0:: 0 0 RHONDA EZELL, et al., UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION Case No. :0-cv-0 Plaintiffs, Chicago, Illinois August, 00 v. Emergency Motion for TRO CITY OF CHICAGO, Defendant. ------------------------------- APPEARANCES: VOLUME -A TRANSCRIPT OF EMERGENCY MOTION FOR TRO BEFORE THE HONORABLE VIRGINIA M. KENDALL UNITED STATES DISTRICT JUDGE For the Plaintiffs: Gura & Possessky, PLLC By: Alan Gura 0 N. Columbus St., Ste. 0 Alexandria, VA (0) -0 - and - Law Firm of David G. Sigale, P.C. By: David G. Sigale 00 Commerce Ct., Ste. 00- Lisle, IL 0 (0) -
0 0 APPEARANCES: For the Defendant: COURT REPORTER: Chicago Corporation Counsel By: Andrew W. Worseck, and William M. Aguiar 0 N. LaSalle Street Chicago, IL 00 () - FEDERAL OFFICIAL COURT REPORTER April M. Metzler, RPR, CRR, FCRR South Dearborn St., Rm. -A Chicago, IL 00 () 0- April_Metzler@ilnd.uscourts.gov Proceedings recorded by mechanical stenography; transcript produced by notereading.
0::0 0::0 0:: 0:0:0 0:0:0 0:0:0 0:0:0 0:0:0 0:0:0 0:0: 0:0: 0:0: 0:0: 0:0: 0:0: 0:0:0 0:0: 0:0: 0:0: 0:0: 0:0:0 0:0: 0:0: 0:0: 0:0:0 0 0 (Commenced at : a.m.) THE CLERK: Case number 0C, Ezell, et al. versus City of Chicago. MR. WORSECK: Good morning, your Honor. Andrew Worseck for the City of Chicago. THE COURT: Good morning. MR. AGUIAR: Good morning. William Aguiar, City of Chicago as well. THE COURT: What was your last name? MR. AGUIAR: Aguiar, A-g-u-i-a-r. THE COURT: Okay. Good morning. MR. SIGALE: Good morning, your Honor. David Sigale, S-i-g-a-l-e, on behalf of the plaintiffs. THE COURT: Good morning. MR. SIGALE: Good morning. MR. GURA: Good morning, your Honor. Alan Gura, G-u-r-a, on behalf of the plaintiffs. THE COURT: Okay. Good morning. Well, I had -- you had motioned up and I had reviewed the motion for preliminary injunction that was scheduled for this morning, and then apparently last night slightly before midnight you sent me an ex parte motion for temporary restraining order. Did you folks get that? MR. WORSECK: Judge, we just received that this
0:0: 0:0: 0:0: 0:0: 0:0: 0:0: 0:0: 0:0: 0:0: 0::0 0::0 0::0 0::0 0::0 0::0 0:: 0:: 0:: 0::0 0:: 0:: 0:: 0:: 0:: 0:: 0 0 morning. THE COURT: All right. MR. WORSECK: We did not obviously see it come in at :0 last night. THE COURT: Right. Well, I was here this morning, but we didn't pull down the motions from last night until right before the call, so I haven't read the TRO yet. So I was going to give you a position on the preliminary injunction, so let's address that. But if it's the same thing, you can let me know, but we're not going to do this TRO immediately. MR. GURA: Sure. THE COURT: I have to read it. All right. So let me hear from the plaintiffs. MR. GURA: Well, your Honor, we believe that there is irreparable harm here. People are being denied Second and First Amendment rights. And we would like to have -- THE COURT: Okay. So, first of all, are you addressing your TRO or your preliminary injunction? MR. GURA: The preliminary injunction, your Honor. THE COURT: Okay. All right. MR. GURA: I guess -- I guess I would ask the Court to clarify. I thought that the object of the presentment was for us to obtain, perhaps, a scheduling order. I would have expected the City might have wanted to brief in opposition --
0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0::0 0::0 0::0 0::0 0::0 0::0 0:: 0:: 0:: 0:: 0:: 0 0 THE COURT: To the TRO. MR. GURA: -- to the preliminary injunction. THE COURT: All right. Well, that's -- the way that it was scheduled, that would be normal. That's exactly what we would do. MR. GURA: Sure. THE COURT: I would listen to your position orally, your position orally, and then I would give you a briefing schedule, because in the preliminary injunction context you can give me all the case law. But now that you've filed this, we'll address this after we do this. Okay. MR. GURA: Sure. THE COURT: But if it's the same exact issues -- MR. GURA: The issues are the same. It's on the same grounds. THE COURT: Okay. And so what became the need for the TRO last night at :0? MR. GURA: Okay. THE COURT: What happened to change the circumstances? MR. GURA: Sure, sure. The memorandum we submitted with the TRO spells out what happened. And basically what happened was that on Friday I received a phone call from the City's attorneys, and they had determined that they wanted to present a motion before
0:: 0:: 0::0 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0::0 0::0 0::0 0:: 0:: 0:: 0:: 0::0 0:: 0:: 0::0 0:: 0:: 0:: 0 0 Judge Guzman, who has a case called Benson versus City of Chicago, and they're trying to get the case -- this case reassigned to Judge Guzman on grounds of relatedness. We would oppose that motion. We would not begrudge the City in its ability to hear it and it's all fine and well if they want to go ahead and present that. What concerned us and what triggered the TRO were the statements by the City's attorneys that the fact of their motion for a judicial reassignment would be invoked as a means of indefinitely delaying our motion for preliminary injunction. They wanted to basically have the process work its way out with Judge Guzman before the preliminary injunction was considered by your Honor. That is not something that's acceptable to us, because we believe we have irreparable harm. And while we could have asked for a TRO on Monday of last week, I chose -- because it's my style to give notice and try to get the City onboard with an ability to respond. However, the minute that they present the Court with a vehicle for indefinitely delaying the injunctive relief, then we felt that we should present the Court with a vehicle that we could have submitted last week for actually resolving the case and getting it over with. And so that's why -- THE COURT: Well, what is the Benson case in front of Judge Guzman?
0:: 0::0 0:: 0:: 0:: 0::0 0::0 0::0 0::0 0::0 0:: 0:: 0:: 0:: 0:: 0::0 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0 0 MR. GURA: Well, the Benson case actually is very distantly, if at all, related to this case. The Benson case, first of all, your Honor, has not been answered. I asked the City's attorneys when they might be at issue. They said, In due time. They won't commit to any particular time in which to answer it. There is a third case called -- THE COURT: Well, the Federal Rules of Civil Procedure tell them when they have to do that. MR. GURA: That's right. But apparently they have some kind of agreement, to which I am not privy, that they have it sounds like an indefinite extension to respond. I was told that the -- THE COURT: From whom? MR. GURA: I suppose that this is something they worked out with the plaintiffs in Benson. I guess defendant's counsel could speak more to the details of their agreement. But when I asked -- obviously I asked, When do you expect to respond to Benson, I would not get a date certain. I was told, In due time. It should be noted, your Honor, that relating cases should only occur if it, as the rules state, conserves judicial resources. Here, relating the case or at least delaying the progress of this case in order to hear the relatedness motion would waste judicial resources, because
0::0 0:: 0:: 0:: 0:: 0:: 0::0 0::0 0::0 0::0 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0::0 0:: 0:: 0:: 0:: 0 0 this case -- THE COURT: But you haven't answered my question first, which is what is the Benson case? MR. GURA: Oh, the Benson case. Sorry. The Benson case is a very broad challenge by a variety of plaintiffs to various aspects of the Chicago gun ordinance. THE COURT: Does it include the firing ranges? MR. GURA: It includes a statement that the Benson plaintiffs desire to open gun ranges. That's it. That's all it has in it with respect to gun ranges. And while I suppose I'm happy that they desire to engage in that business, the fact is that case also includes a challenge to the definition, I guess, of a home, where guns can be carried. It challenges the way in which guns are to be kept, according to the ordinance. It challenges rules regarding the transportation of firearms. It's a very broad case that has -- THE COURT: Do you know the case number? MR. GURA: Yes. The case number is -- I believe we referenced it in our papers. It's -- THE COURT: In the TRO? MR. GURA: Yes. THE COURT: That was filed last night before midnight.
0:: 0:: 0::0 0::0 0::0 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0::0 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0::0 0 0 MR. GURA: It's... MR. SIGALE: Your Honor, it's 0-cv-. THE COURT: And who are the plaintiffs in that case? MR. SIGALE: It's some individuals. I believe the National Rifle Association. It's the NRA case. THE COURT: Okay. MR. GURA: They're sponsoring it. I don't know if they are a party to it. THE COURT: And you are not a party to it? MR. GURA: We are not a party to it. We have no desire to be involved with it. We do not challenge the bulk of what they're complaining about. And I should say that there's a great deal of difference even with respect to the range ban challenge, because we have a First Amendment argument, which is a very big part of our case. They do not. We assert that some of our plaintiffs and our organizational clients' members and supporters are going to lose their ability to register firearms, if they don't have access to gun ranges in time for the City's deadlines that are going to kick in very soon. They have no such allegation at all. There's no allegation in Benson that anyone is unable to register firearms for lack of range training. And, of course, we also have in our case one plaintiff, the Illinois State Rifle Association, which does, in fact, operate a gun
0::0 0::0 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0::0 0::0 0::0 0::0 0:: 0:: 0 0 0 range not that far from here, but far enough, and they will want to come into Chicago. We have another plaintiff, Action Target, which is actually in the business of constructing and operating gun ranges in the City of Chicago, and we also have plaintiffs who are set to bring in a mobile range facility. It's contained in a tractor-trailer that can be parked here, and we have a parking spot for it in the City of Chicago. So we can immediately bring in a gun range and have people trained. THE COURT: Now, that I want to see how could you shoot a gun in a mobile truck. MR. GURA: It's usually used for law enforcement purposes. THE COURT: Okay. MR. GURA: What happens is they have a tractor-trailer, and inside of it they have a -- I believe they have three target positions. And the usual application for these things is they either bring them to police departments where they don't have an easy range accessible, so instead of having all the officers drive to some distant range, the range comes to them. And, also, I believe these things are sometimes used in different trade shows. But, in any event, it's fully EPA certified. It is a safe and effective gun range, and we have -- THE COURT: So what is the back of the truck made of
0:: 0:: 0:: 0:: 0::0 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0::0 0::0 0::0 0:: 0::0 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0 0 so that you can shoot? MR. GURA: I believe it's -- it's inside the trailer. I believe they have a bullet trap in it. These things have been around for some time and we have actually -- we have a contract. We have a lease to park it, and we can bring it in and we can have people trained. And then they would be in compliance with the Chicago gun ordinance. THE COURT: Okay. MR. GURA: So we are ready to go. The Benson plaintiffs, they have a desire. I respect that. But it's not a case that's ripe for decision by any means, and our case is. So judicial resources would be advanced by resolving this case. You know, we really have an ongoing injury here, and we'd like to have it addressed. THE COURT: I'm looking at the motion for relatedness that was filed, not in any surprise, on Friday night, but actually on the 0th citing to your case. And, of course, it's filed before Judge Guzman, because he has the lower numbered case. All right. Let's hear from the City and what your position is on all of this. MR. WORSECK: Sure. Thank you, your Honor. As Mr. Gura's submission has made eminently clear this morning, his beef is with the reassignment motion that the City filed. He thinks this case is different than Benson.
0:: 0:: 0:: 0:: 0:: 0:0:0 0:0:0 0:0:0 0:0: 0:0: 0:0: 0:0: 0:0: 0:0: 0:0: 0:0: 0:0: 0:0: 0:0: 0:0: 0::00 0::0 0::0 0::0 0:: 0 0 We disagree. Both lawsuits challenge the constitutionality of the City's recently enacted gun ordinance and the exact same provision. The sole provision that's at issue in Mr. Gura's lawsuit, the ban on gun ranges, is also a part of the Benson case on all fours. The Benson case also presents plaintiffs, as does this case, who seek not only to operate a gun range, but seek to patronize a gun range to train in the use of firearms. That is the only thing that has changed since last Monday when the motion for the preliminary injunction was filed. We think it makes eminent sense for Mr. Guzman -- excuse me -- for Judge Guzman, with respect to your Honor, of course, to address all of these issues at once in a single judicial forum. That's what the rules provide for in the local -- in the Northern District. If Mr. Gura thinks that there are differences between his case and Benson, Judge Guzman is perfectly qualified to entertain those. If this case presents some greater need for judicial action than does Benson, Judge Guzman is perfectly capable of granting that. On that issue, your Honor, we think that there is clearly no irreparable harm presented in this case. What the plaintiffs are really complaining about is having to travel out to the suburbs to attain their training
0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0::0 0::0 0::0 0:: 0:: 0:: 0:: 0:: 0::0 0:: 0:: 0:: 0 0 and not being able to get that training in Chicago. That is simply an issue of time and expense, and that is the kind of issue that's compensable via damages after trial, should plaintiffs prevail. Ms. Ezell, who has already attained her training, she is one of the three plaintiffs in this case. The other individual plaintiffs in this case -- the other two individual plaintiffs, according to their own affidavits, frequent gun ranges and/or supervise and train at gun ranges on their own free time. If they have chosen to do this in their free time for recreation, certainly it's not an irreparable harm to ask them to go out to these very same ranges that they go to already to attain their one hour of training in order to comply with the Chicago ordinance. So there's clearly no emergency -- THE COURT: Well, I'm reading the Benson complaint, and it does challenge by Second Amendment as well as the Fourteenth Amendment the firing range issue as well. So it seems like it's a broader case than your case, which is focused solely on the firing ranges, but there's a few paragraphs challenging the firing range aspect of the statute. MR. GURA: Your Honor, if I may respond? THE COURT: Of course. MR. GURA: Okay. First of all, we have a very crystal clear case of irreparable harm. To tell people that
0:: 0:: 0:: 0:: 0::0 0::0 0::0 0::0 0::0 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0::0 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0 0 they need to go outside the city to exercise constitutional rights is not a solution. We don't tell these people that they can go to their church outside the city. They can go to the bookstore outside the city, inside the city. We have declared a constitution free zone. The fact is that -- THE COURT: Well, we actually do have places where we limit First Amendment and association rights, based upon a balancing of the interests -- MR. GURA: That's right. THE COURT: -- so it's not -- it doesn't automatically show an irreparable harm. MR. GURA: That's right. But, your Honor, we would say that if the City wants to draft a law like that, then we could address that kind of case. But we don't have here a question of zoning ordinance or time, place, and manner regulation. We have here in the City that's over 00 square miles, that's home to millions of people, a city that mandates that people train with firearms, because it recognizes how critical that is to public safety, a complete ban on the exercise of Second Amendment rights and also training on First Amendment activity is spelled out in our preliminary injunction motion. So we have here irreparable harm, and this TRO could have been filed a week ago. We believe that under the Seventh Circuit's precedent
0:: 0:: 0::00 0::0 0::0 0::0 0:: 0:: 0:: 0::0 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0::00 0::0 0::0 0::0 0 0 describing what irreparable harm is, we could have gone for a TRO a week ago. We didn't do so out of professional courtesy to the City, because we wanted to give them an opportunity to respond. And I feel that what we have here is a case of no good deed going unpunished, because instead of taking the time that we've given them to meet the merits of the case, instead they have come out with some kind of an argument for why the case should never be addressed. So respectfully, your Honor, we have irreparable harm. We believe these are very serious allegations. The case is ripe. It's ready for decision. The preliminary injunction might even be suitable under Rule for combining with a trial on the merits. And so we would respectfully request that the Court rule on the issue. We don't really care which judge rules on it, but we do need to have it ruled on soon, because one thing that we do not address are the City's deadlines. The City has deadlines for people to comply with training requirements. And once those deadlines expire, people have lost their rights. They have lost their firearms. And every day that goes by that we don't get relief from this is a day closer to those deadlines. And, you know, it makes a huge difference to our clients whether or not they can do this now as opposed to later. We don't -- we will be very happy to argue the
0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0::0 0:: 0:: 0:: 0:: 0::0 0:: 0:: 0::0 0::0 0::0 0::0 0:: 0:: 0:: 0:: 0 0 Rule 0 motion at the appropriate time whenever that is. Nothing this Court does will deprive Judge Guzman of the ability to rule on that motion. Even if this Court issues some kind of an order on the TRO or the preliminary injunction and one of the parties appeals it to the Seventh Circuit, the District Court would still retain concurrent jurisdiction to entertain the Rule 0 motion. So there's nothing we're doing that prevents them from asking for this relief from Judge Guzman. All we're asking for is that the irreparable harm be addressed at a time when it's meaningful for the Courts to do so. MR. WORSECK: Your Honor, if I may? THE COURT: Sure. MR. WORSECK: If there were an irreparable harm here, Mr. Gura, in looking out for his clients, could simply consent to the City's reassignment motion. In fact, we offered to Mr. Gura to waive our opening brief in support of that motion, give him whatever sort of fast track briefing schedule he wanted, and have Judge Guzman make a ruling as soon as necessary. Further, on this issue of irreparable harm, Mr. Gura likes to invoke the First Amendment principle that the denial of First Amendment rights is irreparable harm. This is a Second Amendment case. Nothing in the City's ordinances prohibit the speech
0:: 0::0 0:: 0:: 0::0 0:: 0:: 0:: 0:: 0:: 0::00 0::0 0::0 0::0 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0 0 or instruction relating to firearms use. It simply prohibits the discharge at a shooting range or a discharge elsewhere for nonself-defense related purposes. Those are Second Amendment issues. Travel to the suburbs to attain one hour of training is compensable via damages. Should these particular plaintiffs fail to comply with the City's requirement to submit their CFP application by mid-october -- and the only reason they want to do that is so that they can preserve the right to possess the particular firearms that they already have. If they don't get that application on file in time, they would lose the right to possess particular firearms. Again, the loss of particular property is compensable in damages. Nothing prohibits these plaintiffs from exercising what is really at the core of the Second Amendment, which is the possession of arms for self defense in the home. They are free to apply to do that at any time. THE COURT: All right. MR. GURA: Your Honor? THE COURT: No, this is what I am doing. As far as your preliminary injunction is concerned, there will be a two-week response time in writing and a one-week reply. And as far as the temporary restraining order that was filed a few hours ago, I will hear that this afternoon, at :0 this afternoon. And I will accept any type of written
0::0 0::0 0::0 0::0 0::0 0:: 0:: 0:: 0:: 0:: 0::0 0:: 0:: 0:: 0::0 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0 0 response, if the defendant wants to give me a written response. But I haven't read it, so I am not going to rule on a TRO that I haven't read. MR. GURA: Sure. THE COURT: So I just got it. I will read it, and I have other matters on my call throughout the day, and we'll have the hearing at :0. MR. GURA: Sure. MR. WORSECK: Your Honor, on the preliminary injunction schedule that you just set. THE COURT: Yes. MR. WORSECK: We take serious issue with some of the factual allegations and factual submissions in their affidavits. And we would, of course, like to conduct discovery on the matters raised in the preliminary injunction submission, and we would ask the Court's leave to do that on a fast track, so that we can have the proper factual corpus at hand -- THE COURT: Can you give me some sense of what that would be, of how many individuals you intend to depose or gather information from, so I have some sense of that for a fast track analysis? MR. WORSECK: I don't know that we would need to spray beyond the plaintiffs to the lawsuit. We would obviously be interested in just how much of a burden it is to
0::00 0::0 0::0 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0::0 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:0:0 0:0:0 0:0: 0:0: 0:0: 0:0: 0 0 travel out to the suburbs, when they are already going out there anyway for gun training. We'd like to take discovery of how many weapons they stand to lose, if they don't get their application on file. THE COURT: And how many plaintiffs do we have? We have five? MR. WORSECK: Your Honor, also the opening of a mobile gun range presents serious zoning issues, environmental issues, licensing issues, public safety issues, and the plaintiffs concede in their papers that those are all valid concerns of the City. We would, therefore, need to take discovery on the nuts and bolts of what this range is, how it would operate, the environmental impacts presented, the safety impacts presented, the security impacts presented, the zoning impacts presented. THE COURT: Okay. As far as the preliminary injunction your motion for discovery is granted. And I will give you a period of discovery 'til September 0th, and then your response to the preliminary injunction will be due October th, and a reply October th. Of course, the discovery during this period of time should be open between the two of you. It is expedited for purposes of the preliminary injunction. And I will have a hearing on the preliminary injunction, if you want to present
0:0: 0:0: 0:0: 0:0: 0:0: 0:0: 0:0: 0:0:0 0:0: 0:0: 0:0: 0::0 0::0 0::0 0::0 0::0 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0 0 0 oral argument, on October th at :00 in the afternoon, and that is the preliminary injunction. The TRO is this afternoon at :0. Okay? MR. GURA: Thank you, your Honor. THE COURT: Thank you. MR. WORSECK: Thank you. MR. GURA: And just to clarify one thing, your Honor? The grounds for the TRO are the same grounds for the preliminary injunction. The only thing our TRO memorandum did, as your Honor will see, is simply explain why we had decided to move for a TRO. But the grounds that we rely on are the same ones we submitted last week. THE COURT: I understand that. The problem is, is that -- MR. GURA: Sure. THE COURT: -- I am not going to just if you're waiting for me to rule on something that I haven't looked at, that's not going to be the case. MR. GURA: Your Honor, I understand. THE COURT: Okay. MR. GURA: I simply wanted to clarify what the Court will expect to see. THE COURT: And I'm not certain whether the notice of a motion for relatedness is -- changes those factors, to the extent that you have. But what you've asserted to me today is
0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0:: 0 0 that you had a basis for moving for it before as well. MR. GURA: We did. THE COURT: All right. So I'll take a look at it. All right. MR. GURA: Thank you. MR. WORSECK: Thank you, your Honor. MR. AGUIAR: Thank you, your Honor. MR. GURA: Thank you. (Adjourned at : a.m.) - - -
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