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National Rifle Association of America, Inc. v. City of Evanston

August 22, 2008


The opinion of the court was delivered by: Marvin E. Aspen, District Judge


Presently before us is Plaintiffs' Motion for Recusal. In their motion, Plaintiffs contend that I must recuse myself pursuant to 28 U.S.C. §§ 455(a) and (b)(1) based on an article I wrote in 1976 concerning federal gun legislation. For the reasons stated below, I decline to do so and deny the motion.


Following the Supreme Court's recent decision in District of Columbia et al. v. Heller,128 S.Ct. 2783 (2008), Plaintiffs initiated this lawsuit challenging the City of Evanston's ban on handgun possession.*fn1 Plaintiffs then promptly filed this Motion for Recusal based on my comments in a 1976 Chicago Bar Record article. (See Hon. David J. Shields & Hon. Marvin E. Aspen, Two Judges Look at Gun Control, Chi. Bar Rec., 180, 186 (Jan.-Feb. 1976), attached as Ex. 1 to Mem. in Supp. of Mot. (hereinafter "the Article").) In the Article, and based on my experiences as a prosecutor and Illinois state court judge, I unabashedly confessed "to a bias in favor of the enactment of new federal gun control legislation." (Id. at 186.) I also expressed my amazement -- relying on statistics from the early 1970s -- "that the overwhelming majority of Americas who favor such legislation are continually frustrated by a minority-interest gun lobby." (Id.) I stated my support for "a strong federal gun control bill," based on my opinion that "[s]tate and local legislation . . . has been, and will continue to be, ineffective." (Id. (emphasis in original).) Indeed, in the footnotes, I advocated the banning of handguns at the federal level and dismissed as "untenable" the argument that the Second Amendment protects an individual, rather than collective, right to bear arms.*fn2 (Id. at 191 nn.3 & 7.) While I was not alone in advancing such legal positions at that time, obviously much has changed since 1976. Nonetheless, Plaintiffs contend that recusal is warranted under 28 U.S.C. §§ 455(a) and (b)(1) because these comments evidence partiality as well as a personal bias against them.


A. Disqualification under 28 U.S.C. § 455(a)

Pursuant to § 455(a), a judge must recuse himself "in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). The § 455(a) inquiry is objective, asking "whether a reasonable observer, informed of all the surrounding facts and circumstances, would perceive a significant risk that the judge will resolve the case on a basis other than the merits." Schmude v. Sheahan, 312 F. Supp. 2d 1047, 1062 (N.D. Ill. 2004); see also Hook v. McDade, 89 F.3d 350, 354 (7th Cir. 1996); N.Y. City Hous. Dev. Corp. v. Hart, 796 F.2d 976, 980 (7th Cir. 1986); Ramirez v. Elgin Pontiac GMC, Inc., 187 F. Supp. 2d 1041, 1044-45 (N.D. Ill. 2002). To discourage judge-shopping, courts consider the perspective of a reasonable person, "rather than . . . a hypersensitive or unduly suspicious person." Hook, 89 F.3d at 354 (quoting In re Mason, 916 F.2d 384, 385-86 (7th Cir. 1990)); see also Schmude, 312 F. Supp. 2d at 1062; Ramirez, 187 F. Supp. 2d at 1044. Accordingly, "trivial risks of perceived impartiality are insufficient to warrant recusal." Schmude, 312 F. Supp. 2d at 1062; see also Hook, 89 F.3d at 354. The purpose of § 455(a) is to "promote public confidence in the impartiality of the judicial process." Schmude, 312 F. Supp. 2d at 1062; see also Ramirez, 187 F. Supp. 2d at 1044; In re Searches Conducted on Mar. 5, 1980, 497 F. Supp. 1283, 1290-91 (N.D. Ill. 1980). In furthering this goal, a judge "is . . . obligated not to recuse himself without reason just as he is obligated to recuse himself when there is reason." Hart, 796 F.2d at 981 (quoting Suson v. Zenith Radio Corp., 763 F.2d 304, 308-09 n.2 (7th Cir. 1985)); see also In re African-Am. Slave Descendents Litig., 307 F. Supp. 2d 977, 983 (N.D Ill. 2004); Schmude, 312 F. Supp. 2d at 1062.

With these principles in mind, I find that no reasonable, well-informed person "would perceive a significant risk" that I would resolve this case on anything other than the merits. I reach this conclusion based on the substance of my comments and the passage of time.

1. The Article

Turning first to the Article itself, I expressed no opinion on the City of Evanston's handgun ban, which is the focus of this litigation. Nor could I, as it was not enacted until six years later, in 1982. See Press Release, NRA-ILA, Evanston Amends Gun Ban (Aug. 15, 2008) (available at (last visited Aug. 18, 2008). In fact, I did not evaluate the merits of any particular federal, state or local statute.

Moreover, and as Defendants point out, my only comment concerning local gun control legislation -- such as at issue here -- was wholly negative. (Ans. to Mot. at 2.) Although I repeatedly promoted enactment of federal gun legislation, I plainly stated that "[s]tate and local legislation . . . has been, and will continue to be, ineffective." (Article at 186; see also Article at 190 & n.7.) Plaintiffs discard this qualification as "irrelevant," but they cannot proffer the Article as the sole basis of their motion and then refuse to consider it in its entirety. (Reply at 4-5.) The Article plainly questions the worth of state and local gun laws and posits that a federal law is necessary because of their failures. (Article at 186 & n.7.) While my segment of the Article was strongly-worded, to be sure, my comments focused on the general subject of the potential value of federal handgun legislation.

It is well-established, however, that "a judge's views on legal issues may not serve as the basis for motions to disqualify." In re African-Am. Slave Descendents Litig., 307 F. Supp. 2d at 984; see also Rosquist v. Soo Line R.R., 692 F.2d 1107, 1112 (7th Cir. 1982). In other words, "[t]he fact that a judge actively advocated a legal, constitutional or political policy or opinion before being a judge*fn3 is not a bar to adjudicating a case that implicates that opinion or policy." Weissman v. Boston Sch. Comm., 979 F. Supp. 915, 916-17 (D. Mass. 1997); see Litecky v. United States, 510 U.S. 540, 554, 114 S.Ct. 1147, 1157 (1994); Laird v. Tatum, 409 U.S. 824, 830, 93 S.Ct. 7, 11 (1972). In Laird v. Tatum, for example, Justice Rehnquist addressed a motion seeking his recusal because he had testified before a Senate subcommittee on behalf of the Department of Justice and otherwise "previously expressed in public an understanding of the law on the question of the constitutionality of governmental surveillance." 409 U.S. at 824-25, 93 S.Ct. at 9. Justice Rehnquist denied the motion and further commented that the "fact that some aspect of [his] propensities may have been publicly articulated prior to coming to this Court cannot . . . be regarded as anything more than a random circumstance which should not by itself form a basis for disqualification." Id. at 836, 93 S.Ct. at 14 (further observing that "it would be . . . extraordinary, if [judges] had not at least given opinions as to constitutional issues in their previous legal careers").

Similarly, in Rosquist, the Seventh Circuit concluded that Judge Grady need not have recused himself under § 455(a) from deciding an attorneys' fees issue, where he "had, in the past, written and spoken on the subject of contingent fees." 692 F.2d at 1112. The court held that Judge Grady was not obligated to recuse himself "merely because he holds and had expressed certain views on that general subject," particularly where "his general tenets are not so case-specific that they would pre-determine his position in" that case. Id.; see also Laird, 409 U.S. at 839, 93 S.Ct. at16 ("[I]t isnot a ground for disqualification that a judge has prior to his nomination expressed his then understanding of the meaning of some particular provision of the Constitution."); In re African-Am. Slave Descendents Litig., 307 F. Supp. 2d at 984. Based on these authorities, I find that an article written 32 years ago espousing general tenets on the need for federal gun legislation does not form a proper basis for recusal in this case.

This issue also tends to arise in a roughly analogous setting, as discussed in Laird v. Tatum, where a judge proposed or drafted legislation in a previous job and then is assigned a case interpreting that legislation once on the bench. 409 U.S. at 831-37, 93 S.Ct. at 11-14 (recounting several instances where Supreme Court justices did not recuse themselves "in cases involving points of law with respect to which they had expressed an opinion or formulated policy prior to ascending to the bench"); see Barry v. United States, 528 F.2d 1094, 1100 (7th Cir. 1976); see also Buell v. Mitchell, 274 F.3d 337, 345-48 (6th Cir. 2001). In Buell, for example, a state inmate appealed the district judge's denial of his habeas corpus petition seeking relief from a death sentence under Ohio law. 274 F.3d at 344-48. The district judge in that case, Judge Matia, "had sponsored the bill restoring Ohio's death penalty" as a state senator and "had expressed support for the death penalty while campaigning for Lieutenant Governor of Ohio in 1982," a decade prior to the habeas petition. Id. at 345. Despite these activities, the Sixth Circuit held that "a judge is not automatically ...

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