United States District Court, N.D. Illinois, Eastern Division
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,
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
B. Gottschall, United States District Judge.
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.
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.
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. See Compl. ¶¶ 16-20
& n.1. Chicago has no licensed gun shops. Compl. ¶
Prevalence and Distribution of Gun Violence in
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."
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.
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.
Sources of "Crime Guns"
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)).
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. Id. ¶ 20. “This
includes [gun losses from] burglaries and robberies, which
are increasing at an alarming rate.” Id.
The Effects of Gun Violence
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
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.
The Named Plaintiffs
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.
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
Compl. ¶ 40.
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.
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."
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.
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. Compl. ¶ 22
(noting that 53 of Illinois' 1, 299 municipalities have
adopted a gun dealer or trafficking ordinance).
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.
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.
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 ...