Gun Ban In Cook County Forest Preserve Is Unconstitutional, Federal Judge Rules

CHICAGO — A state law that bans the concealed carry of firearms in the Cook County Forest Preserve District is unconstitutionally broad, according to a federal judge.

U.S. District Judge Robert Dow issued a ruling Monday that found a section of the Illinois Firearm Concealed Carry Act violates the Second Amendment by forbidding people with concealed carry licenses, or CCLs, from carrying guns anywhere in the 70,000-acre forest preserve district.

But Dow's ruling does not permit CCL holders to immediately start bringing guns into the Chicago Botanic Garden and Brookfield Zoo. That's because the judge stayed enforcement of his order for six months to give state lawmakers time to amend the law to make it constitutional.

Simon Solomon, 63, of Skokie, filed suit against state and county officials after he was arrested while fishing at the Skokie Lagoons in April 2015, about five weeks after state police issued him a CCL, court records show.

Solomon, owner of a Chicago-based carpet cleaning business, has been visiting the forest preserve for about 40 years, spends most of his time there fishing, and visits the same location there every night on his way home from work in the summertime, according to the facts of the case agreed by both sides.

On the evening of Solomon's arrest, a Cook County Forest Preserve District police officer came up to him as he was wrapping up his fishing around sunset to ask him to leave. During the conversation, Solomon explained that he had two concealed handguns. Both — a .45-caliber Colt and a .22-caliber Derringer — were eventually confiscated by forest preserve representatives.

Cook County prosecutors later dismissed the charge without a finding of guilt after Solomon completed community service, according to his August 2017 complaint, which also alleged violations of due process and the equal protection clause of the 14th Amendment.

Attorneys for Solomon, the state attorney general's office and the forest preserve district all filed motions for summary judgment, asking Dow to find in their favor without the need for a trial.

Ilia Usharovich, Solomon's Wheeling-based lead attorney, argued in support of his motion that state and county officials failed to come close to meeting the constitutional standards established by federal appellate courts.

He said even the dissenting justices in the U.S. Supreme Court's landmark "District of Columbia v. Heller" opinion — which found the Second Amendment includes the right to self-defense while also permitting laws forbidding firearms from "sensitive places" such as government buildings — would toss out the Cook County ordinance.

Usharovich said that while laws that forbid firearms from schools and courthouses have been upheld, a blanket ban that declares the entire Cook County Forest Preserve District to be such a place could not be justified.

"It is not logical that one entire Forest Preserve District out of 102 is a sensitive place while the rest are not. Especially, since each Forest preserve has similarities," Usharovich said. "Nor is it proper for the County or the State to take the Chicago crime problems as a reason to ban concealed carry in the Forest Preserves of Northbrook, Glenview and other suburbs outside of Chicago in which the Cook County Forest Preserve Property also lies."

But Cook County Assistant State's Attorney Jessica Scheller argued the entire district — about 11 percent of the county's land area — was a "sensitive area designed for youth education and family recreation" and "therefore falls outside the scope of Second Amendment protection."

Scheller said that the ordinance banning guns "is narrowly tailored and the County has demonstrated both a substantial and compelling interest in protecting children in sensitive areas specifically designed for their education and enjoyment."

Solomon's attorney acknowledged that children and families sometimes use parts of the forest preserves. But allowing the ban to stand, he argued in a memo, could allow lawmakers to declare entire cities or counties to be sensitive areas and erode the right to carry a gun outside the home.

"The State of Illinois and Cook County have many options for protecting its people from being shot without having to eliminate all possibility of armed self-defense in the 70,000 acres of forest preserve property in Cook County," Usharovich said. "There are reasonable less restrictive alternative means aside from a blanket ban such as setting forth specific areas on the 70,000 acres where such firearms are not allowed such as the family friendly attractions like the Brookfield Zoo, Government buildings on the real property, or the Botanical Gardens."

---

In his Sept. 13 ruling granting Solomon summary judgment, Dow pointed out that the Cook County Forest Preserve District, or FPDCC, comprises a wide range of different sites with different types of facilities.

"That range is a problem for Defendants’ position," the judge ruled. "They point to no cases in which a court determined that such a spread of locations could be designated a single 'sensitive place,' or cases in which the existence of one sensitive place justified regulation of a non-adjacent, separate location (or many of them)."

Dow said some cases have allowed firearm regulations to extend to areas around sensitive locations, like school zones, post office parking lots and a lot near the U.S. Capitol. But the judge said he was unaware of any case that would allow the designation of one location as sensitive to apply to different, non-adjacent locations.

"Nor is calling the entire FPDCC a sensitive place well-supported by Defendants’ rationale that children are present on FPDCC property, or the other common justification, the presence of large gatherings of people," he continued. "Certainly some FPDCC locations have one or both of these traits, but, as discussed in more detail below, the record does not demonstrate the presence of children or large crowds on all FPDCC sites, or reveal how many FPDCC sites have these traits. Perhaps the presence of children would qualify those FPDCC sites as 'sensitive places,' but Defendants do not present, and the Court is not aware of, any authority for treating all of the 'distinct, nonadjacent' locations as 'sensitive places' merely because a subset of them qualify."

The judge was likewise unconvinced by the argument from the Illinois Attorney General's Office that a pair of Colonial-era laws prohibiting the carrying firearms in wooded areas meant that concealed carry in the forest preserve was not protected by the Second Amendment.

If a certain gun law was on the books when the Second Amendment was ratified, then judges are to presume it is constitutional, according to past rulings in the 7th Circuit Court of Appeals, which binds local district courts.

"In sum, the Seventh Circuit has recognized a right to carry firearms outside the home for self-defense purposes, and the record contains little evidence about the history of that right on publicly owned land, whether developed into a public recreational space or undeveloped and left as wilderness," he said. "The historical and textual evidence does not persuade the Court that licensed concealed carry of firearms for self-defense in public recreational areas was categorically outside the scope of the Second Amendment as it was understood in 1791."

Dow said that accepting that the clause in the law was unconstitutional as written does not resolve all questions about how to regulate the concealed carry of guns in forest preserves. Even if he had the authority to make those determinations, they are better left to state lawmakers, he said, explaining his decision to delay implementation of his ruling until March 15, 2022.

In his ruling, the judge also noted that state and county representatives had failed to provide any evidence that restricting people with licenses to carry concealed weapons would prevent crime or protect visitors to the forest preserve:

Barring concealed carry by CCL holders across all FPDCC properties is not, under the evidence submitted by the parties, substantially related to the government’s interest in protecting Forest Preserve District visitors. The evidence shows high concentrations of visitors on some, but not all, FPDCC sites. It establishes the presence of children and activities aimed at children on some, but not all, FPDCC sites. The evidence also shows very few gun crimes in the FPDCC, no violent crimes by CCL holders, and no crimes or violations by CCL holders other than carrying a concealed weapon in the FPDCC. Finally, Defendants present no evidence that restricting carry by CCL holders will prevent crime or protect Forest Preserve District visitors. Thus, the record does not show that the blanket prohibition on concealed carry by CCL holders on FPDCC property is sufficiently related to the government’s interest in public safety to pass constitutional muster.