Home gun mandate for jail guards scrutinized at Seventh Circuit

CHICAGO (CN) - A three-judge panel of the Seventh Circuit heard arguments Friday on the legality of a controversial policy requiring correctional officers working at an Illinois county jail to keep guns in their homes, despite not being allowed to carry the guns in the jail itself.

The policy is at the heart of a tragic 2015 shooting, in which a Cook County Sheriff's Office correctional officer broke into her ex-fiancé's home and shot the woman and her father, before taking her own life. Both the father and ex-fiancé survived, but the incident left them disabled. The woman, Deisy Jaimes, lost an eye and suffered permanent brain damage, while her father was paralyzed from the waist down.

The deceased correctional officer who carried out the attack, Erika Aguirre, used her work-mandated gun to do so.

"There is only one reason Aguirre possessed the gun that she used to attack the Jaimes family: Sheriff Dart required her to buy it and keep it as a condition of her employment at the jail," the family's appellate brief states. "She owned no other gun, never attempted to buy one before the CCSO gave her the necessary paperwork and money to make the purchase, and defendants have proffered no evidence that Aguirre would otherwise have had access to a gun on the night she maimed plaintiffs and killed herself."

A Chicago federal judge threw out the Jaimes family's lawsuit against Cook County last year, partly due to the fact that on the night of the shooting Aguirre was not acting as a correctional officer. U.S. District Judge Jorge Alonso found that in this context, her actions were functionally no different from those of any other malicious shooter with legal access to a gun, and not the fault of the sheriff's office.

"Plaintiffs point to no evidence showing that, on the night of November 15, 2015, Aguirre had any authority greater than an average citizen to enter a private home or use her firearm such that her actions could constitute a misuse of her authority," Alonso wrote in his May 2021 decision. "Further, there is no evidence showing Aguirre tried (or actually did) invoke her position as a correctional officer at any point on the night of November 15, 2015. In short, Aguirre acted as a private citizen, not a Cook County correctional officer."

It was a point repeated by U.S. Circuit Judge Thomas Kirsch, a Donald Trump appointee, during Friday's hearing at the Chicago-based Seventh Circuit. He framed the case as a Second Amendment matter and indicated his sympathies were with the sheriff's department. He argued the court should not dictate the department's policies unless they clearly violate the Constitution.

"We're not policy makers... Guns are dangerous, and guns perhaps increase the risk of violence, but what difference does it make if the sheriff had just said 'I just want [COs] to have guns,' and that's it, that's the reason for the policy?" Kirsch asked the Jaimes family's attorney, Julia Rickert.

Rickert rebutted that in the 2012 case Paine v. Cason, the Seventh Circuit ruled that law enforcement is responsible for not increasing the risk of harm to an individual. In that case, Chicago police arrested a young woman in the throes of a manic episode at the city's Midway Airport. She was later raped and either thrown or jumped out a seventh story window on Chicago's South Side, after the police released her in an unfamiliar neighborhood without her phone and without heeding warnings from the girl's parents that she suffered from bipolar disorder.

"As this court said in Paine against Cason, state actors who without justification increase a person's risk of harm violate the Constitution. I don't know that putting it in a policy should save it from that analysis," Rickert told Kirsch.

The sheriff's department's justification for the policy is that, while COs cannot use a gun in the jail, they may need them for emergency situations or other duties such as transporting prisoners. As "peace officers" under Illinois law, jail guards are also required to train with firearms for at least 40 hours per year.

The county's brief to the appeals court also argued that of the thousands of COs who have abided by the policy in the decades since its implementation, the plaintiffs can only cite two instances over a five-year period of a CO carrying out an attack similar to Aguirre's. Additionally, Aguirre owned her gun for five years before attacking her ex-fiancé's family.

Both the brief and the department's attorney Elizabeth Ekl argued this dearth of violent instances, and the length of time that Aguirre owned her gun peaceably, fails to establish a causal relationship between the policy and the kind of increased risk of violence to the public that the 14th Amendment prohibits.

"Although the due process clause of the 14th Amendment prevents the state from infringing on an individual’s right to life, liberty, or property, it does not 'impose an affirmative obligation on the state to ensure that those interests do not come to harm through other means,'” the brief states.

"There's simply no constitutional basis to shift the blame to the Sheriff," Ekl said in court Friday.

U.S. Circuit Judge David Hamilton, a Bill Clinton appointee, was skeptical of this claim, pointing out that harm to a particular individual doesn't necessarily have to be confirmed to deem a public body's policy irresponsible.

"What do we do with our case law... that says it's not necessary to show that harm is going to be certain for a particular individual?" Hamilton asked Ekl.

"It may not be certain but it must be conscience-shocking to the point where you look at [the policy] and say... it was nearly criminal or it was criminal to have imposed the policy," Ekl rebutted. "And that is consistent with other cases in the court... the plaintiff's argument in relation to the firearms policy in this case ignores the numerous steps the sheriff has taken to defuse any possible danger that his firearms policy could cause."

These steps, according to the county's brief, include counseling, mental health services and regular firearms training for COs.

Ekl echoed the brief's argument that the "CCSO employs measures in its hiring process, firearms training, and use of programs to address the mental health of its correctional officers such that the policy cannot be considered an act of deliberate indifference."

Hamilton was unconvinced.

"I understand the merit, we all just seem to disagree about the effectiveness of the red flag processes," Hamilton said.

In her rebuttal, Rickert opined that the policy's mandate for COs to keep their guns at home contradicts its own justification that said guns may be needed in a moment of crisis.

"The justifications that they've given, that an officer could be called to work outside the jail and need a firearm at a moment's notice; they don't require the correctional officers to bring their duty weapons to work with them. They would not be able to call them to go out and... carry a gun at a moment's notice," she said.

She also pointed out that COs are already at a heightened risk for mental health issues and are also more likely to commit domestic abuse than the general public. In that light, she argued, even a few instances of fatal gun violence by COs proves they should not have guns in their homes as a condition of employment.

"If a small town had this rate of spousal murder, they would recognize a problem," Rickert said.

U.S. Circuit Judge Michael Kanne, a Ronald Reagan appointee, rounded out the panel. The judges took the case under advisement but did not say when they would issue a ruling.

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Categories / Appeals, Civil Rights, Employment, Government

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Home gun mandate for jail guards scrutinized at Seventh Circuit

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