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Gowder v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

June 19, 2012

Shawn GOWDER, Plaintiff,
v.
CITY OF CHICAGO, et al., Defendants.

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[Copyrighted Material Omitted]

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Meghan A. Gonnissen, Stephen A. Kolodziej, Ford & Britton, P.C., Chicago, IL, for Plaintiff.

Andrew W. Worseck, Mardell Nereim, City of Chicago, Department Of Law, Mardell Nereim, Rebecca Alfert Hirsch, City of Chicago, Department of Law, Rebecca Alfert Hirsch, Chicago, IL, for Defendants.

MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge.

This matter is before the court on Plaintiff Shawn Gowder's (Gowder) motion for summary judgment. Gowder challenges Section 8-20-110(b)(3)(iii) of the Municipal

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Code of Chicago, hereinafter referred to as Section (b)(3)(iii) of the Chicago Firearm Ordinance. For the reasons stated below, the motion for summary judgment is granted. This court finds that Section (b)(3)(iii) of the Chicago Firearm Ordinance is unconstitutionally void for vagueness. In addition, this court finds that Section (b)(3)(iii) of the Chicago Firearm Ordinance violates Gowder's right to keep and bear arms under the Second Amendment of the United States Constitution.

BACKGROUND

On August 21, 1995, Gowder was convicted in Illinois of the offense of unlawful use of a weapon under 720 ILCS 5/24-1(a)(10) based upon his possession of a weapon, and Gowder was sentenced to twelve months probation. At the time of Gowder's conviction, a violation of 720 ILCS 5/24-1(a)(10) was unconstitutionally classified as a Class 4 Felony. In 1999, the Illinois Supreme Court in People v. Cervantes, 189 Ill.2d 80, 243 Ill.Dec. 233, 723 N.E.2d 265, 267 (1999), struck down the Safe Neighborhood Act, also known as Public Act 88-680, which had classified simple possession of a firearm as a felony. The Illinois Supreme Court found the Safe Neighborhood Act unconstitutional, and therefore Gowder's conviction for first time possession of a firearm was considered a misdemeanor under 720 ILCS 5/24-1(b) by operation of law. Id.; see also People v. Lindsey, 324 Ill.App.3d 193, 257 Ill.Dec. 644, 753 N.E.2d 1270, 1278 (2001) (mandating reduction from a felony to a misdemeanor). Pursuant to the decision in Lindsey, on April 21, 2003, the Circuit Court of Cook County entered an order reducing Gowder's conviction for " unlawful use of a weapon" from a felony to a misdemeanor.

The City of Chicago requires persons living within the city limits of Chicago to obtain a Chicago Firearm Permit in order to possess firearms in their homes. Chicago Municipal Code 8-20-110(a). In 2010, Gowder applied for a Chicago Firearm Permit (Application). The City of Chicago denied the Application, citing Section (b)(3)(iii) of the Chicago Firearm Ordinance, which provides that " [n]o [Chicago Firearm Permit] application shall be approved unless the applicant ... has not been convicted by a court in any jurisdiction of ... an unlawful use of a weapon that is a firearm." Chicago Municipal Code 8-20-110(b)(3)(iii). Gowder appealed the denial of the Application to the City of Chicago Department of Administrative Hearings, and the administrative law judge affirmed the denial of the Application on December 8, 2010. The court notes that, interestingly, Gowder was issued an Illinois Firearm Owner's Identification (FOID) card pursuant to 430 ILCS 65/1 et seq. , and thus Gowder is not among the " persons who are not qualified to acquire or possess firearms ... within the State of Illinois...." Id. Gowder is entitled to a FOID card under the laws of the State of Illinois because " [h]e ... has not been convicted of a felony...." 430 ILCS 65/4(a)(2)(ii).

Gowder subsequently brought the instant action, and includes in his amended complaint a claim seeking judicial review of an administrative decision under the Illinois Administrative Review Law, 735 ILCS 5/3-101 et seq. (Count I), a declaratory and injunctive relief claim seeking a declaration that Section (b)(3)(iii) of the Chicago Firearm Ordinance is unconstitutional under the United States Constitution (Count II), and a declaratory and injunctive relief claim seeking a declaration that Section (b)(3)(iii) of the Chicago Firearm Ordinance is unconstitutional under the Illinois Constitution (Count III). Gowder has now filed a motion for summary judgment on all counts. The Illinois State Rifle Association has filed an amicus brief in this matter.

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LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Smith v. Hope School, 560 F.3d 694, 699 (7th Cir.2009). A " genuine issue" of material fact in the context of a motion for summary judgment is not simply a " metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, a genuine issue of material fact 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, 91 L.Ed.2d 202 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir.2000). In ruling on a motion for summary judgment, the court must consider the record as a whole, in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir.2000).

DISCUSSION

The City of Chicago's ordinance regarding Permits for and Registration of Firearms has triggered this lawsuit. While other provisions of the Chicago Firearm Ordinance may be subject to and may not survive constitutional challenge, this court addresses only the constitutionality of Section (b)(3)(iii) of the Chicago Firearm Ordinance, which bars individuals convicted of even non-violent misdemeanor offenses from possessing firearms in their homes for self-defense. Gowder, in the first instance, challenges the language in Section (b)(3)(iii) of the Chicago Firearm Ordinance, basically arguing that the language is vague. In addition, Gowder argues that Section (b)(3)(iii) of the Chicago Firearm Ordinance, which bars Gowder from obtaining a Chicago Firearm Permit based on his status as a non-violent misdemeanant, violates his constitutional right to keep and bear arms under the Second Amendment of the United States Constitution.

I. Unconstitutionally Void For Vagueness

The first question this court addresses is whether the language of Section (b)(3)(iii) of the Chicago Firearm Ordinance is unconstitutionally vague. Section (b)(3)(iii) of the Chicago Firearm Ordinance provides that " [n]o [Chicago Firearm Permit] application shall be approved unless the applicant ... has not been convicted by a court in any jurisdiction of ... an unlawful use of a weapon that is a firearm." Chicago Municipal Code 8-20-110(b)(3)(iii). Gowder, in essence, argues that Section (b)(3)(iii) of the Chicago Firearm Ordinance is unconstitutionally vague because it does not define the term " unlawful use of a weapon." An ordinance may be found to be unconstitutionally vague if (1) the ordinance " does not provide a person of ordinary intelligence a reasonable opportunity to know what is prohibited," or (2) the ordinance " fails to provide explicit standards to prevent arbitrary and discriminatory enforcement by those enforcing the [ordinance]." United States v. Lim, 444 F.3d 910, 915 (7th Cir.2006); see also Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972) (indicating that an ordinance is unconstitutionally vague if it " fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute, ... and because it encourages arbitrary and erratic arrests and convictions" ) (citation omitted) (internal quotations omitted); Skilling v. United States, __ U.S. __, 130 S.Ct. 2896, 2927-28, 177 L.Ed.2d 619 (2010) (stating that " [t]o satisfy due process, a penal statute [must] define

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the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement" ) (quoting in part Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)) (and stating that " [t]he void-for-vagueness doctrine embraces these requirements" ); Hegwood v. City of Eau Claire, 676 F.3d 600, 603 (7th Cir.2012) (stating that a statute is unconstitutionally vague " ‘ if it fails to define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and it fails to establish standards to permit enforcement in a nonarbitrary, nondiscriminatory manner’ " ) (quoting Fuller ex rel. Fuller v. Decatur Public School Bd. of Educ. Sch. Dist. 61, 251 F.3d 662, 666 (7th Cir.2001)).

Section (b)(3)(iii) of the Chicago Firearm Ordinance bars a person from obtaining a Chicago Firearm Permit if that person has been convicted " in any jurisdiction" of an " unlawful use of a weapon that is a firearm." Chicago Municipal Code 8-20-110(b)(3)(iii). In this case, the court first looks to see if Section (b)(3)(iii) of the Chicago Firearm Ordinance implicates constitutionally protected conduct. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (stating that " [i]n a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct" and if it does " [t]he court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications" ). In the instant case, the first inquiry under Hoffman Estates is satisfied, ...


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