Too Little, Too Late

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.

Heh! Chicago Has To Pay Up.

After the City of Chicago lost McDonald et al v. City of Chicago et al in the Supreme Court, they changed their gun ban ordinances. Because of this, they argued that the plaintiffs were not “prevailing parties” and thus weren’t entitled to attorneys’ fees. U.S. District Court Judge Milton Shadur agreed with them and denied Alan Gura and the attorneys for the National Rifle Association the attorneys’ fees that should have been due them.

Today, the 7th Circuit Court of Appeals issued a decision overturning Judge Shadur and ordering “reasonable attorneys’ fees under §1988.” This decision applied both to the McDonald case and the cases brought by the NRA against the City of  Chicago and the Village of Oak Park, Illinois.

The Court of Appeals noted that Judge Shadur was correct in that the plaintiffs didn’t receive a favorable judgment from the District Court. However, they continued:

But they did better: They won in the Supreme Court, which entered a judgment in their favor. When the Supreme Court rendered its decision, the controversy was live.

The Court goes on to add noting that Chicago and Oak Park changed their ordinances in response to the Supreme Court’s McDonald decision:

Many a defendant gives up after a district court’s final decision and does not appeal; some other parties settle to avoid the risk of reversal. If a cessation of hostilities after a district court’s decision does not deprive the victor of prevailing party status, why should conceding defeat after a decision by the Supreme Court do so?

The attorneys for Chicago and Oak Park argued that the decision in McDonald only addressed a “preliminary legal issue” and didn’t resolve the plaintiff’s claims against the municipalities. Chief Judge Frank Easterbrook writing for the Court of Appeals didn’t think much of that argument.

After the Supreme Court held that the second amendment applies to the municipalities’ ordinances, defendants’ position was untenable; neither Chicago nor Oak Park contends that the ordinance in force in 2008 could have been sustained under Heller’s substantive standards. This litigation was over except for the entry of an injunction by the district court. Chicago and Oak Park capitulated, which made the exercise unnecessary. By the time defendants bowed to the inevitable, plaintiffs had in hand a judgment of the Supreme Court that gave them everything they needed. If a favorable decision of the Supreme Court does not count as “the necessary judicial imprimatur” on the plaintiffs’ position (Buckhannon, 532 U.S. at 605), what would?

According to his Twitter feed, Alan Gura just happened to be in Chicago today. He notes it is a beautiful day. Indeed it is and it is good to see that the City of Chicago is going to have to shell out the big bucks for their obstinacy as well they should.

Appeal Filed in 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:

Ezell et al v. Chicago – Appeal Filed With 7th Circuit

7th Circuit Upholds Ban on Firearms for Misdemeanor Domestic Violence Convictions

The 7th Circuit Court of Appeals ruled en banc today that a person convicted of a misdemeanor for domestic violence is prohibited from possessing firearms. The case, United States v. Skoien, came to the 7th Circuit on appeal from the US District Court for the Western District of Wisconsin. By their ruling, the 7th Circuit en banc upheld the Lautenberg Amendment and overturned the earlier decision by a 3-judge panel of the 7th Circuit which held that the prohibition on possession was not categorical.

Josh Blackman in his blog has an extensive analysis of this case. He thinks that there will be significant ripples from this case and that it could easily head to the Supreme Court as there is some disagreement among the various Circuit Courts on the legitimacy of Lautenberg.

The dissent by Judge Sykes is important because he felt it the burden should be on the government “of justifying the application of laws that criminalize the exercise of enumerated constitutional rights. We should follow that norm, not pay lip service to it.” I’m sure it will be quoted in the future.