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Kanter v. Sessions

United States District Court, E.D. Wisconsin

December 29, 2017

RICKEY I. KANTER, Plaintiff,
JEFFERSON B. SESSIONS III, [1] Attorney General of the United States, and BRAD D. SCHIMEL, Attorney General of the State of Wisconsin, Defendants.


          William C. Griesbach, Chief Judge

         Plaintiff, Rickey Kanter, filed the instant action against defendants Jefferson Sessions and Brad Schimel, in their capacities as Attorney General for the United States and the State of Wisconsin, respectively, challenging the statutes that prohibit felons from possessing firearms, 18 U.S.C. § 922(g)(1) and Wis.Stat. § 941.29. He asserts that these statutes, as applied to him, an individual convicted of felony mail fraud, violate his Second Amendment right to bear arms. This matter, recently reassigned to this court, comes before the court on Sessions' motion to dismiss, Schimel's motion for judgment on the pleadings, and Kanter's motion for summary judgment. For the following reasons, Sessions' motion to dismiss and Schimel's motion for judgment on the pleadings will be granted and Kanter's motion for summary judgment will be denied.


         Kanter was the owner, operator, and CEO of Dr. Comfort, a therapeutic shoe insert company. In July 2004, Medicare determined Dr. Comfort's heat-moldable inserts failed to meet certain standards and would no longer pay for this product. Dr. Comfort disregarded this warning and continued to sell the inserts to a podiatrist using a commercial interstate carrier and then subsequently billed Medicare for the non-compliant inserts. From January to March 2006, Dr. Comfort received $375, 000 in payment from Medicare for these inserts. The government uncovered his fraud in March 2006, and he was charged with one count of mail fraud under 18 U.S.C. § 1341.

         Kanter pled guilty to the charge on May 24, 2011. The court imposed a sentence of twelve months and one day and ordered Kanter to pay a $50, 000 fine as well as a $100 assessment. Id. Kanter now desires to possess a firearm for legal purposes, but 18 U.S.C. § 922(g)(1) and Wis.Stat. § 941.29 prohibit him from doing so. As a result, Kanter asserts these statutes violate his Second Amendment right to bear arms.


         The standards governing a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure are well established. Rule 8(a) requires that a complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “[T]he plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678.

         Rule 12(c) permits a party to seek judgment on the pleadings after the pleadings have been closed. Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009). A motion for judgment on the pleadings, pursuant to Rule 12(c), is governed by the same standards as a Rule 12(b)(6) motion to dismiss for failure to state a claim.

         Summary judgment is appropriate when the moving party shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). All reasonable inferences are construed in favor of the nonmoving party. Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). Summary judgment is properly entered against a party “who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.” Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012) (internal quotations omitted).


         If this were a facial challenge to the federal and state laws prohibiting possession of firearms by felons, it would undoubtedly fail, at least at this level. In United States v. Price, the court performed a minimum analysis finding § 922(g)(1) to be constitutional because it was bound by previous precedent finding the same. 328 F.3d 958, 961 (7th Cir. 2003) (citing United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288 (7th Cir. 1974); Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999); United States v. Hemmings, 258 F.3d 587 (7th Cir. 2001)); see also United States v. Davis, 406 Fed.Appx. 52, 54 (7th Cir. 2010) (observing that a challenge to the constitutionality of § 922 is “frivolous” and foreclosed by the Supreme Court's decision in McDonald). Those cases (except for Davis) found § 922(g)(1) to be constitutional because the Second Amendment does not bestow an individual right to possess firearms. The Price court declined to revisit that position. Id.

         The Seventh Circuit's holding that the Second Amendment did not confer an individual right to bear arms was abrogated in District of Columbia v. Heller. 554 U.S. 570 (2008). But even though the Supreme Court held in Heller that “the Second Amendment conferred an individual right to keep and bear arms, ” id. at 595, that holding did not disturb the Seventh Circuit precedent cited above. In Heller, a District of Columbia special police officer sought to register a handgun to keep in his home. Id. at 574. The District refused his application for a registration certificate based on its local ordinance making it a crime to carry an unregistered firearm and prohibiting the registration of handguns. After reviewing the history of the Second Amendment, the Court concluded the District's “ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.” Id. at 635. It reasoned that the Second Amendment “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. The Court noted, however, that “[l]ike most rights, the right secured by the Second Amendment is not unlimited . . . nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill . . . .” Id. at 626. This position was reaffirmed in McDonald v. City of Chicago, 561 U.S. 742, 791 (2010). In other words, Heller does not call into question “longstanding prohibitions on the possession of firearms by felons.” This circuit's rejection of a facial challenge to § 922(g) therefore remains the law of this circuit which, of course, is binding on this court.

         But Kanter's challenge is not a facial one. Kanter challenges the constitutionality of the federal and state dispossession laws, 18 U.S.C. § 922(g)(1) and Wis.Stat. § 941.29, as applied to him. Citing United States v. Williams, Kanter notes that the Seventh Circuit has suggested that “§ 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent” and argues that these statutes should not apply to his personal circumstances as a non-violent felon. 616 F.3d 685, 693 (7th Cir. 2010).

         The Seventh Circuit has established a two-part test for evaluating a Second Amendment claim. A court must “first determine if the challenged restriction covers conduct falling within the scope of the Amendment's protection. If it does, then the restriction must satisfy some level of heightened scrutiny, depending on whether the conduct in question falls at the core or at the periphery of the Amendment's protection.” Baer v. Lynch, 636 Fed.Appx. 695, 698 (7th Cir. 2016) (citing Horsley v. Trame, 808 F.3d 1126, 1130-31 (7th Cir. 2015); Ezell v. City of Chicago, 651 F.3d 684, ...

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