IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION EZELL, et al., ) ) Plaintiffs, ) ) No. 10-CV-5135 v. ) ) Judge Virginia M. Kendall CITY OF CHICAGO, ) ) Defendant. ) DEFENDANT S REPLY TO PLAINTIFFS LOCAL RULE 56.1(B)(3)(C) STATEMENT OF ADDITIONAL FACTS Defendant City of Chicago (the City ), by its counsel, Stephen R. Patton, Corporation Counsel of the City of Chicago, hereby submits, pursuant to Local Rule 56.1(a), its Reply to Plaintiffs Statement of Additional Facts. Introductory Statement In their L.R. 56.1(b)(3)(C) Motion for Leave to File Additional Facts in Excess of Limit, Plaintiffs stated that 81 of the 84 paragraphs in the proposed Statement of Additional Facts were submitted to the Court with Plaintiffs own pending Motion for Summary Judgment as Plaintiffs L.R. 56.1(a) Statement of Undisputed Facts. Therefore, there are only three new pieces of information Plaintiffs are submitting to the Court. Dkt The City, however, identified nine paragraphs with substantive changes or additions in the Plaintiffs L.R. 56.1(b)(3)(C) Statement of Additional Facts attached as Exhibit A to Plaintiffs Motion. Dkt , Ex. A ( 1, 36, 50-51, 58, 71, 82-84). On March 29, 2014, after the City had sifted through Plaintiffs filing to identify the changes to Plaintiffs statement of facts, Plaintiffs filed an amended Plaintiffs L.R.

2 56.1(b)(3)(C) Statement of Additional Facts. Dkt In this second Statement of Additional Facts not labeled as amended and filed without leave of the Court Plaintiffs have eliminated Paragraphs 35 and 36, renumbered the subsequent paragraphs to reflect that change, placed the new paragraphs in bold, and identified the parallel paragraphs in their L.R. 56(a)(3) Statement of Undisputed Material Facts, when applicable. Dkt , Ex. A; Dkt In this filing, Plaintiffs state that [a]ll Facts except for Nos. 1, [48], [49], 56, a portion of 69, and are also pled in Plaintiffs L.R. 56(a)(3) Statement of Undisputed Material Facts[.] Dkt The City addresses these new paragraphs in detail below. For the remaining paragraphs, the City has directed the Court to its Local Rule 56.1(B)(3) Response to Plaintiffs Statement of Undisputed Facts ( Def. s Resp. ), Dkt The City also reincorporates its objections to Plaintiffs Statement of Facts as set forth in its Local Rule 56.1(B)(3) Response, id. Reply 1. On January 6, 2014, the City s ban on the sale, transfer and acquisition of firearms was ruled unconstitutional by Judge Chang in Illinois Association of Firearms Retailers v. City of Chicago, 1:10-CV Response: Undisputed. 2. See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp

3 7. See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp

4 29. See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp According to the Illinois Department of Natural Resources, minors, including those under 16, may obtain a hunting license, though all hunters born after 1980 must present a safety certification. See at 4

5 p.8. Response: Undisputed if safety certification means proof that they have successfully completed a Hunter Education Course provided by Illinois DNR or their resident state or must show a previous year s hunting license. Id. 49. (1) Minors (17 and under) may also hunt as an apprentice with a parent, grandparent or guardian with a hunting license (Id.). (2) Minors (20 and under) do not need a FOID card to hunt as long as they are with a parent, guardian or responsible adult who has a FOID card. Id. at p.10. Response: Defendants do not dispute the first sentence, but note that the Apprentice Hunter License is a one-time, non-renewable license. Id. at 8. Defendants do not dispute the second sentence. 50. See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp (1) Tina Skahill is the Chief of the Special Functions Division for the Chicago Police Department (Skahill Dep. 8). (2) She has been with the Department since 1982 (Skahill Dep. 9). (3) She would not know if private commercial shooting ranges were allowed in the City since 1982 (Skahill Dep. 24). (4) She has no experience with the structure or operation of a firing range (Skahill Dep ). (5) She has no empirical data or evidence that allowing out of state 5

6 residents to shoot at a firing range endangers public safety (Skahill Dep. 53). (6) She agrees that it is better for public safety if people who are going to possess firearms know how to use them (Skahill Dep. 61). Response: Defendants do not dispute that Tina Skahill made these statements, but object to them to the extent they were provided in response to questions that were outside the scope of her testimony as a witness under Federal Rule of Civil Procedure 30(b)(6) regarding the City s CFP requirement, Ex. A, Skahill Dep. at 5-6, 28-29, 32, which has been eliminated. 57. See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp (1) Kevin Schnoes is the Assistant Commissioner of the Permitting and Inspections Unit of the City s Department of Public Health (Schnoes Dep. 5, 7). (2) The 55 decibel requirement for businesses starts at 8:00PM. (3) There is no business where the 55 6

7 decibel limit starts before 8:00PM (Schnoes Dep ). (4) If a shooting range is only open between 9:00AM and 8:00PM, there is nothing in the noise ordinance to be enforced (Schnoes Dep. 25). (5) It is the police department that enforces the noise restrictions (Schnoes Dep. p.21, ln.21 p.22, ln.1). (6) Notwithstanding the language of the ordinance, if a shooting range closed by 8:00PM, the noise restrictions of Section 1200(b)(2) would never kick in (Schnoes Dep. 27). Response: See Def. s Resp. 80; additional statements in sentences four and six are undisputed. 70. See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp See Def. s Resp Violation of any provisions, rules or regulations of Chapter of the MCC results in a fine of $ to $ per offense, and/or incarceration up to 180 days. The MCC considers each day of a violation to be a separate offense. MCC Response: Defendants dispute this statement to the extent it mischaracterizes MCC , which states that: 7

8 Except where otherwise specifically provided, any person violating any of the provisions of this chapter, or any rule or regulation promulgated thereunder, shall be fined not less than $ nor more than $5, for each offense, or may be incarcerated for a term not to exceed 180 days, or both fined and incarcerated. A separate and distinct offense shall be held to have been committed each day any person continues to violate any of the provisions hereof. 81. (1) Every day in which an individual transfers, loans, borrow, gives or rents firearms or ammunition in violation of MCC is considered a separate and distinct offense. (2) The penalty for a first offense in violation of this provision is a fine ranging from $1,000 to $5,000 and/or incarceration ranging from 20 to 90 days. (3) A subsequent offense carries a fine ranging from $5,000 to $10,000 and/or incarceration ranging from thirty days to six months. MCC (b). Response: Defendants dispute this statement to the extent it mischaracterizes MCC , which states, in part, that: (a) Unless the enhanced penalty imposed by subsection (b)(2) or subsection (b)(2) of this Code applies, any person who violates section shall be fined not less than $1, nor more than $ and be incarcerated for a term not less than 20 days nor more than 90 days. Unless the enhanced penalty imposed by subsection (b)(1) subsection (b)(1) of this Code applies, any person who violates section , or , or shall be fined not less than $1, nor more than $5, and be incarcerated for a term of not less than 90 days nor more than 180 days. Each day that such violation exists shall constitute a separate and distinct offense. (b) Unless another fine or penalty is specifically provided, any person who violates any provision of this chapter, or any rule or regulation promulgated hereunder, shall for the first offense, be fined not less than $1,000.00, nor more than $5,000.00, or be incarcerated for not less than 20 days nor more than 90 days, or both. Any subsequent conviction for a violation of this chapter shall be punishable by a fine of not less than $5, and not more than $10,000.00, and by incarceration for a term of not less than 30 days, nor more than six months. Each day that such violation exists shall constitute a separate and distinct offense. 8

9 82. Discharging a firearm other than in self-defense or defense of another person, in violation of MCC , carries a penalty ranging from $500 to $1000. Response: Defendants dispute that this statement accurately reflects MCC , which provides that: No cannon or piece of artillery shall be discharged or fired off in any public way or other public place within the city, except upon the express permission of the city council. Any person violating any of the provisions of this section shall be fined not less than $ nor more than $1, for each offense. Date: April 4, 2014 Respectfully submitted, STEPHEN R. PATTON, Corporation Counsel for the City of Chicago By: /s/ Mary Eileen Cunniff Wells Assistant Corporation Counsel Mardell Nereim Andrew W. Worseck William Macy Aguiar Rebecca Alfert Hirsch Mary Eileen Cunniff Wells City of Chicago, Department of Law Constitutional and Commercial Litigation Division 30 North LaSalle Street, Suite 1230 Chicago, Illinois (312) / 7129 / 4216 Attorneys for Defendant 9

10 CERTIFICATE OF SERVICE I, Mary Eileen Cunniff Wells, an attorney, hereby certify that on this, the 4th day of April, 2014, I caused a copy of the foregoing Defendant s Reply to Plaintiff s Local Rule 56.1(B)(3)(C) Statement of Additional Facts to be served via electronic notification on the following counsel of record: Alan Gura David G. Sigale Gura & Possessky, PLLC Law Firm of David G. Sigale, P.C. 101 N. Columbus Street 739 Roosevelt Road Suite 405 Suite 304 Alexandria, VA Glen Ellyn, IL /s/ Mary Eileen Cunniff Wells 10

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