One More Early Post-Heller Second Amendment Opinion:

The brief decision from Senior Judge Milton Shadur is in the newly filed lawsuit challenging Chicago's handgun ban, McDonald v. City of Chicago (N.D. Ill.); it's minor, but I thought I'd note it nonetheless, because it might foreshadow what we might see in the future in this important case:

This newly-filed action has been assigned to this Court’s calendar. From a reading of the Complaint it appears that plaintiffs’ counsel may view this litigation--which is entitled to serious consideration on its own merit--as a vehicle for some other purposes as well. This memorandum order is issued sua sponte to strip the Complaint of some surplusage--listed in the order of appearance, rather than in any effort to rank the stricken allegations in terms of importance--that does not conform to the directive of Fed. R. Civ. P. 8(a) as to the content of a federal complaint.

1. Because yesterday’s Supreme Court decision in District of Columbia v. Heller, No. 07-290, 554 U.S. __, 2008 WL 2520816 (U.S. June 26) requires no independent justification for the ownership and possession of firearms under the Second Amendment (see Complaint ¶34), all but the first sentence of each of Complaint PP1 through 4 are stricken.

[Footnote, slightly moved: Nothing in the Supreme Court's opinion addresses the registration and licensing requirements targeted by the Complaint (see Heller, 2008 U.S. LEXIS 5268, [WL] at *28 n.26 and *30), and no view is of course expressed here as to such substantive issues.]

2. Complaint ¶8 appears to reflect an inaccurate characterization of the form of government that is prescribed for the City of Chicago. Absent some showing to the contrary by plaintiffs’ counsel, that paragraph will be stricken, Richard Daley will be dismissed as a defendant and all of the Complaint’s references to “Defendants” will be converted to singular form.

3. Because 28 U.S.C. §§2201 and 2202 are not independent sources of federal subject matter jurisdiction, reference to those sections is stricken from Complaint ¶9.

4. Complaint ¶¶40 through 45 are stricken as patently inappropriate.

5. All of the Complaint’s references to “Cause of Action” are also stricken. In that respect, see NAACP v. American Family Mut. Ins. Co., 978 F.2d 287, 291-93 (7th Cir. 1992)).

Here are the relevant portions of the complaint:

1. Plaintiff Otis McDonald is a natural person and a citizen of the United States, residing in Chicago, Illinois. Mr. McDonald resides in a high-crime neighborhood and is active in community affairs. As a consequence of trying to make his neighborhood a better place to live, Mr. McDonald has been threatened by drug dealers.

2. Plaintiff Adam Orlov is a natural person and a citizen of the United States, residing in Chicago, Illinois. Mr. Orlov is a former Evanston, Illinois, police officer. As a police officer, Mr. Orlov was entrusted with a handgun for the purpose of defending himself and others from violent crime.

3. Plaintiff Colleen Lawson is a natural person and a citizen of the United States, residing in Chicago, Illinois. Ms. Lawson’s home has been targeted by burglars.

4. Plaintiff David Lawson is a natural person and a citizen of the United States, residing in Chicago, Illinois. Mr. Lawson’s home has been targeted by burglars....

40. Many Chicago gun owners fail to re-register their firearms every year. Among these recently was Alderman Richard Mell, whose firearms became unregisterable when he failed to timely renew his registration certificates.

41. Accordingly, Alderman Mell proposed an ordinance amending the law to permit, for one month, lapsed guns to be re-registered if their owners had attempted to re-register their guns between May 1, 2007 and April 1, 2008, a period that would have covered his lapsed firearm registrations.

42. Defendant Mayor Daley endorsed Mell’s proposal, stating: “A lot of people go back and forth to their summer homes ... A lot of people move their shotguns. A lot of ’em are bird hunters, gun collectors.... They move ’em back from Wisconsin, Michigan, [other] parts of Illinois.”

43. Defendant Mayor Daley added: “It’s one time [for] one month ... You want to have ’em register. There’s nothing wrong with that ... People want to just register. A lot of ’em bring ’em back from hunting trips. So, why not?”

44. Speaking of Alderman Mell’s desire to re-register his lapsed guns, Defendant Mayor Daley stated: “He has a home in Wisconsin. He brings ’em back and forth. He’s not running out with a shotgun and hurting people.

45. The proposed re-registration amnesty bill was passed by the Chicago City Council, with the amnesty period extended to 120 days. The fee for re-registering a lapsed firearm under the amnesty bill is $60.00.”

My questions: (1) The main issue in this case is to what extent the Second Amendment applies to the states via the Fourteenth Amendment. It's at least conceivable that the Amendment might apply to the states differently than it does to the federal government; this is an unlikely result, but one the Court reached in the early 1970s as to the Jury Trial Clause, which has been read as requiring unanimous juries in federal prosecutions but not state prosecutions. If this is so, then is it clear that the remaining sentences of paragraphs 1 through 4 are surplusage? Or is the judge simply assuming that the Second Amendment is either fully incorporated or not at all incorporated, so that Heller view -- which is that the right to keep and bear arms doesn't require any special justification on the claimant's part -- is dispositive?

(2) Why doesn't the material related to the reregistration ordinance potentially undermine the strength of the government's likely argument that the ordinance's constraints on law-abiding citizens are really needed to fight crime (quite independently of the digs at the supposed self-dealing by Chicago officials)? True, it might prove to be irrelevant, but that's not clear now. Or is it just that the proper place for introducing such matters is at trial and in pretrial motions, rather than in the complaint?

Wayne Jarvis:
Classic Shadur.
7.7.2008 2:23pm
Kevin P. (mail):
The complaint is here
7.7.2008 2:42pm
Jim at FSU (mail):
I'm not familiar with Shadur. Anyone care to give me a refresher? I couldn't really find much on him via the internet beyond the fact that he is apparently quite bright.
7.7.2008 2:49pm
Wayne Jarvis:
I'm not familiar with Shadur. Anyone care to give me a refresher? I couldn't really find much on him via the internet beyond the fact that he is apparently quite bright.

Google "Shadur" and "sua sponte."
7.7.2008 2:58pm
Richard Riley (mail):
Prof. Volokh, there is a 98% chance the stricken sentences in the complaint were put in for atmospherics and public relations, and a 2% chance they were put in for substantive reasons like the intricacies of the 14th Amendment incorporation doctrine. Now, I don't think it is inappropriate to include a bit of atmospherics in a "test case" complaint and have done so myself - but let's be realistic about why the complaint is phrased the way it is.
7.7.2008 3:39pm
Bored Lawyer:
This strikes me as gross overkill, way beyond what is contemplated by Rule 12(f). That rule permits a Court to "strike from a pleading . . . any redundant. immaterial, impertinent or scandalous matter."

The stricken parts are short and hardly scandalous or impertinent. Whether they are "immaterial" is something that remains to be seen as 2d Amendment doctrine is developed. Does it matter that three of the plaintiffs have been "targeted" as victims of crime or that another is a police officer who has already been entrusted to carry a weapon? Maybe or maybe not -- but it seems very early to be deciding that now.
7.7.2008 3:57pm
Tony Tutins (mail):
The judge apparently values simplicity and clarity in his complaints. Further, the facts in the first 4 paragraphs sound argumentative: first, the unnecessary encomia to Mr. McDonald and Mr. Orlov, and second, the conclusory statement that the ladies' homes were "targeted" by burglars -- either there was evidence of a break-in or there was not.

Moreover, the plaintiff did not establish the relevance of paragraphs 40-45 to his complaint: the paragraphs talk about shotguns, not handguns, yet the subject of his complaint is the inability to register handguns. If the paragraphs are relevant and not just Chicago politics bashing ("Daley's a crook. They're all crooks"), their relevance should have been made clear: e.g. Handgun registration was closed, but was then reopened, but not for the plaintiffs. Plaintiff B's registration lapsed without the possibility of reinstatement, a possibility freely given to friends of the Mayor, etc.
7.7.2008 4:17pm
Anthony Sanders (mail):
The plaintiffs filed a response to this order, providing background and legal authority for why the above paragraphs were included in the Complaint. (Available on CM/ECF) Judge Shadur then, just today, filed a responsive opinion, the text of which I've pasted below.

FYI, I've been before Judge Shadur many many times and he is a wonderful, and venerable, judge, but also quite the stickler for the absolute letter of the FRCP. I've seen him read the text of a rule to counsel on more than one occasion (including to yours truly).

The new opinion reads:

Counsel for plaintiffs in this action have filed their
“Response to Order of June 27, 2008,” seeking to explain their reason for having included Mayor Richard M. Daley as well as the City of Chicago as a defendant in their recently-filed Complaint(this Court’s sua sponte memorandum order had dismissed Mayor Daley from the lawsuit). Although the Response concludes by voicing no objection to whatever this Court ultimately decides in that respect, this brief memorandum order is issued to explain why both the original Complaint and the Response appear to reflect a misunderstanding of 42 U.S.C. §1983 (“Section 1983”)

It is of course true that Mayor Daley is a “person” for
Section 1983 purposes--the failure of a putative defendant to fit into that concept typically impacts only on the state and its agencies (Will v. Mich. Dep’t of State Police, 491 U.S. 58(1989)). But any notion that “naming mayors and cities both as defendants in civil rights actions is accepted practice” (Response at 1) is not itself a predicate for targeting Mayor Daley here--that general notion is basically at odds with the teaching of Monell v. Dep’t of Social Services of City of New York, 436 U.S. 658, 691 (1978) and its almost innumerable progeny, which ground Section 1983 liability solely on a defendant’s direct involvement, rather than on respondeat superior principles.

Despite such pejorative characterizations in connection with
Chicago-style politics as “King Daley” (a label more often
attached to the first Mayor Richard Daley than to the present incumbent), the legal control of Chicago’s government is not essentially vested in its Mayor. When the Illinois Municipal Code was revamped and codified in 1961, the one provision of the Revised Cities and Villages Act of 1941 that was not repealed was its Article 21 dealing with the City of Chicago, which was retained and is now found at 65 ILCS 20/0.01 et seq. Nothing in that statute appears to place the matters that are the subject of plaintiffs’ Complaint within Mayor Daley’s purview.

Hence whatever may be the case as to the mayors of cities
elsewhere in the United States, or of Illinois cities other than Chicago, to this Court’s knowledge the matters that form the gravamen of the present Complaint are not powers vested in Mayor Daley. It should be remembered that Section 1983 liability is generally imposed only on municipal "decisionmakers” (see, e.g.,this Court’s opinion in Limes-Miller v. City of Chicago, 773 F.Supp. 1130, 1136 (N.D. Ill. 1991)). And so far as this Court is aware, the situation here is not of the type that brings into play the variant on that doctrine described in Auriemma v. Rice, 987 F.2d 397, 399 (7 Cir. 1992).

Accordingly this Court declines any invitation to revisit
its June 27 memorandum order. Moreover, it agrees with the
ultimate conclusion on the part of plaintiffs’ counsel that with the City of Chicago itself in the case and capable of being fully responsive if plaintiffs prevail, no useful purpose would appear to be served by retaining Mayor Daley as a codefendant.
7.7.2008 5:05pm
the problem with the reasoning in this and other chicago cases is that it ignores the mayor's influence, allowing a subterfuge that the City is actually run by the 50 imbeciles on the city council. the mayor will later use this ruling to avoid sitting for deposition in the underlying lawsuit, arguing that the city is not run by him, he is just a simple servant of the legislative branch (aldermen), etc. The cut and pasted portion above is a fantasy of Judge Shadur, not a reflection of municipal reality and the direct involvement of the mayor.
7.7.2008 5:57pm
Michael Garcia (mail):
Prof. Volokh--Regarding your question on 14th Amendment incorporation, I'm reminded of the language in Presser v. Illinois, in which the Supreme Court said that even laying the Second Amendment out of view, the States could not prohibit people from keeping and bearing arms and so deprive the federal government of its resource for maintaining order. The cite is 116 U.S. 252, 265 (1886). It's not incorporation, exactly, and may arguably relate to constitutional structure. But it seems it is heading that direction.

A similar point from Justice Story's Commentaries on the Constitution, where he calls the Amendment the "palladium of the liberties of the republic." If it's the palladium, it's fundamental to the other fundamental rights.
7.7.2008 5:59pm
Shadur does not know how plaintiffs intend to present or develop their case, nor does he know the tactics the defense will take. The principle of party presentation, recently reaffirmed by the Supreme Court in Greenlaw, should restrain judges from acting sua sponte in striking material from pleadings unless the material truly is 'redundant, immaterial, impertinent, or scandalous".

If Daley is not a proper party, he can move to dismiss the claims against him. If the issue is as clear cut as Judge Shadur thinks, Daley can ask the plaintiffs do drop him as a defendant upon pain of Rule 11 sanctions. The court should stay out of it.
7.7.2008 6:07pm
Wayne Jarvis:

Shadur does not know how plaintiffs intend to present or develop their case, nor does he know the tactics the defense will take.

I assure that he thinks he does.
7.7.2008 6:34pm
CDR D (mail):
>>>...Supreme Court said that even laying the Second Amendment out of view, the States could not prohibit people from keeping and bearing arms and so deprive the federal government of its resource for maintaining order."


It's just a guess, but I think this probably means the States cannot prohibit...etc.... in the teeth of federal legislation to the contrary.
7.7.2008 7:32pm
Not sure if this one has been noted before, but this from DC is interesting.


Basically, DC is saying that since Heller permits banning of machine guns, and since in DC semi-auto weapons are defined as machine guns, that DC can continue to ban semi-auto weapons. Presumably if they define revolvers as "machine guns" they could ban them also.

Hard to see how this does not get struck down, but it shows the DC lawyers contempt for the law.
7.7.2008 8:03pm
I recently had the dubious pleasure of being hailed into a hearing by Judge Shadur, just because he seemed to think that my client ought to be a party (it wasn't) and he had my name from a lawyer whose client was a party.

He seems to have rather grandiose ideas of his authority, even for a federal judge. Not an unpleasant man, but one who does not like to hear the word "No." The good thing was that I could say no and make it stick.
7.7.2008 9:33pm