John Justice v. Town of Cicero ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3990
JOHN JUSTICE and M IKE W OODWARD ,
Plaintiffs-Appellants,
v.
T OWN OF C ICERO , et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 1108—Wayne R. Andersen, Judge.
S UBMITTED O CTOBER 23, 2008 Œ —D ECIDED A UGUST 14, 2009
Before B AUER, W OOD , and T INDER, Circuit Judges.
W OOD , Circuit Judge. On February 24, 2006, police
officers from the Town of Cicero, Illinois (“the Town”),
searched a building owned by John Justice pursuant to
Œ
After examining the briefs and the record, we have con-
cluded that oral argument is unnecessary. Thus, the appeal
is submitted on the briefs and the record. See F ED . R. A PP .
P. 34(a)(2).
2 No. 07-3990
a search warrant. A state judge had issued the warrant
after finding probable cause that Justice was violating
nine municipal ordinances, including one prohibiting
the operation of a business without a license and one
addressing the improper storage of hazardous chemicals.
During the search, the police found six unregistered guns.
The Town confiscated the guns, issued six tickets to
Justice for possession of an unregistered firearm, and
shut down the business for one week.
Justice responded by filing suit against the Town,
Dennis Doe and Jerry Jarosz (city officials allegedly in
charge of the business license department), and several
unidentified Town employees. Michael Woodward, a
security guard who worked for Justice, joined the suit.
In the Third Amended Complaint (“the Complaint”),
Justice challenges the Town’s business license ordinance,
the Town’s ordinance requiring registration of firearms,
and the probable cause for the search of his business.
Justice also tacks on an allegation that the Town’s water
department is violating federal and state antitrust law
by requiring a separate water meter for his sprinkler
system and by charging a minimum fee and imposing
a 33% late fee. After methodically explaining the prob-
lems with each of Justice’s allegations, the district court
dismissed the entire complaint for failure to state a
claim under FED. R. C IV. P. 12(b)(6). We agree with the
district court and therefore affirm the judgment for the
defendants.
No. 07-3990 3
I
We review an order granting a Rule 12(b)(6) motion
to dismiss de novo and affirm if the complaint fails to
include sufficient facts “to state a claim for relief that is
plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). Because we must “construe the complaint in the
light most favorable to the plaintiff, accepting as true all
well-pleaded facts alleged, and drawing all possible
inferences in her favor” our analysis relies on the facts
in the Complaint and the warrant, of which the district
court took judicial notice. Tamayo v. Blagojevich, 526
F.3d 1074, 1081 (7th Cir. 2008).
Woodward’s claim is easily eliminated. This court has
no way of knowing the basis for Woodward’s suit
because his complaint is so sparse that it is impossible to
discern any potential claim for relief, plausible or other-
wise. Only one paragraph in the complaint mentions
Woodward:
Plaintiff Mike Woodward, the business’ 24 hour
security guard was taking a nap at the time of the
raid and suffered the start of his life when awakened
by the commands of police officers with the laser
sights pointed at his eyes. The officers intended to
fire the weapons if he had moved mere inches.
Complaint, ¶ 46. The district court interpreted this para-
graph as alleging a claim of excessive force under 42 U.S.C.
§ 1983, but even under that generous reading the
court found that the facts failed to establish a plausible
claim. We agree. With Woodward out of the picture, we
4 No. 07-3990
focus the rest of this opinion on the four theories raised
by Justice.
Count one alleges civil rights violations by the Town
and its officers; Justice has sued the officers in their
individual and official capacities. To state a § 1983 claim,
Justice must establish that the defendants deprived him
of a right secured by the U.S. Constitution or laws. See
Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970). Justice
alleges the following four violations: (1) violation of his
Fourth Amendment rights because the business license
ordinance is overbroad and not tied to a valid regulatory
purpose; (2) violation of his Fourth Amendment rights
because the officers executing the warrant knew or
should have known that the warrant lacked probable
cause; (3) violation of his Second Amendment right to
bear arms because the Town prohibits the possession of
unregistered firearms; and (4) violation of his Fourteenth
Amendment rights (for reasons unstated).
We first address the business licence ordinance. The
Town requires that any person engaging in or managing
a business obtain a business license. C ICERO , ILL., C ODE
OF O RDINANCES § 26-31 (2008). Illinois law permits the
Town to require businesses to have licenses. The Town
qualifies as a home-rule unit under the Illinois Constitu-
tion, ILL. C ONST. art. VII, § 6(a), and so it has the power to
regulate for the protection of public health, safety, morals,
and welfare, and the power to license. Illinois explicitly
grants municipalities the authority to issue and revoke
licenses. 65 ILCS 5/11-60-1. Justice argues that the pur-
pose of the licensing ordinance is limited to revenue
No. 07-3990 5
gathering, but the district court found that the purpose
was more broadly to protect the general health and
welfare of the Town’s citizens. We agree with the
district court.
Justice also argues that the ordinance is overbroad; he
relies on § 26-326, which states, “Without first having
obtained a license for the operation of such a business
from the town, no person shall conduct or operate any
of the following: . . . (22) Manufacturing or treatment or
distribution or storage of any products of any nature
whatsoever.” Justice asserts that this section requires a
homeowner storing gas for a lawnmower to obtain a
business license. But this argument ignores the context
of the subsection, which indicates that it pertains only to
people operating a business. So read, there is no con-
ceivable argument that the business license ordinance
has strayed beyond constitutional boundaries. As
Justice has not alleged facts showing that the business
ordinance violates federal law, his § 1983 claim fails.
Because count two reiterates Justice’s argument about
the business license ordinance, it fails to state a claim
for the same reasons.
Justice’s claim that the search violated the Fourth
Amendment was properly rejected because he admits
that the police searched his business pursuant to a war-
rant. The district court took judicial notice of the fact that
a judge of the Cook County Circuit Court issued that
warrant upon a finding of probable cause to believe that
Justice was violating numerous local ordinances. The
issuing judge relied on the affidavit of Larry Hibbert, a
6 No. 07-3990
business license and building inspector for the Town. The
affidavit included the following assertions: Hibbert has
many years of experience in the chemical industry and
inspecting manufacturing and industrial properties;
Hibbert smelled chemicals while at Justice’s business, and,
based on his experience, believes the chemicals are
likely solvents; Justice has previously refused to allow
inspections, in violation of an order from an admini-
strative judge; Justice admitted to operating a business
without a license.
Justice has attempted to attack the basis of the state
judge’s probable cause finding, but to no avail. He
argues that Hibbert lacked the experience to identify the
smell as a solvent, but this argument makes little sense
given Hibbert’s asserted “many years of experience” in
the chemical industry. Justice also alleges that Hibbert
intentionally excluded a 2005 finding by the Town’s fire
chief that Justice’s building substantially complied with
building and fire codes. Even if we assume that Hibbert
deliberately excluded the information, an inspection
almost a year old does not negate probable cause based
on events subsequent to the inspection—particularly
when those events include Justice’s admitting to vio-
lating one of the nine ordinances and refusing to permit
an inspection despite the order of an administrative
judge. Justice’s final argument—that the warrant lacks
probable cause because Hibbert spelled the name of the
business as “Microsales” rather than “Microcosm”—
similarly fails to undermine the finding of probable
cause. Finally, Justice claims that the warrant is invalid
because it was amended to list a second address for
No. 07-3990 7
the same building without referencing the first warrant
or Hibbert’s affidavit. This is simply false; the issuing
judge explicitly stated that he issued the amended war-
rant after examining the original warrant. Taking into
account these incontrovertible facts, we conclude that
Justice is not entitled to proceed on his claim that his
Fourth Amendment rights were violated by the search.
The district court noted additional reasons why the
Complaint fails to state a claim for a violation of
Justice’s Fourth Amendment rights. In order to do so for
his official-capacity and municipal liability theory, Justice
had to show that the violation occurred because of “(1) the
enforcement of an express policy of the City, (2) a wide-
spread practice that is so permanent and well settled as
to constitute a custom or usage with the force of law, or
(3) a person with final policymaking authority.” Latuszkin
v. City of Chicago, 250 F.3d 502, 504 (7th Cir. 2001); see
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978). The
Complaint’s sole mention of a policy or practice appears
in Paragraph 30: “[t]he Town of Cicero has a policy
and practice of shutting down businesses that do not
purchase business licenses.” Justice’s failure to allege
any policy or practice causing the allegedly illegal search
is fatal to his claim against the Town and the officials
in their official capacity. The individual-capacity claims
against Dennis Doe and Jerry Jarosz cannot proceed for
a different reason. While the Complaint names Doe
and Jarosz in paragraph 3, it never mentions any action
by either man; in fact, the Complaint never mentions
them again. Additionally, as the district court recog-
nized, qualified immunity protects officers who “reason-
8 No. 07-3990
ably but mistakenly conclude that probable cause is
present.” Burns v. Reed, 44 F.3d 524, 529 (7th Cir. 1995)
(quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)). Given
Hibbert’s affidavit and the finding of probable cause by
the judge, these two officers are each entitled to
qualified immunity.
We note as well that the Town has argued, as an alter-
native ground for affirmance, that Justice’s Fourth Amend-
ment claims are barred by Heck v. Humphrey, 512 U.S.
477 (1994). We have not relied on that ground for two
reasons. First, it is unclear from the record exactly what
convictions or sentences Justice received, and without
knowing that, we cannot tell how much of a Heck bar
exists. Justice’s complaint alleges that he was charged
and prosecuted, but he also mentions receiving tickets.
We know from the affidavit attached to the warrant that
an administrative judge, before the search, found Justice
in violation of three city ordinances, but there is no evi-
dence of an administrative order finding Justice in vio-
lation of the gun ordinance. We do not know if the police
just issued him tickets before confiscating the guns, or if
he was also later found guilty of violating the ordinance
in some quasi-judicial proceeding. Second, this court
has not decided whether an administrative proceeding
or a finding of a violation of a city ordinance triggers
the Heck bar. Cf. Swiecicki v. Delgado, 463 F.3d 489 (6th
Cir. 2006) (applying the Heck bar where plaintiff was
convicted of violating a disorderly conduct ordinance);
Zhai v. Cedar Grove Municipality, 183 F. App’x 253 (3d
Cir. 2006) (applying the bar to plaintiff’s guilty plea for
violating a disorderly conduct ordinance). Because we
No. 07-3990 9
do not know the type of conviction or sentence involved
here, we save for another day a more complete consider-
ation of this issue.
We now turn to Justice’s Second Amendment claim. The
district court found that the Town’s ordinance requiring
the registration of all firearms did not violate Justice’s
constitutional rights because the Second Amendment
does not regulate the activities of a state or its sub-
divisions, relying on this court’s decision in Quilici v.
Village of Morton Grove, 695 F.2d 261, 269-71 (7th Cir. 1982).
It noted that the Illinois Constitution subjects the right
to bear arms to the police power, and that Illinois
permits municipalities to regulate the possession of
firearms to protect the public health, safety, and welfare.
See Sklar v. Byrne, 727 F.2d 633, 637 (7th Cir. 1984).
Since the date of the district court’s opinion (October 10,
2007), there has been some water under the Second
Amendment bridge. First, the Supreme Court decided
District of Columbia v. Heller, 128 S. Ct. 2783 (2008), which
struck down an ordinance of the District of Columbia
that flatly prohibited the possession of handguns.
Second, this court decided National Rifle Ass’n of America
v. City of Chicago, 567 F.3d 856 (7th Cir. 2009), in which
we concluded that the Second Amendment (under
current Supreme Court law) is not one of the parts of
the Bill of Rights that has been incorporated by the Four-
teenth Amendment and thereby made applicable to the
states. In NRA, we aligned ourselves with the Second
Circuit’s decision in Maloney v. Cuomo, 554 F.3d 56 (2d
Cir. 2009), and expressed disagreement with the Ninth
10 No. 07-3990
Circuit’s reasoning in Nordyke v. King, 563 F.3d 439 (9th
Cir. 2009).
If, as we have held, the Second Amendment does not
apply to the states and their subdivisions, then Justice
has no case. Even if we are wrong and the Ninth Circuit
has proven to be the better predictor of the Supreme
Court’s rulings, there is a critical distinction between
the D.C. ordinance struck down in Heller and the Cicero
ordinance. Cicero has not prohibited gun possession
in the town. Instead, it has merely regulated gun posses-
sion under § 62-260 of its ordinance. The Town does
prohibit the registration of some weapons, but there is
no suggestion in the Complaint or the record that
Justice’s guns fall within the group that may not be regis-
tered. See § 62-261. Nor does Heller purport to invalidate
any and every regulation on gun use; to the contrary,
the Court in Heller disclaims any such intent:
Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone
through the 19th-century cases, commentators and
courts routinely explained that the right was not a
right to keep and carry any weapon whatsoever in
any manner whatsoever and for whatever purpose. . . .
For example, the majority of the 19th-century courts
to consider the question held that prohibitions on
carrying concealed weapons were lawful under the
Second Amendment or state analogues. . . . Although
we do not undertake an exhaustive historical
analysis today of the full scope of the Second Amend-
ment, nothing in our opinion should be taken to
No. 07-3990 11
cast doubt on longstanding prohibitions on the posses-
sion of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive
places such as schools and government buildings, or
laws imposing conditions and qualifications on the
commercial sale of arms. [FN26: We identify these
presumptively lawful regulatory measures only as
examples; our list does not purport to be exhaustive.]
128 S. Ct. at 2816-17 (citations omitted). Thus, even if we
are wrong about incorporation, the Cicero ordinance,
which leaves law-abiding citizens free to possess guns,
appears to be consistent with the ruling in Heller.
Justice also argues that Cicero’s ordinance is uncon-
stitutional as applied to him because he is a citizen of
Tennessee. Justice’s domicile, however, is irrelevant. The
ordinance applies to the possession of unregistered guns
physically present in the Town and Cicero is where
Justice kept the six guns at issue here. The Complaint,
in summary, does not state a claim for a violation of
Justice’s Second Amendment rights.
Justice also alleges a violation of the Fourteenth Amend-
ment, but he fails to explain the basis for this claim. The
Complaint does assert that the Town’s search and
later closing of his business were improper because the
Town President has the power to shut down a business
without a search under certain circumstances. See § 26-
40(a). We do not know what that has to do with
Justice’s case. Even if we interpret this assertion as a due
process argument, it is nonsensical. That the Town Presi-
dent can shut down a business does not mean the
Town lacks the power otherwise to enforce its ordinances.
12 No. 07-3990
In count three, Justice accuses the Town of violating
federal and state antitrust laws because the water depart-
ment (1) requires a separate water meter for his sprinkler
system, (2) charges a minimum monthly fee for each
meter, (3) charges a 33% late fee, and (4) charges a “usuri-
ous interest rate.” Complaint, ¶ 5. Justice’s claim fails at
the outset because the Town’s conduct is immunized
from both state and federal antitrust law. Under
the Parker doctrine, the actions of municipalities
fall outside the reach of the federal antitrust laws if the
municipality can “demonstrate that [its] anticompetitive
activities were authorized by the State ‘pursuant to state
policy to displace competition with regulation or monop-
oly public service.’ ” Hallie v. Eau Claire, 471 U.S. 34 (1985)
(quoting Lafayette v. La. Power & Light Co., 435 U.S. 389,
413 (1978)). Illinois similarly exempts local governments
from antitrust law “to the extent their activities are either
(1) expressly or by necessary implication authorized by
Illinois law and (2) within traditional areas of local govern-
ment activity.” 50 ILCS 35/1. Water supply is within a
traditional area of local government activity and is ex-
pressly authorized by Illinois law; Illinois explicitly
empowers local governments to “make all needful rules
and regulations concerning the use of water supplied by
the waterworks of the city or village” and to fix and collect
water rates “as the corporate authorities may deem neces-
sary or expedient . . . .” 65 ILCS 5/11-125-3. That is enough
to protect the Town from both federal and state antitrust
exposure.
Justice finally argues that requiring a separate meter
for the sprinklers and charging such a high late fee and
No. 07-3990 13
minimum monthly fee exceed the Town’s authority
because the measures are not “necessary or expedient.”
We are not sure what kind of claim this is: substantive
due process? taking? antitrust? administrative? Any way
we look at it, however, it is plain to us that Justice
has failed to state a claim in this case. The federal
judiciary is not the body charged with setting fees for
Cicero’s water service, nor are we the ones who need to
set the price for collection on delinquent accounts. Illinois
law authorizes the Town to select the necessary
measures to distribute water and otherwise to run this
business.
Count four requires no additional discussion. In it,
Justice asks for injunctive relief, punitive damages, and a
receiver. These requests assume that he has prevailed on
the antitrust claims he has tried to raise in count three.
Count four thus falls along with count three.
** *
We A FFIRM the district court’s judgment for the defen-
dants.
8-14-09