SAF SUES CHICAGO OVER GUN RANGE PROHIBITION ON 1A, 2A GROUNDS

[Patrick]

OK, so help me understand where the Ezell case now stands...

Ezell isn't over; they (Ezell) simply got their injunction they had been denide, so that between now and the time the case is eventually argued and decided, the law(s) are unenforceable. So now they go back to the original court (District Court) and pick up where they left off before the injuction was denied and sent to 7th Circuit Court.

What should we expect now, specific to this case back in District Court? Time table?

Thanks.

The District Court got a pretty decent smack-down. It wasn't pretty or as cordial as it could have been. The Circuit called into question the abilities of the judge to reasonably adjudicate the law. They said some of this 2A jurisprudence might be confusing, but that there was no explanation for some of the most basic legal errors made. That is going to sting.

Then they told the judge what to do and gave specific instructions that any maneuver by Chicago to come up with fun tricks to delay or deny ranges in Chicago should be met with a harsh response.

Technically, the district court is supposed to now hear evidence from Chicago that will presumably point to a compelling interest to shut down ranges. But the Circuit made clear that even though this is still in the cards, the chance of it happening are exceptionally remote. They then set a bar so high that there is no way Chicago could meet it.

As for timing, the "irreparable harm" wording means the judge should be working on the PI as I type this. Literally, it means every single day that the restriction exists causes harm to the people in such a way that no amount of money can fix it. Failing to correct that harm would be a serious issue for a judge.

If this is not settled by next week, then something is wrong. The Ezell decision is smartly written to handle the ordinance as it was, and even as it later became. It says, "stop all restrictions that prevent ranges, including any we have not mentioned here."

This is the type of response we can see in pro-gun decisions going forward. This is why MD, DC, IL and the others are scared. You can only push so long before the courts come back and say something like what Judge Rovner (the anti-gun judge in Ezell) said in her decision to stop the madness: "Chicago got too cute by a half, and thumbed their municipal noses at the court. The Second Amendment has come to Chicago and you better start to deal with it."

Now this PI is going to stop the old law, and the new one. The court made clear that the city need not have any regulation at all. In other words...nobody needs to wait for the city to craft range laws to open a range. Chicago will need to extra careful of how they treat permits applications.

FWIW, the court appears to have created an even harder standard for city zoning than Renton (classic zoning decision over "adult oriented places"). By noting that the city itself has ranges in public places near residential, commercial and churches, they have pretty much foreclosed the city from preventing them in the same. Ranges are now protected as ancillary and necessary to the exercise of a fundamental right. The government cannot restrict for itself some exercises of the right then deny it to the people. So construction standards...everything...will be compared to the city's previous efforts on behalf of itself.

Expect to see a range permit application filed next week, if it has not happened already. I find it hard to believe the SAF did not have some lined up ready to go. It's not how they work. They got their stuff together and think ten steps in advance.

 

[jrosenberger]

Expect to see a range permit application filed next week, if it has not happened already.

Will anything be needed beyond whatever a typical retail business would require? Until the new law there was no such thing as a range application, and the new law clearly violates the standards set forth in the circuit decision so it should be covered by the PI as well.

 

[Patrick]

I suspect we'll see an application filed as a general use commercial permit open to fire and other reasonable inspections. The key thing here is out side have a voice in "reasonable". They city will need to fast-track any special conditions they want to apply and be really careful of how they handle them.

The circuit decision laid out a case where ranges are not special in any way, other than their protected status. So the burden has explicitly shifted to the city and the burden is great. If the city wants three range maser per patron, they better demonstrate why this is needed and also show that they have the same rules for their own police ranges. That is their new world.

Am I saying Chicago will no longer thumb their nose? No way. Of course they will.

But this new 'irreparable harm' standard means no more filing a suit and waiting six months. It means instant access to the court with a rapid response. And in the event of an appeal, it means fast-tracking there, too. If Chicago keeps playing games, the circuit (or district) could order a special master to handle management of all the laws. That means Chicago loses effective control over their own lawmaking when it comes to ranges (and maybe eventually most gun laws, in general). That is a bad thing and Chicago will move to avoid it. It will be grudging, but acceptance will probably/eventually happen.

 

[teratos]

It's about time a decision used the kind of language that is warranted when dealing with a fundamental right. It is what I would expect of any flagrant violation of the 1A. Let's hope this is something that continues in our judicial system. It is only proper.

 

[press1280]

What about Chicago asking for en banc? Seems they have no bones wasting taxpayer money just to buy some time. There's also the fact the 7th circuit as a whole isn't gun friendly-we happened to get a great panel this time.

 

[Patrick]

What about Chicago asking for en banc? Seems they have no bones wasting taxpayer money just to buy some time. There's also the fact the 7th circuit as a whole isn't gun friendly-we happened to get a great panel this time.

En banc means Chicago is angling for another outcome. If they were to get one, then the original decision and the en banc findings would be appealed to SCOTUS. I suspect Chicago's new boss is smart enough to avoid that kind of fight.

Our side is not alone in comparing Heller to Ezell and figuring out that the two are decided using the same process, considerations and judicial deference to the constitution. Ezell reads the way we would expect the supreme court would rule.

Opening the door to the supreme court means that Ezell would be codified across the entire land, instead of just restricted to the Seventh. Note that already tried to head this off by allowing ranges. He knows the outcome at the end of the series.

But I hardly know what they will do. I suspect they will play the game of locally frustrating the process, trying to just avoid court intervention. They will cross the line, but nothing that will get the into the big court.

Daley would have fought this all the way, just to puff his ego. Rahm strikes me more pragmatic. He will play chess while his predecessor was barely capable of checkers.

 

[hvymax]

It's about time a decision used the kind of language that is warranted when dealing with a fundamental right. It is what I would expect of any flagrant violation of the 1A. Let's hope this is something that continues in our judicial system. It is only proper.

That made me giggle. When has a group of lawyers made a decision that would not provide years of work and millions/billions of dollars for their fellow lawyers to sort out? Heller is a perfect example it meant almost nothing and has almost no effect whatsoever for the citizens of DC(Blueheeler exempted).

 

[teratos]

That made me giggle. When has a group of lawyers made a decision that would not provide years of work and millions/billions of dollars for their fellow lawyers to sort out? Heller is a perfect example it meant almost nothing and has almost no effect whatsoever for the citizens of DC(Blueheeler exempted).

True. This is something any 1st grader should be able to figure out.

If the rules of the class say you can keep AND draw with a crayon ask them if they can get in trouble for having or drawing with a crayon.......there will not be any argument. Only a bunch of lawyers can waste years and tens of millions of dollars arguing the in's-and-out's of crayon possession and usage.

 

[Patrick]

True. This is something any 1st grader should be able to figure out.

If the rules of the class say you can keep AND draw with a crayon ask them if they can get in trouble for having or drawing with a crayon.......there will not be any argument. Only a bunch of lawyers can waste years and tens of millions of dollars arguing the in's-and-out's of crayon possession and usage.

And then blame it all on the Crayola lobby...

 

[jrosenberger]

I got to wondering today what happened at the district level regarding the injunction. There was some housekeeping stuff: bill of costs, letter re the CA7 decision and a certified copy of the decision. Then I got to the Motion to Dismiss filed by Chicago today. Basically they're saying that rather than enter the injunction, the case should be dismissed as moot since Chicago amended their law. I haven't read the full motion yet, but I think they included why it should fail:

When the defendants are public officials, the courts generally “place greater stock in
. . . acts of self-correction, so long as they appear genuine.” Federation, 326 F.3d at 929. Thus, “the
complete repeal of a challenged law renders a case moot, unless there is evidence creating a
reasonable expectation that the City will reenact the ordinance or one substantially similar.”

They've attached the new law, and I'm pretty sure based on the wording of the CA7 decision that the new law counts as 'evidence creating a
reasonable expectation that the City will reenact the ordinance or one substantially similar'.

It all turns on interpretation of this line from the CA7 decision: “The City may promulgate zoning and safety regulations governing the operation of ranges
not inconsistent with the Second Amendment rights of its citizens; the plaintiffs may challenge those
regulations, but not based on the terms of this injunction.” (emphasis mine).

 

[Patrick]

They played the same game in McDonald: change the laws and claim the case was never won. That failed horribly in McDonald - the circuit court threw the book at them and told them to pay and pay right away.

Now they are getting cute again, claiming that a change on the immediate eve of the decision is enough to moot the suit and avoid the fees. If this even moves past the district court, the circuit will again look at it and probably not be kind. I would not be surprised to see a sanction threatened against the lawyers for playing the same game twice.

On the upside, Chicago seems to care about the costs. It is too much work to change laws just to attempt to frustrate Gura. No...they don't like having to pay out. The upside is they will pay here, and they are looking at even more payments to ISRA the NRA in other cases.

Cynics will say they don't care about fees because it is not their money. Problem is, we same cynics will point out that such politicians think the taxpayer money is the politician's money to spend. And they keep giving it away to SAF and the NRA.

The fees are a convenient scorecard. Cannot wait for a prmary when one candidate accuses an incumbent of "losing 5 Million dollars due to multiple civil rights violations against them."

 

[jrosenberger]

I'm not sure it's just about the fees in this case. Chicago's new ordinance is clearly an attempt to ban gun ranges without banning gun ranges. I'm not sure how the fight against them will work procedurally. Based on the Ezell opinion, I'm pretty sure their current law is still too draconian to stand, but does it require starting the whole process over again? If they can write new regs in a day and it takes us a year to get them struck down in court, where does that end?

 

[Inigoes]

I'm not sure it's just about the fees in this case. Chicago's new ordinance is clearly an attempt to ban gun ranges without banning gun ranges. I'm not sure how the fight against them will work procedurally. Based on the Ezell opinion, I'm pretty sure their current law is still too draconian to stand, but does it require starting the whole process over again? If they can write new regs in a day and it takes us a year to get them struck down in court, where does that end?

After Chicago is forced into involuntary bankruptcy!

 

[Patrick]

I'm not sure it's just about the fees in this case. Chicago's new ordinance is clearly an attempt to ban gun ranges without banning gun ranges. I'm not sure how the fight against them will work procedurally. Based on the Ezell opinion, I'm pretty sure their current law is still too draconian to stand, but does it require starting the whole process over again? If they can write new regs in a day and it takes us a year to get them struck down in court, where does that end?

With a judge writing the rules for them. Don't have to look far to see plenty of civil rights "consent decrees" forced by courts. These are not new, nor are they old. Prince George's was under one recently for DWB, among other issues.

If they think our side won't go that route, they are crazy. Play nice now or have Gura write the laws for you.

 

[press1280]

They played the same game in McDonald: change the laws and claim the case was never won. That failed horribly in McDonald - the circuit court threw the book at them and told them to pay and pay right away.

Now they are getting cute again, claiming that a change on the immediate eve of the decision is enough to moot the suit and avoid the fees. If this even moves past the district court, the circuit will again look at it and probably not be kind. I would not be surprised to see a sanction threatened against the lawyers for playing the same game twice.

On the upside, Chicago seems to care about the costs. It is too much work to change laws just to attempt to frustrate Gura. No...they don't like having to pay out. The upside is they will pay here, and they are looking at even more payments to ISRA the NRA in other cases.

Cynics will say they don't care about fees because it is not their money. Problem is, we same cynics will point out that such politicians think the taxpayer money is the politician's money to spend. And they keep giving it away to SAF and the NRA.

The fees are a convenient scorecard. Cannot wait for a prmary when one candidate accuses an incumbent of "losing 5 Million dollars due to multiple civil rights violations against them."

While being fiscally responsible is popular almost everywhere else in the country, in Chicago it probably doesn't matter much. Just saying you fought the fight against the evil NRA and the gun lobby gets you elected there.

 

[Hopalong]

Play nice now or have Gura write the laws for you.

I really like this potential outcome. Almost enough for me to encourage Chicago and their ilk to keep on fighting.

 

[Al Norris]

OK. I got curious, so sue me! I downloaded the Exhibit A&B of the City's MTD. It's the most amazing piece of licensing crud I have ever read. The document is also the work of someone who knows we are reading these... 85 PDF pages (59 of which are the Ezell decision), with no compression whatsoever.... a whopping 4.4MB file! Usually such files are photocopied images. Not this one. It's pure text.

Sheesh! How juvenile can you get!

Alan Gura is going to have real fun with this "licensing" scheme.

Oh, and no mobile ranges are permitted.

 

[krucam]

Thanks for pulling that and...be thankful Pacer only rings you up for the 1st 30 pages ($2.40 max)!

That was a painful read and I really wasn't sure why that (#114) was filed until I took a peek at the Docket and saw the next Doc (#115).

115 is the announcement of another Motion to Dismiss by Chicago, coming August 15th.

They're saying the case is now "moot". I guess because of their new, benevolent actions to give the fair citizens of Chicago adequate & available ranges to practice with their firearms....

 

[Al Norris]

I realize that this is a "Special Use" Permit, and most entities can tack on some mighty tight controls, because of the nature of "Special Use," but this is just draconian.

Let's see... Considering that the City requires all the personal information of every manager and owner of a perspective company, including SSN's and fingerprints; Complete plans on the proposed range, including all the proper permits from all the proper building inspectors; Complete and detailed operating plans... There are all the restrictions on the actual operation of the proposed range and where it can be located, violations of which include both monetary fines and incarceration!

So after spending 10's of thousands of dollars in just putting together all that is necessary to even apply for the Special Use Permit, you could still find the permit being denied under any number of arbitrary discretionary actions by the Commissioner of licensing. You then forfeit all the monies of your investment. The $2000 application fee is the smallest part of your total investment at this stage.

I can't see a single business venture that would be willing to take the kind of risks that this "licensing" entails.

Of course, that is the exact purpose of this Special Use Permitting process.

 

[Patrick]

We all this coming. I wont even read it in depth based on what you all summarize above.

Combine Ezell and Renton and Chicago is going to have a tough time of it. It is rare for a court to step in and work zoning issues - it is not their expertise and they like to defer to local officials. But it is not unheard of in recent times, from churches to abortion clinics we have seen courts step in and fix egregiously wrong zoning systems meant to discourage the exercise of a right.