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Cardenas v. City of Chicago

June 25, 2010


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

Hon. Marvin E. Aspen


Plaintiff Henry Cardenas filed a three-count First Amended Complaint against Defendants the City of Chicago, David Tencza, and other police officers. Cardenas voluntarily dismissed several claims, leaving only Counts II and III against the City of Chicago and Tencza. Count II alleges illegal search and seizure in violation of the Fourth Amendment, and Count III alleges violation of Cardenas's Second Amendment right to bear arms. Presently before us is Defendants' motion for summary judgment. For the reasons stated below, we grant the motion.


In the early morning hours of June 17, 2007, Defendant David Tencza, a Chicago police officer, knocked on the front door of Plaintiff Henry Cardenas's second-floor apartment. (Def. Facts ¶¶ 30--31.) About an hour earlier, (see Def. Ex. G, Tencza Dep. at 15; Def. Ex. E, Tinoco Dep. at 49), while on patrol, Tencza had observed a young male he believed to be in violation of curfew walk through the exterior gate leading to the two-story residence containing Cardenas's apartment. (Def. Facts ¶ 6.) When Tencza and his partner attempted to stop the young male in order to conduct a field interview, the young male fled on foot. (Id. ¶ 7.) Tencza and his partner chased after the young male but lost him in an alley about a block from Cardenas's apartment. (Id. ¶¶ 8--9.) During the pursuit, Tencza observed a gun in the young male's hand. (Id. ¶ 9.) After an unsuccessful search of the alley, Tencza returned to the two-story residence the young male had been approaching when Tencza originally observed him. (Id. ¶10; Def. Ex. G, Tencza Dep. at 14--15.)

Upon Tencza's return, the first-floor resident, Jose Tinoco, noticed Tencza and another officer outside and motioned for them to come to the front door. (Def. Facts ¶¶ 11--12.) Tinoco opened the front door. (Id. ¶ 13.) Without entering the first-floor apartment, Tencza asked Tinoco if he had a son. (Id. ¶ 14.) Tinoco then motioned his arm toward the inside of the apartment to point at a photograph on the wall about six feet from the door. (Id.) In response, Tencza stepped into the apartment toward the photograph and then briefly searched the first-floor apartment for the young male to no avail. (Id. at 14, 16.) Tinoco neither protested Tencza's entry into his apartment, nor asked him to leave at any point. (Id. ¶ 24; Def. Ex. E, Tinoco Dep. at 47--49.) Tinoco indicated to Tencza that there was another apartment upstairs and showed Tencza the staircase leading from the living room of his first-floor apartment to the front door of Cardenas's second-floor apartment. (Def. Facts ¶¶ 14, 25, 27.) Tencza ascended the staircase and knocked on Cardenas's door. (Id. ¶¶ 30--31; Def. Ex. G, Tencza Dep. at 25.)

Loretta Cardenas, Henry Cardenas's wife, opened the door to the second-floor apartment and recognized Tencza as a police officer. (Def. Facts ¶ 31.) The precise details of the next few moments are somewhat disputed, however, the following sequence of events is not. Tencza asked whether any teenagers lived in the second-floor apartment, and Mrs. Cardenas said no. (Id. ¶ 32.) Tencza, still standing outside the door of the second-floor apartment, noticed what he believed to be a shotgun a few feet behind Mrs. Cardenas leaning upright against an interior doorframe. (Def. Ex. G, Tencza Dep. at 26.) The gun, which was in fact not a shotgun but an air rifle, was not in a case. (Def. Facts ¶ 41, 45.) Mrs. Cardenas stepped back from the front door,*fn2 at which point Tencza entered the threshold of the apartment. (Id. ¶ 35.) At about the same time, Mr. Cardenas appeared from the doorway against which was leaning the air rifle Tencza believed to be a shotgun. (Id. ¶ 37.) Tencza stated he was nervous, called for backup, (Def. Ex. A, Cardenas Dep. at 65; Def. Ex. D, Loretta Cardenas Dep. at 54), and secured the air rifle.*fn3

According to Cardenas, Tencza briefly questioned Cardenas about the gun and about whether any teenagers lived in the second-floor apartment; Cardenas replied that no teenagers lived there and that the gun was merely an air rifle. (Def. Ex. A, Cardenas Dep. at 58--63.)

Tencza asked Cardenas whether he had other guns in the apartment, and Cardenas indicated that he did have other guns. (Def. Facts ¶ 46.) Cardenas kept his guns locked in two safes: one in a closet near the kitchen and one in his bedroom. (Id. ¶ 51.) Cardenas retrieved the registration records for five rifles and showed them to Tencza. (Id. ¶ 47.) Tencza asked to see those guns, and in response Cardenas stated that he believed Tencza's request violated his Second Amendment rights. (Id. ¶ 48.) Tencza again asked to see the guns, and Cardenas said, "Okay, fine," and led Tencza to the gun safe located in a closet near the kitchen. (Id. ¶ 49--50; Def. Ex. A, Cardenas Dep. at 88.)

Cardenas opened the closet door and told Tencza that the safe inside contained several unregistered guns in addition to the five registered rifles. (Def. Facts ¶¶ 52--52.) Tencza asked Cardenas to open the safe and step away, and Cardenas complied, opening the safe and stepping back into the kitchen. (Id. ¶ 54.) Tencza checked the registration of all guns in the safe, six hand guns and six rifles in total. (Id. ¶¶ 55--56.) Cardenas assisted Tencza by indicating to Tencza where to find the serial numbers on the guns. (Id. ¶55.) Tencza returned five registered guns to the safe and placed seven unregistered guns on a table. (Id. ¶¶ 57, 60.) Cardenas never asked Tencza to leave his kitchen or get out of his closet and never refused to unlock the safe. (Id. ¶¶ 58--59, 71.)

Tencza then asked Cardenas if he could look in the bedroom safe. (Id. ¶ 61.) Cardenas again stated that he believed Tencza was violating his Second Amendment rights, but nevertheless led Tencza to the safe, told Tencza the safe contained unregistered firearms, and unlocked the safe. (Id. ¶¶ 62--63.) After Cardenas stepped away from the unlocked safe, Tencza removed the firearms inside from it, none of which were registered. (Id. ¶¶ 64, 66--67.) Cardenas never asked Tencza to leave his bedroom and never refused to open the safe. (Id. ¶¶ 65, 71.) Cardenas testified that he never told Tencza to leave his apartment at any point on June 17, 2007. (Id. ¶ 72.)

The Chicago police seized from Cardenas and inventoried a total of thirteen firearms, all of which were unregistered and unregisterable. (Id. ¶ 68.) Cardenas was arrested for possessing unregistered firearms. (Id. ¶ 69.)


Summary judgment is proper only when "there is no genuine issue as to any material fact and . . . the movant is entitled to a judgment as a matter of law." Fed R. Civ. P. 56(c)(2). A genuine issue for trial exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). This standard places the initial burden on the moving party to identify "those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986) (internal quotations omitted). Once the moving party meets this burden of production, the nonmoving party "may not rely merely on allegations or denials in its own pleading" but rather must "set out specific facts showing a ...

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