Ezell v. City of Chicago

846 F.3d 888, 2017 WL 203542, 2017 U.S. App. LEXIS 900
CourtCourt of Appeals for the Seventh Circuit
DecidedJanuary 18, 2017
DocketNos. 14-3312 & 14-3322
StatusPublished
Cited by49 cases

This text of 846 F.3d 888 (Ezell v. City of Chicago) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ezell v. City of Chicago, 846 F.3d 888, 2017 WL 203542, 2017 U.S. App. LEXIS 900 (7th Cir. 2017).

Opinions

SYKES, Circuit Judge.

This case returns to us with new controversies arising from Chicago’s response to [890]*890Heller and McDonald,1 the Supreme Court’s Second Amendment decisions. Last time we addressed an ordinance banning shooting ranges throughout the city. See Ezell v. City of Chicago (“Ezell I”), 651 F.3d 684 (7th Cir. 2011). The range ban was part of a sweeping ordinance adopted in the wake of McDonald, which invalidated Chicago’s law prohibiting handgun possession. McDonald v. City of Chicago, 561 U.S. 742, 791, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). To replace the handgun ban, the City established a permit regime for lawful gun possession and required one hour of range training as prerequisite to a permit, but prohibited firing ranges everywhere in the city. Ezell I, 651 F.3d at 689-90. We held that the range ban was incompatible with the Second Amendment and instructed the district court to preliminarily enjoin it. Id. at 710-11.

The City responded by replacing the range ban with an elaborate scheme of regulations governing shooting ranges. Litigation resumed, prompting the City to rewrite or repeal parts of the new regime. The district judge invalidated some of the challenged regulations and upheld others. Ezell v. City of Chicago (“Ezell II”), 70 F.Supp.3d 871, 882-92 (ND. Ill. 2014). Three provisions currently remain in dispute: (1) a zoning restriction allowing gun ranges only as special uses in manufacturing districts; (2) a zoning restriction prohibiting gun ranges within 100 feet of another range or within 500 feet of a residential district, school, place of worship, and multiple other uses; and (3) a provision barring anyone under age 18 from entering a shooting range. The judge permanently enjoined the manufacturing-district restriction but upheld the distancing and age restrictions. Both sides appealed.

We affirm in part and reverse in ■ part. The two zoning regulations—the manufacturing-district classification and the distancing rule—dramatically limit the ability to site a shooting range within city limits. Under the combined effect of these two regulations, only 2.2% of the city’s total acreage is even theoretically available, and the commercial viability of any of these parcels is questionable—so much so that no shooting range yet exists. This severely limits Chicagoans’ Second Amendment right to maintain proficiency in firearm use via target practice at a range. To justify these barriers, the City raised only speculative claims of harm to public health and safety. That’s not nearly enough to survive the heightened scrutiny that applies to burdens on Second Amendment rights.

The age restriction also 'flunks heightened scrutiny. We held in Ezell I that the Second Amendment protects the right to learn and practice firearm use in the controlled setting of a shooting range. The City insists that no person under age 18 enjoys this right. That’s an extraordinarily broad claim, and the City failed to back it up. Nor did the City adequately justify barring anyone under 18 from entering a range. To the contrary, its own witness on this subject agreed that the age restriction is overbroad because teenagers can safely be taught to shoot and youth firearm instruction is both prudent and can be conducted in a safe manner.

I. Background

In Ezell I we held that Chicago’s ban on firing ranges could not be reconciled with the Second Amendment and ordered the district court to preliminarily enjoin its enforcement. 651 F.3d at 710-11. We assume familiarity with that opinion, though [891]*891we’ll repeat the key holdings as necessary here.

Chicago responded to our decision by promulgating a host of new regulations governing firing ranges, including zoning restrictions, licensing and operating rules, construction standards, and environmental requirements. (Firing ranges operated by law enforcement and private-security firms are exempt from the regulatory scheme; there are currently 11 of these located throughout the city.) The plaintiffs returned to court arguing that many of the new regulations violate the Second Amendment.2

In the face of this second round of litigation, the City amended the regulatory scheme four times, Ezell II, 70 F.Supp.3d at 876, repealing or revising some of the new rules. The parties eventually filed cross-motions for summary judgment. Ruling on the motions, the judge invalidated some regulations and upheld others, id. at 884-93, leaving both sides with something to appeal. And appeal they did, though many of the judge’s rulings are left unchallenged, helpfully narrowing the present scope of the dispute.

Three regulations remain contested. The first two are zoning provisions limiting where shooting ranges may locate. Section 17-5-0207 of the Chicago Municipal Code permits ranges only in manufacturing districts with a special-use permit. Section 17-9-0120 is a distancing restriction barring shooting ranges within 100 feet of another range or within 500 feet of any district that is zoned for residential use or planned residential use, or any preexisting school, day-care facility, place of worship, liquor retailer, children’s activities facility, library, museum, or hospital. The third contested regulation, section 4-151-100(d), prohibits anyone under age 18 from entering a shooting range.

The judge held that the zoning restrictions severely limit where shooting ranges can be located and accordingly required the City to establish a close fit between the restrictions and the public interests they serve. Id. at 883. The City identified several harmful secondary effects that it claimed were associated with shooting ranges: gun theft, fire hazards, and airborne lead contamination. Id. at 883-84. But it produced no evidentiary support for these claims beyond the speculative testimony of three city officials—Zoning Administrator Patricia Scudiero, Police Lieutenant Kevin Johnson, and Rosemary Krimbel, the Commissioner of Business Affairs and Consumer Protection. Id.

We’ll return to the specifics of their testimony later; for now it’s enough to say that the judge found it wholly inadequate to discharge the City’s burden to justify relegating shooting ranges to manufacturing districts. Id. Because the City failed to establish a connection between this zoning rule and the public interests it is meant to serve, the judge invalidated the manufacturing-district restriction. Id. at 884.

But the judge rejected the challenge to the 500-foot distancing requirement. She found this restriction “significantly less burdensome” when considered “standing alone.” Id. She likened it “to a ‘law forbidding the carrying of firearms in sensitive places such as schools and government buildings,”’ which Heller specifically did not call into question. Id. (quoting District of Columbia v. Heller, 554 U.S. 570, 626-[892]*89227, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)). Without further analysis, the judge upheld the 500-foot distancing restriction. She did not specifically address the additional requirement of a 100-foot buffer zone between firing ranges.

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Cite This Page — Counsel Stack

Bluebook (online)
846 F.3d 888, 2017 WL 203542, 2017 U.S. App. LEXIS 900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ezell-v-city-of-chicago-ca7-2017.