The 7th Circuit Court of Appeals has told the City of Chicago that a) they must allow shooting ranges, b)that they can't so limit their locations as to be prohibitive, and c)that those under the age of 18 should be allowed at ranges so as to get proper firearm training. These rulings stem from cases brought the Second Amendment Foundation and the Illinois State Rifle Association in Ezell v. City of Chicago and what is called Ezell II.
Mayor Rahm Emanuel on Wednesday proposed allowing gun ranges in more areas of Chicago in response to a federal appellate court ruling that struck down the city's zoning restrictions on the shooting facilities.
The new rules would allow gun ranges in business, commercial and industrial areas, provided the owners obtained a special-use permit — which requires officials to take into consideration any objections from people and businesses in the surrounding area...
The changes also would allow people younger than 18 to shoot at a range, provided they are supervised by a parent, guardian or trained instructor.
The earlier regulations had limited shooting ranges to industrial areas and required that the ranges be located more the 500 feet away from "homes, schools, day care operations, houses of worship, liquor stores, parks, libraries, museums and hospitals." This effectively limited shooting ranges to about a 2% area within the city limits. The early regulations also banned anyone under the age of 18 from going to a range.
While I don't have the final details of Emanuel's proposal, this seems to be a start in the right direction. When the minutes from the March 29th City Council meeting are published, I will publish the relevant portions.
Congratulations again to the Second Amendment Foundation, the Illinois State Rifle Association, plaintiff Rhonda Ezell, and attorney Alan Gura for their efforts to bring a basic civil right to the City of Chicago.
Another win for Rhonda Ezell and the team of Alan Gura and David Sigale!
In a decision released today, Judge Virginia Kendall said that despite the rewriting of the Chicago Gun Range Ordinance, it doesn't moot the case and denied the City of Chicago's motion to dismiss the case.
Though the Court cannot conclude that the new ordinance is the same as the old without further litigation, as the Supreme Court did in Northeastern Florida, it is consistent with that case not to dismiss the instant litigation as moot and instead to let the parties litigate the issue of whether the new ordinance is a de facto ban on firing ranges or so burdensome as to infringe on Chicagoan’s Second Amendment rights. Moreover, as a practical matter, Ezell is either going to: (1) challenge the constitutionality of these restrictions by filing an amended complaint as part of this case; or (2) file a new case attacking the same restrictions. The Court sees no upside in making the parties start over with another judge who has less familiarity with the issues and facts of the case than this Court.
She then set Friday, September 30th as the deadline for the parties to submit an agreed proposed injunction order or separate proposed injunction orders if they cannot agree. The plaintiffs have until October 15th to submit an amended complaint which her attorneys have indicated they will doing. Finally, she set a status hearing for October 26th.
When I hear the word "tweaking" I think of the scene from the Tom Hanks-Meg Ryan film "You've Got Mail" where Hanks' character sends an email saying his business requires tweaking.
Yesterday, the Chicago Tribune reported that the Chicago City Council was working on tweaks for their gun range restrictions given the 7th Circuit Court of Appeals' ruling in Ezell v. Chicago. Mayor Rahm Emanuel submitted amendments to the Council's Public Safety Committee. His transmittal letter said he was sending these amendments at the request of the Superintendent of Police and the Corporation Council.
The council’s Public Safety Committee on Tuesday recommended approval of a tweak that would cut in half the licensing fee to open up a shooting range. The cost would be $2,000 for two years.
The city also would reduce the minimum distance a gun range would have to be located from homes, parks and houses of worship to 500 feet from 1,000 feet.
Other changes include requiring a registry of all shooting range patrons for at least one year. This registry would include not only their name and date and time of visit but also their FOID and Chicago Firearms Permit numbers. Another change was an amendment to the range air filtering and ventilation requirements which went into very technical detail.
M. Rose Kelly of the City's Law Department said they had tried to anticipate the Appeals Court ruling. She said that after reading the court's ruling, "we’ve looked at the shooting range ordinance and feel that it needs some tweaking in some areas to come into compliance.”
Whether the changes will still pass muster are still debatable. They are still quite restrictive and I think Chicago is doing the "with all deliberate speed" approach to this with emphasis on "deliberate".
Eric Zorn is a columnist and blogger for the Chicago Tribune who writes the "Change of Subject" blog for the them. He readily acknowledges that he is not a shooter. He also recognizes that the Range Law passed by the Chicago City Council is an ugly monstrosity.
In a post entitled City misfires in passing new gun-range lawZorn skewers the City Council and the hastily passed ordinance. He calls the law and its passage a "legislative raspberry" that taunts the 7th Circuit Court of Appeals just after the city got slapped down in Ezell. It is a taunt because of all the inane burdensome rules contained within it.
In anticipation of Wednesday's "stop-playing-silly-games" ruling, Ald. James Balcer, 11th, chair of the Public Safety Committee, introduced a 24-page ordinance that, technically, allows for the construction and operation of indoor gun ranges within the city limits.
I say "technically" because the restrictions the law places on those who want to open private gun ranges are so brazenly burdensome experts doubt anyone will even try.
The Chicago Law Department defended the high cost and onerous restrictions for ranges saying they reflect the costs of inspections and background checks. Moreover, they defended the location restrictions as consistent with other "adult-use" businesses. Alderman Balcer says the restrictions are all about safety because "gun ranges are very dangerous." Zorn's response?
If so, the city has offered no proof; no statistics or studies that support treating gun ranges as though they were noisy offal-processing plants instead of recreational facilities that simply require a lot of insulation.
I'm not a shooter, so why do I care?
First, because it seems to me like a good idea that those who do own guns are in practice and know how to aim their weapons.
Second, because I hate to see a city facing such huge debts passing laws that so flagrantly attempt to skirt the intent of the Supreme Court that they're doomed to be overturned after expensive legal challenges.
This ordinance isn't even too cute by half. It's just ugly.
Zorn obviously inherited some power of reason from his mathematician grandfather. Too bad the members of the Chicago City Council and Mayor Rahm Emanuel weren't so fortunate.
And in the naked light I saw
Ten thousand people, maybe more.
People talking without speaking,
People hearing without listening,
People writing songs that voices never share
And no one dare
Disturb the sound of silence.
From Simon and Garfunkel's The Sounds of Silence
Yesterday, the 7th Circuit Court of Appeals rendered an important decision regarding the Second Amendment. In the case of Ezell v. Chicago, the 7th Circuit came down squarely on the side of the Second Amendment and remanded the case back to the District Court for the issuance of a preliminary injunction against the city's ban on shooting ranges. While the Chicago City Council changed the law to allow ranges at about the same time as the 7th Circuit issued their opinion, it will now will have to conform to the Court's ruling.
On July 1st, the Brady Campaign issued a report called Hollow Victory? which would have you believe that the Federal courts were rejecting the challenges to gun laws based upon the Heller decision. Their release on the report states that it concludes:
courts continue to protect our communities from gun violence by rejecting lawsuits brought by gun criminals and the gun lobby seeking to strike down common-sense gun laws that protect public safety and stop gun violence, and that for the gun lobby, Heller remains nothing more than a “hollow victory.”
Given this, you might have a reasonable expectation that the Brady Campaign might have something to say about the 7th Circuit's ruling in Ezell. You would be wrong. Checking their website, their Twitter feed, and Facebook page, they have nothing - absolutely nothing - to say about Judge Syke's opinion. It is like the Simon and Garfunkel tune says, the sounds of silence.
The Brady Campaign is not the only gun prohibitionist game in town so I decided to check out some of the other groups.
From the Violence Policy Center webpage, Twitter feed, and Facebook page - nothing.
From the Coalition to Stop Gun Violence webpage, Twitter feed, and Facebook page - nothing.
Surely the Legal Coalition Against Violence (LCAV) would have something to say about the ruling as the courts are their bailiwick. Nope, nothing, nada.
You can be sure that if the decision had been gone against Rhonda Ezell and her co-plaintiffs including the Second Amendment Foundation and the Illinois State Rifle Association, they would have had something to say about it. They would have been issuing press releases and giving interviews to their favorite pet journalists.
As it was, the gun prohibitionist groups did not "disturb the sound of silence".
The Illinois State Rifle Association is obviously pleased with the decision by the 7th Circuit Court of Appeals that mandates a preliminary injunction against the City of Chicago's previous ban on shooting ranges within the city limits. As one of the organizational plaintiffs in Ezell v. Chicago, they not only got the preliminary injunction but their status as an organizational plaintff was reaffirmed by Judge Syke's opinion.
The official response from ISRA and their in-house counsel Victor Quilici is below.
Firearm Law & Commentary
by Victor D. Quilici, ISRA Attorney
7TH CIRCUIT COURT OF APPEALS GRANTS PRELIMINARY INJUNCTION IN EZELL V. CITY OF CHICAGO GUN RANGE CASE
July 6, 2011
One day after the Supreme Court decided McDonald vs. City of Chicago, the City explored a legislative response to the decision and shortly thereafter the ordinance banning handguns was repealed and the City passed its now infamous “Responsible Gun Owners Ordinance.”
The new ordinance contained a sweeping array of firearm restrictions, including a ban on firing ranges within the City, although the ordinance contained a provision requiring aspiring gun owners to complete one hour of range training as a prerequisite to acquiring a Chicago Firearm Permit which is mandated for lawful gun ownership in the City. Immediately, ISRA was joined by three Chicago residents, the Second Amendment foundation, and Action Target Designs, and a lawsuit was filed in the U.S. District Court for the Northern District of Illinois seeking a temporary restraining order (TRO), a preliminary injunction, and a permanent injunction against the City’s firing range ban.. As the appellate court noted, the lawsuit alleged that the range-ban “impermissibly burdens the core Second Amendment right to possess firearms in the home for self-defense because it prohibits, everywhere in the City, the means of satisfying a condition the City imposes for lawful firearm possession.”
The District Court judge denied the relief sought by the Plaintiffs, and on appeal the appellate court tribunal found that the lower court’s acceptance of the City’s “confused approach to the case” led the District Court to err in failing to recognize “ the scope of the Second Amendment right as recognized in Heller and applied to the states in McDonald, and the standard of review of laws alleged to infringe Second Amendment rights.” The appellate court also noted that the City failed to produce any empirical evidence of any kind, “and rested its entire defense of the range ban on speculation about accidents and theft.”
The appeals court concluded by noting that at this stage of the proceedings “the firing range ban is wholly out of proportion to the public interests the City claims it serves.” Thus, the court determined the plaintiffs showed irreparable harm, no adequate remedy at law, and a strong likelihood of success—all prerequisites to obtaining injunctive relief. The District Court’s decision was reversed and the case remanded (returned) to the lower court with instructions to enter a preliminary injunction consistent with its decision. A First Amendment violation alleged in the lawsuit was not addressed and considered surplusage based on the court’s findings and its decision based on the Plaintiffs’ Second Amendment claims.
Illinois State Rifle Association members and its friends should keep in mind that this is only round one of a continued fight to protect our fundamental rights to ownership and possession of firearms for self-defense, and other lawful purposes, as our United States Supreme Court clearly pronounced in its ground-breaking decisions in Heller, and McDonald. We owe a big round of applause and “thanks” to the attorneys involved— Alan Gura and David Sigale.
The Second Amendment Foundation issued this release about their win today in the 7th Circuit Court of Appeals. The decision by Judge Sykes also said that organizational plaintiffs like SAF had standing to sue on behalf of their members.
BELLEVUE, WA – In a 3-0 ruling issued this morning, the U.S. Court of Appeals for the Seventh Circuit has reversed a lower court ruling and ordered that court to issue a preliminary injunction against the City of Chicago on behalf of the Second Amendment Foundation that prevents the city from banning gun ranges inside city limits.
Joining SAF in the original lawsuit were Action Target, Inc., the Illinois State Rifle Association and three Chicago residents, Rhonda Ezell, William Hespen and Joseph Brown. Their attempts to obtain a temporary restraining order against the gun range ban were twice rejected by the district court. The Appeals Court ruling is severely critical of the lower court’s ruling.
“This is a significant victory that could have strong implications well beyond the Chicago city limits,” said SAF Executive Vice President Alan M. Gottlieb. “The court is making it clear that cities cannot adopt firearms ordinances that are so deliberately restrictive that they make it impossible for citizens to exercise their rights under the Second Amendment.”
Immediately after last year’s landmark SAF victory in McDonald v. City of Chicago, the city adopted a handgun ordinance that required special permits and mandated range training, but banned gun ranges inside city limits. The city argued that citizens could fulfill their training requirement by visiting a suburban range. In today’s ruling, written by Judge Diane S. Sykes, the Appeals Court observed, “It’s hard to imagine anyone suggesting that Chicago may prohibit the exercise of a free-speech or religious-liberty right within its borders on the rationale that those rights may be freely enjoyed in the suburbs. That sort of argument should be no less unimaginable in the Second Amendment context.” In a concurring opinion, Judge Ilana Diamond Rovner noted, “…the city may not condition gun ownership for self-defense in the home on a prerequisite that the City renders impossible to fulfill within the city limits.”
“What the city tried to do, as the court ruling noted, was ‘thumb its municipal nose at the Supreme Court’,” Gottlieb stated. “City governments, no matter how much they abhor the fundamental right of citizens to keep and bear arms, cannot use clever legal devices to prevent the exercise of that right. As Judge Rovner noted, ‘the city must come to terms with that reality’.”
Mayor Rahm Emanuel thought he could beat the 7th Circuit Court of Appeals to the punch by racing through an amendment to Chicago's gun laws that would allow shooting ranges in the city under certain, onerous conditions. (To see those conditions either read the full bill or go to Sebastian's summary here.)
He lost.
The 7th Circuit Court of Appeals issued their decision today on the appeal of Judge Kendell's denial of a preliminary injunction to the plaintiffs in Ezell v. Chicago. It is a 59 page decision written by Judge Sykes with which Judge Rovner concurred in the results. In other words, it was 3-0 against the City of Chicago but for different reasons. The relevant passage in the decision is this:
The plaintiffs have established their entitlement to a preliminary injunction based on their Second Amendment claim, so we need not address the alternative argument that range training is protected expression under the First Amendment. Given the strong likelihood of success on the former claim, the latter claim seems like surplusage.
For the foregoing reasons, we REVERSE the district court’s order denying the plaintiffs’ motion for a preliminary injunction and REMAND with instructions to enter a preliminary injunction consistent with this opinion.
Judge Sykes in her decision said specified certain conditions on the preliminary injunction. They are:
The plaintiffs asked the district court to enjoin the enforcement of Chicago Municipal Code § 8‐20‐280—the prohibition No. 10‐3525 49 on “[s]hooting galleries, firearm ranges, or any other place where firearms are discharged.” They are entitled to a preliminary injunction to that effect. To be effective, however, the injunction must also prevent the City from enforcing other provisions of the Ordinance that operate indirectly to prohibit range training. The plaintiffs have identified several provisions of the Ordinance that implicate activities integral to range training: CHI. MUN. CODE §§ 8‐20‐020 (prohibiting the possession of handguns outside the home), 8‐20‐030 (prohibiting the possession of long guns outside the home or business), 8‐20‐080 (prohibiting the possession of ammunition without a corresponding permit and registration certificate), 8‐20‐100 (prohibiting the transfer of firearms and ammunition except through inheritance), 8‐24‐010 (prohibiting the discharge of firearms except for self‐defense, defense of another, or hunting). To the extent that these provisions prohibit law‐abiding, responsible citizens from using a firing range in the city, the preliminary injunction should include them as well. Similarly, the injunction should prohibit the City from using its zoning code to exclude firing ranges from locating anywhere in the city.
Finally, because range training is required for the issuance of a Chicago Firearm Permit, a registration certificate, and ultimately, for lawful possession of any firearm, see CHI. MUN. CODE §§ 8‐20‐110(a), 8‐20‐140(a)‐(b), the firing‐range ban implicates not only the right to train at a range but also the core Second Amendment right to possess firearms for self‐defense. Accordingly, the preliminary injunction should include sections 8‐20‐110(a) and 8‐20‐140(a) to the extent that those provisions operate to prohibit otherwise eligible persons from “carry[ing] or possess[ing] a firearm” at a range without a Permit or registration certificate while they are trying to complete the range‐training prerequisite for lawful firearm possession.
Despite Rahm's 11th hour move, today was a good day for the Second Amendment in Chicago.
UPDATE: Josh Blackman has an "instant analysis" of the 7th Circuit's decision in Ezell here. Dave Hardy calls the decision a major win and points out some of the salient points of the decision.
I have embedded below the Chicago Range Ordinance that will be presented to the Chicago City Council this morning by Mayor Rahm Emanuel. It was passed unanimously -though grudgingly - by the Committee on Public Safety yesterday. Newspaper articles in both the Chicago Tribune and the Chicago Sun-Times have referred to portions of the ordinance and some of the restrictions. Rather than going by what a reporter on deadline says about the bill, I think it is better to have the entire ordinance out there for all to see in its original form.
The move to introduce, pass, and implement this ordinance is a rush job as the City of Chicago freely admits. Jeff Levine of the City of Chicago's Law Department had this to say:
But Levine said the 7th Circuit Court of Appeals could rule on the lawsuits at any time, making it important for the city to get its own firing range rules on the books. The city hopes the appellate judges will opt not to intervene if Chicago has a firing range law in place, Levine said.
An ordinance amending Chapters 8-20 and 8-24 and related
provisions of the Municipal Code.
Translating these Municipal Code references, Chapter 8-20 deals with Weapons and Chapter 8-24 deals with Firearms and Other Weapons. Within Chapter 8-20 is Section 280 which prohibits "shooting galleries and target ranges" while Chapter 8-24 deals with discharging a firearm within the City of Chicago.
As I and others have noted, passage of such an amendment to the Municipal Code of the City of Chicago could moot the Second Amendment Foundation's case - Ezell v. Chicago -that challenges the prohibition on shooting ranges within the City of Chicago. An appeal of Judge Kendell's denial of a preliminary injunction is pending a decision by the 7th Circuit Court of Appeals. The appeal hearing was held in April and seemed quite favorable to those supporting gun rights and shooting ranges.
Against this background comes a report in the Chicago Sun-Times that Mayor Rahm Emanuel will introduce an ordinance next week to allow shooting ranges in Chicago.
The new ordinance should address the concerns raised in the lawsuit, officials say.
The proposed ordinance limits gun ranges to areas zoned for manufacturing. Outdoor ranges would be banned.
Anyone opening a gun range would have to obtain a gun permit from the city and obtain approval from the Chicago Police Department for a safety plan.
The Court of Appeals has not rendered a decision in this case and, presumably, an ordinance allowing shooting ranges would moot the case.
The three judge panel included Circuit Court Judges Michael S. Kanne, Ilana D. Rovner, and Diane S. Sykes. Judge Kanne is from Indiana and was appointed to the Court of Appeals by President Reagan. Judge Rovner is from Chicago and was appointed to the Court of Appeals by President George H. W. Bush. Finally, Judge Sykes was appointed to the Court of Appeals By President George W. Bush. Judge Sykes had previously served as a Wisconsin Supreme Court Justice.
In the argument, each side was given 20 minutes to argue their case. Alan Gura represented the plaintiffs and James A. Feldman was the attorney for the City of Chicago. After listening to the oral arguments, it seems that Judges Kanne and Sykes favored Ezell and Judge Rovner favored Chicago. I am assuming that the older sounding female judge is Judge Rovner and the younger one is Judge Sykes.
There were a number of good quotes that came out of the argument.
"The city has at once required range training for licensure and at the same time, banned them. How is that Constitutional?" Judge Sykes
"you're not planning or regulating, you're banning" Judge Sykes
"Is the City taking any steps towards REGULATING ranges?" Judge Rovner to which Mr. Feldman answered "no."
After Mr. Feldman went on about stray bullets and fights at gun ranges, Judge Kanne asked "Have you ever been to a firing range?" - answer - No
"Well by the looks of your briefs it looks like nobody who wrote the briefs had either" Judge Kanne
"How can you claim that the live-fire range training is so critical to licensing and yet claim it's not fundamental, it's not within the scope of the right. Those are mutually contradictory positions... " Judge Sykes
"Mr Gura, what would you like your preliminary injunction to say?" Judge Sykes
Maryland Shooters forum has a good discussion of the arguments with more quotes here as does the CalGuns forum here.
The brief which is 87 pages can be found here and the 139 page appendix which accompanies it is found here. I wanted to get this information out to a wider audience as soon as possible. Thanks are due to Gene Hoffman of CalGuns Foundation for putting it online.
Second Amendment lawyer Alan Gura filed an appeal this week in the case of Ezell v. Chicago, challenging the city's ban on gun ranges. It's likely to be one of the first important appeals court decisions to define the new shape of Second Amendment jurisprudence.
The attorneys for both Benson and the City of Chicago have agreed to continue discovery through March 31, 2011. Discovery had been scheduled to end on January 7, 2011. They filed an Agreed Motion to Extend Fact Discovery this past Friday. There has been no ruling by Judge Ronald Guzman yet on whether to accept this Agreed Motion.
This passage seems to indicate some legal wrangling over the scope of the discovery:
Notwithstanding the parties’ respective timely responses to discovery and production of documents, the parties have, in response to various discovery requests, disputed the permissible scope of discovery in this case. For example, the parties have disagreed about the permissible scope of document requests and whether certain depositions are appropriate. Nonetheless, for over a month, the parties have engaged, and continue to engage, in good-faith negotiations to come to agreement on these issues—or at least to narrow the ultimate scope of disagreement. Despite these efforts, complete agreement does not appear likely and thus the parties anticipate that some of these issues will soon be brought before the Court in the form of motions to compel or to quash. But the parties continue to work to refine and narrow the ultimate issues that will be litigated.
The more important news contained within this motion is that the plaintiffs plan to file a Second Amended Complaint which will probably add another plaintiff, add another count to the complaint, and some more factual detail.
Judge Guzman gave the following reason for denying the motions:
Plaintiffs seek to have Ezell v. City of Chicago, 10 C 5135, pending before Judge Kendall, and Second Amendment Arms v. City of Chicago, 10 C 4257, pending before Judge Dow, reassigned to this Court. The case before Judge Kendall is in a different procedural posture than this one. She has already held a hearing on and denied plaintiffs’ motion for a preliminary injunction, a ruling that is currently pending before the Seventh Circuit. The case before Judge Dow is broader in scope than this one. The plaintiffs in that case seek restitution, damages and a writ of mandamus, claims not asserted here. Given the substantial differences between those cases and this one, reassignment is not appropriate. See Local Rule 40.4.
I should point out that it was actually the defendants and not the plaintiffs who sought to have the cases transferred to Judge Guzman. The plaintiffs in all the cases had vigorously sought not to have the cases transferred but probably none so strongly as Alan Gura in the Ezell case.
Alan Gura and David Sigale have filed an appeal on Friday to the Seventh Circuit Court of Appeals of Judge Virginia Kendall's denial of a preliminary injunction in Ezell et al v. Chicago et al. This is the case brought against the City of Chicago's ban on gun ranges within the city limits. The notice of appeal does not give the grounds but merely informs the District Court and the defendant's attorneys that an appeal has been filed.
According to a notice issued by the Clerk of Court for the District Court, the entire record of the case must be furnished to the Circuit Court by November 18th and the parties have until November 11th to notify the Clerk of any missing items from the online record which needs to be sent.
The notice of appeal as filed with the Seventh Circuit is below:
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.
Watching Alan Gura and the attorneys for the City of Chicago go at it in the Ezell case is like watching a fencing competition. It is attack and counter-attack, thrust and parry, lunge and counter-lunge. No foils or epees for these lawyers. Instead it is sabers and no protective headgear all the way.
Right about now (Sept 16th at 5pm EDT) Alan Gura and David Sigale are going into court in Chicago for a hearing on their motion for a temporary restraining order against the City of Chicago. They are seeking this TRO so that the Action Target, the Second Amendment Foundation, and the Illinois State Rifle Association can open a portable firing range in Chicago. The firing range is built on a trailer which has bullet traps, bullet-proof walls, sound dampening, and room for three shooting lanes. These types of ranges are often used in law enforcement training and for weapons demonstrations. They want to open up this range so that people can meet the live-fire requirements of the Chicago Firearms Permit (CFP).
Unlike the NRA's case, Benson et al v. Chicago et al, this case has featured frontal legal assaults by the City of Chicago's Legal Department from almost Day One. These assaults have been met with fierce counter-attacks by Gura and Sigale along with some surprises of their own. To use an analogy, Benson is like the war on the Western Front during WWII while Ezell is like the war on the Eastern Front. The latter was vicious and brutal with no quarter asked nor given.
And so it is with these cases. I don't know if it is because the City of Chicago is still fuming mad that they lost the McDonald case or because they respect the legal acumen of Alan Gura and don't want to be caught short again. Nonetheless, the war started four days after the original filing in this case.
On August 20th, the City of Chicago filed a Local Rule 40.4 Motion to have Ezell reassigned to Judge Ronald Guzman on the ground of relatedness. The amended complaint in Benson gave Chicago the needed entry point as it also challenged the ban on gun ranges in Chicago. Numerous websites that rank judges have put Judge Guzman near or at the bottom of all the judges in the North District of Illinois.
In response to this move, the plaintiffs filed for a temporary restraining order on August 22nd. This ended up being denied without prejudice which meant that it could be brought again later. At that same time, Judge Virginia Kendall set the schedule for discovery, responses, and counter-responses. Discovery was due to end on September 13th, responses due by September 20th, replies to these due a week later, and hearings set for October 1st. Chicago made an oral motion for a slower schedule and were denied.
Now it starts to get really messy. The City of Chicago started taking their depositions of the plaintiffs and related third parties. In the process of taking these depositions, they forgot to give notice to the plaintiff's attorneys which was required. Alan Gura filed a motion for an emergency motion on September 10th to quash these unserved subpoenas. He also asked for sanctions against the City of Chicago for their actions. Chicago claimed it was a clerical oversight and the court let them off the hook.
This Monday, September 13th, Alan Gura and David Sigale again filed a motion for a temporary restraining order against Chicago so that the range could be opened. The range would open on September 24th if allowed.
Chicago retaliated with a motion to "vacate briefing schedule and preliminary injunction hearing" which was set for October 1st. They are really pushing hard to have this case sent to Judge Guzman and out of Judge Kendall's court.
Alan Gura responded with an especially harsh attack on the City of Chicago calling this motion frivolous and only meant to delay the proceedings. He also accused Chicago of being abusive during discovery. Gura went on to say that none of their arguments were correct.
I plan to do a more in-depth analysis of the case this weekend. I have appended the docket report for this case to illustrate all the attack and counter-attacks.
UPDATE: Damn! The Temporary Restraining Order was denied. However, so was the motion by the City of Chicago that sought to delay long enough for Judge Guzman to rule on the Local Rule 40.4 motion. There is a status hearing set for Thursday, Sept 23rd.
On a side note, I checked out the American Bar Association ratings from when Judges Guzman and Kendall were nominated. The ratings are well qualified, qualified, and not qualified. Guzman was rated Qsm/NQmin. This meant that a strong majority thought he was qualified but a minority thought he was not qualified. Kendall, by contrast, was rated WQsm/Qmin which meant that everyone thought she was qualified and a strong majority thought she was well qualified.
