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John Justice v. Town of Cicero

March 11, 2011

JOHN JUSTICE, PLAINTIFF,
v.
TOWN OF CICERO, ILLINOIS AND LARRY DOMINICK, DEFENDANTS.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:

MEMORANDUM OPINION AND ORDER

Pro se plaintiff John Justice has sued the Town of Cicero, Illinois, and Town president Larry Dominick. Justice asserts that Cicero's firearms registration ordinance violates his rights under the Second and Fourteenth Amendments and the Illinois Constitution. Defendants have moved to dismiss the complaint for lack of standing and failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons stated below, the Court grants defendants' Rule 12(b)(1) motion.

Background

In 2006, Justice sued the Cicero and various Cicero employees, contesting, among other things, their enforcement of a Cicero firearms registration ordinance against him. Cicero police had discovered six unregistered firearms belonging to Justice while executing an administrative search of his business. They arrested and cited him for six counts of failing to register firearms in violation of section 62-260 of the Town of Cicero Code. Justice alleged that the defendants' conduct violated his rights under the Second and Fourteenth Amendments and the Illinois Constitution. He also asserted a claim contesting Cicero's business license ordinances and an antitrust claim challenging Cicero's operation of its water department.

Judge Wayne Andersen dismissed the complaint for failure to state a claim. Justice v. Town of Cicero, No. 06 C 1108, 2007 WL 2973851 (N.D. Ill. Oct. 7, 2007). Addressing the firearms registration ordinance, the court stated:

Because the Second Amendment only regulates the activities of the federal government, not municipalities, the Town's firearms ordinance does not violate any federal constitutional right. And because the Illinois Constitution gives home rule units wide latitude to regulate the private possession of firearms in order to protect the public health, safety, and welfare, the Town's firearms ordinance does not violate the State constitution.

Id. at *4-5 (citations omitted).

Justice appealed to the Seventh Circuit. While his appeal was pending, the Supreme Court decided District of Columbia v. Heller, 554 U.S. 570 (2008), invalidating an ordinance banning handgun possession in the home. Id. at 635. Additionally, the Seventh Circuit held in National Rifle Ass'n of America v. City of Chicago, 567 F.3d 856 (7th Cir. 2009), that the Second Amendment was not incorporated by the Fourteenth Amendment against the states. The Seventh Circuit's decision in National Rifle aligned it against the Ninth Circuit in a circuit split.

On appeal, the Seventh Circuit affirmed the district court's dismissal of Justice's complaint. Justice v. Town of Cicero, 577 F.3d 768 (7th Cir. 2009). With respect to Justice's Second Amendment claim, the court took into account the possibility that the Supreme Court might rule that the Second Amendment applies to the states and their subdivisions. The court stated:

If, as we have held, the Second Amendment does not apply to the states and their subdivisions, then Justice has no case. Even if we are wrong and the Ninth Circuit has proven to be the better predictor of the Supreme Court's rulings, there is a critical distinction between the D.C. ordinance struck down in Heller and the Cicero ordinance. Cicero has not prohibited gun possession in the town. Instead, it has merely regulated gun possession under § 62-260 of its ordinance. The Town does prohibit the registration of some weapons, but there is no suggestion in the Complaint or the record that Justice's guns fall within the group that may not be registered. Nor does Heller purport to invalidate any and every regulation on gun use; to the contrary, the Court in Heller disclaims any such intent . . . . Thus, even if we are wrong about incorporation, the Cicero ordinance, which leaves law-abiding citizens free to possess guns, appears to be consistent with the ruling in Heller.

Id. at 774 (citations omitted). The Supreme Court denied Justice's petition for a writ of certiorari. Justice v. Town of Cicero, 130 S. Ct. 3410 (2010). The Supreme Court thereafter ruled, in McDonald v. City of Chicago, that the Second Amendment indeed applies to the states and their subdivisions. McDonald v. City of Chicago, 130 S. Ct. 3020 (2010). A bit later, the Supreme Court denied Justice's petition for rehearing. Justice v. Town of Cicero, 131 S. Ct. 46 (2010).

On August 28, 2010, Justice filed the present complaint, again asserting that Cicero's firearms registration ordinance violates the Second and Fourteenth Amendments and the Illinois Constitution. Compl. 9. He seeks declaratory relief and an injunction prohibiting Cicero from enforcing the ordinance against him. Id. 9.

Cicero's firearms registration ordinance provides that "[a]ll firearms in the town shall be registered in accordance with this division." Town of Cicero Code § 62-260. Section 62-262(a) of the ordinance requires that any person issued a registration certificate:

(1) Shall possess a valid Illinois Firearm Owner's Identification Card in accordance with ...


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