charge stemming from the March 26, 1986 incident. (Id. at paras. 25-26.)
The government retains broad discretion as to whom to prosecute. Wayte v. United States, 470 U.S. 598, 105 S. Ct. 1524, 1531, 84 L. Ed. 2d 547 (1985). So long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute generally rests entirely in the prosecutor's discretion. Id. Although prosecutorial discretion is broad, it is not unfettered. Id. at 1531. Selectivity in the enforcement of criminal laws is subject to constitutional constraints. Id.
In order to make a prima facie case for selective prosecution, one must establish initially that he was singled out for prosecution while others similarly situated were not prosecuted, and secondly, that the alleged selective decision to prosecute him was based on such impermissible grounds as race, religion, or exercise of constitutional rights. Jarrett v. United States, 822 F.2d 1438, 1443 (7th Cir. 1987).
Bennett claims that no other person investigated by the Oak Park Police Department for violating the Handgun Ordinance who used a handgun in self-defense has been prosecuted by the Village for violating the Ordinance. (Complaint, para. 25.) Additionally, Bennett asserts that the selective prosecution was based on the impermissible purpose of retaliating against Bennett for exercising his First Amendment right to freedom of expression. (Id., paras. 24, 31.)
Bennett has failed to produce sufficient evidence to show that he was singled out for prosecution under the Handgun Ordinance while others similarly situated were not prosecuted. Bennett presents several other cases of Handgun Ordinance violations in the Village in which no prosecutorial action was taken by the Village. Most of the cases cited by Bennett were clear and obvious cases of self-defense. In one case, the Village believed that, having already brought charges of murder, aggravated assault, and unlawful use of a weapon, charging the handgun owner with violating the Handgun Ordinance would have been superfluous. In another case, the handgun owner was required to turn his gun over to someone outside of the Village.
Another case cited by Bennett involved a suicide in which the victim used his father's gun. The Village did not prosecute the father because Bergstrom believed the father had suffered enough due to the suicide of his son and because the father agreed to immediately remove the handgun from the Village limits. Another case involved a security guard who did not fire his gun and whose actions may have fallen under an exception to the Handgun Ordinance.
The cases cited by Bennett are inapposite to Bennett's situation and provide no support for his allegations of dissimilar treatment. It was reasonable for the Village to view Bennett's use of his handgun on March 26, 1986 as an attempt to apprehend the offenders. The offenders were fleeing the scene of the robbery at the time Bennett used his handgun, so self-defense was an improbable motive. Also, Bennett fired his gun numerous times, in contrast to several of the cases cited by Bennett in which the weapons were not discharged at all.
Most importantly, confiscation of the firearm was a critical factor in the resolution of the cases cited by Bennett. Similarly, the Village offered to dispose of Bennett's case by ordering confiscation of the weapon. Bennett rejected this offer. It is apparent that the Village's primary concern in all of these cases, including Bennett's case, was to confiscate the handgun at issue from the Village. Had Bennett complied with the confiscation offer, the prosecution would have ceased.
The court believes the cases cited by Bennett fail to support his claim that he was singled out for prosecution while others similarly situated were not prosecuted. The facts in this case show that Bennett was not similarly situated with any of the other "crime victims" he cites. These other cases show that the Village's past practices of handling Handgun Ordinance violations included pursuing cases in which the handgun owner had used the weapon in a manner incompatible with self-defense and doing what it must (by agreement if possible) in all handgun cases to rid the Village of the weapon. The manner in which the Village exercised its broad prosecutorial discretion in Bennett's case was not inconsistent with these practices.
It is not relevant whether any Village official was "out to get" Bennett for the embarrassment he had caused the Village due to his outspoken criticism of the Handgun Ordinance. Proof that someone in local government has a vendetta against the one prosecuted, but that the law is being enforced rationally against others, will not get him past the Village's motion for summary judgment. See Falls v. Town of Dyer, 875 F.2d 146, 149 (7th Cir. 1989). As discussed above, the court believes the Handgun Ordinance is being enforced rationally against others.
Furthermore, there is no constitutional problem with the Village prosecuting Bennett, an individual whose plight has received nationwide publicity, in order to set an example of enforcement of the Handgun Ordinance. "A government legitimately could enforce its laws against a few persons (even just one) to establish a precedent, ultimately leading to widespread compliance." Falls, 875 F.2d at 148.
Bennett's outspokenness about the Handgun Ordinance does not bar the Village from prosecuting Bennett for violating the Ordinance. As the Seventh Circuit Court of Appeals has stated
[A] law violator cannot buy immunity from prosecution by coupling his violation with advocacy and then complaining that his advocacy led the government to single him out to prosecute for the violation -- even if his speculation about the government's motive is true. (cite omitted.) The government is allowed to get a bigger bang for its buck by concentrating its limited resources on those who flaunt their offenses, since proceedings against them are apt to generate more publicity and therefore communicate a more effective deterrent than proceedings against the obscure and denying violator.
White v. Elrod, 816 F.2d 1172, 1176 (7th Cir. 1987). Bennett violated the Handgun Ordinance of the Village. Thus, even if Bennett's protestations against the Ordinance did motivate the Village to prosecute him for the violation, such conduct did not fall outside the prosecutor's extensive discretion.
Bennett has been unable to provide sufficient evidence to create a genuine issue of whether he was singled out from others similarly situated and selectively prosecuted based upon impermissible grounds.
As set out in the discussion of Count I above, the propriety of the pre-prosecution activities alleged in Count I depends upon the propriety of Bennett's prosecution. Since the prosecution of Bennett was not improper, the evidence does not support Bennett's claim that the pre-prosecution activities alleged in Count I were substantially motivated by retaliatory purposes.
Defendants' motion for summary judgment on Counts I and II is GRANTED.