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Ezell v. City of Chicago

October 12, 2010

RHONDA EZELL, JOSEPH I. BROWN, WILLIAM HESPEN, ACTION TARGET, INC., SECOND AMENDMENT FOUNDATION, INC., AND ILLINOIS STATE RIFLE ASSOCIATION, PLAINTIFFS,
v.
CITY OF CHICAGO, DEFENDANT.



The opinion of the court was delivered by: Virginia M. Kendall United States District Court Judge Northern District of Illinois

Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Prior to the Supreme Court's decision in District of Columbia v. Heller, 128 S.Ct. 2783, (2008), the City of Chicago ("City") enforced a complete ban on the possession and use of handguns within its borders. In McDonald v. City of Chicago, 130 S.Ct. 3020 (2010), the Supreme Court extended its holding in Heller to the states and the City was required to draft a new ordinance that would comply with the holding that an individual's Second Amendment right to possess a handgun in the home for self-defense was now applicable to the states. In response, the Chicago City Council determined that it would pass an ordinance that "provides for the reasonable regulation of firearms in compliance with the rulings of the Supreme Court, but still is effective in protecting the public from the potential deadly consequences of gun violence in our city." (Prelim. Inj. Hr'g, Def. Exh. 1, Chicago Responsible Gun Ownership Ordinance.) Possession of firearms within the City is now allowed pursuant to the requirement that residents obtain a Chicago Firearms Permit ("CFP"). See Chi. Mun. Code § 8-20-110(a). The permit requires that each resident obtain an affidavit signed by a firearms instructor showing that the applicant has completed a firearm training and safety course which includes four hours of classroom instruction and one hour of firing range training.

The problem for Plaintiffs is that the same ordinance prohibits the operation of any firing ranges within the City's borders. See Chi. Mun. Code § 8-20-280. Three individual residents, Rhonda Ezell, Joseph I. Brown, William Hespen, the Second Amendment Foundation, the Illinois State Rifle Association, and a company in the business of designing and building firing ranges, Action Target, Inc., filed suit alleging that their Constitutional rights were violated by requiring them to travel outside of the City's borders to obtain the one-hour of firing range training.

Six days after filing their Complaint, Plaintiffs moved for a temporary restraining order seeking to enjoin the City from enforcing the ordinance. Plaintiffs claim that their Second Amendment rights have been violated due to the firing range ban because they now must travel outside of the City limits in order to obtain their one-hour of range training in order to obtain their CFP and possess a firearm. They assert that the Second Amendment is violated by the City's ordinance in that it has linked possession with the firing range training, and as a result, by banning firing ranges within its borders, the City is, in effect, prohibiting their possession of firearms. They brought an emergency TRO on the theory that an amnesty provision within the ordinance expires today, October 12, 2010, and that they (both the individual plaintiffs and the organizations that represent other firearm owners) would not be able to complete the range training prior to that time. The amnesty provision within the ordinance applies to all residents who already possess firearms. See Chi. Mun. Code § 8-20-140(d)(2). Those individuals must also obtain a CFP for the firearms in their possession by that date in order to continue to possess them. Residents were notified of this requirement publicly on July 7, 2010. Plaintiffs conjecture that approximately several thousand individuals possess firearms in the City and that the deadline therefore could not be met by all residents because no firing ranges exist within the City's borders. Plaintiffs seek to bring a mobile firing range into the City in order to aid its residents in meeting this amnesty deadline. Without this help, according to Plaintiffs, many residents will not be able to obtain their permits.

At that first TRO hearing, this Court held that the parties had not established irreparable harm and denied the motion. Plaintiffs at that time had failed to demonstrate that the individual defendants could not travel outside of the City to obtain range training within the remaining seven week period leading up to the amnesty deadline. The Court, however, provided the parties a period of time for expedited discovery, followed by a full briefing schedule on the preliminary injunction motion, and set a preliminary injunction hearing prior to the ordinance's deadline. The parties embarked on their discovery, returning occasionally to court to hammer out their discovery disputes.

Approximately three weeks after their first emergency TRO motion, Plaintiffs filed a second motion for a temporary restraining order on September 13, 2010, this time alleging that changed circumstances existed which required them to return to the Court seeking emergency relief prior to the Court's scheduled preliminary hearing. Specifically, Plaintiffs claimed that they now had a contract in place to bring in a mobile firing range and they had obtained a location on the south side of the City where the range could be placed in order for residents to obtain training at that location. This Court denied the second motion for TRO again for failure to meet the burden of irreparable harm and for failure to demonstrate that there was no adequate remedy at law. The Court informed Plaintiffs that the existence of a remedy for the alleged violation (the ability to bring in the mobile range) did not relieve them of the requirement to show that they were being irreparably harmed by the City's ordinance which required them to travel outside of the City to obtain the firing range training. The parties then completed their expedited discovery and their briefing on the preliminary injunction and the Court held a hearing over a two-day period where both sides were permitted to present factual evidence and to argue the law.

Now after the benefit of full briefing, an amicus brief filed by the National Rifle Association, and two days of witness testimony, this Court concludes that Plaintiffs have failed to meet their burden in establishing that they have suffered an irreparable injury and that they have no adequate remedy at law. Plaintiffs' preliminary injunction motion is therefore denied for the following reasons.

I. Summary of Testimony

The Court allowed the parties to conduct expedited discovery in order to present support for the preliminary injunction within the time-frame permitted that would allow the Court to analyze the issues prior to the amnesty period expiring. After this expedited discovery period and after full briefing on the preliminary injunction, the Court held a hearing at which time the parties presented witness testimony and argument over a two-day period. Plaintiffs called three witnesses: Christopher Hart, a firing range consultant; Julianne Versnell, the Director of Operations for the Second Amendment Foundation; and Richard Pearson, the Executive Director of the Illinois State Rifle Association. None of the individual plaintiffs was called as a witness. In response, the City called two witnesses: Pattie Scudiero, Commissioner of the Chicago Department of Zoning and Land Use Planning; and Sgt. Dan Bartoli the former Range Master for the Chicago Police Department.

A. Christopher Hart

Christopher Hart is the Midwest Range Consultant for Action Target, Inc. Action Target builds and services firing ranges for law enforcement and public use, though the vast majority of their business is for law enforcement agencies. Within Chicago, Action Target manages the U.S. Postal Service range, Federal Reserve range, and the Customs and Border Protection range. Action Target has also proposed retrofits for the Federal Air Marshall's range near O'Hare airport. The Postal Service range is near a hotel and a playground. The Federal Reserve range is located on the seventeenth floor in downtown Chicago, among office buildings. Action Target did not build or choose the location of any of the Chicago ranges, they merely retrofit them or have proposed to retrofit them. Action Target also manages Mega Sports, Inc. in Plainfield, a suburb of Chicago. Mr. Hart believes there is a market for public ranges in Chicago, but he has not had conversations with potential investors since July, when he spoke to them about joining the instant lawsuit.

Mobile ranges use equipment similar to those used in outdoor ranges. The additional factors that Hart would consider for a mobile range include sound control and parking. Hart knows of mobile ranges used at the ILEDA Conference where a mobile range is parked in a hotel parking lot and is used by law enforcement officers all day without complaints. In addition, Arms to Bear uses a mobile range in Nevada that is open to both law enforcement and the general public. However, Hart is only aware of three ranges in the United States that are open to both law enforcement and the general public. Hart estimates it costs $30,000 - $50,000 to construct a shooting range lane, plus an additional $15,000 - $30,000 per lane for ventilation. It takes nine to twelve months to construct a permanent range. Action Target does not monitor accidents at ranges.

B. Julianne Versnell

Julianne Versnell is the Director of Operations of the Second Amendment Foundation ("SAF"), a non-profit based in the state of Washington. SAF has 650,000 members in the United States, 1700 of whom reside in Chicago. SAF coordinated with the other plaintiffs in this case to secure two locations and contract with them regarding the placement of a mobile range. Versnell spoke with Rich Pearson of the Illinois State Rifle Association ("ISRA") about potential safety issues. ISRA will be responsible for managing the proposed Chicago mobile range, which will be in a truck provided by Blue Line. Firearms will be provided at the range; customers will not be allowed to bring their own guns. There will also be security guards on site.

Versnell does not have first-hand knowledge of the mobile range she is contracting to bring to Chicago, she is relying entirely on what Blue Line's President Jerry Tilbor says. Her contract is for one week beginning October 6, 2010 although she has the ability to contract for other weeks. Versnell also does not know if ISRA has ever operated a mobile range. Versnell has not been personally to examine either of the properties she has contracted with, but she did speak to one of the property owners and a real estate agent about placing a mobile range there. Versnell ...


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