Halford v. City of Vandalia et al
Filing
23
MEMORANDUM AND ORDER Granting in part and Denying in part 15 MOTION for Summary Judgment filed by City of Vandalia, Jerry Bowling; REFERRING CASE to Magistrate Judge Frazier for expedited settlement conference; vacating final pretrial conference date of 1/13/16 and trial date of 1/25/16; directing Clerk to enter judgment accordingly at the close of the case. Signed by Judge J. Phil Gilbert on 12/23/2015. (msd, )
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL HALFORD,
Plaintiff,
v.
Case No. 14-cv-1228-JPG-PMF
CITY OF VANDALIA and JERRY BOWLING,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the motion for summary judgment filed by defendants
City of Vandalia and Jerry Bowling (Doc. 15). Plaintiff Michael Halford has responded to the motion
(Doc. 18), and the defendants have replied to that response (Doc. 20).
I.
Summary Judgment Standard
Summary judgment must be granted “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int’l-Ind., Inc., 211 F.3d 392,
396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath,
211 F.3d at 396.
The initial summary judgment burden of production is on the moving party to show the Court
that there is no reason to have a trial. Celotex, 477 U.S. at 323; Modrowski v. Pigatto, 712 F.3d 1166,
1168 (7th Cir. 2013). Where the moving party fails to meet its strict burden, a court cannot enter
summary judgment for the moving party even if the opposing party fails to present relevant evidence in
response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).
II.
Facts
Viewing the evidence and all reasonable inferences in favor of Halford, the evidence establishes
the following relevant facts.
As of the fall of 2014, Halford had accumulated numerous firearms. He was anticipating selling
them in an auction to raise funds to open a firearm dealership and to get the word out that he was a gun
dealer. He planned to have the auction at his auto detail shop in Vandalia, Illinois, on Sunday, October
12, 2014, and expended funds to publicize the auction and hire an auctioneer. Halford’s shop was
located adjacent to a school. When school officials realized that the guns sold at Halford’s Sunday
auction would be picked up on Monday, a school day, an official called the Vandalia Police Department
to express the school’s concern about guns being in proximity to the school when children were present.
Bowling, a detective with the Vandalia Police Department, visited Halford’s business on
Thursday, October 9, 2014. There is disagreement about what happened during that visit, but taking
Halford’s evidence as true, the following events transpired. Bowling asked Halford if he was the person
holding the gun sale, and Halford said that he was. Bowling then said he was there to “shut [him]
down” and that Halford could not conduct the auction. Halford asked why, and Bowling told him that
the state’s attorney had said the sale was in violation of the law. Halford then told Bowling he had been
doing this for a long time and was not aware of any law that would prevent him from having the sale,
although Halford thought the new, lengthy concealed carry legislation might contain some regulations of
which he was not aware. Bowling then asked Halford if all the guns he was going to sell were his, and
Halford said they were. Then Bowling asked Halford for his Federal Firearms License (“FFL”), but
Halford did not have an FFL. Bowling then asked Halford for his driver’s license and ran a background
check with the Illinois State Police. Halford asked why Bowling was running a background check, and
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Bowling said it was because he did not know Halford and wanted to see if he had an FFL. Halford told
Bowling that information would not be included in a state police background check. To be safe in light
of his uncertainty about the concealed carry law, Halford told Bowling that “per his order” he would not
conduct the sale. Halford then told Bowling the conversation was over and asked Bowling to leave.
During the encounter, Halford perceived from Bowling’s tone of voice, sharp statements and body
posture that Bowling was in an aggressive mood and ready for a confrontation, but Bowling never drew
his gun, arrested Halford, threatened to arrest Halford, or took any of his guns.
Later in the day, Halford called the state’s attorney, who said he had not had any conversation
with a police officer about Halford’s auction. The state’s attorney went to Halford’s shop to discuss the
matter with him. Halford then called the Springfield, Illinois, office of the Bureau of Alcohol, Tobacco
and Firearms (“ATF”) and was told that there was no new law that would prevent him from having his
gun auction as planned and that he could have the auction if he wanted to. The ATF representative put
Halford in contact with the ATF agent assigned to Halford’s area, who confirmed that he could have the
auction if he wanted to and offered to attend the sale to prevent any problems with the local police.
Halford then went to see the chief of the Vandalia Police Department, but he was not in the
office. Instead, Halford talked to Bowling and relayed the information he had received since their
encounter earlier in the day indicating that he could lawfully conduct the sale. Halford told Bowling,
however, that he was not going to conduct the sale because of what Bowling had told him earlier in the
day and that he would instead sue Bowling and the City of Vandalia. Later Halford spoke to the police
chief but does not recall the substance of the conversation. Halford was afraid Bowling would come out
to his shop again and cause more grief, so he cancelled the auction.
At some point after Bowling’s visit to Halford’s shop, Bowling discussed the situation with the
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state’s attorney, who advised him that no law or regulation would prevent Halford from conducting the
auction. Bowling did not convey this information to Halford.
Later, Halford sold his guns to various gun dealers but received less money than he had paid for
them when he first bought them. He has abandoned the idea of becoming a licensed gun dealer.
In October 2014, Halford filed this lawsuit asserting a claim under 42 U.S.C. § 1983 for violation
of his constitutional rights to possess and sell guns in compliance with the law. The defendants now ask
the Court to grant summary judgment on the grounds that (1) Halford has not alleged or presented
evidence that constitutional right of his has been violated, (2) he has not alleged or presented evidence of
any policy, practice or custom of the City of Vandalia that would subject it to liability, and (3) to the
extent Halford seeks to claim a violation of his due process rights under the Fourteenth Amendment, he
has not shown he has been deprived of a property or liberty right by the defendants.
In response, Halford complains that the defendants’ counsel never provided dates the defendants
would be available for deposition and states that a worker at Halford’s auto detail shop would
corroborate his version of the October 9, 2014, encounter with Bowling at the shop. He also contends
the defendants have violated his constitutional right to have a gun auction and argues the City of
Vandalia should be liable for failing to train Bowling properly as to the rules of gun auctions and to
investigate once Halford registered a complaint.
In reply, the defendants note that their counsel made efforts to contact Halford about scheduling
depositions but that they were never able to contact each other. The defendants note that discovery
closed on August 7, 2015, and Halford should not be able to raise the lack of discovery more than a
month later.
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III.
Analysis
A.
Discovery Matters
It is possible Halford is asking the Court under Federal Rule of Civil Procedure 56(d) to defer
considering or to deny the defendants’ summary judgment motion because he has been unable to present
facts essential to justify his case. However, Halford has not shown by affidavit or declaration that, for
specific reasons, he cannot present facts essential to justify his opposition to the summary judgment
motion. To the extent he believes he needs the affidavit of the worker at his detail shop to corroborate
his testimony, that evidence is not essential to his case since the Court must take Halford’s statements as
true at this time even if they are uncorroborated. Nor has Halford explained in an affidavit or
declaration why he has been unable to obtain that evidence at this time. To the extent Halford believes
he needs the deposition testimony of the defendants to counter the summary judgment motion, he has not
shown that such evidence is essential to support his case; such evidence would not be taken as true on
summary judgment if it contradicted Halford’s own testimony. For these reasons, to the extent Halford
seeks relief under Rule 56(d), the Court denies the motion.
B.
Constitutional Right
To the extent the defendants argue Halford has not alleged or presented evidence of the violation
of a constitutional right, they have not carried their burden of showing they are entitled to judgment as a
matter of law on such a claim as to Bowling individually
As for Halford’s claim under the Second Amendment, applicable to the states under the
Fourteenth Amendment due process clause, see McDonald v. City of Chi., 561 U.S. 742, 749 (2010), a
gun seller has “associational standing” to sue to enforce the Second Amendment rights of his potential
customers to purchase and possess guns. See, e.g., Second Amendment Arms v. City of Chi., No.
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10-CV-4257, 2015 WL 5693724, at *5 (N.D. Ill. Sept. 28, 2015). It is also an open question whether
and to what extent the Second Amendment directly protects the sale of guns. See id. at *13. The
defendants have not fleshed out the contours of these rights in their brief and have not convinced the
Court that Bowling’s instruction to Halford not to hold his auction did not violate those rights.
To the extent Halford claims his right to due process has been denied by the defendants’ conduct,
again, the defendants have not carried their burden of showing they are entitled to judgment as a matter
of law. As noted above, the contours of a gun-seller’s right to sell guns is not well-defined, and the
defendants have not convinced the Court they are entitled to judgment as a matter of law for the
deprivation of any such right without due process of law.
C.
Municipal Liability
To the extent Halford seeks to hold the City of Vandalia liable for a constitutional violation, he
has not pointed to any evidence that would justify imposing liability on the municipality. A
municipality may only be held liable under § 1983 for a constitutional violation if (1) it had an express
policy calling for constitutional violations, (2) it had a widespread practice of constitutional violations
that was so permanent and well settled as to constitute a custom or usage with the force of law or (3) if a
person with final policymaking authority for the county caused the constitutional violation. Monell v.
Department of Soc. Servs., 436 U.S. 658, 694 (1978); McCormick v. City of Chi., 230 F.3d 319, 324 (7th
Cir. 2000).
There is no evidence the City of Vandalia had an express policy, widespread custom or final
policymaker calling for preventing legal gun auctions. In his deposition, Halford testified that he knows
of no such evidence, although he states in his response to the defendants’ summary judgment motion that
the City of Vandalia should be liable because it hired incompetent officers, inadequately trained them,
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and failed to investigate Bowling once a complaint was made. This assertion, however, appears to be
based solely on the fact that Bowling acted as he did. Since a municipality cannot be held liable for its
employee’s conduct on the basis of respondeat superior, id. at 690, and since there is no evidence from
which a reasonable jury could conclude that the City of Vandalia bore any responsibility for that
conduct, Halford cannot avoid summary judgment.
IV.
Conclusion
For the foregoing reasons, the Court:
GRANTS in part and DENIES in part the defendants’ motion for summary judgment (Doc.
15). The motion is DENIED to the extent it seeks relief under Rule 56(d), is GRANTED to the
extent it seeks summary judgment in favor of the City of Vandalia, and is DENIED to the extent
it seeks summary judgment in favor of Bowling;
REFERS this case pursuant to Local Rule 72.1(c) to Magistrate Judge Philip M. Frazier for an
expedited settlement conference;
VACATES the current Final Pretrial Conference date of January 13, 2016, and the Trial date of
January 25, 2016. The Court will notify the parties when new dates are set; and
DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case.
IT IS SO ORDERED.
DATED: December 23, 2015
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE
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