Ezell v. Chicago (SAF/Gura)

More on the case:

08/11/2011 116 MINUTE entry before Honorable Virginia M. Kendall:Defendant's motion to dismiss plaintiffs' case as moot 114[RECAP] is entered and briefed as follows: Responses due by 8/29/2011. Replies due by 9/6/2011. Ruling will be made by mail. Motion hearing set for 8/15/2011 is stricken. Status hearing set for 10/25/2011 at 09:00 AM.Mailed notice (tsa, ) (Entered: 08/11/2011)
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It seems that the Judge is not going to take Chicago's word that the case is now mooted. Full responses are now required.
 
As you know, the Ezell case has returned to district court. Chicago changed their laws and immediately filed their MTD. Yesterday, Alan Gura filed his Opposition to that Motion.

It starts with this little quip:

The only thing that Defendant City has managed to render moot, before it was even filed, is its motion to dismiss the case for mootness.
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You see, Not only did Chicago change its laws, as regards gun ranges on July 6th, It amended those same laws on or about July 16th. Then the City is attempting to amend it laws, once again on a July 28th proposal. Yet the City filed its MTD on the original July 6th ordinances!

Introduction of the July 28 proposal inherently concedes that the July 6 ordinance—the only one upon which the motion to dismiss must be based—was still constitutionally deficient, and that is reason enough to deny the motion.
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Mr. Gura goes on to write:

Alas, the third time is no charm either. The issue is not whether Chicago can be taken at its word that it will not re-enact the initial, defective ordinance. Plaintiffs agree that the former law is unlikely to return. The issue is whether the city’s revised gun range law, which is now something of a moving target, resolves the disputes among the parties. And the answer to that question is plainly “no.”
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Another good quip by Gura:

While the gun range law remains in flux, what is absolutely clear is that even in the face of Supreme Court and Seventh Circuit rulings, the City will do everything it can to deprive law-abiding citizens of their fundamental rights to operate and access gun ranges. And if the Defendant can no longer achieve this improper goal through an outright ban, it will make legislation that renders Second Amendment rights so burdensome, expensive and complicated that people will not be able to get past the hurdles and roadblocks. The Defendant essentially says “trust us,” ignoring the fact that its legislative fig leaves have not addressed the basic issue in the case. It is perfectly clear the conduct at issue will persist until a Court finally puts a stop to it. Fortunately, the Seventh Circuit’s guidance in this case guarantees such an outcome. Defendant’s Motion to Dismiss this matter as moot must be denied.
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And again:

Regardless of what version of the July 6 Amended Ordinance exists, ... the Defendant’s behavior will be repeated over and over so long as it thinks it can get away with it, and until a Court stops it.
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Alan Gura concludes with:

Defendant’s attitude regarding the Second Amendment has been, and continues to be, not “How can we respect Second Amendment rights while regulating in a constitutional way,” but “How much can we get away with?” The City bans first and litigates later, and if it loses on the ban, it will pass whatever effectuates a ban by other methods.

This case is not moot. Defendant’s motion to dismiss must be denied.
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In my fantasy, I see Judge Kendall granting the City's MTD, the case being brought back to the 7th Circuit, which will be with the same panel (they are familiar with the case, have ruled on it once before), who thereupon grants the injunction (thereby smacking the living daylights out of the district Judge) and holds the City in contempt.

Regardless, the City will respond on 09-12-2011 (it was originally set for 09-06-2011, but the Judge is giving the City an extra week). The Judge will issue her ruling by mail (Minute entry #117, made on 08-17 - this basically strikes her previous Minute entry #116, made on 08-11).

My conjecture at this point is that Judge Kendall is not taking the 7th's ruling on the injunction seriously. My reasoning is rather simple. Sixty days will have passed since the 7th mandated that the injunction be applied and this judge is taking all the time in the world to rule on a very, very weak MTD by the defendants, as if there is no injury to the plaintiffs. Contrary to the "irreparable harm" ruling by the 7th Circuit. Hence my fantasy, above.
 
Judges can hold one another in contempt and send deputies/sheriffs to arrest one another.

The specific instance of which I am aware:

Judge A schedules a trial in Mr. Smith's case. A week later Judge B schedules another of Mr. Smith's cases for the same day.

Mr. Smith protests to Judge B that he is already scheduled for trial that day. Judge B, well known for the expanse of his personality, tells Mr. Smith that if he isn't there to start the trial, he will send uniforms to arrest him for contempt.

Mr. Smith lets Judge A know that he will be arrested if he shows for Judge A's trial, whereupon Judge A calls Judge B to advise that Judge B will be held in contempt and arrested if he orders the arrest of Mr. Smith for compliance with Judge A's scheduling order.


However, for just not getting the law correct, I don't see contempt as an available remedy.
 
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However, for just not getting the law correct, I don't see contempt as an available remedy.
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But I wonder if failing to issue an injunction as ordered on appeal would do it? I know the waters are a little muddied in this case as that exact ordinance no longer exists.

But they HAVE been ordered to issue it. They could find that the ordinance substantially identical in it's present form and issue against that.
 
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I don't think the exact ordinance having been repealed would be the obstacle. Gura's argument pertains to the substance of the ordinance and its application.

I can't think of an instance of a trial court simply refusing to follow an explicit instruction from a court of appeals.
 
I think we are looking at that trial court, right now.

If you read the errors committed by Judge Kendall in not following the guidance of the en banc circuit in Skoien as enumerated by the panel in Ezell, we are seeing it happen at this minute.

Remember, the panel held that irreparable harm was ongoing. They issued a mandate to the trial court: Docket entry #112; The district court's order denying the plaintiffs' motion for a preliminary injunction is REVERSED, with costs, and the case is REMANDED with instructions to enter a preliminary injunction consistent with this opinion.

Judge Kendall ignored the mandate and proceeded with the MTD for mootness as if there were no harm being committed.

Coincidently, this also goes against the direct wording of the SCOTUS in Heller.

The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.
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Judge Kendall has already decided just that.
 
So if we theorize out a bit...... what kind of sanction or other "punishment" is Judge Kendall in for here?
If found to be in contempt, do they arrest and jail? Is there a review board process?
Just what is possible?
Or does that kind of process start and finish behind closed doors so we never really know?
 
Cowtowner, so long as we are just theorizing, my mind turns to the issue of federal judicial tenure being limited by the "good behavior" standard, and the remedy of impeachment.

Given current congressional make-up, that is strictly a theoretical remedy.
 
zukiphile, Given that theory to work with, and with the national exposure this case has (here at least), do we write our Congressperson and ask them to look into impeachment of Judge Kendall?
Granted, I don't qualify as having standing since I live in Texas, but a Federal Judge's actions/decisions aren't simply limited to the district in which they currently serve when dealing with constitutional law, right?
Yeah, I'm showing my lack of government 101 retention here.
 
I don't see the judge being impeached anytime soon for failure to support gun rights. The politics work against that happening.

But can't the court of appeals pull the case at some point and issue their own ruling?

It seems that remanding and instructing was too deferential for this district court. I predict that whatever the district court does, if anything, will be grossly insufficient; there will be another appeal and this time '7th' will take the bull the horns and resolve this themselves.

If I'm right, and there is another appeal, it will be quite clear to the 7th circuit court that no relief from injury is going to be available to the plaintiffs in district court.

It is stunning to me that there was no injunction immediately issued.
 
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I don't see the judge being impeached anytime soon for failure to support gun rights. The politics work against that happening.
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The gun rights part wasn't the point or area of concern I was looking at.
If I read everything previously posted correctly, then Judge Kendall has basically refused to follow the orders of superiors.
In my job if I do that, I get fired. They call it insubordination. It also occurs the same way in the Armed Forces.
Isn't there something similar for judges?
 
OK then. I'm going to back up and reiterate what I said earlier and add some fine(r) points, hopefully to clarify my thinking for everyone.

In my fantasy, I see Judge Kendall granting the City's MTD for mootness, the case will be brought back to the 7th Circuit, which will be with the same panel (they are familiar with the case as they have ruled on it once before) as before. That panel will grant the injunction (thereby smacking the living daylights out of the district Judge) and holds the City in contempt.

That's not really such a fantasy, at first blush... except for perhaps the contempt charge (but read on).​

Regardless, the City will respond on 09-12-2011 (it was originally set for 09-06-2011, but the Judge is giving the City an extra week). The Judge will issue her ruling by mail (Minute entry #117, made on 08-17 - this basically strikes her previous Minute entry #116, made on 08-11).

In other words, the Judge has automagically given the City more time to file their response, without the City having to request it. This shows bias. There is a reason that Alan Gura did not object to this.​

My conjecture at this point is that Judge Kendall is not taking the 7th's ruling on the injunction seriously. My reasoning is rather simple. Sixty days will have passed since the 7th mandated that the injunction be applied and this judge is taking all the time in the world to rule on a very, very weak MTD by the defendants, as if there is no injury to the plaintiffs. Contrary to the "irreparable harm" ruling by the 7th Circuit. Hence my "fantasy," above.

Here's the deal: Chicago no longer has "clean" hands. As long as they keep playing these type of games, they are essentially making it easier and easier for our side to win where it counts. At the Circuit level.

I would actually prefer that Judge Kendall grant the motion for mootness. The 7th has already signaled that they are not going to play nice with Chicago. They will grant and issue the preliminary injunction... At this point, they might make it a permanent injunction. [Supposition-->] They may (it is within their authority) appoint a Special Master to oversee the whole process of allowing gun ranges. That would strip Judge Kendall of any remaining authority in this case (and that is a Judicial back-hand and could conceivably end her career - she gets all the cases no one else wants for as long as she remains on the bench - and yes, that has happened in the past).

Regardless, onerous zoning issues will be off the table. Precedent will be set that will affect several other cases. If it happens fast enough, it could very well tip the Supreme Court in its decision to grant cert in Williams and/or Masciandaro (I'm predicting we hear nothing about these cases until just before thanksgiving - plenty of time for all this to happen).

Alan Gura is simply sitting back watching both the City and this Judge rip themselves a new one. That is why Gura didn't object to the Judge granting more time to Chicago. It's simply more rope. While frustrating for us, this is actually making his job easier.

Regardless of what else is going on, the 7th Circuits decision in Ezell is now solid law in the 7th Circuit. It is also solid, citable and persuasive precedent everywhere else.
 
So what all that told me Al, is that Judge Kendall may get the barrel scrapings for cases after this is said and done. Higher court orders are ignored and salary/retirement checks will still come.
I wonder If I can convince my employer to follow the judicial branch's example in similar situations.
I understand that Alan Gura seems to have plans that exploit this situation.
However, our tax dollars are still paying that judge and that is grinding my cookies too.
Talk about a waste of taxpayer's money.
 
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Today, Judge Virginia Kendall denied the motion by the City of Chicago to dismiss the case as moot.

For the foregoing reasons, the City’s motion to dismiss the case as moot is denied. By September 30, 2011, the parties shall file an agreed proposed injunction order, or separate proposed injunction orders if they cannot agree. Ezell must file her amended complaint by October 15, 2011. The parties shall appear for a status on October 26, 2011 at 9:00 a.m. to discuss the schedule going forward.
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An injunction is going to be issued while the case progresses against the new rules Chicago has laid down.

I am actually pleased to be wrong in my opinion of Judge Kendall. It does appear that she is following the instructions of the 7th Circuit. Read her order, here.

This is excellent news!
 
Maybe this is a stupid question - I'm a total beginner at this stuff, but this makes me wary:

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 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.
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I thought it was going well up to this point. But this sounds to me like maybe she wants to rule against Ezell, but she's being careful not to sow the seeds for an appeal, or to allow another judge to decide the case?
 
divil said:
Maybe this is a stupid question - I'm a total beginner at this stuff, but this makes me wary
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Not stupid at all.

Judge Kendall has denied Chicago's MTD, which was based on the changed laws at the time the motion was filed. They have since changed even more.

What the Judge is saying is that from the Judicial standpoint, when a legislative body changes the law to moot a case, that the Courts will take at face value that the changes are made in good faith.

However, the plaintiffs have said that the changes are still in effect, a ban on gun ranges.

So the Judge is saying that it is on the plaintiffs to show that while these changes are designed to appear to mitigate the damages, they are still far short of the protections guaranteed by the 2A (as made obvious by the 7th Circuit). She is saying, "Show the court that these guys are just playing games and not acting in good faith."

They can do this in one of two ways: (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.

This is actually Judge Kendall holding out an olive branch to Alan Gura. The Circuit Court spanked her and she is now going to make nice.

I suspect and expect Ezell to file an amended complaint to show in specifics that Chicago is not willing to play nice.

Alan Gura can now charge Chicago for this litigation up to the point of the injunction, which will be issued shortly.

If he files a new case, then he is back to square one. By continuing this case with an amended complaint, he increases the likelihood of further wins and amount of money he can charge Chicago.

There is also the idea that should Mr. Gura prevail and show that Chicago is acting in bad faith, a Special Master can still be appointed by Judge Kendall. Chicago will have to pay for that, also.
 
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