Updates on Second Amendment Arms et al v. Chicago et al

Second Amendment Arms v. Chicago was the second case filed challenging the new Chicago Gun Law. This case since it wasn’t brought by either the National Rifle Association or the Second Amendment Foundation has generated a lot less scrutiny and news. The plaintiffs’ attorney, Walter Maksym, is best known for representing Drew Peterson and not for his expertise in Second Amendment law.

An amended complaint was filed at the beginning of October which added the Illinois gun rights group, ICarry, as an organizational plaintiff and Shaun Kranish as an individual plaintiff.

On November 24th, the City of Chicago filed a motion to dismiss this case on Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) grounds. The city argues that the complaint and the plaintiff’s First Claim for Relief fail to state a claim. They also challenge the standing of Second Amendment Arms and ICarry as they argue that “the Second Amendment only confers an individual right, and they are not individuals.” Chicago also is challenging the standing of the individual plaintiffs for failure to identify an injury under the Ordinance. Finally, it asks that among other things that Mayor Daley, Police Superintendent Wies, Miguel Del Valle, and Corporation Counsel Mara Georges be dismissed as defendants.

A joint status report was filed on Monday and a status hearing was held on Wednesday. The status report indicated the principal legal issues as a violation of the 1st, 2nd, 4th, and 14th Amendments to the U.S. Constitution as well as other violations of the Illinois Constitution. The factual issues are up in the air due to the lack of discovery and because Chicago has moved to dismiss the case. Finally no settlement discussions have been held.

In the status hearing yesterday, Judge Robert Dow advised that he is taking Chicago’s Motion to Dismiss under advisement, that the plaintiffs have until January 21, 2011 to file a 20-page response to dismissal motion, and that Chicago has until February 16th to file their reply to the response. He also said that he will rule on the Motion to Dismiss by mail.

Of the three challenges in Federal court to the new Chicago Gun Law, this is probably the weakest legally and, in my opinion, should never have been filed. As Alan Gura has noted many times, there is a proper strategic way to go about Second Amendment litigation and then there are all the other ways. Unfortunately, both ways can set precedent and we are stuck with it. If Second Amendment jurisprudence was settled law, anyone could do it. It isn’t settled law and not everyone should be doing it.

So it is with this case. The complaint was not tightly written, errors were made in procedure by the plaintiffs’ attorney, and even the service of the original complaint took months. Robert Zieman will never get compensated for the firearms taken under the old law and I sincerely doubt that this case will ever be allowed to granted class action status. The best thing that could happen – which probably won’t – is that this case be voluntarily withdrawn. I hate to sound so negative but I don’t think this is the case to pin any hope on.

Updates on Benson et al v. City of Chicago et al

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.

The bigger news in this case is that Judge Guzman has denied the motions by the City of Chicago to reassign both Ezell et al v. Chicago and Second Amendment Arms et al v. Chicago to his court. Ezell is the case brought by the Second Amendment Foundation challenging the ban on gun ranges and Second Amendment Arms is an independent case brought by attorney Walter Maksym.

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.

This last part is very good news.