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Moore v. Madigan

United States District Court, Seventh Circuit

October 9, 2013

MICHAEL MOORE, CHARLES HOOKS, PEGGY FECHTER, JON MAIER, SECOND AMENDMENT FOUNDATION, INC., and ILLINOIS CARRY, Plaintiffs,
v.
LISA MADIGAN, in her official capacity as Attorney General for the State of Illinois, and HIRAM GRAU, in his official capacity as Director of the Illinois State Police, Defendants.

OPINION

SUE E. MYERSCOUGH, District Judge.

This cause is before the Court on the Motion to Dismiss as Moot (d/e 51) filed by Defendants Lisa Madigan and Hiram Grau. Defendants' Motion is DENIED. A case or controversy still exists because Plaintiffs have not received the specific relief sought by Plaintiffs in the Amended Complaint.

Furthermore, this Opinion does not address whether Plaintiffs Michael Moore, Charles Hooks, Peggy Fetcher, Jon Maier, Second Amendment Foundation, Inc., and Illinois Carry are prevailing parties, and, therefore, capable of obtaining attorney's fees pursuant to 42 U.S.C. § 1988. Plaintiffs shall file a request for attorney's fees within 40 days of the Seventh Circuit's issuance of a mandate in Shepard v. Madigan , 13-2661. See Text Order entered on September 5, 2013.

I. BACKGROUND

A. Plaintiffs Challenged Illinois Statutes that, as Applied, Banned the Carrying of Firearms Outside of the Home in Illinois

On May 13, 2011, Plaintiffs filed an Amended Complaint alleging subsections 720 ILCS 5/24-1(a)(4) and (10) (2010) ("Unlawful Use of Weapons") and 720 ILCS 5/24-1.6 (2010) ("Aggravated Unlawful Use of a Weapon"), which prohibited all private citizens from carrying functional and accessible firearms outside of the home in Illinois, violated Plaintiffs' Second Amendment rights. See d/e 5. Plaintiffs sought an order declaring the challenged statutes unconstitutional, an injunction against enforcement of the statutes, and "such other and further relief, including further injunctive relief, against all Defendants, as may be necessary to effectuate the Court's judgment or otherwise grant relief, or as the Court otherwise deems just and equitable." See d/e 5 at 10-11. Plaintiffs also sought attorney's fees pursuant to 42 U.S.C. § 1988. See d/e 5 at 11.

On July 27, 2011, Defendants filed a Motion to Dismiss the Amended Complaint for failure to state a claim. See d/e 24. On February 2, 2012, this Court granted Defendants' Motion to Dismiss the Amended Complaint finding the disputed statutes constitutional under the Second Amendment. See d/e 38.

Plaintiffs appealed that decision. On appeal, this case was consolidated with a case from the Southern District of Illinois in which Judge William Stiehl had also found the Illinois statutes constitutional. Shepard v. Madigan , 863 F.Supp.2d 774 (S.D. Ill. 2012).

On December 11, 2012, the Seventh Circuit reversed the District Courts' decisions and found the Unlawful Use of Weapons and Aggravated Unlawful Use of Weapons statutes unconstitutional, reasoning that the Second Amendment protects an individual's right to carry firearms outside of the home for self-defense purposes. Moore v. Madigan , 702 F.3d 933, 942 (7th Cir. 2012). The Seventh Circuit stated further that:

The Supreme Court's interpretation of the Second Amendment therefore compels us to reverse the decisions in the two cases before us and remand them to their respective district courts for the entry of declarations of unconstitutionality and permanent injunctions. Nevertheless we order our mandate stayed for 180 days to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.

Id.

On June 4, 2013, Defendants requested a 30-day stay of issuance of the mandate, and, over Plaintiffs' objection, the Seventh Circuit stayed issuance of the mandate until July 9, 2013.

B. The Illinois Legislature Amended the Statutes at Issue To Permit the Carrying of Concealed and Partially Concealed, Functional, and Accessible Pistols, Revolvers, and Handguns Outside of the Home

On May 31, 2013, both Houses of the Illinois General Assembly passed House Bill 183 to permit qualified, private individuals to carry a concealed or partially concealed, functional, and accessible pistol, revolver, or handgun outside of the home. However, on July 2, 2013, Governor Pat Quinn used his amendatory veto power to propose additional restrictions on the carrying of such firearms in public. On July 9, 2013, both Houses of the Illinois General Assembly overrode the Governor's amendatory veto of the Act thereby passing the Firearm Concealed Carry Act. On that same day, and shortly before passage of the Firearm Concealed Carry Act, the Seventh Circuit issued the mandate.

The Firearm Concealed Carry Act, passed by both Houses of the Illinois General Assembly, provides that the Illinois Department of State Police shall issue a license to carry a concealed firearm to an individual who is at least 21 years old; has and would still qualify for a Firearm Owner's Identification Card; has not been convicted or found guilty of a crime enumerated in Section 25 of the Firearm Concealed Carry Act; has submitted the required personal information required by Section 30 of the Firearm Concealed Carry Act; has paid $150 if a resident and $300 if a non-resident; has demonstrated that the individual "does not pose a danger to himself, herself, or others, or a threat to public safety as determined by the Concealed Carry Licensing Review Board;" can provide proof of completion of a firearms training course or combination of courses that involve at least 16 hours of training including range time; and that the training course or combination of courses has been approved by the Illinois Department of State Police. 430 ILCS 66/10, 75. The Firearm Concealed Carry Act also gives the Illinois State Police 180 days to make applications available for individuals who desire an Illinois concealed carry permit license. 430 ILCS 66/10(d). Once an application is submitted, the Illinois State Police have 90 days to review the application. 430 ILCS 66/10(e).

Further, the Firearm Concealed Carry Act did not repeal subsections 720 ILCS 5/24-1(a)(4) and (10) ("Unlawful Use of Weapons"), but rather, amended 720 ILCS 5/24-2 which sets forth the exemptions to prosecution for Unlawful Use of Weapons. Now, individuals with a concealed carry permit license may carry a concealed or partially concealed, functional, and accessible pistol, revolver, or handgun and will not be prosecuted pursuant to 24-1(a)(4) and (10) ("Unlawful Use of Weapons"). Section 155 of the Firearm Concealed Carry Act amends 720 ILCS 5/24-2 as follows:

Sec. 24-2. Exemptions.
* * * *
(a-5) Subsections 24-1(a)(4) and 24-1(a)(10) do not apply to or affect any person carrying a concealed pistol, revolver, or handgun and the person has been issued a currently valid license under the Firearm Concealed Carry Act at the time of the commission of the offense.

The Illinois legislature also did not repeal but amended Section 24-1.6 ("Aggravated Unlawful Use of a Weapon") to exempt from prosecution individuals who carry a concealed or partially concealed, accessible, and functional pistol, revolver, or handgun in public and have a valid license under the Firearm Concealed Carry Act. Section 24-1.6 now defines Aggravated Unlawful Use of a Weapon as follows with the additions underlined:

Sec. 24-1.6. Aggravated unlawful use of a weapon.
(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person's permission, any pistol, revolver, stun gun or taser or other firearm; or
(2) Carries or possesses on or about his or her person, upon any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town, except when an invitee thereon or therein, for the purpose of the display of such weapon or the lawful commerce in weapons, or except when on his or her own land or in his or her own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person's permission, any pistol, revolver, stun gun or taser or other firearm; and
(3) One of the following factors is present:
(A) the firearm, other than a pistol, revolver, or handgun, possessed was uncased, loaded, and immediately accessible at the time of the offense; or
(A-5) the pistol, revolver, or handgun possessed was uncased, loaded, and immediately accessible at the time of the offense and the person possessing the pistol, revolver, or handgun has not been issued a currently valid license under the Firearm Concealed Carry Act; or
(B) the firearm, other than a pistol, revolver, or handgun, possessed was uncased, unloaded, and the ammunition for the weapon was immediately accessible at the time of the offense; or
(B-5) the pistol, revolver, or handgun possessed was uncased, unloaded, and the ammunition for the weapon was immediately accessible at the time of the offense and the person possessing the pistol, revolver, or handgun has not been issued a currently valid license under the Firearm Concealed Carry Act; or
(C) the person possessing the firearm has not been issued a currently valid Firearm Owner's Identification Card; or
(D) the person possessing the weapon was previously adjudicated a delinquent minor under the Juvenile Court Act of 1987 for an act that if committed by an adult would be a felony; or
(E) the person possessing the weapon was engaged in a misdemeanor violation of the Cannabis Control Act, in a misdemeanor violation of the Illinois Controlled Substances Act, or in a misdemeanor violation of the ...

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