Columbia”). Our decision in Friedman built upon the experience of our sister circuits in applying Heller to assault-weapons bans. We began our consideration of the constitutionality of the High- land Park Ordinance by noting that, although “Heller d[id] not purport to define the full scope of the Second Amend- ment,” it did make clear “that the Second Amendment ‘does not imperil every law regulating firearms.’” Friedman, 784 F.3d at 410 (quoting McDonald v. City of Chicago, 561 U.S. 742, 786 (2010)). Moreover, we were able to deduce that, under Heller, “at least some categorical limits on the kinds of weapons that can be possessed are proper, and that they need not mirror restrictions that were on the books in 1791.” Id. We observed that, in considering equivalent weapons bans, our sister circuits had attempted to discern what level of scrutiny should apply to an assault-weapons ban. See id. Their inquiries had been posed in the abstract, asking “(1) how closely the law comes to the core of the Second Amendment right; and (2) how severely, if at all, the law burdens that right.” Fyock, 779 F.3d at 998. We, however, at- tempted to evaluate the Highland Park Ordinance in more “concrete” terms by asking: “whether a regulation bans weapons that were common at the time of ratification or those that have ‘some reasonable relationship to the preser- vation or efficiency of a well regulated militia,’ and whether law-abiding citizens retain adequate means of self-defense.” Friedman, 784 F.3d at 410 (quoting Heller, 554 U.S. at 622) (ci- tations omitted). We then observed that “[t]he features pro- No. 18-2686 11

hibited by Highland Park’s ordinance were not common in 1791.” Id. However, “[s]ome of the weapons prohibited by the ordinance are commonly used for military and police functions; they therefore bear a relation to the preservation and effectiveness of state militias.” Id. We turned then to the question “whether the ordinance leaves residents of High- land Park ample means to exercise the ‘inherent right of self- defense’ that the Second Amendment protects.” Id. at 411 (quoting Heller, 554 U.S. at 628). We noted that “Heller did not foreclose the possibility that allowing the use of most long guns plus pistols and revolvers, as Highland Park’s or- dinance does, gives householders adequate means of de- fense.” Id. Moreover, we explained that, “[w]ithin the limits established by the Justices in Heller and McDonald, federal- ism and diversity still have a claim,” and “[t]he best way to evaluate the relation among assault weapons, crime, and self-defense is through the political process and scholarly debate.” Id. at 412. In short, because the Highland Park Or- dinance did not strike at the heart of the Second Amend- ment, and because the residents of Highland Park were not left without a means of self-defense, the Constitution did not foreclose Cook County’s efforts to preserve public safety. B. Returning to the plaintiffs’ arguments, they contend that, in Friedman, the court was “able to, and did, consider facts specific to Highland Park, as well as the findings of the City 6 Council, that provided the basis for its holding.” The same record, they assert, does not support the district court’s

6 Appellants’ Br. 15. 12 No. 18-2686

judgment here. Moreover, they maintain that, if they were allowed to develop a factual record, it would reveal im- portant, material distinctions between the residents of High- land Park and the residents of Cook County. We are unpersuaded. The result in Friedman did not turn on any factual findings unique to Highland Park. For example, to address whether the ordinance banned weapons that are commonly owned, we referenced a national statistic. Friedman, 784 F.3d at 409 (“The record shows that perhaps 9% of the nation’s firearms owners have assault weapons … .”). We also assessed the dangerousness of the prohibited weapons by discussing general evidence of the features of semi-automatic guns and large-capacity magazines. Id. Moreover, we did not limit our analysis to crime trends in Highland Park. See id. at 411 (“That laws similar to Highland Park’s reduce the share of gun crimes involving assault weapons is established by data.”). We did undertake inquiries specific to Highland Park’s ordinance. See, e.g., id. at 410 (determining that “[t]he features prohibited by Highland Park’s ordinance were not common in 1791”); id. at 411 (concluding that “Highland Park’s ordinance leaves residents with many self-defense options”). However, the plaintiffs admit that the prohibitions imposed by the County Ordinance and the Highland Park Ordinance are materially indistinguishable. Consequently, there is no need for County-specific discovery regarding the plaintiffs’ Second Amendment challenge. The plaintiffs further argue that, to determine whether a particular ordinance impinges on residents’ right to bear arms, we must consider crime statistics, population density, and demographics of the locality. Because “[t]he type, mag- No. 18-2686 13

nitude and frequency of the criminal threats faced by the 5 million plus residents of Cook County … are likely to be very different from those confronted by the 29,000 residents 7 of Highland Park,” they submit that discovery is necessary to explore these disparities. The failing in this argument is that our analysis in Fried- man did not rest at all on the types or frequency of crime that a Highland Park resident may face. Such considerations never are mentioned, much less analyzed, in our decision. Our discussion of self-defense focused instead on the availa- bility of other means for citizens to defend themselves. This is a question answered by the particular locality’s laws, not by its crime rates. The plaintiffs have not come forward with any legal authority establishing that Cook County regulates the possession of firearms to a greater extent than was pre- sent in Highland Park. C. Perhaps realizing the weakness in their initial argument, the plaintiffs dedicate the bulk of their brief to their second argument: Friedman was wrongly decided. They maintain that Friedman cannot be reconciled with Heller or Ezell. We have stated repeatedly, and recently, that, absent a compelling reason, we will not overturn circuit precedent. See, e.g., Sotelo v. United States, 922 F.3d 848, 852 (7th Cir. 2019); United States v. Wolfe, 701 F.3d 1206, 1217 (7th Cir. 2012) (reiterating that a “compelling reason” is required to overrule a circuit precedent). “[P]rinciples of stare decisis

7 Appellants’ Reply Br. 22. 14 No. 18-2686

require that we give considerable weight to prior decisions unless and until they have been overruled or undermined by the decisions of a higher court, or other supervening devel- opments, such as a statutory overruling.” McClain v. Retail Food Emp’rs Joint Pension Plan, 413 F.3d 582, 586 (7th Cir. 2005) (internal quotation marks omitted). The plaintiffs have not come forward with any authority or developments that postdate our Friedman decision that require us to reconsider that decision. Indeed, since Fried- man, every court of appeals to have considered the issue has reached the same conclusion that we did: bans on assault weapons and large-capacity magazines do not contravene the Second Amendment. See Worman v. Healey, 922 F.3d 26 (1st Cir. 2019); Ass’n of New Jersey Rifle & Pistol Clubs, Inc. v. Att’y Gen. New Jersey, 910 F.3d 106 (3d Cir. 2018) (large-capacity magazines); Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc) (assault weapons); New York State Rifle & 8 Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242 (2d Cir. 2015). Moreover, Friedman does not run afoul of Heller. The Court in Heller made clear that it was not “undertak[ing] an exhaustive historical analysis … of the full scope of the Second Amendment.” Heller, 554 U.S. at 626. Consequently, it “was not explicit about how Second Amendment challenges should be adjudicated.” Ezell, 651 F.3d at 701. Nevertheless, the questions we posed in Friedman to assess

8The decisions of the Ninth and District of Columbia Circuits in Fyock v. Sunnyvale, 779 F.3d 991 (9th Cir. 2015), and Heller v. District of Columbia (Heller II), 670 F.3d 1244 (D.C. Cir. 2011), respectively, also are consonant with Friedman, but predated that decision. No. 18-2686 15

the constitutionality of the assault-weapons ban track the general guidance provided by the Court in Heller. For instance, in Friedman, we asked whether “a regulation bans weapons that were common at the time of ratification or those that have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia.’” 784 F.3d at 410 (quoting Heller, 554 U.S. at 622). This question embodies the recognition—set forth in Heller—“that the Second Amendment confers an individual right to keep and bear arms (though only arms that ‘have some reasonable relationship to the preservation or efficiency of a well regulated militia’).” Heller, 554 U.S. at 622. Finally, we believe Friedman fits comfortably under the umbrella of Ezell. As outlined above, Ezell followed closely on the heels of Heller and McDonald at a time when “Second Amendment litigation [wa]s new.” Ezell, 651 F.3d at 700. We endeavored therefore to set forth the “threshold” inquiries that would govern in “some Second Amendment cases.” Id. at 701 (emphasis added). Specifically, we first ask whether the restricted activity is protected by the Second Amend- ment. If so, we inquire whether the strength of the govern- ment’s reasons justifies the restriction of rights at issue, with the rigor of this second inquiry “depend[ing] on how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right.” Id. at 703. Shortly after Ezell, when the question of the constitutionality of assault-weapons bans arose in other circuits, those courts employed this approach to conclude that intermediate scru- tiny should be applied and to uphold those bans under that level of scrutiny. See Heller II, 670 F.3d at 1252 (“adopt[ing], as have other circuits, a two-step approach to determining the constitutionality of the District’s gun laws” and specifi- 16 No. 18-2686

cally citing Ezell); Fyock, 779 F.3d at 998. When Friedman came before us, we were able to draw upon the experience of those circuits in addressing, specifically, assault-weapons bans. Under those circumstances, we were able to pretermit discussion of more general principles concerning level of scrutiny and focus on the “concrete” inquiries that had in- formed those courts’ analysis of whether the bans violated the Second Amendment. Friedman, 784 F.3d at 410. Thus, for instance, our inquiry “whether law-abiding citizens retain adequate means of self-defense,” id., finds a parallel in Heller II’s consideration of whether “the ban on certain semi- automatic rifles prevent[s] a person from keeping a suitable and commonly used weapon for protection in the home,” 670 F.3d at 1262. Also like our sister circuits, in Friedman we evaluated the importance of the reasons for the Highland Park Ordinance to determine whether they justified the ban’s intrusion on Second Amendment rights. We conclud- ed, as our sister circuits had, that “reduc[ing] the overall dangerousness of crime” and making the public feel safer were “substantial” interests that justified the city’s action in adopting the Highland Park Ordinance. Friedman, 784 F.3d at 412; see also Fyock, 779 F.3d at 1000–01 (noting that ban reasonably promoted the municipality’s “substantial and important government interests” of “promoting public safe- ty,” “reducing violent crime,” and “reducing the harm and lethality of gun injuries in general”). Our decision in Fried- 9 man, therefore, did not “shun[]” Ezell, but merely represents the application and extension of its principles to the specific

9 Appellants’ Br. 29. No. 18-2686 17

context of a ban on assault weapons and large-capacity mag- azines. Conclusion As the Court did in Heller, it is important to note the limi- tations of our holding. We answer only the two questions presented by the appellants: should the district court have given the plaintiffs an opportunity to develop a factual rec- ord on which to distinguish Friedman, and should we revisit our holding in Friedman. Our answer to both questions is no. Our holding in Friedman did not depend upon the kinds of facts that the plaintiffs seek to gather, and the plaintiffs have come forward with no reason—much less a compelling one—for us to revisit Friedman. We do not establish here a comprehensive approach to Second Amendment challenges, and we leave for other cases further development and re- finement of standards in this emerging area of the law. For the foregoing reasons, the judgment of the district court dismissing the plaintiffs’ complaint under Federal Rule of Civil Procedure 12(b)(6) is affirmed. The defendants may recover their costs in this court. AFFIRMED