Ezell v. Chicago (SAF/Gura)

[hermannr]

Do you think this might be what Gura was waiting for in MD, NY and NJ?

[Luger_carbine]

I don't see how Moore helps Woolard, unless it just convinces King and Davis of the futility of their anti-gun sentiments and they give in and just interpret Heller/McDonald without massaging it in some anti-gun tactic.

[hermannr]

split circuits don't help in obtaining cert to the Supremes?

[maestro pistolero]

split circuits don't help in obtaining cert to the Supremes?

Of course, but Moore can influence other cases before they even get to that point. It's not binding, but even in other circuits, a strong Posner opinion is highly persuasive authority. This reasoning used here will bleed into many other decisions.

[Al Norris]

When I last looked at Ezell (Dec. 13, 2012), the plaintiffs had motioned for leave to file a SAC (second amended complaint). Doc 194 is the motion and the reasons for the motion. Doc 194.5 is the intended SAC.

Of course, Chicago came up with all kinds of specious reasons why the plaintiffs should not be allowed a SAC and also why the court should effectively stop the plaintiffs from pursuing the full breadth of their challenge (see Doc 188 for the motion and Doc 197 for the reply).

After some shuffling of times and schedules, a hearing was held on Feb 4, 2013 before Judge Kendall where she denied Chicagos 188 motion and granted plaintiffs 194 motion.

Plaintiffs promptly filed their SAC (Doc 200) before the court clerk could even file the Judges orders (Doc 202)! Quite frankly, the way things had been going, I was stunned that Judge Kendall sided with Gura and Sigale. But perhaps I shouldn't been.

Back on Dec 11th, Luger_Carbine had this to say about the news from the Moore decision:

Originally Posted by Luger_Carbine

I think Moore changes Ezell...

Chicago has been handed a loss with Moore, but now there will be trickle down as the lower courts are forced to follow CA7's ruling, and Chicago will be handed one defeat after another.

I have to think that this turn-about can only have come with the added pressure of Judge Posner's decision in Moore. This may also be the beginning of the end of this saga with Chicago.

The full docket is on the Internet Archive, but here is the relevant portions and links:

12/03/2012 194 MOTION by Plaintiffs Action Target, Inc., Joseph I. Brown, Rhonda Ezell, William Hespen, Illinois State Rifle Association, Second Amendment Foundation, Inc. for leave to file Second Amended Complaint (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Sigale, David) (Entered: 12/04/2012)

12/04/2012 195 NOTICE of Motion by David G. Sigale for presentment of motion for leave to file, 194 before Honorable Virginia M. Kendall on 12/10/2012 at 09:00 AM. (Sigale, David) (Entered: 12/04/2012)

12/10/2012 196 MINUTE entry before Honorable Virginia M. Kendall:Plaintiff's motion for extension of time 192 is granted. MOTION by Plaintiffs Action Target, Inc., Joseph I. Brown, Rhonda Ezell, William Hespen, Illinois State Rifle Association, Second Amendment Foundation, Inc. for leave to file Second Amended Complaint 194 is taken under advisement. Defendant to file a combined response/reply by 12/13/2012. Status hearing set for 1/29/2013 @ 9:00 a.m.Advised in open court notice (tsa, ) (Entered: 12/10/2012)

12/13/2012 197 REPLY by Defendant City Of Chicago In Support Of Motion To Bar Additional Claims and Response To Plaintiffs' Motion For Leave To File Second Amended Complaint (Hirsch, Rebecca) (Entered: 12/13/2012)

01/28/2013 198 MINUTE entry before Honorable Virginia M. Kendall: Status hearing set for 1/29/2013 is stricken and reset to 2/4/2013 at 09:00 AM.Mailed notice (tsa, ) (Entered: 01/28/2013)

01/28/2013 199 MINUTE entry before Honorable Virginia M. Kendall:Ruling on motion to strike 188 is reset to 2/4/2013 at 09:00 AM. Mailed notice (tsa, ) (Entered: 01/28/2013)

02/04/2013 200 SECOND AMENDED complaint by Illinois State Rifle Association, Rhonda Ezell, Action Target, Inc., William Hespen, Joseph I. Brown, Second Amendment Foundation, Inc. against City Of Chicago (Sigale, David) (Entered: 02/04/2013)

02/04/2013 201 NOTICE by All Plaintiffs re amended complaint 200 (Notice of FiIing) (Sigale, David) (Entered: 02/04/2013)

02/04/2013 202 MINUTE entry before Honorable Virginia M. Kendall: Status hearing held on 2/4/2013. For the reasons set forth in the Court's forthcoming Memorandum Opinion and Order, Defendant City of Chicago's motion to strike interrogatory responses and bar plaintiff from introducing new claims 188 is denied and Plaintiffs' motion for leave to file second amend complaint 194 is granted. Plaintiffs' second amended complaint is due by February 7, 2013. Defendant's answer is due by March 4, 2013. A status hearing is set for 2/28/2013 at 9:00 a.m. Mailed notice (meg, ) (Entered: 02/05/2013)

[Luger_carbine]

In Chicago the Police superintendent is the mouthpiece for the mayor, and the police chief has said that if Chicago has to allow carry - it should be similar to New York laws, and one of the representatives introduced a bill in the general assembly: may isssue, if applicants can show good cause, for a fee.

So it seems to me that Chicago basically takes the paths that the courts haven't aleready shut off.

Or another way of looking at it is they're trying to go down the path of Kachalsky/Woollard/Kwong unless and until those avenues are closed down by the court.

[Jim March]

Again: passing may-issue in Illinois is politically impossible. They need a certain percentage of the pro-gunner legislators to go along. Those pro-gunners don't need to go along, because if they don't Vermont Carry happens by court decree.

[Luger_carbine]

I only said they're trying

I just think it's interesting that you can practically predict what the proposed anti-gunner legislation in Illinois is going to be by following the 2A cases that the antis haven't already lost...

[Scimmia]

Again: passing may-issue in Illinois is politically impossible. They need a certain percentage of the pro-gunner legislators to go along. Those pro-gunners don't need to go along, because if they don't Vermont Carry happens by court decree.

And "Again": No, it doesn't. First, even most of the pro-gunners don't want "Vermont Carry". Second, there is no preemption, so Chicago and the surrounding area will just pass their own extremely restricted carry laws.

[Jim March]

Second, there is no preemption, so Chicago and the surrounding area will just pass their own extremely restricted carry laws.

Any such restrictive carry law Chicago passes would be in violation of the 7th Circuit ruling that got us to this point. We would finally have a situation where mass disobedience against a gun law would be a good idea.

There's no way they'll want to go there.

[Al Norris]

As I recall, last year the pro-gun side lacked only 2 votes to establish not only pre-emption but also over-ride a veto by the IL Governor.

This year, as long as the Moore decision is intact, the pro-gun side holds all the winning cards. They can smash any legislation they don't like. The anti-gun side has to play ball, or they get nothing.

Chicago can rant and rave all it wants (and they are, to be sure), they have lost the power at this particular political moment.

ETA: Even anti-gun Judge Kendall sees the writing on the wall.

[Al Norris]

Another small update on this case. From the Docket:

02/22/2013 203 MINUTE entry before Honorable Virginia M. Kendall:Enter MEMORANDUM, OPINION AND ORDER: For the reasons set forth above, the Citys Motion to Strike Interrogatory Responses and Bar Plaintiffs from Introducing New Claims is denied, in part, and granted in part. The Plaintiffs Motion for Leave to File an Amended Complaint is granted. The City is granted leave to take additional fact discovery. That limited fact discovery is ordered closed by April 1, 2012. The Expert Discovery Schedule is amended so that expert discovery is now ordered closed by April 29, 2012.Mailed notice (tsa, ) (Entered: 02/22/2013)

02/22/2013 204 MEMORANDUM Opinion and Order Signed by the Honorable Virginia M. Kendall on 2/22/2013.Mailed notice(tsa, ) (Entered: 02/22/2013)

02/28/2013 205 MINUTE entry before Honorable Virginia M. Kendall:Minute entry 203 is amended to correct the following sentences with the correct dates: That limited fact discovery is ordered closed by April 1, 2013. The Expert Discovery Schedule is amended so that expert discovery is now ordered closed by April 29, 2013. The rest of the order shall stand.Mailed notice (tsa, ) (Entered: 02/28/2013)

02/28/2013 206 MINUTE entry before Honorable Virginia M. Kendall:Status hearing held on 2/28/2013 and continued to 8/13/2013 @ 9:00 a.m. Limited fact discovery is ordered closed by 6/3/2013. Expert discovery cut off set for 7/19/2013. Defendant expert disclosure report by 5/31/2013. Any plaintiff expert disclosures by 6/21/2013. Expert depositions by 7/31/2013. Dispositive motions with supporting memoranda due by 8/26/2013. Responses due by 9/23/2013. Replies due by 10/7/2013. Ruling will be made by mail. Advised in open court notice (tsa, ) (Entered: 02/28/2013)

03/01/2013 207 ANSWER to amended complaint by City Of Chicago(Hirsch, Rebecca) (Entered: 03/01/2013)

Of course, the City denies everything. The City is treating this as if nothing at all has occurred in the interim. They deny knowing Rhonda Ezell, they deny standing, as if this is an issue that hasn't already been determined. And the court is going along with this and has set new dates for discovery. The case has nowe been pushed back to October of 2013.

Here's an example of something that should be a settled matter, by now:

1. Plaintiff Rhonda Ezell is a natural person and a citizen of the United States residing in Chicago, Illinois.

Answer: Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 1.

The City's "Answer" goes on to say the same about the rest of the plaintiffs. I would have thought this was a settled matter by this time. This is not the original complaint. We have been up to the 7th Circuit and back.

Starting on Pp. 14 of the Mandate from the circuit, the panel discusses the issue of standing. In its analysis, the court notes that the individuals do have standing and therefore, so do the organizations (footnote #3, Pp. 17). On Pp. 19, the panel addresses the irreparable harms the plaintiffs suffer. On Pp. 26, the panel decides that the plaintiffs have a likelihood of prevailing on the merits. On Pp. 48, the panel addresses the Balance of harms and concludes in the plaintiffs favor by remanding the case back to the districts with the mandate to issue the injunction.

I bring this up, because when I read the City's Affirmative Defenses, it struck me rather odd:

Defendant hereby asserts the following affirmative defenses to Plaintiffs’ Amended Complaint:

First Affirmative Defense: Justiciability/Ripeness

Plaintiffs’ claims are not justiciable under the case-or-controversy requirement of Article III of the U.S. Constitution because none of the claims asserted in this case are ripe for adjudication.

Second Affirmative Defense: Justiciability/Standing

Plaintiffs lack standing under the case-or-controversy requirement of Article III of the U.S. Constitution because none of the Plaintiffs suffered an injury-in-fact and, in the alternative, the injuries alleged were not caused by the actions or conduct of Defendant.

I'm not understanding how these defenses can be used, when the 7th Circuit panel has already swept them from the room!

Fact is, the entire "Answer" is a childish attempt to rehash everything that has went before. I could be wrong, as I'm sure the real attorneys here will educate me.



Pettifoggery is a word that comes to mind.

[esqappellate]

Affirmative defenses are waived unless raised in the Answer. Common practice is to throw in the kitchen sink.

[+1k ammo]

Chicago can rant and rave all it wants (and they are, to be sure), they have lost the power at this particular political moment.

Makes me smile!!

[HarrySchell]

Pettifoggery is a word that comes to mind.

Malpractice and desperation also might fit.

[vranasaurus]

At what point do Chicago and its attorney's violate rule 11 with their answer?

It seems to me that the answer is:

[. . .] being presented for [an] improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

Denying that they have knowledge sufficient to establish that she is a natural person and resident of Chicago seems to get very close to the line if it doesn't go over.

When you have a controlling Circuit court opinion in the very same case it seems to me that some of Chicago's contentions and statements are frivolous.

[Spats McGee]

I am reluctant to defend Chicago's position in this, but I have to be fair to them. While Chicago's answer may seem deceptive or frivolous, let's take a lawyer's look at how paragraph one is written, and the response:

1. Plaintiff Rhonda Ezell is a natural person and a citizen of the United States residing in Chicago, Illinois.

Answer: Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 1.

The Plaintiff framed the paragraph, and defense responds to the paragraph as written. The Plaintiff has alleged both existence as a natural person and residency and citizenship.

This case has been around for 2+ years now. It's unlikely that Chicago's lawyers have kept tabs on Ms. Ezell's residence and citizenship. Accordingly, they may well not have enough information to admit or deny those allegations. Could Chicago have formatted a clearer, more precise response? Sure, but it's not necessarily required to, and it's not necessarily dishonest to answer a question as it was written.

[MLeake]

Spats, with no disrespect intended to you, Frank, or Bartholomew, those kinds of word games and parsing are why most of us laymen:

1) don't hold lawyers in the esteem the profession may once have enjoyed; and

2) would really, really like laws to be passed in plain, understandable English, and limited in length, so as to be legible and comprehensible to a high school graduate.

[Al Norris]

While I don't want to side-track this thread anymore than it is necessary, I'm beginning to understand why Chicago answered the SAC the way they did (I suppose that comes with the territory of reading all these briefs for the last 5 years).

What we have to remember (at all times) is that any particular attorney must present his clients case (in this instance, their defense) in the best manner possible, leaving as many options open as possible.

To say that they have no knowledge of the allegation, is to leave open the idea that they may later admit to the truth of the allegation. To admit that truth now, kills the opportunity to deny it later (if that case can be made later).

As esqappellate has already indicated, those affirmative defenses (even though we all think them rather bogus) have to bwe included, else they lose the claim, right at the outset.

Remembering that the law changed between the time the circuit mandate was given and the district received the case from the circuit. In essence, this is akin to starting from scratch. The extra delay in the discovery, is not really a delay, as now that the formal charges of additional law has been made, the discovery now proceeds on those additional charges. Not the older allegations in the FAC. Those are done. We are now looking at the added allegations of the SAC.

[Spats McGee]

Originally Posted by MLeake

Spats, with no disrespect intended to you, Frank, or Bartholomew, those kinds of word games and parsing are why most of us laymen:

1) don't hold lawyers in the esteem the profession may once have enjoyed; and

What I've outlined is not a "word game." When admitting the wrong thing can cost your clients millions of dollars, or even decades in jail, it is most certainly not a game.

As for parsing, well, I guess it is parsing. However, the burden of proof remains at all times on the Plaintiff. Why would anyone expect a Defendant to admit to things, when they really don't know if such things are true? Especially with the constitutionality of laws and hundreds of thousands of dollars on the line?

Originally Posted by MLeake

. . . .2) would really, really like laws to be passed in plain, understandable English, and limited in length, so as to be legible and comprehensible to a high school graduate.

And anyone who believes that writing laws in that way is possible is welcome to give it a shot. If he can, there's a career at a Bureau of Legislative Research somewhere just waiting on him.

[MLeake]

Spats, the city may not know whether Ms Ezell is still a city resident, but as they have already dealt with her in court, they should very well know whether she is a "natural person."

If they gain ANY benefit from denying knowledge of that, at this point, then it is indeed a word game.

[Spats McGee]

I'll grant you that a more precise answer could have been given. ("Admit that she's a natural person, but without knowledge . . . ") It's also entirely possible that it's just a cut-and-paste oversight.

[BGutzman]

Just another word dance... Seriously like the city cant determine the address of its own residence.... disingenuous in every way... It seems all these questions could be solved by the city without even involving the court...

I think in such cases if it can be shown that records exist that the city could have used to satisfy these questions and that they could reasonably be expected to be know or found, then some one should be disbarred... This kind of tedium gives the whole process a blackeye..

[Spats McGee]

Originally Posted by BGutzman

Just another word dance... Seriously like the city cant determine the address of its own residence.... disingenuous in every way... It seems all these questions could be solved by the city without even involving the court...

I think in such cases if it can be shown that records exist that the city could have used to satisfy these questions and that they could reasonably be expected to be know or found, then some one should be disbarred... This kind of tedium gives the whole process a blackeye..

Not to derail this too much further, but . . . seriously?

Intuitively, it does seem like the city should be able to do "determine the address of its own residents," but that's only until you actually take a look at what records a city keeps. It's not like folks "register with the city" when they move in or out. I don't live in Chicago, but looking at my own situation, if I were a Plaintiff, how would my city "determine the address of its own resident?" It would have to go look at:

• The phone book? Nope, I'm not in there.
• My driver's license? Nope, that's a State record.
• My water bill? Nope, that's not a city agency.
• My electricity? Nope, that's a private company.
• My cable (or TV) & internet? Nope, private company. (& could be one of several)
• My lease? Sorry, another private company.
• My real property taxes? No, those are County records. What's more, real property taxes will only show what I own, not my residence.

With the exception of the county real estate records, under what authority would the city request those records? Exactly how many places should a Defendant be expected to look to prove an element of the Plaintiff's case?

[Luger_carbine]

Maybe I'm missing something, but I would think that since Chicago has a pretty extensive regstration process for permitting, and most likely the people wanting to use Chicago ranges would be citizens in Chicago who legally own firearms - isn't it reasonable to assume that the city does have knowledge of Rhonda Ezell?