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

April 27, 2009


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


Presently before us is a Rule 12(b) motion to dismiss filed by Defendants City of Evanston ("Evanston") and its Mayor. Defendants contend that Plaintiffs lack standing to assert their claims concerning the constitutionality of Evanston's City Code. For the reasons set forth below, we deny the motion in part, and grant it in part.


Plaintiffs filed this action on June 27, 2008, the day after the Supreme Court announced for the first time, in Heller v. District of Columbia, that the Second Amendment of the United States Constitution confers an individual right to keep and bear arms. 128 S.Ct. 2783, 2799, 2822 (2008). Plaintiffs challenged Evanston's then-existing ban on handgun possession, memorialized at City Code § 9-8-2.

In response to the Heller decision and this lawsuit, Evanston amended Code §§ 9-8-2 and 9-8-5 ("Amended Code") on August 11, 2008. The Amended Code provides that "[n]o person shall possess, in the City of Evanston any handgun, except when said handgun is kept at the residence of said person for self-protection, provided that said person possesses a current and valid Firearm Owner's Identification card issued by the State of Illinois." (Am. Code § 9-8-2(A); see Am. Compl. ¶ 9.) Code § 9-8-6 classifies unlawful possession of a handgun as a "misdemeanor punishable by fine of not less than $1,500 and/or incarceration for up to six months." (Am. Code § 9-8-6(A); see Am. Compl. ¶ 9.) In addition, under the ordinance, the handgun at issue will be confiscated and destroyed. (Am. Code § 9-8-6(B); see Am. Compl. ¶ 9.)

In their Amended Complaint, the individual plaintiffs allege that -- but for the Amended Code -- they "and numerous other NRA members, would forthwith lawfully obtain handguns, transport those handguns to their homes, and keep the handguns at issue at their homes for lawful purposes." (Am. Compl. ¶ 10.) In addition, Plaintiffs contend that they "travel through or need to travel through Evanston" but are prohibited from doing so by the Amended Code. (Id. ¶ 11.) They allege that the Amended Code prevents them from transporting a handgun from outside Evanston to their homes, and from their homes to outside Evanston "no matter what the purpose, including sport or repair." (Id.) The Amended Complaint also states that "[a]ny members of the Plaintiff NRA who may maintain places of business within the City of Evanston face prosecution, incarceration and fines if they possess a handgun at, or transport a gun to, their own places of business." (Id. ¶ 14.) Ultimately, Plaintiffs contend that Amended Code § 9-8-2 infringes on their rights to "keep and bear arms as guaranteed by the Second and Fourteenth Amendments" because "it prohibits transportation of a handgun to the home, possession of a handgun within the home for purposes other than self protection, transportation of a handgun from the home to another location for lawful purposes, and possession of a handgun at one's place of business." (Id. ¶ 18.)

Evanston filed this second motion to dismiss on January 6, 2009, arguing that the Amended Code complies with Heller and decrying Plaintiffs' attempts to test the boundaries of that decision.*fn1 (Mem. at 3-6, 8.) Evanston contends that Plaintiffs lack standing to challenge Code § 9-8-2. (Id. at 7; Reply at 9-10.) Evanston further submits that the Amended Code implicitly permits lawful transportation of handguns through Evanston to a resident's home and, moreover, that it has no intention to prosecute Plaintiffs for such transportation. (Mem. at 7-8; Reply at 3-4, 6-8.)


Rule 12(b)(1) requires dismissal of claims over which the federal court lacks subject matter jurisdiction.*fn2 Jurisdiction is the "power to decide," and must be conferred upon the federal courts. In re Chicago, Rock Island & Pacific R.R. Co., 794 F.2d 1182, 1188 (7th Cir. 1986). In reviewing a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the court may look beyond the complaint to pertinent evidence submitted by the parties. See United Transp. Union v. Gateway W. Ry. Co., 78 F.3d 1208, 1210 (7th Cir. 1996). The plaintiff faced with a properly supported 12(b)(1) motion to dismiss bears the burden of proving that the jurisdictional requirements have been met. See Kontos v. U.S. Dep't of Labor, 826 F.2d 573, 576 (7th Cir.1987).


I. Standing of Individual Plaintiffs

Evanston contends that, based on the Amended Complaint, the individual plaintiffs -- Alan L. Miller, Jonathan Blair Garber and Kevin P. Stanton -- lack standing to challenge § 9-8-2. (Mem. at 2-3, 7-9; Reply at 9-10.) Evanston stresses that the Amended Code does not prohibit transportation of handguns to plaintiffs' homes and thus, there is no remaining controversy. (Mem. at 7-8; Reply at 6-10.) According to Evanston, there is no credible threat that these individuals will face prosecution, particularly because Evanston's Corporation Counsel "represent[ed] to the Court that the plaintiffs will not be prosecuted for transporting handguns to and from their home if transport is in the manner consistent with the state statute." (Mem. at 8.)

Turning to the latter argument, we conclude that Corporation Counsel's representation, as presented in Evanston's brief, is not sufficient to deprive the individual plaintiffs of standing under these circumstances. Theoretically, we may consider evidence outside the four corners of the complaint when evaluating a Rule 12(b)(1) factual attack on jurisdiction.*fn3 As Plaintiffs point out, however, counsel's representation in a brief does not constitute "evidence" (Resp. at 6), and Evanston has not offered authority or argument to the contrary. "It isuniversally known that statements of attorneys are not evidence." Campania Mgmt. Co. v. Rooks, Pitt & Poust, 290 F.3d 843, 853 (7th Cir. 2002); see U.S. v. Stevens, 500 F.3d 625, 628-29(7th Cir. 2007) (noting that the government's assertions in a brief regarding its possession of the property sought by plaintiff were not evidence); see Lawson v. Hill, 368 F.3d 955, 956-58 (7th Cir. 2004) (affirming dismissal of a First Amendment action based on evidence -- including deposition testimony -- that the prosecutor declined to pursue a case against the plaintiff under a flag desecration statute and told police to drop any investigation into her conduct, because he believed the statute was unconstitutional).

Even if we accepted Corporation Counsel's representation as fact, "disavowal of a statute requires that [Evanston] do more than say during litigation that it might never prosecute plaintiff or that it does not intend to prosecute plaintiff." Horina v. City of Granite City, No. 05 C 0079, 2005 WL 2085119, at *4 (S.D. Ill. Aug. 29, 2005); see Wis. Right to Life v. Paradise, 138 F.3d 1183, 1185-86 (7th Cir. 1998). "In order to disavow the [Amended Code], [Evanston] must instead take some affirmative step against enforcement." Horina, 2005 WL 2085119, at *4 (allowing plaintiff's First Amendment claim to proceed, despite defendant's representations "in its brief . . . that until there is a final disposition of this case, or until the ordinance is repealed, it will not enforce the [handbill distribution] ordinance"). For example, in Wisconsin Right to Life v. Paradise, the Seventh Circuit dismissed an action brought by a non-profit anti-abortion organization ("WRTL") that sought an order relieving it from the potential obligation of filing as a political action committee under a Wisconsin election law. 138 F.3d at 1184-85. The court held that WRTL did not face a credible threat of persecution, in part because the Wisconsin Attorney General had issued an opinion decades earlier on the subject, which favored WRTL and advised the state Election Board that it must comply with the dictates of Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612 (1976). Wisconsin Right to Life, 138 F.3d at 1185. In addition, the Election Board promulgated a rulesimilarly stating that groups, like WRTL, would not be subject to the registration and disclosure requirements at issue in the litigation. Id. at 1185. Given these affirmative actions by state officials, the Seventh Circuit concluded ...

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