Court Rejects Deerfield's Assault Weapon Ban Appeal
Posted On April 12, 2020
DEERFIELD, IL — An Illinois appellate panel dismissed Deerfield’s first attempt to reverse a Lake County judge’s ruling blocking the village from enforcing “assault weapons” and “large-capacity magazine” bans passed last year.
A unanimous three-judge panel of the 2nd District Illinois Appellate Court Wednesday tossed an appeal from the village and Mayor Harriet Rosenthal on a technicality, finding it could not be certain it had jurisdiction to hear the case.
The order leaves open the possibility for the village to file a fresh appeal of the permanent injunctions issued in March by Lake County Circuit Judge Luis Berrones, which declared Deerfield’s ban on specified types of firearms and magazines violated state law.
Village staff drew up the ban at Rosenthal’s request in the spring of 2018 in the wake of the massacre of 17 people at a high school in Parkland, Florida. According to the ordinance, the ban is in the village’s “best interests for the protection of the public health, safety, morals and welfare.” Trustees voted unanimously to approve it in April.
A few days later, Deerfield resident Daniel Easterday, the Illinois State Rifle Association and the Second Amendment Foundation filed a lawsuit challenging the ban. Another lawsuit was filed last May by village resident John Wombacher with support from the group Guns Save Life and the National Rifle Association. The second suit pointed out Deerfield’s ban did not include any language actually banning magazines that hold 10 or more bullets, despite the village’s claims. The board would later amend the ordinance to include an express ban on large-capacity magazines.
Berrones issued an order temporarily blocking the village from implementing the ban the day before it was due to take effect in June 2018. Amended complaints were filed and a hearing was held on Oct. 12, 2018. Then on March 22, 2019, the judge issued a final order holding that the village’s ordinances were preempted by the Firearm Owners Identification Card Act and the Firearm Concealed Carry Act. The ruling resolved all the issues raised in the Easterday case but said there were still “genuine issues of material fact” to work out when it comes to Wombacher’s claim that the ordinance amounts to an unconstitutional seizure of property. The village decided to appeal both of them in April.
Illinois’ current gun laws were crafted in 2013 as state lawmakers faced down a 180-day deadline imposed by a federal judge to come up with a legislative framework for firearms that was no longer unconstitutional in the wake of court rulings finding states cannot ban guns kept at home for self-defense or the carrying of concealed weapons. The resulting concealed carry compromise in Springfield led to a law that allowed for municipalities to pass stricter gun regulations than the state — but only for a 10-day period after the passage of the bill.
Chicago and many towns in its north suburbs, including Evanston, Highland Park, Highwood, North Chicago and Skokie, chose to pass their own assault weapon bans. But Deerfield did not. Instead, trustees passed an ordinance defining “assault weapons” and requiring that they be stored and transported safely. It also included an exception for self-defense, which was eliminated as the village amended the ordinance to provide for a complete ban on the possession of the weapons for those not considered non-law enforcement.
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Despite the existing law forbidding local governments from enacting new gun bans after the July 2013 deadline, attorneys for the village have argued that the ordinance is merely an amendment to its established regulations on certain semi-automatic handguns, shotguns and rifles.
Alan Gottlieb, founder of the Second Amendment Foundation, has said the ordinance “flies in the face of state law” and that the village was “trying to disguise this an amendment to an existing ordinance” when it is actually a new law.
“We’re talking about the right of honest citizens to live without fear of suddenly being turned into criminals by an overzealous government that arbitrarily decides to prohibit possession of a perfectly legal firearm, purchased in accordance with applicable state and federal laws, because of political correctness,” Gottlieb said in response to the latest ruling.
Easterday said he appreciated the help of the foundation and the state rifle association.
“I am glad that this is being put to rest for now and hope that the Deerfield Board of Trustees will listen more closely to residents’ concerns before passing future ordinances,” Easterday said.
Deerfield has received pro bono legal assistance over the past 14 months of litigation in state court from the Brady Center to Prevent Gun Violence, along with the law firm of Perkins Coie and the former managing partner of its Chicago office, Chris Wilson.
The same legal team defended a federal challenge to Highland Park’s assault weapons ban, which was the model for the language used in Deerfield’s amended ordinance. The Highland Park City Council adopted its ban within the state’s 10-day deadline. It was upheld at the federal level when the U.S. Supreme Court declined to hear an appeal to a 7th Circuit ruling rejecting a challenge to the band from a local pediatrician and former state Senate candidate.
The June 12 appellate court order (below) dismissing Deerfield’s petition for an interlocutory appeal, which attempted to address both suits while some issues remained pending in one of them, found that it was “premature” to file such an appeal in Wombacher’s suit and that there was insufficient evidence to establish whether Easterday’s could yet be appealed. The order said once the village can show that all claims have been resolved at the circuit court level, it may file a new petition to the appellate court.
“Should Deerfield’s and Rosenthal’s motion be well founded, we may grant it, vacate this order, and proceed to the merits,” wrote Appellate Judge Kathryn Zenoff for the panel.
Steve Elrod, Deerfield village atorney, said the order was not a decision on the merits of the case.
“They did not touch the merits of the case, very deliberately, they sent it back to get the procedural issue cleared up, and when we’re back in the 2nd District Appellate Court, we will have oral argument and further briefing on the merits of the case and we continue to believe that we will prevail,” Elrod said.
“Chris Wilson from Perkins Coie has every confidence that the matter will be cleared up in the circuit court and we will back in the appellate court in short order,” he said.
Wombacher’s attorneys said Wilson could only offer a “flimsy excuse” — that he was in a hurry and misunderstand instructions from a court clerk — for why he missed a 30-day deadline to properly file an appeal, according to the appellate court’s order. Easterday’s attorneys argued the village had already missed its opportunity to appeal. Nonetheless, the judges granted the village’s motion for an extension on the deadline to file its first appeal and the opportunity to get another one next time.
The appellate court held there was not enough information in the record to determine to what extent the two cases were “merged” — combined into a single action and losing their own identity. Only if they had been, it said, would Deerfield be able to appeal once both cases were resolved or if the village was granted permission by Berrones.
“If the two actions did not merge, Deerfield’s failure to establish that fact in the present appeal is fatal to any appeal in the Easterday action,” the judges explained.
“As far as we’re concerned, the judge in our case ruled in our favor and our case is over,” said David Sigale, who represented Easterday. “If the village files something else, we’ll address it then.” He said it was clear the judge had not intended to merge the cases, which were provided separate docket entries and judgement.
A status hearing in the case brought by Wombacher and Guns Save Life is currently set for Oct. 4 in Berrones’ courtroom. The village may file a motion seeking explicit permission to appeal his ruling with respect to Easterday’s case, or it may wait until the question of eminent domain is resolved in Wombacher’s.
“I’m pleased that the (first) Deerfield appeal got chucked out,” said John Boch, executive director of Guns Save Life. “Frankly, I couldn’t help but wonder if Deerfield’s mayor hired Dewey, Clueless and Howe Attorneys at Law and Lawn Care to do the appeal after reading the dismissal order.”
Complete June 12 Rule 23 order dismissing the village’s appeal:
Top photo courtesy JW Ramp Photography