John Justice v. Town of Cicero

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