Fed. Appeals Court in IL Conducts Second Amendment Analysis of Chicago Zoning Restrictions, Construction Requirements and Business Regulations for Firing Ranges Upholding Some but Not All

Plaintiffs who were denied the opportunity to install a shooting range, challenged eleven regulations made by the city that fell into the category of zoning restrictions, construction requirements and business operations. The Plaintiffs alleged that the zoning restrictions infringed on their right to free speech and their right to use firearms. Plaintiffs Rhonda Ezell, Joseph Brown, and William Hespen, along with Action Target, Inc. and Second Amendment Foundation, Inc. originally brought suit against the City of Chicago after regulations prohibited them from bringing a mobile fire range in Chicago. Plaintiffs filed a claim against the City of Chicago and the Seventh Circuit concluded that the Plaintiffs could succeed on their claim that a general ban on firing ranges was unconstitutional. The City in response enacted regulatory provisions, including licensing provisions, construction requirements, environmental regulations and zoning restrictions for firing ranges. Plaintiffs’ challenge to the zoning restrictions were unsuccessful as the City’s Zoning Board of Appeals found that the ranges proposed were not compatible with commercial use and that the requests did not involve a manufacturing district or to locate the gun range within 500 feet of restricted areas. Plaintiffs were also required to follow construction requirements which consisted of ballistic proof doors, separate ventilation systems and sound limitations, and the Plaintiffs were also restricted to certain business operations, such as the prohibition of individuals under eighteen, standard hours of operations and the City’s requirement of having a range master on staff, who would be responsible for insuring adherence to call regulations.

The Federal District Court found that each regulation was to be addressed under the second amendment, but that the level of scrutiny for each regulation varies. Applying strict scrutiny to the zoning ordinance because it restricted certain Second Amendment activities, the court decided that the City did not meet its burden because the City’s concern for regulating ranges to prevent stolen firearms and to prevent lead-contaminated air and waterways did not sufficiently substantiate a connection between those interests and the ordinance. The Court however found that provision requiring firing ranges to be at least 500 feet away from residential zoning districts such as schools, daycare facilities, and places of worship was significantly less burdensome than the general zoning ordinance, and therefore survived strict scrutiny, as this provision did not strip plaintiffs of a reasonable locations to operate a firing range.

With respect to the City’s regulations concerning construction standards for firing ranges, the court found that the City’s construction standard did not restrict any second Amendment activity whatsoever and therefore applied intermediate scrutiny. The Court found that the requirements only placed a minor burden on the construction of the range, specifically noting that the requirement for ballistic proof walls and doors for the safety of those outside and near the range outweighed the Plaintiffs’ additional costs of installation. The court further found that separate ventilation systems was to minimize the lead exposure of the firing range outweighed the Plaintiffs’ costs of installation. The regulation on the sound limit of the range was also upheld under intermediate scrutiny, as the City’s concerns in monitoring the noise emanating from the range between 8 p.m. and 8 a.m. outweighed the Plaintiffs’ concerns of being singled out amongst other businesses in Chicago.

The court further found that the provision affecting the business operations of ranges did not restrict the Plaintiffs’ interest in the use of firearms, and only placed a minor burden on the Second Amendment rights of the entire adult population in Chicago. The court said that imposing age requirements to protect minors from lead exposure and firearm accidents outweighed the Plaintiffs’ concerns in losing business, as protecting minors is an important governmental interest. Restrictions on hours of operations to reduce disturbance at nights however fell short in surviving scrutiny, as the City did not provide evidence showing that a range has a greater impact on traffic or police inquires than any other business or locations. The City’s requirement in having a range master present survived intermediate scrutiny, as the effort to minimize safety risks associated with the operation of a firing range outweighed the Plaintiffs’ concerns in acquiring additional costs. The provision requiring an FOID card also survived scrutiny, as assurance of knowing a person passes a criminal history and mental illness background check outweighed the Plaintiffs’ concerns that potential employees from out of state would be banned. The court concluded in finding that the claim for a cumulative effect should be dismissed because the Plaintiffs failed to adequately develop the contention with either facts or case law, and that the Plaintiffs’ first amendment rights were not violated because the ordinances did not preclude plaintiff from participating in firearms training.

Ezell v City of Chicago, 2014 WL 4813419 (ND Ill. 9/29/2014)

The opinion can be accessed at: http://isra.org/Portals/6/ISRA%20Documents/alerts/ezell-v-chicago-decision-09292014.pdf