Benson v. Chicago

Benson et al v. Chicago et al is the NRA sponsored suit challenging the City of Chicago’s New Gun Law. It was the first suit filed to challenge the changes Chicago made to their gun laws after losing the McDonald case.

There has been a flurry of activity in the case over the last week and a half.

The first major event is that the case is being reassigned from Judge Ronald Guzman to Judge Edmond E. Chang. This became effective on January 10th. The reason the case is being reassigned is that Judge Chang is a new judge of the District Court for the Northern District of Illinois and this case becomes part of his initial civil case load. A total of 281 cases were transferred from various judges of the District to Judge Chang. This was the only case involving the suits against Chicago on Second Amendment grounds.

Judge Chang was nominated by President Obama in April 2010 to fill a seat vacated on the court. He was confirmed on December 18, 2010 and was sworn in on December 20th. Judge Chang is 40 years old and is a graduate of Northwestern School of Law. For the past 11 years, he has served as an Assistant U.S. Attorney for the Northern District of Illinois. He has served legal clerkships with judges on both the Sixth Circuit Court of Appeals and in the Northern District of Illinois.

The other major event is that Brett Benson and Rick Pere are requesting to withdraw as plaintiffs in the case. This was just filed yesterday. As to why they are requesting to withdraw from the case, I have no information. This will leave Kenneth Pacholski, Kathryn Tyler, Michael Hall, and the Illinois Association of Firearms Retailers as the remaining plaintiffs.

Plaintiffs’ attorneys have requested the court’s permission to file a Second Amended Complaint which is unopposed by the City of Chicago. Under Federal Rules of Civil Procedure 15(a)(2), Chicago had to consent to the filing of the Second Amended Complaint which they did.

There is a hearing scheduled before Judge Chang on the morning of January 27th.

On Tuesday, attorneys for the plaintiffs in the NRA’s lawsuit against the new Chicago gun law, Benson et al v. Chicago et al, filed a motion to dismiss Raymond Sledge as one of the plaintiffs in the case. From the motion:

RULE 21 MOTION TO WITHDRAW AS PARTY PLAINTIFF

NOW COMES Plaintiff Raymond Sledge, by and through his attorneys, and respectfully moves the Court pursuant to Fed. R. Civ. P. 21 to dismiss him as a party plaintiff to this civil action, with the case to continue as to all other Plaintiffs. By email dated October 15, 2010, Plaintiffs’ counsel sought from Defendants’ consent to this motion, but Defendants’ counsel has not responded to that request

Mr. Sledge was a plaintiff in both the original complaint and the amended complaint. According to paragraph 35 of the amended complaint:

Plaintiff Raymond Sledge is a 53-year-old, African-American male, and a resident of Chicago. He has been employed for the last sixteen years as a teaching assistant at a public elementary school in Chicago.

I don’t know why Mr. Sledge requested to be dismissed as a plaintiff in the case. He was, however, the target of a mocking editorial in the New York Times back in July. The Chicago Gun Rights Examiner made note of that editorial here.

Given the workings of Mayor Daley and his machine one wonders if a none too subtle message was sent through an intermediary that if Mr. Sledge wanted to keep his job in the Chicago Public Schools he better drop out of the lawsuit. The unvarnished truth probably will never come out but one has to wonder.

An amended complaint was filed Friday, August 13th, in the NRA’s challenge to Chicago’s new gun laws. The case, Benson et al v. Chicago et al, was originally filed on July 6th. The original complaint can be found here.

So what has changed? While most of the complaint stays the same, word for word, additional plaintiffs have been added, the number of counts have been reduced, and the count against the gun list has been dropped in favor of a new emphasis against the restrictions on lawful transportation.

1. Two new plaintiffs added.

Michael Hall, Sr. of Chicago and Rick Pere of Round Lake, Illinois have been added as plaintiffs. Mr. Hall is a 52-year-old Chicago resident, married with 5 kids, a Marine veteran, hunter, and works in the telecommunications industry. The complaint notes that he often works from home and that his truck has been burglarized twice while sitting in his driveway.

Mr. Pere is self-employed as a police-firearms and security-firearms instructor. He served as a police officer in various Illinois municipalities for over 15 years. In addition, he has over 30 years of service in the U.S. Army, Illinois Army National Guard, and the U.S. Air Force Reserves. He has also served as a military contractor in Afghanistan, Iraq, and Haiti. He wants to be able to open a shooting range in Chicago where he could offer firearms training instruction as well as sell firearms.

2.  Stylistic Changes

The amended complaint still retains most of the original complaint word for word. It has updated the references to the McDonald decision to include the actual Supreme Court citation instead of the slip opinion.

Stylistically, it has tightened up some of the language and clarified other things. One major change is to include the race of the plaintiffs living in the City of Chicago. While this does serve to illustrate the racial diversity of the plaintiffs, it feels cumbersome. Unless I am missing something, I think illustrating the racial diversity of the plaintiffs could have been done just as well, if not better, by the use of press releases and having the plaintiffs available for media interviews.

3. Consolidated Number of Counts

The original complaint as filed had eight counts. This number has been reduced to five in the amended complaint. Counts II, VI, and VII were dropped in their entirety. The old Count II challenged the age restrictions in the Chicago. Count VI challenged the “unsafe handgun” portion of the ordinance. Finally, Count VII challenged the banning of laser sight accessories.

4. Dropped challenges to age restriction, unsafe handgun list, and laser sights.

The amended complaint dropped all challenges to the age 21 restriction to obtain a Chicago Firearm Permit (CFP). As currently written, the ordinance does allow those between the ages of 18 and 21 to obtain a CFP if they have written permission of a parent or legal guardian and the parent or guardian is not prohibited by obtaining either a CFP or an Illinois FOID card. I am speculating that dropping this challenge may have been because under Federal law one must be 21 to purchase a handgun from a dealer.

Likewise, the challenges to both the unsafe handgun list and laser sights were dropped in the amended complaint. Given that some states like California and Massachusetts have approved handgun lists, the decision may have been made to wait to challenge this part of the ordinance. The California handgun list is currently by challenged in the case of Pena v. Cid. That case has been stayed pending the outcome of the 9th Circuit’s decision in Nordyke v. King. I don’t know why the laser sight and accessory complaint was dropped except that it was a minor part of the original complaint.

5. New emphasis on lawful transportation.

While the original complaint did mention the ability to transport a firearm from one location to another – lawful transportation – the emphasis on this was lost in the mix. The amended complaint puts new emphasis on this and mentions it specifically in their request for a declaratory judgment and for injunctive relief against the new ordinance. In the descriptive part of the complaint, more verbiage has been added to describe the plaintiff’s desire to “transport” firearms between Chicago and other locations outside of the city.

There is also an added emphasis on the one working gun per CFP per household requirement along with the restrictions on the definition of “home” being within the four walls. The complaint mentions that Mr. Hall wants to be able to provide self-defense for all of his property and not just within the home. Moreover, the complaint goes into detail on the risk a homeowner faces from a home invasion and argues that the one working gun provision increases the risk.

I have embedded the amended complaint below:

Benson et al v. Chicago et al – Amended Complaint

September 1st has been set as the hearing date for Benson et al v. Chicago et al. This is the case supported by the NRA that challenges the new Chicago gun laws enacted after the McDonald case struck down the City of Chicago’s handgun ban.

Judge Ronald Guzman is the US District Court judge assigned to the case. He was appointed to the bench by Bill Clinton in 1999. He doesn’t get high marks from those that have rated him on the website The Robing Room. On a scale of 1 to 10 with 1 being awful and 10 being excellent, he rates a 3.4.

Civil litigators in particular don’t seem to like him. From the comments:

He’s got to look for a job he really likes. He’s almost always late, is lazy, unreasonable, procrastinates and doesn’t care. He makes short-shrift of cases and looks for the easy way out–not very analytical. Has a very unlikeable and unpleasant attitude in court. – 2010

Agree with other comments. Judge Guzman is unlikeable and doesn’t always seem to catch on quickly. If you hate lawyers, why be a judge? – 2008

Judge Guzman is perpetually late to court and always in a grumpy mood. That said, he doesn’t seem to have any noticeable bias towards either side, because he equally despises them both. – 2006

I hope this isn’t a bad sign for Benson.