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Powell v. State

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

September 30, 2019

DEMETRIA POWELL, as guardian ad litem and on behalf of her son D.P; TANYA REESE, as guardian ad litem and on behalf of her son M.R.; and TYWANNA PATRICK, as guardian ad litem and on behalf of her granddaughter J.C., as well as on behalf of a class of similarly situated children, Plaintiffs,
v.
THE STATE OF ILLINOIS; THE ILLINOIS DEPARTMENT OF STATE POLICE; BRUCE RAUNER, Governor of the State of Illinois; and LEO P. SCHMITZ, Director of the Illinois Department of State Police, Defendants.

          MEMORANDUM OPINION AND ORDER

          Joan B. Gottschall, United States District Judge.

         It is common knowledge that, as the plaintiffs in this proposed class action allege, gun violence has ravaged the City of Chicago for decades and that the violence is concentrated in predominately African-American neighborhoods. See Compl. ¶ 1, ECF No. 1; Ezell v. City of Chicago, 651 F.3d 684, 715 (7th Cir. 2011) (“The City [of Chicago] has legitimate, indeed overwhelming, concerns about the prevalence of gun violence within City limits.”). The three named plaintiffs bring claims against the State of Illinois, the Illinois State Police (“State Police”), Illinois' governor, and the head of the State Police on behalf of three children who grew up in a high-crime, predominately African-American neighborhood on Chicago's west side. Plaintiffs' claims arise under Title II of the Americans with Disabilities Act of 1990 (“ADA”), as amended, 42 U.S.C. § 12131 et seq., and the Illinois Civil Rights Act (“ICRA”), 740 ILCS 23/5. The complaint attributes each child's Post-Traumatic Stress Disorder (“PTSD”) diagnosis, as well as other disabilities affecting the child's ability to succeed at home and at school, primarily to daily exposure to gun violence and its effects. See Compl. ¶¶ 3-6, ECF No. 1. As a reasonable accommodation under the ADA, plaintiffs seek injunctive and declaratory relief. They want the court to require defendants to pass regulations, primarily focusing on gun shops, which they contend would appreciably stem the tide of gun violence in Chicago. See Id. ¶ 28.

         Defendants move to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). They argue that plaintiffs do not have standing under Article III of the Constitution. They also argue that the complaint fails to state a claim for which relief can be granted. For the following reasons, the court denies the motion except as to two plaintiffs who lack standing because they have moved out of the City of Chicago.

         I. The Complaint

         Because defendants attack the sufficiency of the complaint, the court must accept its allegations as true and draw all reasonable inferences from its well-pleaded facts in the light most favorable to plaintiffs. See Manistee Apts., LLC v. City of Chicago, 844 F.3d 630, 633 (7th Cir. 2016) (failure to state a claim); Berger v. Nat'l Collegiate Athletic Ass'n, 843 F.3d 285, 289 (7th Cir. 2016) (lack of subject matter jurisdiction). The complaint here begins by citing statistics and reports concerning gun violence in Chicago and then recounts facts particular to each child. The complaint attributes its statistics to scholarly articles, data, and reports issued by the Chicago Police Department, the University of Chicago Crime Lab, and the Bureau of Alcohol, Tobacco, Firearms, and Explosives.[1] See Compl. ¶¶ 16-20 & n.1. Chicago has no licensed gun shops. Compl. ¶ 19.

         A. Prevalence and Distribution of Gun Violence in Chicago

         Chicago has more gun-related homicides than any other major U.S. city. Compl. ¶ 16. Ninety percent of the murders in Chicago between January 1, 2015, and June 30, 2018, were by gunshot. Id. "Nearly 20 percent of homicide victims in Chicago are teenagers or younger." Id.

This gun violence most dramatically afflicts the African-American community in Chicago, and particularly the neighborhoods of Austin, Englewood, West Englewood, New City and Grand Crossing (“the communities of concentrated gun violence”). In 2015-2016, according to the University of Chicago Crime Lab, eighty (80)% of Chicago homicide victims were African-American, though African-Americans comprise only about one-third of the city's population. Eighty (80)% of homicide victims continue to be African-American when one looks only at killings during the first seven months of 2018. African-American men aged fifteen (15) to thirty-four (34) made up more than one-half of the city's homicide victims during this same period, while accounting for just four (4) percent of the city's population. Despite having only nine (9)% of Chicago's population, the African-American neighborhoods of Austin, Englewood, West Englewood, New City and Grand Crossing, accounted for almost one-third of homicides in 2016, and this pattern has continued. The national homicide rate is about 5 per 100, 000 persons across the whole country. In the Austin neighborhood of Chicago, in 2016, the homicide rate was 87.3 per 100, 000 persons, according to the University of Chicago Crime Lab. In Englewood, the homicide rate was 179.5 per 100, 000 persons; in West Englewood, it was 105 per 100, 000 persons; in New City, it was 98.6 per 100, 000 persons and in Grand Crossing it was 103.5 per 100, 000. These five neighborhoods have the most death by gun violence of any neighborhoods in Chicago. They are African-American neighborhoods. Five of the next six deadliest neighborhoods are also African-American. By comparison, the white Chicago neighborhoods of Lincoln Park, North Center, Edison Park, Forest Glen, North Park, Hegewisch, Beverly and Mount Greenwood had no homicides in 2015 or 2016, and the white neighborhoods of Lake View, Lincoln Square, Jefferson Park, Calumet Heights, Edgewater, Montclare, O'Hare, Dunning, and Norwood Park had two or fewer murders during this two-year period, with a zero or negligible homicide rate. This disparate impact of gun violence has continued through to the present day.

Compl. ¶ 17.

         Most people who live in the communities of concentrated gun violence "hear gun fire most nights, while in their homes or walking the streets." Compl. ¶ 18.

         B. Sources of "Crime Guns"

         How many guns are in Chicago is unknown. Compl. ¶ 18. The complaint cites statistics regarding Chicago "crime guns." Compl. ¶¶ 18, 19. Given the sources cited, the court infers that plaintiffs use this phrase as defined in the City of Chicago's gun trace report, which compiled statistics on guns recovered in 2013-2016. The report defined a "crime gun" as a gun "possessed, used, or suspected to have been used in furtherance of a crime." United States v. Rocha, 2019 WL 4384465, at *6 (N.D. Ill. Sept. 11, 2019) (citing City of Chicago, Office of the Mayor, “Gun Trace Report 2017” 1 (2017)).

         Since 2011 Chicago police have recovered about 7, 000 "crime guns" from Chicago's streets-a rate six times the per capita rate of New York City. Compl. ¶ 18. This does not count guns recovered in turn-in and buy-back programs. Id. According to statistics compiled by the Chicago Police Department, "[f]orty percent of the guns being used in gun-related crime in Chicago are purchased at gun stores in Illinois, most in suburbs nearby Chicago." Compl. ¶¶ 2, 19 (40.4% of "crime guns" recovered in Chicago from 2009-17 purchased from licensed gun dealers in Illinois). Seven gun shops sell "most of these weapons." Compl. ¶¶ 2, 19. The majority of these guns are used in connection with Chicago crimes within one to three years of purchase. See Compl. ¶ 19 (providing examples and statistics for particular shops from 2013- 17). Several gun dealers report that from 2013-16 more than 1, 200 guns were lost or stolen.[2] Id. ¶ 20. “This includes [gun losses from] burglaries and robberies, which are increasing at an alarming rate.” Id.

         C. The Effects of Gun Violence

         On how exposure to gun violence affects children, plaintiffs allege:

It is well-established among physicians, trauma specialists and educators, as well as in the scientific, peer-reviewed literature, that when a child, particularly a young child, is exposed to gun violence, there is a dramatic and lasting impairment of the child's basic life activities. This includes deficits in the child's ability to care for himself or herself, the child's sleep, reading abilities, learning capacity, concentration, thinking and communication ..... Many studies have found that children directly or indirectly exposed to community violence, most often gun violence, develop acute or post-traumatic stress disorder, including disrupted sleep, anxiety and fear, as well as reduced awareness and difficulty with concentration, thinking and memory, all of which impair cognitive functioning . . . . In Chicago, there have been many studies linking exposure to gun violence directly to deficits in academic performance by African-American children.

Compl. ¶ 31, 32, 34 (internal citations to studies omitted); see also Compl. ¶¶ 35-36 (discussing additional studies of Chicago students). Based on these studies and the named plaintiffs' experiences, plaintiffs allege they are disabled within the meaning of the ADA. See Compl. ¶¶ 44, 50, 55.

         D. The Named Plaintiffs

         Each named plaintiff sues as a guardian ad litem of a minor child. See Compl. ¶¶ 4-6. Each African-American child lives or lived in Chicago's Austin neighborhood. Id. Each child has been diagnosed with Post-Traumatic Stress Disorder. Id. Each child alleges that exposure to gun violence on a daily basis contributed substantially to the diagnosis as well as related problems at home and at school. See Id. In the following summary, ages and places of residence are stated as of the date on which the complaint was filed.

         Plaintiff Demetria Powell sues on behalf of her eight-year-old son, D.P. Compl. ¶ 4. Powell, D.P., and D.P.'s two-year-old sister live in Austin. Compl. ¶¶ 4, 37. Most nights they hear gun shots on the block where they live. Compl. ¶ 4. During the first half of 2018, four shootings occurred within two blocks of D.P.'s home; one was fatal. Id. In 2016, D.P.'s father was shot to death in Chicago's West Garfield Park neighborhood. Compl. ¶¶ 4, 38 (murder remains unsolved). Then a kindergartener, “D.P. saw his father's bullet-ridden body.” Compl. ¶ 4; see also Compl. ¶ 38. The effect on D.P. was pronounced:

D.P. went back to his kindergarten class after a week. His kindergarten teacher, Raven McGill, had regarded D.P. as a well-behaved and bright young boy, but after his father was killed, he began yelling in class and having angry outbursts. The teacher and family tried to respond effectively but could not. For months after the shooting, D.P. repeatedly woke up in tears because of terrible dreams about his father. He had a great deal of difficulty sleeping. He was afraid. At school, his behavior deteriorated, and he was physically aggressive with other students and, at one point, punched and kicked his teacher, requiring him to be sent home. D.P. would speak about his father at school, once pointing to the clouds and telling his teacher “that's where my dad is[, ”] and on another occasion telling the teacher he would be excited “when his dad comes back[.”] Beginning with his father's shooting, D.P. has struggled in school, experiencing difficulties in learning, reading, thinking and communicating.

Compl. ¶ 40.

         Plaintiff Tanya Reese sues on behalf of her 16-year-old son M.R. Compl. ¶ 5. Reese presently lives in Oak Park, Illinois, but used to live in the Austin neighborhood. Compl. ¶¶ 5, 46. While he lived in Austin, M.R. "regularly heard gunshots at night" and was exposed to a "consistent" level of gun violence on his block since at least 2014. Compl. ¶ 5. Five shootings were reported in the first six months of 2018 within three blocks of M.R.'s former Austin address. Id. In August 2015, M.R.'s older brother, Pierre Reese, was shot to death in the Austin neighborhood. Compl. ¶ 47 (crime remains unsolved). Then 13-year-old M.R. looked up to Pierre like a father. Compl. ¶ 48. In the wake of his brother's death, M.R. “could not sleep, communicate about his brother's death or what was going on in his life. He cried often and withdrew from family life." Compl. ¶ 48. The family has moved out of the Austin neighborhood, and M.R. continues to receive counseling. Compl. ¶¶ 48, 49.

         Plaintiff Tywanna Patrick sues on behalf of her 11-year-old granddaughter, J.C. Compl. ¶ 6. Patrick lives in Chicago's Near West Side; she operates a shop in the Austin neighborhood. See Compl. ¶¶ 6, 51. In 2014 Patrick's 21-year-old son was shot to death in the Austin neighborhood. Compl. ¶¶ 6, 52 (two arrests made). J.C. lived in Austin at the time. Compl. ¶ 51. She and her uncle had a "very close" relationship. Compl. ¶ 53. Seven-year-old J.C. was present in Patrick's shop when the police delivered the news of her uncle's shooting; she heard the police describe what happened and also heard “family friends” describe the shooting. Id. For months following the shooting, J.C. had difficulty sleeping; she began having trouble concentrating and communicating in school. Compl. ¶ 54. She was "generally unwilling to leave the home" and became "clingy." Id.

         Like the other children, J.C. continued regularly to feel the effects of gun violence. See Compl. ¶ 6. Five shootings, one fatal, occurred within three blocks of her former address in Austin during the first half of 2018. Id. J.C. has recently moved to Bellwood, Illinois. Id.

         E. Relief Requested

         Although gun dealers must be licensed by the federal ATF, plaintiffs allege that ATF "does little to monitor guns in [Illinois gun ] stores, or to prevent the loss or theft of gun." Compl. ¶ 21 (tracing this in part to federal laws preventing ATF from requiring gun dealers to submit to regular firearms inventory inspections and permitting regular inspections, absent a warrant, no more than once a year). The complaint also says that Illinois municipalities “have done little” to address the problem.[3] Compl. ¶ 22 (noting that 53 of Illinois' 1, 299 municipalities have adopted a gun dealer or trafficking ordinance).

         Plaintiffs allege that the Illinois Firearms Owners' Identification Card Act ("FOID Act"), 430 ILCS 65/0.01 et seq., empowers the state defendants here-the state itself and the state police-to enact regulations that would substantially decrease the rate of gun violence in Chicago's predominately African-American neighborhoods. See Compl. ¶¶ 23-28. The FOID Act declares that “[n]o person may acquire or possess any firearm, stun gun, or taser within this State without having in his or her possession a Firearm Owner's Identification Card previously issued in his or her name by the Department of State Police.” § 65/2(a)(1); but see Id. § 65/2(b)-(c)(5) (exceptions). The identification card requirement applies to ammunition as well. Id. § 65/2(a)(2). Among other things, the FOID Act generally creates a system of background checks for firearms purchases. See § 3.1.

         The state police have, according to plaintiffs, broad authority to pass regulations under the FOID Act. Compl. ¶ 25 (citing 20 ILCS § 2605 -15, 65/3 (a-10), 65/3.1(f)). The crux of their claims is that defendants have not exercised that authority, and “[t]he Pervasive Gun Violence in Chicago's African-American Neighborhoods Has Caused Thousands of African-American Children to Become Disabled Under the ADA” as a result. Compl. ¶ 28; see also Compl. ¶ 29.

         Paragraph 28 of the complaint lists 12 specific regulations defendants could enact. They point to “[many] studies” that “have concluded that meaningful regulation of the primary and secondary gun markets, as set forth in par. 28 . . . .” will reduce the number of guns available in cities like Chicago." Compl. ¶ 27 (collecting citations). A sampling of the regulations follows:

A. To conduct and provide verification of background checks on all gun store and gun show employees to make sure they can pass the same background checks as gun purchasers before they handle and sell guns at the stores or at gun shows;
B. To install video recording systems to film the point of sale to discourage traffickers and buyers using false identification, or purchasing multiple guns, and assist law enforcement officers in ...

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