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John Justice v. Town of Cicero

October 25, 2011


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


Pro se plaintiff John Justice has sued the Town of Cicero and Town President Larry Dominick. Justice asserts that Cicero's business-licensing and firearms-registration ordinances violate his rights under the United States Constitution's Second and Fourteenth Amendments and the Illinois Constitution. Defendants previously moved to dismiss for lack of standing and failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The Court granted defendants' Rule 12(b)(1) motion and directed Justice to file an amended complaint. Justice v. Town of Cicero, No. 10 C 5331, slip op. (N.D. Ill. Mar. 11, 2011). Justice did so, and defendants filed a new Rule 12(b)(6) motion in response. For the reasons stated below, the Court grants the motion.


The Court assumes familiarity with its earlier decision on defendants' motion to dismiss, which provided a summary of the factual and legal allegations underlying Justice's claims. Justice's amended complaint, filed after the Court's earlier decision, contains additional factual allegations, which the Court summarizes below. The Court accepts these facts as true for purposes of deciding defendants' motion to dismiss. Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009).

Justice owns a manufacturing business in Cicero. He alleges that Cicero police entered his business, seized fourteen firearms, and arrested and briefly incarcerated him.*fn1 The police also closed his business because he was operating it without a license. They put up police tape and signs prohibiting entry, which Justice claims damaged his reputation and caused his customers to cease buying from him. Justice sued Cicero and several Cicero employees shortly thereafter. Judge Wayne Anderson dismissed his lawsuit, the Seventh Circuit affirmed the dismissal, and the Supreme Court denied certiorari. This Court's previous decision provides further details regarding Justice's earlier suit. In the present case, which Justice filed four years later based on the same incident, he seeks a declaratory judgment and an injunction prohibiting Cicero from enforcing its firearms-registration and business-licensing ordinances against him.

Cicero's firearms 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 430 ILCS 65/4, as amended;

(2) Has not been convicted of a crime of violence, as defined in this division as weapons offense, or a violation of this division;

(3) Has not been convicted within the five years prior to the application of any violation of:

a. Any law relating to the use, possession or sale of any narcotic or dangerous drug; or

b. The provisions of 720 ILCS 5/12-2(a)(1), as amended, for aggravated assault or any similar provision of the law of any other jurisdiction;

(4) Has vision better than or equal to that required to obtain a valid driver's license under the standards established by 625 ILCS 5/6-109; and

(5) Is not otherwise ineligible to possess a firearm under any federal, state or local law, statute or ordinance.

Section 62-261 prohibits the issuance of registration certificates for sawed-off shotguns, machine guns, short-barreled rifles, firearm mufflers, firearm silencers, and assault weapons. Sections 62-262(b) and 62-264 require applicants for registration certificates to provide the following to Cicero's director of public safety: a $25 non-refundable application fee; the applicant's name, social security number, addresses, age, sex, and citizenship; the applicant's firearm owner's ID number; two photographs; information about the firearm and the source from which it was obtained; evidence that the applicant meets the criteria for registration; and "[s]uch other information as the director of public safety shall find reasonably necessary to effectuate the purpose of this division and to arrive at a fair determination whether the terms of this division have been complied with." Finally, section 62-259 authorizes fines of $250 to $750 for violations of the ordinance.


Defendants have moved to dismiss Justice's complaint pursuant to Rule 12(b)(6). They contend that: (1) the doctrine of claim preclusion bars his suit; (2) Cicero's firearm ordinance does not violate the Second Amendment; (3) Cicero's business-licensing ordinance does not violate the Illinois Constitution; (4) Justice's official capacity claims against Dominick rely impermissibly on respondeat superior liability; (5) qualified immunity shields Dominick from liability for damages; and (6) the Illinois Local Governmental and Governmental Employees Tort Immunity Act bars all claims for monetary relief.

On a motion to dismiss under Rule 12(b)(6), the Court accepts the facts stated in the complaint as true and draws reasonable inferences in favor of the plaintiff. Hallinan, 570 F.3d at 820. To survive the motion, the complaint must include enough facts to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949.

I. Claim preclusion

Defendants' contention that Justice's claims are barred by the doctrine of claim preclusion, also known as res judicata,constitutes an affirmative defense. A plaintiff typically is not required to anticipate affirmative defenses in his complaint, and his failure to do so typically does not entitle a defendant to dismissal under Rule 12(b)(6). A defendant may, however, properly raise claim preclusion in a motion to dismiss if the plaintiff "plead[s] himself out of court" by alleging facts that establish the defense. Muhammad v. Oliver, 547 F.3d 874, 878 (7th Cir. 2008). A court may take judicial notice of public court documents and may consider those documents along ...

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