Southerland v. Escapa

Filing 29

OPINION (See Written Opinion): For the foregoing reasons, the Court finds that the AUUW statute is constitutional. Consequently, Plaintiff does not state a claim upon which relief could be granted. Therefore, the Defendant's motion to dismiss (d/e 19 ) is GRANTED. The Plaintiff's claim is DIMISSED WITH PREJUDICE. This case is CLOSED. Entered by Judge Sue E. Myerscough on 3/30/2016. (VM, ilcd)

E-FILED

Thursday, 31 March, 2016 08:38:05 AM
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 for Failure to State a Claim (d/e 9). Plaintiff Donella
Southerland is proceeding pro se. Defendant’s motion is GRANTED
because 720 ILCS 5/24-1.6 is constitutional under the two-step
method for analyzing Second Amendment cases set forth by the
Seventh Circuit in Ezell v. City of Chicago, as applied in Friedman
v. City of Highland Park, Illinois.
I. BACKGROUND
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On April 2, 2014, Plaintiff Donella Southerland (“Plaintiff”)
filed a Complaint in this Court, challenging the constitutionality of
Illinois’ Aggravated Unlawful Use of Weapons statute, (“AUUW”) and
alleging that weapons of hers were illegally seized. See Compl. (d/e
1); see also 720 ILCS 5/24-1.6 (for statute). The Court dismissed
the seizure claim because the seizure of Plaintiff’s weapons “was
supported by probable cause, and, regardless, the Defendant is
entitled to qualified immunity.” See Opinion (d/e 14). Defendant
additionally argued that Plaintiff’s Second Amendment claim should
be dismissed because: (1) Defendant is not the proper defendant, (2)
Plaintiff lacks standing, and (3) Plaintiff’s claim is moot in light of
the Firearm Concealed Carry Act. This Court ruled that Plaintiff’s
Second Amendment claim was ripe and proper, and, therefore,
could continue. See id. Additionally, this Court issued a Certified
Order permitting the Attorney General an opportunity to intervene
on the question of whether the AUUW statute violates the United
States Constitution. See Order (d/e 15). On May 22, 2015, the
Illinois Attorney General filed a second Motion to Dismiss for
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Failure to State a Claim, on behalf of Defendant Roman Escapa,
(d/e 19), arguing that the AUUW statute does not violate the
Constitution.
The AUUW statute generally criminalizes the public carry of all
firearms. See 720 ILCS 5/24-1.6. However, after the Illinois
Firearm Concealed Carry Act (“Concealed Carry Act”) was passed in
2013, the AUUW statute was amended to allow a person to carry a
concealed “pistol, revolver, or handgun” if the person possesses a
valid license under the Concealed Carry Act. See id. The
Concealed Carry Act does not provide for the public carrying of
rifles or shotguns, concealed or otherwise. See id. at (a)(3)(A).
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. ¶¶ 4144.
Plaintiff’s claim is now dismissed because this Court finds that
the AUUW statute is Constitutional.

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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).
III. ANALYSIS
Defendant argues that Plaintiff’s claim that the AUUW statute
violates her Second Amendment rights should be dismissed
because the statute is constitutional. Plaintiff claims that, even
though the AUUW statute permits the concealed carry of pistols,
revolvers, or handguns, the statute is unconstitutional because it
criminalizes the open carry of any firearm. See Pl. Resp. to Def.
Mot. to Dismiss (d/e 25) at ¶6. Plaintiff suggests that this
limitation on the open carry of firearms illegally infringes on her
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right to defend herself outside of her home. Plaintiff argues that
Illinois cannot deprive her of the right to choose her weapon of selfdefense, as long as her weapon of choice is the kind “typically
possessed by law-abiding citizens for lawful purposes.” Mem. in
Supp. of Pl. Resp. to Def. Mot. to Dismiss (d/e 26) at 5 (quoting
Dist. of Columbia v. Heller, 554 U.S. 570, 621-22 (2008)). Plaintiff
further argues (although Plaintiff did not raise this issue in her
Complaint) that the concealed carry of a handgun is not a sufficient
means of self-defense. See Pl. Resp. to Def. Mot. to Dismiss (d/e
26) at ¶6 (Having to conceal the handgun “makes it infeasible to
carry a handgun for self-defense.”). The Court finds that the AUUW
statute is constitutional; therefore, Plaintiff’s claim is dismissed.
The Seventh Circuit has found that the motion to dismiss
stage is proper for deciding the constitutionality of the AUUW
statute because the analysis “does not present factual questions for
determination at trial.” Moore v. Madigan, 702 F.3d 933, 942 (7th
Cir. 2012) (reversing motions to dismiss two challenges to the
constitutionality of the AUUW statute prior to Illinois’ enactment of
the Concealed Carry Act and remanding the cases for “entry of
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declarations of unconstitutionality and permanent injunctions.”).
Accordingly, there are no “evidentiary issues” to be developed in
discovery prior to the Court’s ultimate determination. Id. The
Court does not consider “facts concerning the conduct of parties in
a particular case,” but rather considers only facts that “bear on the
justification of legislation.” Id.
The Seventh Circuit has provided a two-step analysis in
evaluating the constitutionality of statutes under the Second
Amendment. See Ezell v. City of Chicago, 651 F.3d 684, 701-04
(7th Cir. 2011) (outlining two-step method used by Seventh Circuit
and “followed by Third, Fourth, and Tenth Circuits in other Second
Amendment cases”) (citations omitted). The first step of the
analysis is a question of “scope.” Id. at 701. The court must ask if
the conduct that is criminalized by the statute falls within the
protections provided by the Second Amendment. Id. at 701 (“the
threshold inquiry” is whether the “restricted activity is protected by
the Second Amendment”). To answer this question, courts must
engage in a “textual and historical inquiry into the original
meaning” of the Second Amendment. See id. at 701 If the conduct
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is not protected by the Second Amendment, then the inquiry is
over, and the law is constitutional. See id. at 702-03. (“[I]f the
government can establish that a challenged firearms law regulates
activity falling outside the scope of the Second Amendment right as
it was understood at the relevant historic moment…then the
analysis can stop there.”). However, if a court finds that the
conduct is protected by the Second Amendment, then the inquiry is
proceeds to the second step. See id. The government still has
discretion to regulate activity falling within the scope of the Second
Amendment to a degree. Id. at 703 (“McDonald emphasized that
the Second Amendment limits but by no means eliminates
governmental discretion to regulate activity falling within the scope
of the right.”) (internal quotations omitted).
The second step of the analysis is a balance of considerations.
The court must consider the particular “regulatory means” that the
government has chosen, i.e., to what degree does the regulation
infringe on the Second Amendment. Id. Then, depending on the
severity of the infringement, the court determines how strong a
“public-interest justification” is required to pass constitutional
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muster. See id. at 708. Even if the government has a substantial
interest in prohibiting the conduct for the benefit of the public, the
Court must still look at the means of regulation: “how close the law
comes to the core” of what is protected by the Second Amendment
and the “severity” of the burden created. Id. Because of the
complex analysis involved, there is no one-size fits all level of
scrutiny to apply in Second Amendment cases. “[A] severe burden
on the core Second Amendment right of armed self-defense will
require an extremely strong public-interest justification.” Id. at
708. Additionally, when the burden is “severe,” the government
must show a “close fit” between the restricted conduct and the
public interest. Id. at 708-09. However, a more “modest burden on
the right,” including laws that “regulate rather than restrict” do not
require as strong a justification. Id.
This Court finds that the acts criminalized by the AUUW
statute, the ability to openly carry any firearm, as well as the ability
to carry a concealed firearm aside from pistols, revolvers, and
handguns, is clearly within the scope of the Second Amendment.
The Plaintiff, who is already permitted by law to use her desired
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means of self-defense, i.e. a rifle or shotgun (together “long guns”),
inside her home, seeks to use this same means of self-defense
outside the home as well. In Moore, the Seventh Circuit conducted
an analysis of Supreme Court jurisprudence, the history of the
Second Amendment, and the plain meaning of the Second
Amendment’s language, finding that “[a] right to bear arms…implies
a right to carry a loaded gun outside her home.” 702 F.3d at 936
(‘The right to ‘bear’ as distinct from the right to ‘keep’ arms is
unlikely to refer to the home.”). Further, as the Plaintiff argues in
her response, the Supreme Court in Heller implied that the Second
Amendment protects the right to keep and bear arms that are
“typically possessed by law-abiding citizens for lawful purposes.”
Mem. in Supp. of Plaintiff’s Resp. to Def. Mot. to Dismiss (d/e 26) at
5 (quoting Heller, 554 U.S. at 621-22 (2008) (stating such as the
reason that firearms typically used for criminal purposes, such as
short-barreled shotguns, are not protected)). Plaintiff seeks to
employ long guns for self-defense. Long guns are typically
possessed and used for lawful purposes, such as hunting. Further,
long guns are weapons that would have been “in common use” at
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the time the Second Amendment was enacted. See Heller, 554 U.S.
at 627 (recognizing that an “important limitation” on Second
Amendment right is that the weapons protected were those “in
common use at the time”). Therefore, the Court finds that the open
carry of long guns for self-defense fits within the scope of Second
Amendment protection.
As noted above, however, this determination does not end the
analysis. Citizens do not have a right to “carry any weapon
whatsoever in any manner whatsoever and for whatever purpose.”
Id. at 626 (citing, as historical examples, State v. Chandler, 5
La.Ann. 489, 489-90 (La. 1850) (holding that a prohibition on the
carrying of concealed weapons was lawful under the Second
Amendment); Nunn v. State, 1 Ga. 243, 251 (Ga. 1846) (same)).
Further, as the Seventh Circuit cautioned in Friedman v. City of
Highland Park, IL, if the issue of whether certain conduct is
constitutionally protected is left open by the U.S. Supreme Court,
the conduct must be analyzed rather than assumed to be protected.
784 F.3d 406, 410 (7th Cir. 2015) (“Cautionary language about
what has been left open should not be read as if it were part of the
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Constitution or answered all possible questions.”). Therefore, this
Court must turn to step two of the analysis and determine whether
the AUUW statute falls within the government’s discretion to
regulate activity protected by the Second Amendment. As stated
above, the Court must look at the public benefit in prohibiting the
conduct compared to how burdensome the particular means of
regulation is on citizens.
The Illinois Attorney General argues that the AUUW statute is
substantially related to the compelling government interest in
“protecting its citizens from being terrorized by the fear of a
shooting in public.” Def. Mem. of Law in Supp. of Def. Mot. to
Dismiss (d/e 20) at 25. The Attorney General further argues that
Illinois has a “related compelling interest” in preventing actual
public shootings. Plaintiff does not specifically argue that the
government’s interest in either “protecting its citizens from being
terrorized by the fear of a shooting in public” and preventing actual
public shootings is not “substantial” or “compelling,” rather she
dismisses those benefits as already “argued” and “denied” in
previous cases. Mem. in Supp. of Pl. Resp. to Def. Mot. to Dismiss
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(d/e 26) at 7 (citing Moore, McDonald v. City of Chicago, Ill., 561
U.S. 742 (2010), and Heller.) However, the three cases cited by
Plaintiff do not fully support her contention that the benefits
proffered by the Attorney General have previously been “argued”
and “denied.” In Moore, the Seventh Circuit rejected the premise
that allowing public carry of firearms to some degree would increase
gun violence, provided citizens had to obtain a permit to carry a
concealed firearm. 702 F.3d at 938 (“Based on available empirical
data…we expect relatively little public safety impact if courts
invalidate laws that prohibit gun carrying outside the home,
assuming that some sort of permit system for public carry is
allowed to stand”).
However, in Moore, the Seventh Circuit was analyzing the
previous version of the AUUW statute, which constituted a complete
prohibition on carrying firearms outside the home. Further, in
McDonald and Heller, the U.S. Supreme Court did not conduct an
interest-balancing at all. In those cases, the U.S. Supreme Court
overturned complete bans on handguns in the home because the
core of the Second Amendment protection is a citizen’s right to selfPage 12 of 24

defense and, therefore, no interest was substantial enough to justify
a full prohibition on handguns, the “quintessential self-defense
weapon.” Heller, 554 U.S. at 626, 634 (“We know of no other
enumerated constitutional right whose core protection has been
subjected to a freestanding interest balancing approach.”); see also
McDonald, 561 U.S. at 791 (citing Heller’s rejection of allowing for
an interest-balancing test when faced with a similar ban on
handguns in the home).
Further, whether the benefits identified by the Attorney
General were found insufficient to support a regulation in previous
cases is not dispositive in the present case. The Court’s analysis is
a balancing of interests, where the Court must weigh the publicbenefit created by the government’s criminalization of the conduct
against the burden on citizens’ Second Amendment right created by
criminalization of the conduct. As the Seventh Circuit noted in
Ezell, a “severe burden” requires an “extremely strong publicinterest justification,” whereas a “modest burden” is “more easily
justified.” 651 F.3d at 708. Therefore, purported benefits that may
have been insufficient to uphold statutes challenged in previous
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cases, like the “severe burden” of a complete prohibition of carrying
firearms outside the home overturned in Moore, may be sufficient
when balanced with a different regulation. See 702 F.3d at 940
(stating that while a “blanket prohibition” on public carry requires a
greater showing of justification than that the “public might benefit,”
a law imposing a “lesser burden” would not require the state “prove
so strong a need”) (emphasis in original). This Court finds that
“protecting [ ] citizens from being terrorized by the fear of a shooting
in public” and preventing actual public shootings, the benefits
argued by the Attorney General, are substantial benefits.
The Seventh Circuit has recognized that there is a government
interest in preventing public gun violence. In Moore, the Seventh
Circuit did not find the benefit of preventing public gun violence
substantial enough to outweigh the burden of a full ban on the
public carry of firearms; however, the Moore court found that,
despite the need for self-defense, the government interest still
supported the regulation of public carry to some extent. Id. at 938
(finding that courts can invalidate laws prohibiting public carry,
“assuming that some sort of permit system” is “allowed to stand”).
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Therefore, Moore suggests that the public benefit of preventing
public gun violence could support a regulation such as the present
AUUW statute, which permits concealed carry of pistols, revolvers,
and handguns.
Further, the Attorney General’s other purported benefit,
protecting citizens from the “terrorizing” fear of public shootings has
gained even more significant traction in the Seventh Circuit. In
Friedman, the court found a reduction of the “perceived risk” of
mass shooting to be a “substantial benefit,” to the extent that the
court upheld Highland Park’s statute prohibiting assault weapons.
784 F.3d at 412 (“If a ban on semiautomatic guns and largecapacity magazines…makes the public feel safer as a result, that’s a
substantial benefit.”). Scholars have found that allowing the carry
of firearms in plain sight is likely to inspire public fear. See, e.g.,
Volokh, 56 UCLA L. Rev. 1443, 1521 (“In many places, carrying
openly is likely to frighten many people”); James Bishop, Hidden or
on the Hip: The Right(s) to Carry After Heller, 97 Cornell L. Rev.
907, 928 (2012) (concealed carrying “less disruptive to the public
peace” than open carry); Reid Golden, Loaded Questions: A
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Suggested Constitutional Framework for the Right to Keep and Bear
Arms, 96 Minn. L. Rev. 2182, 2210 (2012) (requiring an open carry
scheme “may cause alarm in public”). Therefore, the Court finds
that, as in Friedman, alleviating the public of its fear of gun violence
is a substantial benefit.
The competing interest in this analysis is how significantly the
particular regulation burdens a citizens’ Second Amendment right.
In the present case, the regulation limits the extent to which a
citizen can carry firearms in public for self-defense. The previous
version of the AUUW statute was overturned by both the Seventh
Circuit Court of Appeals and the Illinois Supreme Court; however,
the focus of both courts’ analysis was whether a complete ban on
the public carry of firearms could be justified. See Moore, 702 F.3d
at 940 (“A blanket prohibition on carrying guns in public prevents a
person from defending himself anywhere except inside his home;
and so substantial a curtailment of the right requires a greater
showing of justification than merely that the public might benefit on
balance from such curtailment.”); see also People v. Aguilar, 2
N.E.3d 321, 327 (Ill. 2013) (overturning the ban citing the Seventh
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Circuit’s analysis in Moore). Because the current version of the
AUUW statute does not constitute a complete prohibition on the
public carry of firearm, this case more closely parallels the issue
before the Seventh Circuit in Friedman. In Friedman, the Seventh
Circuit upheld a statute that limited the types of weapons a citizen
could use to defend his or her home, specifically a Highland Park
city ordinance prohibiting semi-automatic assault weapons and
large capacity magazines. See, 784 F.3d 406. The court
emphasized that the important question when analyzing the extent
of the burden that a regulation places on citizens is “whether lawabiding citizens retain adequate means of self-defense.” Id. at 41011 (“Since the banned weapons can be used for self-defense, we
must consider whether the ordinance leaves residents of Highland
Park ample means to exercise the inherent right of self-defense that
the Second Amendment protects.”) (internal quotations omitted).
The current version of the AUUW statute, as amended after
Illinois passed the Concealed Carry Act, creates an avenue for
citizens to pursue means of self-defense outside the home. The
Concealed Carry Act provides that the government “shall issue a
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license to carry a concealed firearm” to any person who: (1) is at
least 21; (2) has a valid FOID card and still meets the FOID
requirements when applying for a concealed carry permit; (3) has
not been convicted of a violent misdemeanor or more than two DUI
or controlled substance crimes in the last five years; (4) is not the
subject of a pending warrant or proceeding that could lead to
disqualification under the FOID Act or subsection (3); (5) has not
been in residential or court-ordered drug or alcohol treatment in the
last five years; and (6) has completed the requisite firearms training.
430 ILCS 66/25. Plaintiff does not argue that this permit process is
overly burdensome or that handguns, generally, are an insufficient
means of self-defense. Instead, Plaintiff argues that Illinois cannot
dictate the specific firearm she uses for self-defense, and that
concealed carry of a handgun is an insufficient means of selfdefense.
However, the government must only provide for “adequate”
means of self-defense. Friedman, 784 F.3d at 411. Therefore, the
government does not have to allow each individual citizen to use his
or her preferred firearm, in Plaintiff’s case a long gun, as long as
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every individual can adequately defend him or herself. In Heller,
the U.S. Supreme Court did hold that it was unconstitutional to
ban handguns in the home even though long guns were allowed.
554 U.S. at 628-29. However, the U.S. Supreme Court based this
holding on a finding that a prohibition on handguns, “the most
preferred firearm in the nation to keep and use for protection of
one’s home and family,” did not allow citizens to retain an adequate
means of self-defense. See id. (“[T]he American people have
considered the handgun to be the quintessential self-defense
weapon.”). The Court supported its finding with a number of
objective reasons for why a handgun is the most effective firearm for
self-defense and thus needed to be legalized for that purpose. See
id. (finding that a handgun “is easier to store in a location that is
readily accessible in an emergency; it cannot easily be redirected or
wrestled away by an attacker; it is easier to use for those without
the upper-body strength to lift and aim a long gun; and it can be
pointed at a burglar with one hand while the other hand dials the
police”). Plaintiff, however, does not set forth any reasons why a
long gun is a more adequate means of self-defense than a hand
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gun. In fact, Plaintiff does not argue, at all, that a handgun is an
inadequate means of self-defense. Rather, Plaintiff simply argues
that she prefers long guns.
Plaintiff next argues that concealed carry of a handgun, the
means permitted in Illinois, is an inadequate means for selfdefense. Plaintiff suggests that the delay in having to retrieve a
concealed weapon makes the use of a concealed weapon for selfdefense impracticable. Plaintiff’s Resp. to Def. Mot. to Dismiss (d/e
26) at ¶6 (“One can only imagine when the armed criminal shows
up the plaintiff saying, ‘Oh, please wait while I…dig my gun out of
my purse.’”). The only support Plaintiff cites for this contention is
Moore’s general discussion about how self-defense is needed
outside the home. See id. (citing Moore, 702 F.3d at 937).
However, Moore does not support Plaintiff’s argument that
concealed carry of handguns is an inadequate means of self-defense
because, in Moore, the Seventh Circuit specifically suggests legal
concealed carry as a workable alternative to a complete prohibition
on the public carry of firearms. See, e.g., 702 F.3d at 939
(rebutting the government’s argument that public carry of firearms
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is a safety risk, by citing a study stating that “data and modeling
problems prevented a strong claim that “laws [allowing concealed
handguns to be carried in public] increase crime”); id. at 941 (citing
a New York State law that allows citizens to apply for “a permit to
carry a concealed handgun in public”). Further, the Concealed
Carry Act requires only that the handgun be “partially concealed.”
430 ILCS 66/10(c)(1) (“A license shall permit the licensee to (1)
carry a loaded or unloaded concealed firearm, fully concealed or
partially concealed, on or about his or her person….”). Although, at
this point, neither the legislature nor the courts in Illinois have
addressed the meaning of “fully concealed or partially concealed,”
the law’s inclusion of “on… her person” indicates that Plaintiff is not
required to carry her handgun in her purse, as she suggests.
Further, the definitions of “concealed” in other states that
permit concealed carry also suggest that Plaintiff has additional
options beyond carrying a handgun in her purse. See Miss. Code §
97-37-1 (West 2013) (“hidden or obscured from common
observation.”); Fla. Stat. § 790.001(2) (2013) (“concealed from the
ordinary sight of another person”); TEX. GOV’T CODE ANN. §
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411.171(3) (“the presence of which is not openly discernible to the
ordinary observation of a reasonable person”). Accordingly, under
the AUUW statute, Plaintiff has the ability to carry a handgun, “the
quintessential self-defense weapon,” in an accessible fashion
“on…her person.” Therefore, the Court finds that the AUUW
statute, which allows the concealed or partially concealed carry of
handguns, does not impose a “severe” burden on a citizen’s right of
self-defense and, therefore, does not require an “extremely strong
public-interest justification.” Ezell, 651 F.3d at 708 A]. The Court
finds that intermediate scrutiny is appropriate.
Under, intermediate scrutiny, the law must be “substantially
related to an important government objective.” Clark v. Jeter, 486
U.S. 456, 461 (1988); see also Friedman, 784 F. 3d at 410 (Manion,
J., dissenting) (“[I]ntermediate scrutiny does not require that the
ordinance be the least restrictive means, but that it serve an
important government interest in a way that is substantially related
to that interest”). Again, this case presents a similar situation to
Friedman, where the Seventh Circuit found that the “substantial
benefit” of easing public fear of gun violence justified a regulation
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that allowed citizens to “retain an adequate means of self-defense.”
784 F.3d at 410-12. Accordingly, this Court finds that the AUUW
statute, now amended to allow the concealed carry of pistols,
revolvers, and handguns with a permit, provides for “an adequate
means of self-defense,” and is justified by the “substantial benefit”
of protecting Illinois citizens from being “terrorized by the fear of a
shooting in public” and the related benefit of preventing actual
public shootings. Therefore, the statute is within the government’s
discretion to regulate conduct that is protected by the Second
Amendment.
IV. CONCLUSION
For the foregoing reasons, the Court finds that the AUUW
statute is constitutional. Consequently, Plaintiff does not state a
claim upon which relief could be granted. Therefore, the
Defendant’s motion to dismiss (d/e 19) is GRANTED. The Plaintiff’s
claim is DIMISSED WITH PREJUDICE. This case is CLOSED.
ENTER: March 30, 2016.
s/ Sue E. Myerscough
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SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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