Cook County Assault Weapons Ban Upheld By Federal Appeals Court

CHICAGO — A federal appellate court Thursday upheld Cook County's ban on assault-style firearms and large-capacity magazines. A three-judge panel of the 7th U.S. Circuit Court of Appeals upheld the dismissal of a challenge to the Blair Holt Assault Weapons Ban, which allows for steep fines and the seizure of weapons but has never been enforced by Cook County authorities.

The court concluded the challenge had "come forward with no reason — much less a compelling one — for us to revisit" the 2015 decision that upheld Highland Park's ordinance prohibiting the possession of certain semi-automatic firearms it defines as "assault weapons" and any magazines that can hold more than 10 bullets.

The Cook County ban and the Highland Park ban are "materially indistinguishable," according to a 17-page unsigned unanimous opinion (below) from Circuit Judges Kenneth Ripple, David Hamilton and Amy St. Eve in the case of Wilson v. Cook County.

The court rejected arguments that residents of Cook County are threatened by a very different "type, magnitude and frequency" of crime than residents of Highland Park, emphasizing that the right to self-defense has nothing to do with local crime rates and everything to do with the availability of means for citizens to defend themselves under local laws.

"The plaintiffs have not come forward with any legal authority establishing that Cook County regulates the possession of firearms to a greater extent than was present in Highland Park," the panel wrote.

Unlike Highland Park, as Patch reported last year, Cook County has never actually enforced its assault weapons ban, which was first took effect in 1994. In 2007, it was amended and renamed the Blair Holt Assault Weapons ban after a Chicago police officer’s 16-year-old son who murdered when another teenager opened fire on a bus with a semi-automatic handgun.

The Cook County Board of Commissioners has twice subsequently stiffened penalties for violations, in 2013 and 2015. First-time violators face a minimum fine of $5,000 and repeat offenders can be fined up to $15,000 and jailed for six months, according to the ordinance.

"This amended ordinance recognizes the challenges we face in Cook County and puts in place responsible and meaningful laws aimed at protecting our residents and law enforcement officers," Cook County Board President Toni Preckwinkle said in a 2013 statement. Her office said the county ordinance applies to every municipality in the county that does not have its own assault weapons ordinance. Cook County State's Attorney Kim Foxx's office told Patch the "responsibilities of the Cook County State’s Attorney’s office include prosecution of County ordinance violations."

But county officials have been unable to provide any records of anyone being charged under the Cook County ordinance. Highland Park, on the other hand, produced records last year showing nine people had been ticketed under its ordinance. The stiffest penalty imposed was a $500 fine with about $300 in court costs and six months of supervision.

Three Cook County residents, Matthew Wilson, Troy Edhlund and Joseph Messineo, filed their first challenge to the Cook County ordinance nearly a dozen years ago in state court.

Since then, the U.S. Supreme Court issued its landmark 2008 opinion in District of Columbia v. Heller, finding the Second Amendment provided for the right to keep guns at home for self defense. The 2010 ruling in McDonald v. City of Chicago said states too, not just the federal government, cannot impose blanket gun bans.

In response, Illinois lawmakers and lobbyists raced against a court-imposed deadline to craft an entirely new firearm regulation regime for the state. They wound up creating the Firearm Owners Identification Card Act and the Firearm Concealed Carry Act, laying out how Illinois State Police are to administer the issuance of FOID cards, which allow for legal gun ownership, and concealed-carry permits, or CCLs, which allow for guns to be possessed in certain public places.

Those 2013 laws did not define "assault weapons" or "large-capacity magazines" but they did allow for a limited 10-day window after their passage for local governments to craft their own definitions and bans. Cook County, Chicago and many north suburban towns, including Evanston, Highland Park, Highwood, North Chicago and Skokie, all passed their own local assault weapon bans. (Skokie, Evanston, Highwood and Northbrook have confirmed they have no records of enforcing their bans.)

Arie Friedman, a pediatrician and unsuccessful 2010 candidate for Congress and 2012 candidate for Illinois Senate, challenged Highland Park's ban. In 2015, the 7th Circuit upheld the district court opinion granting summary judgement to the city and keeping the ordinance in place. Friedman appealed to the U.S. Supreme Court, which in December 2015 declined to hear the case.

Only Justices Antonin Scalia and Clarence Thomas favored reconsidering the appellate court's decision at the time. Four justices generally must support a petition for the Supreme Court to take up a case. There have been two new justices appointed to the high court since Friedman's appeal, so the Cook County case could take a different turn despite rulings in the 1st, 2nd and 3rd circuit courts upholding various assault weapons bans.

"Indeed, since Friedman," the 7th Circuit panel wrote in its Aug. 29 opinion upholding the dismissal of the challenge to the Cook County ban, "every court of appeals to have considered the issue has reached the same conclusion that we did: bans on assault weapons and large-capacity magazines do not contravene the Second Amendment."

Since the Highland Park ban was upheld, other Chicago suburbs have sought to enact or enforce similar bans.

Last year, village officials in Northbrook directed their police to begin enforcing the Cook County assault weapons ban ordinance. It is not clear whether the village had actually done so, and a request for records of any citations remains pending.

In Deerfield, trustees amended the village's ordinance defining assault weapons and requiring their safe storage and transport to include a total ban on their possession and, with another amendment, a prohibition on magazines holding more than 10 bullets.

But Lake County Circuit Judge Luis Berrones blocked the village from enforcing its ban, determining that it was functionally a new law rather than an amended one, which would have been allowed under the 2013 Illinois laws. The village's first appeal was thrown out on a technicality in June. Its pro bono attorneys from the Brady Center to Prevent Gun Violence and the law firm Perkins Coie plan to file another appeal.

Wilson and Edhlund filed the latest version of their challenge to the Cook County ban in federal court in September 2017, with the backing of the Illinois State Rifle Association and without Messineo as a plaintiff. U.S. District Manish Shah dismissed it last August.

Cook County was represented by the civil actions bureau of the Cook County State's Attorney's Office. In response to the appellate court's ruling in Wilson v. Cook County, Foxx said she expected the gun owners to ask the U.S. Supreme Court to hear the case.

"Assault weapons and large capacity magazines are designed to kill in mass and have no business on our streets," Foxx said in a statement after the ruling. "Public safety is our top priority, and we were proud to defeat the gun lobby’s challenge in court. While we are pleased with today’s decision, we anticipate that this will be appealed to the Supreme Court. If it is, we will be ready."

Foxx's office confirmed it has not yet prosecuted anyone for violations of the county's ban but was "prepared to prosecute these cases once the litigation is resolved." Preckwinkle's office last year it confirmed it had no records of any citations for violations of the county ban.

Joe Ryan, chief spokesperson for Cook County Sheriff Tom Dart, confirmed the sheriff's office has also not issued any citations, explaining in a statement that everyone found in violation of the ordinance had been criminally investigated instead.

"Gun violence is a priority for Cook County Sheriff’s Police. Officers have investigated and charged 123 individuals with felony gun crimes and taken more than 700 illegal guns off the street in the last 20 months," Ryan said. "The Office has not issued county civil citations for violations of the County's assault weapons ban because those arrested with assault weapons were investigated for criminal charges and the issuance and adjudication of civil citations could jeopardize those investigations and prosecution."

Under Illinois' current criminal code, possession of an assault weapon by a person with a valid FOID card is not a criminal offense. A proposal for a statewide assault weapons ban was introduced in the Illinois Senate in January by Deerfield Democrat Julie Morrison, and Gov. JB Pritkzer said shortly after taking office that it was "time to ban weapons of war." Morrison's bill picked up four co-sponsors before being referred to the Assignments Committee in March, where it remained without any further action during the last legislative session in Springfield.

Related:

• Cook County Assault Weapons Ban To Be Enforced In Northbrook
• Northbrook Bans Bump Stocks, Could Enforce Assault Weapons Ban
• Judge Permanently Blocks Deerfield Assault Weapons Ban
• Court Rejects Deerfield's Assault Weapon Ban Appeal
• Mayor Urges Law Allowing Local Assault Weapon Bans