Ezell v. City of Chicago

• Decision Date: 06 July 2011
• Docket Number: No. 10–3525.,10–3525.
• Citation: 651 F.3d 684
• Parties: Rhonda EZELL, et al., Plaintiffs–Appellants,v.CITY OF CHICAGO, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

651 F.3d 684

Rhonda EZELL, et al., Plaintiffs–Appellants,

v.CITY OF CHICAGO, Defendant–Appellee.

No. 10–3525.

United States Court of Appeals, Seventh Circuit.

Argued April 4, 2011.Decided July 6, 2011.

Alan Gura (argued), Attorney, Gura & Possessky, Alexandria, VA, David G. Sigale, Attorney, Glen Ellyn, IL, for Plaintiffs–Appellants.James A. Feldman (argued), Attorney, Washington, DC, Mara S. Georges, Attorney, Office of the Corporation Counsel, Appeals Division, Suzanne M. Loose, Attorney, City of Chicago Law Department, Chicago, IL, for Defendant–Appellee.Charles J. Cooper, Attorney, Cooper & Kirk, Washington, DC, for Amicus Curiae, Brett Benson.Clifford M. Sloan, Attorney, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC, for Amici Curiae, Paul Finkelman, Stanley Katz, David Thomas Konig, Patrick J. Charles, and Robert J. Spitzer.Before KANNE, ROVNER, and SYKES, Circuit Judges.SYKES, Circuit Judge.

For nearly three decades, the City of Chicago had several ordinances in place “effectively banning handgun possession by almost all private citizens.” McDonald v. City of Chicago, ––– U.S. ––––, 130 S.Ct. 3020, 3026, 177 L.Ed.2d 894 (2010). In 2008 the Supreme Court struck down a similar District of Columbia law on an original-meaning interpretation of the Second Amendment.¹ District of Columbia v. Heller, 554 U.S. 570, 635–36, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). Heller held that the Amendment secures an individual right to keep and bear arms, the core component of which is the right to possess operable firearms—handguns included—for self-defense, most notably in the home. Id. at 592–95, 599, 628–29, 128 S.Ct. 2783.

Soon after the Court's decision in Heller, Chicago's handgun ban was challenged. McDonald, 130 S.Ct. at 3027. The foundational question in that litigation was whether the Second Amendment applies to the States and subsidiary local governments. Id. at 3026. The Supreme Court gave an affirmative answer: The Second Amendment applies to the States through the Due Process Clause of the Fourteenth Amendment. Id. at 3050. In the wake of McDonald, the Chicago City Council lifted the City's laws banning handgun possession and adopted the Responsible Gun Owners Ordinance in their place.

The plaintiffs here challenge the City Council's treatment of firing ranges. The Ordinance mandates one hour of range training as a prerequisite to lawful gun ownership, see Chi. Mun. CodeE § 8–20–120, yet at the same time prohibits all firing ranges in the city, see id. § 8–20–080. The plaintiffs contend that the Second Amendment protects the right to maintain proficiency in firearm use—including the right to practice marksmanship at a range—and the City's total ban on firing ranges is unconstitutional. They add that the Ordinance severely burdens the core Second Amendment right to possess firearms for self-defense because it conditions possession on range training but simultaneously forbids range training everywhere in the city. Finally, they mount a First Amendment challenge to the Ordinance on the theory that range training is protected expression. The plaintiffs asked for a preliminary injunction, but the district court denied this request.

We reverse. The court's decision turned on several legal errors. To be fair, the standards for evaluating Second Amendment claims are just emerging, and this type of litigation is quite new. Still, the judge's decision reflects misunderstandings about the nature of the plaintiffs' harm, the structure of this kind of constitutional claim, and the proper decision method for evaluating alleged infringements of Second Amendment rights. On the present record, the plaintiffs are entitled to a preliminary injunction against the firing-range ban. The harm to their Second Amendment rights cannot be remedied by damages, their challenge has a strong likelihood of success on the merits, and the City's claimed harm to the public interest is based entirely on speculation.

I. Background

A. Chicago's Responsible Gun Owners Ordinance

The day after the Supreme Court decided McDonald, the Chicago City Council's Committee on Police and Fire held a hearing to explore possible legislative responses to the decision. A Chicago alderman asked the City's legal counsel what could be done about firearms possession and other gun-related activity in the city, including shooting ranges. The City's Corporation Counsel replied that the Council could “limit what we allow to operate in our city however is reasonable as decided by the City Council.”

The Committee quickly convened hearings and took testimony about the problem of gun violence in Chicago. Witnesses included academic experts on the issue of gun violence in general; community organizers and gun-control advocates; and law-enforcement officers, including Jody Weis, then the Superintendent of the Chicago Police Department. Based on these hearings, the Committee made recommendations to the City Council about how it should regulate firearm possession and other firearm-related activity.

The Council immediately took up the Committee's recommendations and, just four days after McDonald was decided, repealed the City's laws banning handgun possession and unanimously adopted the Responsible Gun Owners Ordinance. See Nat'l Rifle Ass'n of Am., Inc. v. City of Chicago, Ill., Nos. 10–3957, 10–3965 & 11–1016, 2011 WL 2150785, at *1 (7th Cir. June 2, 2011). The new Ordinance—a sweeping array of firearm restrictions—took effect on July 12, 2010. To give a sense of its scope: The Ordinance prohibits handgun possession outside the home, Chi. Mun.CodeE § 8–20–020, and the possession of long guns outside the home or the owner's fixed place of business, id. § 8–20–030. It forbids the sale or other transfer of firearms except through inheritance or between peace officers. Id. § 8–20–100. A person may have “no more than one firearm in his home assembled and operable.” Id. § 8–20–040. The Ordinance bans certain kinds of firearms, including assault weapons and “unsafe handgun[s],” as well as certain firearm accessories and types of ammunition. Id. §§ 8–20–060, 8–20–085, 8–20–170.

The Ordinance also contains an elaborate permitting regime. It prohibits the possession of any firearm without a Chicago Firearm Permit. Chi. Mun.Code § 8–20–110(a). (Certain public-safety and private-security professionals are exempt.) In addition, all firearms must have a registration certificate, and to register a firearm, the owner must have a valid Permit.² Id. at § 8–20–140(a), (b). To apply for a Permit, a person must have an Illinois Firearm Owner's Identification Card. Id. § 8–20–110(b)(2). Only those 21 years of age or older may apply for a Permit, except that a person between the ages of 18 and 20 may apply with the written consent of a parent or legal guardian if the parent or guardian is not prohibited from having a Permit or a Firearm Owner's Identification Card. Id. § 8–20–110(b)(1). Persons convicted of certain crimes may not obtain a Permit. Id. § 8–20–110(b)(3) (disqualifying persons convicted of any violent crime, a second or subsequent drunk-driving offense, or an offense relating to the unlawful use of a firearm). Other lawsuits challenging these and other provisions of the Ordinance are currently pending in the District Court for the Northern District of Illinois. See, e.g., Second Amendment Arms v. City of Chicago, No. 110CV4257, 2010 WL 2843154 (N.D.Ill. filed July 9, 2010); Benson v. City of Chicago, No. 10 C 4184 (N.D.Ill. filed July 6, 2010).

As relevant here, permits are conditioned upon completion of a certified firearm-safety course. Applicants must submit an affidavit signed by a state-certified firearm instructor attesting that the applicant has completed a certified firearm-safety and training course that provides at least four hours of classroom instruction and one hour of range training.³ Chi. Mun.CodeE § 8–20–120(a)(7). At the same time, however, the Ordinance prohibits all “[s]hooting galleries, firearm ranges, or any other place where firearms are discharged.” Id. § 8–20–280. The Ordinance also prohibits the “discharge [of] any firearm within the city,” making no exception for controlled shooting at a firing range—because, of course, firing ranges are banned throughout the city.⁴ Id. § 8–24–010.

Violations are punishable by a fine of $1,000 to $5,000 and incarceration for a term of “not less than 20 days nor more than 90 days,” and “[e]ach day that such violation exists shall constitute a separate and distinct offense.” Chi. Mun.Code § 8–20–300(a), (b). The penalties go up for subsequent convictions. Id. § 8–20–300(b) (For “[a]ny subsequent conviction,” the penalty is a fine of $5,000 to $10,000 and incarceration for a term of “not less than 30 days, nor more than six months.”).

The firing-range ban does not apply to governmental agencies. Id. § 8–20–280. The federal government operates four indoor firing ranges in Chicago, and the Chicago Police Department operates five. Apparently, the City also exempts private security companies; there are two indoor firing ranges operated by private security companies in Chicago.⁵

B. The Litigation

The plaintiffs are three Chicago residents, Rhonda Ezell, William Hespen, and Joseph Brown; and three organizations, Action Target, Inc.; the Second Amendment Foundation, Inc.; and the Illinois State Rifle Association. Action Target designs, builds, and furnishes firing ranges throughout the United States and would like to do so in Chicago. The Second Amendment Foundation and the Illinois Rifle Association are nonprofit associations whose members are firearms enthusiasts; among other activities, these organizations advocate for Second Amendment rights and have made arrangements to try to bring a mobile firing range to Chicago.

The plaintiffs sought a temporary restraining order (“TRO”), a preliminary injunction, and a permanent injunction against the City's ban on firing ranges, and corresponding...