United States District Court, Central District of Illinois, Springfield Division
SUE E. MYERSCOUGH, UNITED STATES DISTRICT JUDGE.
Before the Court is Defendant Ramon Escapa’s Motion to Dismiss (d/e 9). The Plaintiff is proceeding pro se. The Defendant’s motion is GRANTED in part and DENIED in part. The Plaintiff’s allegations regarding her constitutional challenge to 720 ILCS 5/24-1.6 are sufficient to survive the Defendant’s motion to dismiss, but the Plaintiff’s unreasonable search and seizure claim must be dismissed because the search was supported by probable cause and, regardless, the Defendant is entitled to qualified immunity.
In the early morning hours of March 17, 2014, Deputy Spencer Bedwell of the Schuyler County Sheriff’s Department was on patrol in a marked squad car near the home of the Plaintiff, Donella Southerland, and her husband, Jurl Southerland. See Complaint for Search Warrant, d/e 1-2 at 2. Deputy Bedwell noticed a suspicious vehicle parked in an entrance to the Southerland’s property as he passed the Southerland residence, so he turned around to investigate. Id. After Deputy Bedwell had passed the residence again, he noticed Jurl Southerland emerge from the Southerlands’ house and run into the road in front of the house. Id. Deputy Bedwell backed up to see if Mr. Southerland needed help. Id. Deputy Bedwell announced that he was with the Sheriff’s Department and asked Mr. Southerland if everything was okay, and Mr. Southerland responded by pointing a “long gun” at the squad car and yelling “I don’t want you fucking cops around here.” Id. When Deputy Bedwell drew his weapon in response to this threat, Mr. Southerland did not lower his gun, but he did move it so that it was not pointed directly at Deputy Bedwell anymore. Id. at 3. Mr. Southerland then continued to scream about “how he would shoot the next car that stopped near his house because he had something stolen in the past.” Id. Deputy Bedwell told Mr. Southerland to drop the gun and tried to ask him about the suspicious vehicle, but Mr. Southerland continued to tell Deputy Bedwell to “Get the fuck out of here” and “I don’t need you fucking cops.” Id. At that point, fearing a violent confrontation, Deputy Bedwell left the scene and reported the incident to the Sheriff. Id.
Later that morning, Deputy Bedwell signed off on a complaint for a search warrant to search the Southerland residence and seize:
Any and all weapons or firearms, including but not limited to, handguns, rifles, shotguns, spring-guns, sawed-off shotguns, or sawed-off rifles, ammunition, which may have been used in commission of the offense or Aggravated Assault, Aggravated Unlawful Use of a Weapon, and Reckless Conduct, and any other items which may have been used in the commission of the offenses.
See Complaint for Search Warrant, d/e 1-2 at 1. A Schuyler County circuit judge approved the search warrant at 11:55 AM on March 17, 2014. See Search Warrant, d/e 1-1.
The search was conducted on March 18, 2014. When officers attempted to take all of the Southerlands’ firearms and ammunition, the Plaintiff protested that because Deputy Bedwell’s complaint referred to a “long gun, ” the officers should not seize any shotguns or handguns. Complaint, d/e 1 ¶ 22. The officers then called the Defendant, Schuyler County State’s Attorney Ramon Escapa and relayed the Plaintiff’s objection to the seizure of handguns and shotguns to him. Id. ¶ 23. The Defendant instructed the officers to disregard the Plaintiff’s objection and to seize all of the Southerlands’ firearms, including rifles, shotguns, and handguns. Id. The Plaintiff claims that because the Defendant knew that Mr. Southerland pointed a “long gun” at Deputy Bedwell, the Defendant acted unreasonably by authorizing the seizure of all of the Southerlands’ firearms. Id. ¶ 24.
In addition to challenging the search of her home and the seizure of her firearms, the Plaintiff challenges the constitutionality of 720 ILCS 5/24-1.6, the Illinois statute criminalizing the aggravated unlawful use of a weapon (“AUUW”). The AUUW statute generally criminalizes the open carrying of all firearms. The statute does allow a person to carry a concealed “pistol, revolver, or handgun” if the person possesses a valid license under the Firearm Concealed Carry Act. However, that statute does not provide for the public carrying of rifles or shotguns, concealed or otherwise. See 720 ILCS 5/24-1.6(a)(3)(A-5). The Plaintiff claims that she needs to be able to openly carry a loaded rifle or shotgun to defend herself and her property. Compl., d/e 1 ¶¶ 12-16. She argues that by prohibiting her from doing so, the AUUW statute violates her Second Amendment rights. Id. ¶¶ 41-44.
The Defendant moved to dismiss both of the Plaintiff’s claims on May 27, 2014. See Motion to Dismiss, d/e 9. After being granted additional time to file a response, the Plaintiff filed her response on July 21, 2014. See Plaintiff’s Response to Motion to Dismiss, d/e 12.
II. LEGAL STANDARD
Dismissal under Rule 12(b)(6) is proper if a complaint does not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In determining whether a complaint can survive a motion to dismiss, the Court can consider “the allegations that are contained in [the complaint] and all reasonable inferences drawn from [the complaint] in favor of the nonmovant.” Dausch v. Rykse, 52 F.3d 1425, 1428 (7th Cir. 1994).
The Defendant argues that the Plaintiff’s claim against the constitutionality of the AUUW statute should be dismissed because (1) he is not the proper party to defend the constitutionality of the statute, (2) the Plaintiff lacks standing to bring the challenge, and (3) the challenge is moot. The Defendant also moves to dismiss the Plaintiff’s unreasonable search and seizure claim on the grounds that there was probable cause for the search and the search warrant was sufficiently particular. Lastly, the Defendant claims that even if there were not ...