Southerland v. Escapa
Filing
14
OPINION (See Written Opinion): The Court finds that the Plaintiff's claim challenging the constitutionality of the AUUW statute survives the Defendant's motion to dismiss, and that the Defendant is entitled to qualified immunity against th e Plaintiff's unreasonable search and seizure claim. Therefore, the Defendant's motion to dismiss (d/e 9 ) is DENIED as to the Plaintiff's challenge to the AUUW statute and GRANTED as to her unreasonable search and seizure claim. Th e Court will certify notice of the Plaintiff's constitutional challenge to the Illinois Attorney General. The Attorney General will have 60 days from the date of that order to intervene in this suit. Entered by Judge Sue E. Myerscough on 3/20/2015. (VM, ilcd)
E-FILED
Friday, 20 March, 2015 12:24:27 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
DONELLA SOUTHERLAND,
Plaintiff,
v.
RAMON ESCAPA, In His
Individual Capacity and Official
Capacity as Schuyler County
State’s Attorney,
Defendant.
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Civil No. 14-3094
OPINION
SUE E. MYERSCOUGH, U.S. 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
Page 1 of 20
immunity.
I. BACKGROUND
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
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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.
Page 3 of 20
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
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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,
Page 5 of 20
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).
III. ANALYSIS
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 probable cause for the search, he is
entitled to a finding of qualified immunity against the Plaintiff’s
unreasonable search and seizure claim.
A. The Plaintiff’s constitutional challenge survives the
Defendant’s motion to dismiss.
Page 6 of 20
The Defendant argues that, as a state’s attorney, he is not the
proper party to defend the constitutionality of a state statute. He
also claims that the Plaintiff lacks standing to challenge the statute
because she has not been prosecuted under it. Lastly, the
Defendant argues that the Plaintiff’s challenge to the
constitutionality of the statute is moot in light of Illinois’ passage of
the Firearm Concealed Carry Act.
First, the Defendant is a proper defendant in the Plaintiff’s
challenge to the AUUW statute. In MedImmune, Inc. v. Genentech,
Inc., 549 U.S. 118, 127 (2007), the Supreme Court touched on the
question of which parties are proper to a lawsuit when it reiterated
that courts must determine whether “there is a substantial
controversy, between parties having adverse legal interests, of
sufficient immediacy and reality to warrant the issuance of a
declaratory judgment.” Justice Kennedy later cited MedImmune for
the proposition that “[t]he proper defendant in a suit for prospective
relief is the party prepared to enforce the relevant legal rule against
the plaintiff.” Camreta v. Greene, ___ U.S. ___, 131 S.Ct. 2020,
2043 (2011) (Kennedy, J., dissenting). Because the Defendant
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could enforce the AUUW statute against the Plaintiff, he is a proper
party to this lawsuit. As the Court will address below, the
Defendant may not be the only proper defendant in this suit, but he
is nonetheless a proper defendant.
Furthermore, the Plaintiff has standing to bring this challenge.
“Standing exists when the plaintiff suffers an actual or impending
injury, no matter how small; the injury is caused by the defendant’s
acts; and a judicial decision in the plaintiff’s favor would redress the
injury.” Bauer v. Shepard, 620 F.3d 704, 708 (7th Cir. 2010). The
threat of prosecution is sufficient to confer standing, “because a
probability of future injury counts as ‘injury’ for the purpose of
standing.” Id. Here, the Plaintiff claims that she would open-carry
a rifle or shotgun if not for her fear of being prosecuted by the
Defendant for violating the AUUW statute. The Defendant is
charged with enforcing that law, and the threat of prosecution
under the law deprives the Plaintiff of what she believes is a
constitutional right to openly carry rifles and shotguns. Even
though the Plaintiff has not actually been prosecuted under the law
and the Defendant may not have specifically threatened to
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prosecute the Plaintiff under the law, the potential for prosecution
is sufficient to demonstrate impending injury. The Plaintiff is not
required to “undergo a criminal prosecution” before she can have
standing to challenge the AUUW statute. See Doe v. Bolton, 410
U.S. 179, 188 (1973) (holding that physicians who would potentially
perform abortions had standing to challenge laws criminalizing
abortion even though the physicians had not yet been prosecuted or
threatened with prosecution under those laws). Furthermore, a
judicial decision that the AUUW statute is unconstitutional would
redress the Plaintiff’s perceived injury by eliminating the possibility
that she could be prosecuted under the statute. Therefore, the
Plaintiff has standing to challenge the AUUW statute.
Lastly, the Plaintiff’s challenge is not rendered moot by the
Firearm Concealed Carry Act (the “Act”). The Act made it possible
for individuals to legally carry concealed handguns, but the Act did
not address the specific complaint made by the Plaintiff here—that
she could be charged with aggravated unlawful use of a weapon for
openly carrying a shotgun or rifle. The cases cited by the Defendant
that found various plaintiffs’ challenges to the AUUW statute moot
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are distinguishable, as the plaintiffs in those cases were challenging
the fact that Illinois lacked any concealed-carry law at all. See
Queen v. Alvarez, 979 F. Supp. 2d 845, 847-49 (N.D. Ill. 2013);
Shepard v. Madigan, 958 F. Supp. 2d 996, 999-1001 (S.D. Ill.
2013). Those plaintiffs’ claims were moot after the passage of the
Act, as Illinois now had a concealed-carry law on the books. But
the Plaintiff’s claim in this case goes further—she argues that even
after the passage of the Act, the AUUW statute is still
unconstitutional because it restricts the open carrying of rifles and
shotguns. Therefore, the Plaintiff’s claim is not moot.
Because the Court concludes that the Defendant is a proper
party to this lawsuit, that the Plaintiff has standing to bring her
constitutional challenge, and that the Plaintiff’s claim is not moot,
the Defendant’s motion to dismiss the Plaintiff’s constitutional
challenge is denied. Additionally, as it appears that the Illinois
Attorney General has not been notified of this suit, the Court will
certify notification of the Plaintiff’s challenge to the AUUW statute to
the Attorney General under Federal Rule of Civil Procedure 5.1(b)
and 28 U.S.C. § 2403(b), and the Attorney General will be given an
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opportunity to intervene in defense of the statute.
B. The Plaintiff’s unreasonable search and seizure claim
must be dismissed because probable cause existed to
seize all of the Southerlands’ firearms and the
Defendant is entitled to qualified immunity.
The Plaintiff argues that by allowing for the seizure of “all
weapons and firearms,” the warrant was overly broad and not
supported by probable cause. She further contends that the
Defendant acted unreasonably by authorizing the seizure of all of
the Southerlands’ firearms under the warrant. The Defendant
counters that the Plaintiff’s unreasonable search and seizure claim
should be dismissed because the search warrant was supported by
probable cause and was not overly broad, and because the
Defendant should be entitled to qualified immunity against the
Plaintiff’s claim. The Court concludes that the Defendant had
probable cause to seize all of the Southerlands’ firearms, and,
regardless, the Defendant is entitled to qualified immunity against
the Plaintiff’s claim because he reasonably believed that he had
probable cause.
Probable cause for a search exists when “there is a fair
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probability that contraband or evidence of a crime will be found in a
particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). “The
test for probable cause is not reducible to ‘precise definition or
quantification.’” Florida v. Harris, ___ U.S. ___, 133 S. Ct. 1050,
1055 (2013) (quoting Maryland v. Pringle, 540 U.S. 366, 371
(2003)). The court must simply evaluate the particular
circumstances of a case to determine whether there was “the kind
of ‘fair probability’ on which ‘reasonable and prudent [people,] not
legal technicians, act.’” Id. (alteration in original) (quoting Gates,
462 U.S. at 238, 231).
Here, probable cause existed to seize all of the Southerlands’
firearms due to Jurl Southerland’s dangerous and threatening
conduct. Mr. Southerland exhibited an intent to use his firearms
for illegal purposes by pointing his “long gun” at Deputy Bedwell
and stating that he would “shoot the next car that stopped near his
house.” Complaint for Search Warrant, d/e 1-2 at 3. Based on this
dangerous behavior, the circuit judge approved a warrant
authorizing the seizure of “[a]ny and all weapons and firearms . . .
which may have been used in commission of the offense or
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Aggravated Assault, Aggravated Unlawful Use of a Weapon, and
Reckless Conduct.” Search Warrant, d/e 1-1. The warrant’s
authorization to seize weapons that Mr. Southerland “may have . . .
used” to commit the offenses complies with the Illinois warrant
statute, which authorizes the seizure of “[a]ny instruments, articles
or things . . . intended for use or which are or have been used in the
commission of . . . the offense in connection with which the warrant
is issued.” 725 ILCS 5/108-3(a)(1). Following the guidance of this
statute, the warrant authorized the seizure of all weapons that Mr.
Southerland could have used against Deputy Bedwell, had he so
chosen, as those would be just as dangerous in Mr. Southerland’s
hands as the specific “long gun” that he used against Deputy
Bedwell. Further, Mr. Southerland’s threats also exhibited an
intent to use firearms against people who passed by the
Southerlands’ property, giving the police probable cause to seize all
of the Southerlands’ firearms. In other words, based on the very
real threat that Mr. Southerland would use his firearms to threaten
and possibly harm people who passed near the Southerlands’
property, probable cause existed to seize all of the firearms to which
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Mr. Southerland had access.
Moreover, even if probable cause did not exist for the search
and seizure in this case, the Defendant is entitled to qualified
immunity against the Plaintiff’s claim if a reasonable official could
have believed that probable cause existed. A government official is
entitled to qualified immunity against civil liability unless his
conduct “violate[s] clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). The purpose of qualified
immunity is to “give[] government officials breathing room to make
reasonable but mistaken judgments.” Ashcroft v. al-Kidd, ___ U.S.
___, 131 S.Ct. 2074, 2085 (2011). The doctrine “protects ‘all but the
plainly incompetent or those who knowingly violate the law.’” Id.
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). To determine
whether an official is entitled to qualified immunity, the court
evaluates the “objective legal reasonableness” of the official’s actions
in light of the “clearly established” law at the time the official took
those actions. Anderson v. Creighton, 483 U.S. 635, 639 (1987).
Furthermore, a government official who acts in reliance on a
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warrant that has been approved by a neutral magistrate is
presumed to have acted in “an objectively reasonable manner,”
which will generally entitle the official to qualified immunity.
Messerschmidt v. Millender, ___ U.S. ___, 132 S. Ct. 1235, 1245
(2012) (citing United States v. Leon, 468 U.S. 897, 922-23 (1984)).
This presumption can only be overcome if, based on the facts
known to the official, “it is obvious that no reasonably competent
officer would have concluded that a warrant should issue.” Malley
v. Briggs, 475 U.S. 335, 341 (1986). Such a situation could arise
where “a warrant [is] based on an affidavit ‘so lacking in indicia of
probable cause as to render official belief in its existence entirely
unreasonable.’” Leon, 468 U.S. at 923 (quoting Brown v. Illinois,
422 U.S. 590, 610-11 (1975) (Powell, J., concurring in part)).
In applying these rules to circumstances similar to those in
the case currently before this Court, the Supreme Court held that
officers did not act unreasonably when they relied on a warrant
authorizing the search and seizure of all of a person’s firearms, even
though the officers knew that the person had only used one of those
firearms in a crime. See Messerschmidt, 132 S. Ct. at 1246-47. In
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Messerschmidt, a man named Jerry Ray Bowen fired a sawed-off
shotgun at his ex-girlfriend after a domestic dispute. Id. at 1241.
The woman informed the police that Bowen was a member of a gang
and directed them to the house where Bowen was currently staying,
which belonged to Bowen’s foster mother. Id. Police Detective Curt
Messerschmidt looked into Bowen’s background and determined
that Bowen had committed numerous felonies and firearm-related
offenses in the past. Id. at 1242. Detective Messerschmidt then
prepared an affidavit for Bowen’s arrest, as well as an affidavit for a
warrant authorizing seizure of all firearms and gang-related
materials found in Bowen’s foster mother’s home. Id. A deputy
district attorney reviewed the warrant application, and a magistrate
approved it. Id. at 1243. When the warrant was served, Bowen was
not at the home, but the police seized a shotgun that belonged to
Bowen’s foster mother, Augusta Millender, as well as a box of .45caliber ammunition. Id.
After this incident, Millender filed suit against Detective
Messerschmidt alleging that the warrant was invalid under the
Fourth Amendment. Id. A U.S. district court, and then the en banc
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Ninth Circuit on appeal, ruled that the warrant’s authorization of
the seizure of all firearms and firearm-related materials was not
supported by probable cause. Id. at 1243-44. The Ninth Circuit
further found that a reasonable officer would have known about the
warrant’s defects, meaning that the defendant officers were not
entitled to qualified immunity. Millender v. Cnty. of Los Angeles,
620 F.3d 1016, 1033-35 (9th Cir. 2010), rev’d sub nom.
Messerschmidt v. Millender, ___ U.S. ___, 132 S. Ct. 1235 (2012).
On appeal, the Supreme Court did not address the validity of
the warrant, but the Court reversed the lower courts’ denial of
qualified immunity. Messerschmidt, 132 S. Ct. at 1244-46. The
Court first concluded that “given Bowen’s possession of one illegal
gun, his gang membership, his willingness to use the gun to kill
someone, and his concern about the police, a reasonable officer
could conclude that there would be additional illegal guns among
others that Bowen owned.” Id. at 1246. The Court further
reasoned that “[a] reasonable officer also could believe that seizure
of the firearms was necessary to prevent further assaults on
[Bowen’s ex-girlfriend].” Id. Because California law allowed for
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search warrants to issue for items “in the possession of any person
with the intent to use them as a means of committing a public
offense,” Cal. Penal Code § 1524(a)(3), and Bowen had already
attempted to use a firearm to shoot his ex-girlfriend, the Court
found that “[a] reasonable officer could conclude that Bowen would
make another attempt on Kelly’s life and that he possessed other
firearms ‘with the intent to use them’ to that end.” Messerschmidt,
132 S. Ct. at 1246. The Court ultimately concluded that “[g]iven
the foregoing, it would not have been ‘entirely unreasonable’ for an
officer to believe, in the particular circumstances of this case, that
there was probable cause to search for all firearms and firearmrelated materials.” Id. at 1246-47.
Like the officers in Messerschmidt, the Defendant was not
entirely unreasonable in believing that probable cause existed to
seize all of the Southerlands’ firearms. While Jurl Southerland did
not have prior felonies, and there was no evidence that the “long
gun” Mr. Southerland used was illegal, Mr. Southerland had used
the gun for an illegal purpose by pointing it at Deputy Bedwell. As
discussed above, Mr. Southerland had threatened police officers
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and stated that he would “shoot the next car that stopped near his
house.” Complaint for Search Warrant, d/e 1-2 at 3. In those
ways, Mr. Southerland’s behavior exhibited an intent to use his
firearms for illegal purposes.
Under these circumstances, even if the warrant were not
supported by probable cause, the Defendant could reasonably have
concluded that the warrant validly authorized the seizure of all of
the Southerlands’ firearms to prevent Mr. Southerland from using
them for an illegal purpose. The Defendant was, therefore, not
“entirely unreasonable” in believing he could seize all of the
Southerlands’ firearms, just as the officers in Messerschmidt were
not unreasonable in believing they could seize all of Bowen’s
firearms in that case. See Messerschmidt, 132 S. Ct. at 1246. For
that reason, the Defendant is entitled to qualified immunity against
the Plaintiff’s unreasonable search and seizure claim.
IV. CONCLUSION
The Court finds that the Plaintiff’s claim challenging the
constitutionality of the AUUW statute survives the Defendant’s
motion to dismiss, and that the Defendant is entitled to qualified
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immunity against the Plaintiff’s unreasonable search and seizure
claim. Therefore, the Defendant’s motion to dismiss (d/e 9) is
DENIED as to the Plaintiff’s challenge to the AUUW statute and
GRANTED as to her unreasonable search and seizure claim. The
Court will certify notice of the Plaintiff’s constitutional challenge to
the Illinois Attorney General. The Attorney General will have 60
days from the date of that order to intervene in this suit.
ENTER: March 20, 2015.
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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