Ezell v. Chicago

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Does Aurora Sportsmen’s Club Look Like A Golf Course To You?

May 1, 2020 by 6 Comments

Take a look at that picture above. It is an aerial photo of the Aurora Sportsmen’s Club in Waterman, Illinois. It has rifle and pistol bays ranging from 50 feet to 600 yards. It has two Skeet fields, three Trap fields, a 5-stand course, a 12-stand Sporting Clays course, and an archery range. On top of all of that, it has three stocked fishing ponds.

Now tell me who in their right mind would confuse this with a golf course and want to regulate it in the same manner.

Gov. J.B. Pritzker (D-IL) issued Executive Order 2020-10 on March 20th. It explicitly lists firearm and ammo dealers and suppliers as essential businesses. It also said “outdoor activity” was a permitted reason to leave home so long as social distancing was observed. This included both golf course and shooting ranges.

A week later, Gov. Pritzker issued a subsequent order that ordered golf courses closed and shooting ranges such as those of the Aurora Sportsmen’s Club which didn’t have an attached gun store closed as well. They closed upon the advice of legal counsel when golf courses closed.

As a letter this week to Gov. Pritzker from Eric Callis, President of ASC, makes clear, the Illinois Department of Commerce and Economic Opportunity does not consider them an “essential business” and have said they have to remain closed.

Like many businesses, our not-for-profit club is being impacted by the stay at home order and shutdown of non-essential entities. We have followed the guidelines as proposed and with the revisions of March 27, closed the Club except to law enforcement agencies that needed to complete training to maintain certification and proficiency.

During this time we have watched as marijuana dispensaries remain open. We now see that dog groomers are going to be allowed to open. Even golf courses are being allowed to resume limited operations. Yet each time we reach out to DCEO through our elected officials, we continue to be told we can not reopen under any conditions.

So while golf courses, dog groomers, and pot shops (cannabis dispensaries) are allowed to reopen, a huge outdoor facility spread out of hundreds of acres is ordered to remain closed. Of particular relevance to this issue was the 7th Circuit’s ruling in Ezell v. Chicago which noted in reference to shooting ranges, “The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn’t mean much without the training and practice that make it effective.”

In the letter cited above, Callis asks Gov. Pritzker for a written explanation with specifics as to why they aren’t allowed to reopen.

Ranges, training, and practice for proficiency protected under Heller, McDonald, and Ezell are not afforded the same opportunities as golf courses, dog groomers, and marijuana dispensaries?

Non-constitutionally protected activities are given more deference and protection than those enumerated via the Bill of Rights under the Second Amendment and court rulings?

Are hundreds of people allowed at indoor stores, yet we are not allowed to open up a 300-acre outdoor facility?

Can’t we re-open if we follow the same type of guidelines as golf courses?

The club has also appealed to US Attorney General William Barr who has told US Attorneys to be on the lookout for overly strict state and local orders which tread upon constitutional rights.

We, therefore, ask you to determine if those orders barring the use of indoor or outdoor ranges for the “training and practice” of firearms to maintain proficiency as enumerated in Ezell violate fundamental constitutional rights and are an overreach as you described in your memo.

We find it odd that dog grooming businesses in confined spaces are allowed to open, conduct business, and see people while our 300-acre outdoor range is not.  We find it troubling that there appears to be a political double standard for outdoor recreational activities that are not protected by the Constitution with enumerated rights but may be more politically correct.  We also find it inexplicable that drugs still considered to be illegal for sale and possession under Federal law are allowed to be sold, used, and shops that sell marijuana are open for business while actual legal conduct and constitutionally protected activities are being denied.

We appreciate your help in this matter and look forward to hearing from either your office or your representative.

According to the DeKalb County Health Department, they have had 101 confirmed cases of COVID-19. The overwhelming majority of the over 50,000 cases of COVID-19 in Illinois are in Chicago and Cook County. What might be appropriate for the dense urban areas of Chicago and its suburbs is not the same for rural DeKalb County where the club is located. Indeed, the Illinois Department of Public Health maps show zero cases in the club’s location of Waterman, Illinois.

Keeping the Aurora Sportmen’s Club closed is not good public policy nor, in my opinion, constitutional. I hope someone in Springfield wakes up sooner than later.

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Chicago May Finally Be Listening

March 31, 2017 by 1 Comment

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.

On Wednesday, Chicago Mayor Rahm Emanuel proposed new zoning regulations that would bring the city into compliance with the court’s rulings.

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.

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Ezell II Is Another Win For The Second Amendment

January 19, 2017 by 1 Comment

The Seventh Circuit Court of Appeals decided in favor of the Second Amendment again today. In a majority decision written by Judge Diane Sykes, the court found that the new zoning restrictions imposed by the City of Chicago on shooting ranges were unconstitutional. It also found that the city’s restriction that limited range use to those 18 years of age or older was unconstitutional.

Judge Ilana Rovner concurred on one of the zoning restrictions and dissented on another one of these restrictions and on the age restriction.

I am in the midst of reading the decision now. In the meantime, here is the response of the Second Amendment Foundation which brought the original and subsequent lawsuit on behalf of Rhonda Ezell and the other plaintiffs.

BELLEVUE, WA — A three-judge panel of the Seventh U.S. Circuit Court of Appeals today handed the Second Amendment Foundation a victory in its challenge of firearms regulations in the City of Chicago, striking down a zoning provision, reversing an earlier ruling that upheld “distancing” restrictions for gun ranges, and reversing an earlier ruling that upheld certain age restrictions.

Writing for the court, Judge Diane S. Sykes noted, “To justify these barriers, the City raised only speculative claims of harm to public health and safety. That’s not nearly enough to survive the heightened scrutiny that applies to burdens on Second Amendment rights.”

“We are delighted with the outcome of this lengthy case,” said SAF founder and Executive Vice President Alan M. Gottlieb. “The extremes to which the city has gone in an attempt to narrow its compliance with the Supreme Court ruling in McDonald v. City of Chicago can only be described as incredible stubbornness. In the 6½ years since the high court ruling in our McDonald case, the city has had ample opportunity to modify its regulations. Instead, Chicago has resisted reasonableness.

“We had already sued Chicago successfully to knock down its outright ban on gun ranges within the city,” he recalled. “Then they adopted new regulations that included the zoning, distancing and age restrictions that we contested in this legal action, known as ‘Ezell II.’

“The city tried to severely limit where shooting ranges could be located, and they failed,” he continued. “The city put up arguments about the potential for gun theft, fire hazards and airborne lead contamination, and they failed. Even the judge’s opinion today noted that the city had ‘produced no evidentiary support for these claims beyond the speculative testimony of three city officials.’ This nonsense has got to stop.

“Today’s ruling is a victory for citizens of Chicago who want to exercise their rights,” Gottlieb said, “and particularly for Rhonda Ezell, who has been steadfast in her resolve.”

Also on the panel with Judge Sykes were Judges Michael S. Kanne and Ilana D. Rovner.

As a side note, Judge Sykes is one of the jurists mentioned as a possible successor to Justice Antonin Scalia by President-elect Donald Trump. Given this decision and the earlier Ezell I decision, it is my hope that she be given the strongest consideration for this nomination.

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In Ezell – Chicago’s New Range Ordinance Doesn’t Moot Case

September 28, 2011 by

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.

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Tweaking?

September 7, 2011 by 3 Comments

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”.

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Even Non-Gunnies Can See The Foolishness Of Chicago’s New Range Law

July 8, 2011 by

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 law Zorn 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.

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The Sounds Of Silence

July 7, 2011 by 2 Comments
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”.

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ISRA Response To 7th Circuit Win On Ezell

July 7, 2011 by

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.

Victor D. Quilici
ISRA Counsel

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SAF On Their Win In Chicago

July 6, 2011 by 1 Comment

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’.”

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Too Little, Too Late

July 6, 2011 by 4 Comments

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.