Matthew D. Wilson, et al., Plaintiffs-Appellants,
Cook County, et al., Defendants-Appellees.
April 4, 2019
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 1:17-cv-07002 -
Manish S. Shah, Judge.
Ripple, Hamilton, and St. Eve, Circuit Judges.
Cook County residents appeal the dismissal of their
complaint, which raises a Second Amendment challenge to Cook
County's ban on assault rifles and large-capacity
magazines. Less than five years ago, we upheld a materially
indistinguishable ordinance against a Second Amendment
challenge. See Friedman v. City of Highland Park,
784 F.3d 406 (7th Cir. 2015). The district court dismissed
the plaintiffs' complaint on the basis of
Friedman. We agree with the district court that
Friedman is controlling. Because the plaintiffs have
not come forward with a compelling reason to revisit our
previous decision, we affirm the judgment of the district
November 2006, the Commissioners of Cook County enacted the
Blair Holt Assault Weapons Ban ("the County
Ordinance"), an amendment to the Cook County Deadly
Weapons Dealer Control Ordinance. The amendment defines
"assault weapon" and "large-capacity
magazine," and makes it illegal to "manufacture,
sell, offer or display for sale, give, lend, transfer
ownership of, acquire, carry or possess" either item in
Cook County. Cook County, Ill. Code §§ 54-211,
54-212(a). Any person who legally possessed an assault weapon
or large-capacity magazine prior to enactment of the
amendment must remove it from county limits, modify it to
render it permanently inoperable, or surrender it to the
Sheriff. Id. § 54-212(c). When a weapon or
magazine is surrendered or confiscated, the ordinance
requires the Sheriff to determine if it is needed as
evidence, and, if not, to destroy it. Id. §
54-213(a)-(b). Violation of the County Ordinance is a
misdemeanor; it carries a fine ranging from $5, 000 to $10,
000 and a term of imprisonment of up to six months.
Id. § 54-214(a).
September 2007, three Cook County residents, including the
plaintiffs, brought a preenforcement action in Illinois state
court, challenging the County Ordinance and seeking
declaratory and injunctive relief. The complaint named as
defendants the County, the individual commissioners of the
Cook County Board of Commissioners, and the Cook County
Sheriff. The plaintiffs alleged that the ordinance violates
the Due Process Clause because the definition of assault
weapons is unconstitutionally vague (Count I); the ordinance
fails to provide a scienter requirement and fails to give
fair warning of the conduct proscribed (Count II); the
ordinance is overbroad (Count III); the ordinance violates
their right to bear arms under the Second Amendment (Count
IV); the ordinance is an unconstitutional exercise of the
County's police powers (Count V); and the ordinance
violates the Equal Protection Clause because it arbitrarily
classifies certain firearms (Count VI). The Circuit Court of
Cook County dismissed the complaint, and the Illinois
Appellate Court upheld the dismissal. The Supreme Court of
Illinois affirmed the dismissal of the due process and equal
protection claims; however, it remanded for further
proceedings the plaintiffs' Second Amendment claim.
See Wilson v. Cty. of Cook, 968 N.E.2d 641, 658
(Ill. 2012). Plaintiffs then voluntarily non-suited their
Second Amendment claim prior to resolution on the merits.
2013, the City of Highland Park, Illinois, also enacted an
ordinance banning assault weapons and large-capacity
magazines within city limits ("Highland Park
Ordinance"). The Highland Park Ordinance defines
"assault weapon" and "large-capacity
magazine" in virtually identical terms as the County
Ordinance does and proscribes the same conduct: it penalizes
those who "manufacture, sell, offer or display for sale,
give, lend, transfer ownership of, acquire or possess"
any assault weapon or large-capacity magazine. Highland Park,
Ill. Code § 136.005. The Highland Park Ordinance also
requires those in possession of a banned item to remove it
from city limits; to render it permanently inoperable or
permanently alter it so that it no longer meets the
definition of assault weapon or large-capacity magazine; or
to surrender it to the Chief of Police. Id. §
136.020. The Chief of Police, like the Cook County Sheriff,
must destroy any assault weapon or large-capacity magazine
not needed as evidence. Id. § 136.025. Highland
Park punishes a violation of its ordinance as a misdemeanor,
and the violation carries a fine of $500 to $1, 000 and a
maximum term of six months' imprisonment. Id.
§ 136.999. Shortly after the Highland Park Ordinance was
adopted, a resident challenged the ordinance on Second
Amendment grounds, and we upheld the Highland Park Ordinance
against the constitutional challenge. See Friedman v.
City of Highland Park, 784 F.3d 406 (7th Cir. 2015).
28, 2017, Matthew Wilson and Troy Edhlund re-filed their
challenge to the County Ordinance in Illinois state court. As
they had in their original complaint, they pleaded a Second
Amendment claim as well as the previously dismissed due
process and equal protection claims to "preserve"
those claims "for appeal." The defendants removed the
action to federal court on September 28, 2017.
federal court, the district court granted the defendants'
motion to dismiss the complaint under Federal Rule of Civil
Procedure 12(b)(6). The court observed that the Cook County
Ordinance is "materially identical" to the Highland
Park Ordinance at issue in Friedman and that
Friedman, therefore, required the dismissal of the
plaintiffs' Second Amendment claim. The plaintiffs
filed a timely notice of appeal.
plaintiffs now submit to us that the district court should
not have relied on Friedman. In their view, their
situation is materially different from that of the
Friedman plaintiffs, and they believe that they
should have the opportunity to develop a factual record
establishing those differences. In the alternative, they
contend that Friedman was wrongly decided and that
their claim should be evaluated under a test that tracks more
closely the language that the Supreme Court employed in
District of Columbia v. Heller, 554 U.S. 570 (2008),
and that we employed in Ezell v. City of Chicago,
651 F.3d 684 (7th Cir. ...