Tuesday, October 12, 2010

Ezell v. Chicago: Preliminary Injunction Denied

Judge Virginia M. Kendall declined to grant a preliminary injunction to the plaintiffs in the case challenging Chicago's ban on gun ranges, Ezell v. Chicago. In her Memorandum Opinion and Order which was released today, Kendall said:
Now after the benefit of full briefing, an amicus brief filed by the National Rifle Association, and two days of witness testimony, this Court concludes that Plaintiffs have failed to meet their burden in establishing that they have suffered an irreparable injury and that they have no adequate remedy at law.
In the hearing that was held on October 1st and 4th, the plaintiffs called three witness while the defendants presented two witness. Testifying on behalf of the plaintiffs were Christopher Hart, Midwest Range Consultant for Action Target, Inc.: Julianne Versnell, Director of Operations for the Second Amendment Foundation; and Richard Pearson, Executive Director of the Illinois State Rifle Association. Chicago called as their witnesses Pattie Scudiero, Commissioner of the Chicago Department of Zoning and Land Use Planning, and Sgt. Dan Bartoli, the former Range Master for the Chicago PD.

Hart testified that Action Target manages a number of ranges in Chicago for Federal agencies. He said he believed that there was a market for public ranges in Chicago but admitted he had not talked to potential range investors since July. He testified that mobile ranges used equipment similar to that used in outdoor ranges and that it takes 9 months to a year to construct a permanent range.

Versnell testified that SAF has 1,700 members in Chicago and that she had coordinated with the other plaintiffs in the case to secure the two locations for a mobile range. She said ISRA would be responsible for managing the proposed Chicago mobile range and providing the instructors. Firearms would be provided at the range and the range would have security guards on site. Versnell admitted she did not have first-hand knowledge of the mobile range she contracted to bring to Chicago nor did she know if the ISRA had ever operated a mobile range.

Pearson said the ISRA owns a shooting range 60 miles outside of Chicago in Bonfield, IL. He said that they don't have experience in operating a mobile range nor had he spoken to anyone with experience operating one before the hearing. He said he didn't think it would take long to adjust his safety protocol from an outdoor range to the mobile range. In what must have been a response to questions by the City of Chicago, he responded:
(he) is not aware of the location of the closest hospital to the mobile range site, or if toilets and hand-washing facilities will be available or allowed on site. Pearson admits that if hand-washing facilities are not allowed on-site, he would be forced to look for a new location to place the mobile range.
 Scudiero said every property in Chicago is zoned for something and when new uses arise that aren't covered by the ordinance, they make an assessment of the use and then make recommendations to the city council. After admitting she had never been to a gun range (emphasis mine), she testified that she thought they should be located in manufacturing districts and that gun ranges would have to apply for a special use permit from the Zoning Board of Appeals. She also thought one of the sites suggested was inappropriate. She then testified:
Scudiero’s office does not control any of the federal firing ranges located in Chicago. She does not see any harm in allowing the Chicago Police Department (“CPD”) to operate firing ranges in the city because they do not allow public access. Scudiero did not participate in drafting the Chicago Firearms Ordinance 8-20-280. She also has no personal knowledge regarding the noise or pollution that emanate from a firing range. She has not heard of any complaints from residents about the CPD firing ranges.
The final witness was Bartoli who has been with Chicago Police Department since 1995. While range master, he supervised all firearms training in the Department and oversaw six permanent ranges open 24/7.
Bartoli sees mobile ranges as a threat to public safety because they are in the open and raise issues concerning human traffic management. Bartoli advised anyone seeking to open and operate a mobile range that they should use opaque permanent fencing, have only one entrance, a secure parking lot, a separate area for loading and unloading of weapons, and a separate area for live fire. Bartoli also counseled that people do not follow directions at ranges, and even CPD officers will violate the rules and bring their own guns to the range. Bartoli sees this as being a problem for a mobile range, with armed customers wanting advice on how to use their particular gun even if ISRA is providing weapons to use during live fire. He also sees customers bringing their own guns to the range as a safety risk to themselves, as they will be more prone to crime and theft in the parking lot.

Bartoli noted that all of his permanent ranges had washrooms with lucrative amounts of cold running water and soap.
Bartoli did agree that training can help prevent accidents and make you safer. He didn't believe the CPD ranges had a negative effect on surrounding neighborhoods.

Judge Kendall then went on to discuss the factors that needed to be considered for injunctive relief in the Seventh Circuit. They include:
(i) the presence of irreparable harm to the moving party; (ii) the absence of an adequate remedy at law; (iii) the balance of the harms between the parties; (iv) the prospect of some likelihood of success on the merits of the claim; and (v) the public interest.
The Seventh Circuit found intermediate scrutiny was appropriate in Skoien because it would have absolutely barred possession of a firearm. Since a firing range ban, in her opinion, does not prohibit a person from possessing a firearm but only makes them travel outside the city to obtain their training, she declined to adopt even this level of scrutiny.

In other words, she adopted the least restrictive standard which is rational basis. It should be noted here that Justice Alito in writing the Court's Opinion in the McDonald case said "In Heller, however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing." Enumerated rights such as the freedom of the press or freedom of speech have traditionally been granted the highest level of scrutiny or strict scrutiny. Lest we forget, the Second Amendment is an enumerated right.

Kendall then examined whether the plaintiffs had suffered irreparable harm. She concluded that they did not. She noted that all of the individual plaintiffs had traveled outside the city limits of Chicago to either take their required training or to shoot on a regular basis. With regard to Action Target who had alleged that it was harmed by not being allowed to construct a range within Chicago, she noted that they had no current plans to build a range, had not searched for a location for a range, and wouldn't be able to construct a range in under nine months.

Kendall rejected the argument that the City's boundaries were constraints in keeping the plaintiffs from completing their required training. She noted that depending where one was located within the City of Chicago, it could well be closer to go to a range outside the city than to the mobile range proposed by the Second Amendment Foundation. Thus, she said the plaintiffs had failed to meet their burden to show travel outside of Chicago is more burdensome and thus caused irreparable damage. The City had argued that even if a person had a greater expense for training due to travel, that could be quantified and made into monetary damages. She agreed with this line of reasoning and extended it to those failing to meet the training requirement during the amnesty period.
Even if that resident did not comply with the amnesty period and was therefore not permitted to possess that particular firearm, she would still be able to possess another firearm by going through the permitting process. Again, her damages for the loss of the firearm in her possession can be equated to a dollar amount and therefore can be remedied through traditional means.
With regard to the organizational plaintiffs, the Second Amendment Foundation and the Illinois State Rifle Association, she said they had failed to present sufficient evidence to support their position that their members would be unable to comply with the statute. Moreover, she went on to say that they hadn't shown evidence that any member of either organization had been unable to travel outside the City of Chicago to obtain range training.

Kendall said that even if she had applied intermediate scrutiny she said the City of Chicago had presented enough evidence to meet that test that its objective was an important one and that this objective was being advanced by a means strongly related to that objective. She said Chicago had presented evidence that firing ranges would fall under the intensive use category and be zoned for manufacturing/light industrial districts which is appropriate for business that have a high level of risk to the public.
The City has presented evidence that firing ranges must be highly regulated due to the risks that can be inflicted upon the surrounding community including the risk of stray bullets, the risk that individuals transporting weapons to the range are at higher likelihood of being targets for criminals who would seek to obtain the weapons, and the risk of contamination from the residue of the lead that is left on individuals who use the weapons (requiring appropriate washing facilities to remove the residue). The City has elucidated its long history of careful zoning to ensure the health and safety of its residents and since no zoning has been established to cover a firing range within the City, it is unable to enforce any health or safety restrictions. Historically, the City would review such proposed businesses and determine what those risks are and would also permit residents to object to the placement of such high-risk enterprises prior to granting permission for the placement of such a business within a particular area of the city. None of these safeguards are in place today to ensure that these risks are addressed appropriately and as such the City has presented adequate evidence that the safety of its citizens is at risk when compared to the minimal inconvenience of traveling outside of the City for a one-hour course.
I would note here that if you go back and look at what Pattie Scudiero, the Commissioner of the Chicago Department of Zoning and Land Use Planning, said in her testimony above, you will note that she had never, ever visited a gun range. I will leave it at that.

Kendall then looks at the likelihood of the plaintiffs succeeding on the merits. She notes that the body of law regarding firearm's ordinances is evolving rapidly. She said two facts are certain - that no court at any level has addressed the regulation of firearms range training ordinances and that the Seventh Circuit has left open the proper level of scrutiny for another day. Kendall said the merits still need to be examined and that a preliminary injunction is not appropriate in this case. She goes on to examine whether an injunction is the proper remedy and concludes since any and all damages can be quantified, then monetary damages can be calculated if the plaintiffs succeed. She then adds:
Again, each Plaintiff is entitled to possess a weapon and therefore his Second Amendment right is not being completely impinged.
I'll leave it to the legal scholars to argue whether she meant to use infringe or the word she did use.

She concludes her analysis by conducting a balancing test of the harms suffered by each party. Kendall finds that the harms that the City would suffer outweigh the "inconvenience which all of them have been willing to incur in the past". The harms to the city would be the health and safety risks from failing to highly regulate a firing range.

The last argument that Judge Kendall considers was the First Amendment argument put forth by the plaintiffs and summarily dismisses it saying they failed to support this argument with any facts.

In conclusion, Judge Kendall agreed with the City of Chicago and denied the plaintiff's motion for a preliminary injunction so that they could bring a mobile firing range into the City of Chicago. She used as her standard the rational basis test which could very well put her at odds with the Supreme Court opinions in Heller and McDonald. Regardless of the eventual outcome of this case in her court on the merits, I have no doubt that this case will be appealed by one side or the other or both.

Ezell et al v. Chicago et al - Memorandum Opinion and Order


  1. Compare the jurisprudence surrounding another fundamental right - freedom of speech, with that of the evolving 2nd Amendment jurisprudence and notice the vast difference between the court's treatment of the two rights. As I have noted before (here and elsewhere) we are 2-3 supreme court cases short of where we need to be. Simply put, the mechanisms of statist power won't respect the 2nd Amendment, and state and local governments will delay, deny and ignore it (and Heller and McDonald) in hopes of turning a fundamental right into a non-entity via judicial nullification. That the judge in this particular instance would use rational basis scrutiny (ignoring Heller) should come as no surprise whatsoever. We need to a) continue the legislative battle b) keep going back to the supes until the lower courts have no excuses and c) impeach some judges to "encourage les autres."

  2. HAH! First round - theirs! Look for the "knockout punch" to end this facade, this travesty of Constitutional Rights...


    Judges like this Judge Kendall need to be removed from the Bench as well as corrupt Politicians. They r ALL... repeat: ALL under 1 agenda!

  3. Bartoli noted that all of his permanent ranges had washrooms with lucrative amounts of cold running water and soap.