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Matthew D. Wilson, Troy Edhlund v. Cook County

February 9, 2011

MATTHEW D. WILSON, TROY EDHLUND,
JOSEPH MESSINEO,
PLAINTIFFS-APPELLANTS,
v.
COOK COUNTY, A PUBLIC BODY AND CORPORATE,
TODD STROGER, BOARD PRESIDENT,
CAPACITY, AND ITS BOARD OF COMMISSIONERS IN THEIR OFFICIAL CAPACITIES, NAMELY: EARLEAN COLLINS, ROBERT STEELE, JERRY BUTLER, WILLIAM M. BEAVERS, DEBORAH SIMS, JOAN PATRICIA MURPHY, JOSEPH MARIO MORENO, ROBERT MALDONADO, PETER N. SILVESTRI, MIKE QUIGLEY, JOHN P. DALEY, FOREST CLAYPOOL, LARRY SUFFREDIN, GREGG GOSLIN, TIMOTHY O. SCHNEIDER, ANTHONY J. PERAICA, ELIZABETH ANN DOODY GORMAN, AND THOMAS DART, SHERIFF OF COOK COUNTY, IN HIS OFFICIAL CAPACITY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court and of Cook County, Illinois. Honorable Mary K. Rochford, in His Official Judge Presiding.

JUSTICE MURPHY delivered the judgment of the court, with opinion.

Presiding Justice Quinn and Justice Neville concurred in the judgment and opinion.

This appeal arises from the dismissal of plaintiffs' (Matthew D. Wilson, Troy Edhlund, and Joseph Messineo amended complaint seeking declaratory judgment and injunctive relief against defendants (Cook County, the Cook County commissioners, and Cook County Sheriff Tom Dart). Specifically, plaintiffs sought a declaration that the Blair Holt Assault Weapons Ban (Cook County Ordinance No. 06-O-50 (Nov. 14, 2006), amending Cook County, Illinois, Code of Ordinances §54--211 et seq. (eff. Jan. 1, 1994)) (Ordinance) was unconstitutional. On April 29, 2008, the trial court dismissed plaintiffs' first amended complaint pursuant to section 2-615 of the Code of Civil Procedure. 735 ILCS 5/2-615 (West 2006). The trial court found that: (1) the Ordinance is not unconstitutionally vague or overbroad; (2) plaintiffs did not state a cause of action for violation of the due process and equal protection clauses of the United States Constitution; (3) the Ordinance did not violate article I, section 22, of the Illinois Constitution (Ill. Const. 1970, art. I, §22) or the second amendment of the United States Constitution (U.S. Const., amend. II); and the county properly exercised its police powers in enacting the Ordinance.

Plaintiffs appealed and advanced several arguments. This court held that the United States Supreme Court's holding in District of Columbia v. Heller, 554 U.S.__, 128 S. Ct. 2783 (2008), provided that the second amendment grants a right to bear arms within the home for self-defense and limited application of the right to federal laws. Wilson v. Cook County, 394 Ill. App. 3d 534, 537-42 (2009). We held that the Heller Court did not announce that the second amendment provides a fundamental right to bear arms and rejected plaintiffs' argument that it must be incorporated under the fourteenth amendment and applied to the states. Based on this finding and Heller's limited federal reach, we found that Illinois precedent on this issue stood and affirmed the dismissal of plaintiffs' complaint as the individual right to bear arms remained subject to the police power. Wilson, 394 Ill. App. 3d at 542-44. We also found that, without an announced standard of strict scrutiny review, the trial court properly denied plaintiff's argument the Ordinance was vague and overly broad - a doctrine not considered out of the first amendment context by Illinois courts. Wilson, 394 Ill. App. 3d at 544-46. Finally, denial of plaintiff's equal protection and waiver claims was affirmed for plaintiff's failure to sufficiently plead facts in support. Wilson, 394 Ill. App. 3d 546-47.

Following denial of plaintiff's petition for rehearing, this court corrected its opinion and plaintiff filed a petition for leave to appeal before our supreme court. While that petition was pending, the United States Supreme Court issued McDonald v. City of Chicago, __ U.S. __, 130 S. Ct. 3020 (2010). Our supreme court entered a supervisory order directing this court to vacate our prior holding and reconsider the judgment in light of McDonald. Wilson v. Cook County, 237 Ill. 2d 593 (2010). That judgment was vacated. Both parties provided supplemental briefs. For the following reasons, we affirm the trial court's dismissal of the remaining counts in plaintiffs' complaint.

I. BACKGROUND

The Ordinance was originally enacted in 1993 by the Cook County Board of Commissioners (Commissioners) as the Cook County Deadly Weapons Dealer Control Ordinance to ban certain assault weapons and assault ammunition. Cook County Ordinance No. 93-O-37 (eff. Jan. 1, 1994). In the prefatory clauses, the Commissioners cited to the public health, safety, and welfare concerns caused by both assault weapons and guns in general. The Ordinance set forth several supporting facts, including: 1,000 of the 4,500 trauma cases handled by Cook County Hospital that year were due to gunshot wounds; there were more federally licensed gun dealers in Cook County than gas stations; an estimated 1 in 20 high school students had carried a gun in the prior month; and assault weapons are 20 times more likely to be used in the commission of a crime than other kinds of weapons. In addition, the Commissioners stated that there was no legitimate sporting purpose for the military-style assault weapons used on the streets.

Prior to its effective date, the Ordinance was amended to remove the prohibitions on the sale, transfer, acquisition, or possession of assault ammunition. Cook County Ordinance No. 93-O-46 (amended Nov. 16, 1993). The Ordinance prohibited the sale, transfer, acquisition, ownership, or possession of assault weapons, defined as 1 of a list of 60 types or models of high capacity, rapid-fire rifles or pistols. The Ordinance required any owners of the defined assault weapons to remove them from Cook County, modify them, or surrender them to the Cook County sheriff within 14 days of the enactment. Failure to comply with the Ordinance would result in a criminal penalty including a fine and possible imprisonment.

The Ordinance was amended again in 1999 to modify sections not at issue in this appeal; however, additional prefatory language was included to support the ban as necessary to protect the public welfare by reducing violent crime and the huge costs associated with those crimes. The Commissioners indicated that the revisions were based not only on the prolific black-market sales of weapons, but those by licensed dealers. The Commissioners cited undercover investigations and studies conducted by Cook County, the City of Chicago, the Cook County State's Attorney's office, and the Bureau of Alcohol, Tobacco and Firearms, which indicated that weapons utilized in the commission of crimes are traced to licensed gun dealerships. Cook County Ordinance No. 99-O-27 (amended November 23, 1999).

On November 14, 2006, the Ordinance was amended to apply to both assault weapons and large capacity magazines and expand the list of banned weapons and definition of those weapons. In addition, the time period for removal, surrender, or rendering inoperable was expanded from 14 to 90 days. Cook County Ordinance No. 06-O-50 (amended Nov. 14, 2006). The Ordinance was also amended in 2007 to change the name to the Blair Holt Assault Weapons Ban. Cook County Ordinance No. 07-O-36 (adopted June 19, 2007).

As for the specific provisions, section 54-211 of the Ordinance provides these definitions, followed by a nonexhaustive list of specifically banned weapons:

"Assault weapon means:

(1) A semiautomatic rifle that has the capacity to accept a large capacity magazine detachable or otherwise and one or more of the following:

(A) Only a pistol grip without a stock attached;

(B) Any feature capable of functioning as a protruding grip that can be held by the non-trigger hand;

(C) A folding, telescoping or thumbhole stock;

(D) A shroud attached to the barrel, or that partially or completely encircles the barrel, allowing the bearer to hold the firearm with the non-trigger hand without being burned, but excluding a slide that encloses the barrel; or

(E) A muzzle brake or muzzle compensator;

(2) A semiautomatic pistol or any semi-automatic rifle that has a fixed magazine, that has the capacity to accept more than ten rounds of ammunition;

(3) A semiautomatic pistol that has the capacity to accept a detachable magazine and has one or more of the following:

(A) Any feature capable of functioning as a protruding grip that can be held by the non-trigger hand;

(B) A folding, telescoping or thumbhole stock;

(C) A shroud attached to the barrel, or that partially or completely encircles the barrel, allowing the bearer to hold the firearm with the non-trigger hand without being burned, but excluding a slide that encloses the barrel;

(D) A muzzle brake or muzzle compensator; or

(E) The capacity to accept a detachable magazine at some location outside of the pistol grip.

(4) A semiautomatic shotgun that has one or more of the following:

(A) Only a pistol grip without a stock attached;

(B) Any feature capable of functioning as a protruding grip that can be held by ...


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