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Ezell v. City of Chicago

United States Court of Appeals, Seventh Circuit

January 18, 2017

Rhonda Ezell, et al., Plaintiffs-Appellees/ Cross-Appellants,
City of Chicago, Defendant-Appellant/Cross-Appellee.

          Argued November 4, 2015

         Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 C 5135 - Virginia M. Kendall, Judge.

          Before Kanne, Rovner, and Sykes, Circuit Judges.

          Sykes, Circuit Judge.

         This case returns to us with new controversies arising from Chicago's response to Heller 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 (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 (N.D. 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 we'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, 626-27 (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.

         Finally, the judge upheld the age restriction, concluding that "minors are not guaranteed Second Amendment rights." Id. at 889. Cross-appeals followed.

         II. Analysis

         The City asks us to reinstate its zoning restriction limiting firing ranges to manufacturing districts. The plaintiffs defend the judge's decision to strike that rule; they argue as well that the distancing and age restrictions fail Second Amendment scrutiny. Our review is de novo, so we give these issues a fresh look. See Dunnet Bay Constr. Co. v. Borggren, 799 F.3d 676, 688 (7th Cir. 2015) ("We review the district court's ruling on the cross-motions for summary judgment de novo, construing all reasonable inferences from the record in favor of the party against whom the motion under consideration is made.").

         A. Ezell I

         We take as settled what was established in Ezell I. There we held that resolving Second Amendment cases usually entails two inquiries. The threshold question is whether the regulated activity falls within the scope of the Second Amendment. Ezell I, 651 F.3d at 701-02. This is a textual and historical inquiry; if the government can establish that the challenged law regulates activity falling outside the scope of the right as originally understood, then "the regulated activity is categorically unprotected, and the law is not subject to further Second Amendment review." Id. at 703.

         "If the government cannot establish this-if the historical evidence is inconclusive or suggests that the regulated activity is not categorically unprotected-then there must be a second inquiry into the strength of the government's justification for restricting or regulating the exercise of Second Amendment rights." Id. This requires an evaluation of "the regulatory means the government has chosen and the public-benefits end it seeks to achieve." Id. The rigor of this means-end review depends on "how close the law comes to the core of the Second Amendment right and the severity of the law's burden on the right." Id. Severe burdens on the core right of armed defense require a very strong public-interest justification and a close means-end fit; lesser burdens, and burdens on activity lying closer to the margins of the right, are more easily justified. Id. In all cases the government bears the burden of justifying its law under a heightened standard of scrutiny; rational-basis review does not apply. Id. at 706.

         Addressing the "scope" question in Ezell I, we rejected the City's argument that range training is categorically unprotected by the Second Amendment. We held that the core individual right of armed defense-as recognized in Heller and incorporated against the states in McDonald-includes a corresponding right to acquire and maintain proficiency in firearm use through target practice at a range. 651 F.3d at 704. We explained that the core right to possess firearms for protection "wouldn't mean much without the training and practice that make it effective." Id. We noted that Heller itself supports this understanding. Id. at 704 (citing Heller, 554 U.S. at 616, 619). Finally, we held that the City had failed to establish that target practice is wholly unprotected as a matter of history and legal tradition in the founding era or when the Fourteenth Amendment was ratified. Id. at 704-06.

         This holding and these observations control here. Range training is not categorically outside the Second Amendment. To the contrary, it lies close to the core of the individual right of armed defense.

         The City also failed to carry its burden in Ezell I at step two of the analytical framework. We held that banishing firing ranges from the city was a severe encroachment on the right of law-abiding, responsible Chicagoans to acquire and maintain proficiency in firearm use, "an important corollary to the meaningful exercise of the core right to possess firearms for self-defense." Id. at 708. Accordingly, we applied a strong form of intermediate scrutiny and required the City to demonstrate "a close fit between the range ban and the actual public interests it serves, and also that the public's interests are strong enough to justify so substantial an encumbrance on individual Second Amendment rights." Id. at 708-09. The City did not carry this burden, so we instructed the district court to enjoin the firing-range ban. Id. at 709-11.

         All this is established law. Resisting these settled propositions, the City now asks us to revisit and modify the analytical framework established in Ezell I. In its view only laws that substantially or "unduly" burden Second Amendment rights should get any form of heightened judicial scrutiny. This is an odd argument; we specifically addressed and rejected that approach in Ezell I. Id. at 703 n.12; id. at 706. Our reasoning flowed from Heller itself: The Supreme Court explicitly rejected rational-basis review, making it clear that burdens on Second Amendment rights are always subject to heightened scrutiny. Heller, 554 U.S. at 628 n.27 ("If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibition on irrational laws, and would have no effect."). In McDonald the Court cautioned against treating the Second Amendment as a "second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees." 561 U.S. at 780. The City's proposed "substantial burden" test as a gateway to heightened scrutiny does exactly that.

         We note for good measure that most other circuits have adopted the framework articulated in Ezell I and require some form of heightened scrutiny when evaluating the government's justification for a law challenged on Second Amendment grounds. See, e.g., Tyler v. Hillsdale Cty. Sheriff's Deft, 775 F.3d 308, 326 (6th Cir. 2014); Jackson v. City & County of San Francisco, 746 F.3d 953, 961 (9th Cir. 2014); Nat'l Rifle Ass'n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 700 F.3d 185, 194 (5th Cir. 2012); Heller v. District of Columbia, 670 F.3d 1244, 1252 (D.C. Cir. 2011); United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010). We see no reason to retreat from our settled approach and now repeat what we said in Ezell I: If the challenged law regulates activity protected by the Second Amendment, the government "bears the burden of justifying its action[s] under some heightened standard of judicial review." 651 F.3d at 706.

         B. New Regulations, New Challenges

         1. Zoning restrictions

         This new round of litigation is somewhat different, however; this time we're reviewing a set of zoning restrictions, not an outright ban on shooting ranges throughout the city. Still, the record reflects that the zoning regulations at issue here severely limit where shooting ranges may locate. The combined effect of the manufacturing-district classification and the distancing restriction leaves only about 2.2% of the city's total acreage even theoretically available to site a shooting range (10.6% of the total acreage currently zoned for business, commercial, and manufacturing use). It's unclear how many of these parcels are commercially suitable for siting a shooting range catering to the general public.

         The plaintiffs presented evidence-including the testimony of two experts-showing that in other jurisdictions shooting ranges are treated as commercial uses and are often attached to gun retailers, and that banishing them to a tiny subset of the land zoned for manufacturing reduces their commercial viability based on traffic patterns, lack of arterial roads, and other impediments. Tellingly, years after Ezell I no publicly accessible shooting range yet exists in Chicago. We therefore agree with the district judge that the challenged zoning regulations, though not on their face an outright prohibition of gun ranges, nonetheless severely restrict the right of Chicagoans to train in firearm use at a range.

         We also agree with the judge's decision to require the City to establish a close fit between the challenged zoning regulations and the actual public benefits they serve-and to do so with actual evidence, not just assertions. 70 F.Supp.3d at 883. The judge's analysis went offtrack, however, when she examined the two zoning regulations separately and summarily upheld the 500-foot ...

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