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Schoenthal v. Raoul - Challenges IL Carry Ban on Public Transportation


Molly B.

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SAF BACKS FEDERAL CHALLENGE OF ILLINOIS TRANSIT CCW BAN

 

The Second Amendment Foundation announced today it is financially supporting a federal lawsuit filed by four Illinois residents who are challenging a ban on licensed concealed carry on Public Transportation under the state’s Firearm Concealed Carry Act.
 
Plaintiffs in the case are Benjamin Schoenthal, Mark Wroblewski, Joseph Vesel and Douglas Winston. They are all residents of counties in northern Illinois in the greater Chicago area. They are represented by attorney David Sigale of Wheaton, Ill. The case is known as Schoenthal v. Raoul.
 
Defendants are Illinois Attorney General Kwame Raoul and State’s Attorneys Rick Amato (DeKalb County), Robert Berlin (DuPage County), Kimberly M. Foxx (Cook County) and Eric Rinehart (Lake County), all in their official capacities.
 
“We’re financially supporting this case because it is the right thing to do,” said SAF founder and Executive Vice President Alan M. Gottlieb. “All four plaintiffs in this case are law-abiding citizens who cannot exercise their fundamental rights as spelled out by three Supreme Court rulings, including SAF’s 2010 McDonald victory that nullified Chicago’s unconstitutional handgun ban.
 
“Illinois lawmakers have made it as difficult as possible for honest citizens to exercise their right to bear arms,” he continued, “and the prohibition on licensed carry while traveling via public transportation is a glaring example. This ban is a direct violation of the Second and Fourteenth amendments, and we are delighted to support this case because it cuts to the heart of anti-gun extremism.
 
“Buses and commuter trains are public places, but they are hardly sensitive places,” Gottlieb observed. “The four plaintiffs in this case rely on public transportation to travel to and from various places, including work, and they should be able to carry firearms for personal protection while in transit. However, current laws, regulations, policies and practices enforced by the defendants have made that legally impossible.
 
“Illinois is trying to perpetuate an indefensible public disarmament policy despite the clear meaning of Supreme Court rulings,” he concluded, “and we’re going to help the plaintiffs put an end to this nonsense.” 

 

 
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Docket

 

The defendants Rick Amato (R, DeKalb County), Robert Berlin (R, DuPage County), Kimberly M. Foxx (D, Cook County) and Eric Rinehart (D, Lake County) are the assistant state's attorneys in the counties where the plaintiffs live.

 

There's nothing in the complaint that asks for it to be certified as a class action. It does ask that the named defendants (which includes Raoul, obviously) be enjoined from enforcing the transportation carry ban.

 

At first, I thought this case was the fruition of Illinois Right to Keep and Carry > FPC seeks plaintiffs for public transportation. Maybe it is. SAF and FPC could be working together on it, I suppose.

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On 9/20/2022 at 6:37 PM, Euler said:

Docket

 

The defendants Rick Amato (R, DeKalb County), Robert Berlin (R, DuPage County), Kimberly M. Foxx (D, Cook County) and Eric Rinehart (D, Lake County) are the assistant state's attorneys in the counties where the plaintiffs live.

 

There's nothing in the complaint that asks for it to be certified as a class action. It does ask that the named defendants (which includes Raoul, obviously) be enjoined from enforcing the transportation carry ban.

 

At first, I thought this case was the fruition of Illinois Right to Keep and Carry > FPC seeks plaintiffs for public transportation. Maybe it is. SAF and FPC could be working together on it, I suppose.

 

This is FPC and SAF working together. It started with FPC seeking plaintiffs, as you noted. 

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On 9/20/2022 at 5:37 PM, Euler said:

Docket

 

The defendants Rick Amato (R, DeKalb County), Robert Berlin (R, DuPage County), Kimberly M. Foxx (D, Cook County) and Eric Rinehart (D, Lake County) are the assistant state's attorneys in the counties where the plaintiffs live.

 

There's nothing in the complaint that asks for it to be certified as a class action. It does ask that the named defendants (which includes Raoul, obviously) be enjoined from enforcing the transportation carry ban.

 

At first, I thought this case was the fruition of Illinois Right to Keep and Carry > FPC seeks plaintiffs for public transportation. Maybe it is. SAF and FPC could be working together on it, I suppose.

So will be ruled like the foid only unconstitutional for THIS person? 

 

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On 9/22/2022 at 2:42 PM, SiliconSorcerer said:

So will be ruled like the foid only unconstitutional for THIS person? 

 

The suit seeks to have the carry ban enjoined for everyone across the entire state. That's why Raoul as AG is included among the defendants. If only the county ASAs were being sued, the injunction might only affect those counties.

 

I have to wonder if Amato and Berlin might actually sympathize with the plaintiffs. (I know nothing about them.)

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  • Molly B. pinned this topic
  • 3 weeks later...

On October 21, Raoul asked for an extension to respond.

 

On October 24, the judge granted the extension. Defense responses are now due November 29.

 

The judge has also asked the plaintiffs to file a report on October 31 outlining the status of service on Foxx and Rinehart, since those two have not responded to the summons issued on September 28.

 

Aside: I'm pretty sure an ASA blowing off a court appearance is kind of a big deal. Foxx and Rinehart both doing it suggests some kind of strategy they've cooked up (no pun intended) between them, like maybe they've decided to be civilly disobedient or something. I doubt those two have decided to surrender. Are they protesting the lawsuit by refusing to participate in the legal process? History is littered with examples that prove that choosing to ignore a lawsuit in the hope that it will go away is a losing strategy.

 

Edited by Euler
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  • 2 weeks later...

On November 3 and 4, representatives for Foxx and Rinehart appeared and filed motions for extensions to respond. The judge granted the extensions until November 29.

 

On November 4, the judge ordered the plaintiffs to show cause (i.e., to demonstrate that they've been harmed, that the plaintiffs caused it, and that there's a judicial remedy to the harm).

 

This suit is a 42 USC Section 1983 civil rights lawsuit seeking injunctive relief from the state's carry ban, so cause should be straightforward to show.

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I noticed that they mentioned how this burdens their ability to travel. They should really lean into that particular point: For many Chicagoans, public transit is their primary, or in some cases, only means of transport.

 

I hope they really keep pushing that particular point.

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  • 2 weeks later...
On 11/4/2022 at 9:15 PM, Euler said:

On November 3 and 4, representatives for Foxx and Rinehart appeared and filed motions for extensions to respond. The judge granted the extensions until November 29.

...

 

On November 10, all defendants filed motions for extensions to respond. On November 14, the judge granted the extensions until December 13.

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  • 1 month later...
On 12/17/2022 at 12:29 AM, Molly B. said:

What does a jury trial mean for a lawsuit?

 

For a civil damages case, the award is typically money, and the jury decides how much.

 

For a civil equity case, like this one, usually the trial is a bench trial, and the judge decides the case based on the law. I can only assume that the defendants think they'll be able to campaign for gun control to a jury and win an emotional verdict. If so, they'd essentially be going for jury nullification of the Constitution. It's certainly an interesting strategy.

 

IANAL

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On 12/16/2022 at 11:42 PM, Euler said:

 

For a civil damages case, the award is typically money, and the jury decides how much.

 

For a civil equity case, like this one, usually the trial is a bench trial, and the judge decides the case based on the law. I can only assume that the defendants think they'll be able to campaign for gun control to a jury and win an emotional verdict. If so, they'd essentially be going for jury nullification of the Constitution. It's certainly an interesting strategy.

 

IANAL

 

Wouldn't the risk be a directed verdict? Seems like 2 different ways for the state to lose this case instead of just one. 

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I'll add that the case was filed in the Federal District of Northern Illinois, so that's where the jury would be sourced. Northern Illinois is divided onto two divisions.

 

The eastern division includes Cook, DuPage, McHenry, Grundy, Kane, Kendall, La Salle, Lake, and Will counties.

 

The western division includes Boone, Carroll, DeKalb, Jo Daviess, Lee, Ogle, Stephenson, Whiteside, and Winnebago counties.

 

Cook, DeKalb, DuPage, and Lake counties are called out specifically in the complaint. I'm not sure if one county in the west, while the rest are in the east, was by design or fortune. I'm also not sure how the jury pool would be apportioned among those counties in the jurisdiction. Obviously Cook is the most populous.

 

It could be fun if the jury would come from northern counties EXCEPT those four, just to be fair, but I don't know how the federal courts would work that.

 

On 12/17/2022 at 12:50 AM, davel501 said:

Wouldn't the risk be a directed verdict? Seems like 2 different ways for the state to lose this case instead of just one. 

 

Maybe they know they won't win on the law, so they're just playing the game that gives them better odds than 0%. I can only speculate.

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On 12/16/2022 at 10:36 PM, Euler said:

On December 13, all defendants responded to the complaint and demanded a jury trial.

 

I got access to the they documents filed, not just the docket entries. The defendants didn't actually demand a jury trial. They were just responding to the demand for a jury by the plaintiffs.

 

Their responses, in summary, amount to:

  1. To any extent that plaintiffs take public transit currently and knowingly comply with the law, they have already knowingly waived their 2nd Amendment rights.
  2. The plaintiffs have no standing to challenge the prohibition, because they have not been charged with violating it.
  3. The plaintiffs have no standing to sue the defendants, because the defendants have not charged them with any crimes.
  4. The plaintiffs may not seek reimbursement for legal fees, because the individual defendants have qualified immunity and the 11th Amendment protects the state.

I find the logic a bit bizarre.

 

Taken together, points 1-3 mean that law-abiding individuals may never seek relief from grievances with the government. Ironically, that's a blazingly strong argument never to comply with any law, including any firearm law. "Oh, you obeyed the law? Well, that means you waived your rights. You can't assert them now."

 

I don't think anyone expects Kim Foxx or Kwame Raoul to write a personal check for the plaintiffs' legal fees.

 

Edited by Euler
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On 12/17/2022 at 12:10 AM, Euler said:

I'll add that the case was filed in the Federal District of Northern Illinois, so that's where the jury would be sourced. Northern Illinois is divided onto two divisions.

 

The eastern division includes Cook, DuPage, McHenry, Grundy, Kane, Kendall, La Salle, Lake, and Will counties.

 

The western division includes Boone, Carroll, DeKalb, Jo Daviess, Lee, Ogle, Stephenson, Whiteside, and Winnebago counties.

 

Cook, DeKalb, DuPage, and Lake counties are called out specifically in the complaint. I'm not sure if one county in the west, while the rest are in the east, was by design or fortune. I'm also not sure how the jury pool would be apportioned among those counties in the jurisdiction. Obviously Cook is the most populous.

 

It could be fun if the jury would come from northern counties EXCEPT those four, just to be fair, but I don't know how the federal courts would work that.

 

 

Maybe they know they won't win on the law, so they're just playing the game that gives them better odds than 0%. I can only speculate.

McHenry county is in the Western Division.

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  • 4 weeks later...

Motions for extensions by the defendants from the docket:

  1. Oct 21, 2022 - Docket entry #6, unopposed, granted Oct 24, 2022 - extended to 11/29/2022
  2. Nov 3, 2022 - Docket entry #15, Defendant Eric Rinehart files for extension of time to file answer or otherwise plead, granted Nov 4, 2022
  3. Nov 4, 2022 - Docket entry #19, Defendant Kimberly M. Foxx files for extension of time to file answer or otherwise plead, granted Nov 2, 2022
  4. Nov 10, 2022 - Docket entry #22, all defendants file for extension of time to file answer, unopposed, granted 11//14/2022 - extended to 12/13/2022

Depending on how you want to count it, 2 requests by Raoul on the docket, 4 by all defendants.

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On 1/16/2023 at 8:07 AM, Upholder said:

Motions for extensions by the defendants from the docket:

  1. Oct 21, 2022 - Docket entry #6, unopposed, granted Oct 24, 2022 - extended to 11/29/2022
  2. Nov 3, 2022 - Docket entry #15, Defendant Eric Rinehart files for extension of time to file answer or otherwise plead, granted Nov 4, 2022
  3. Nov 4, 2022 - Docket entry #19, Defendant Kimberly M. Foxx files for extension of time to file answer or otherwise plead, granted Nov 2, 2022
  4. Nov 10, 2022 - Docket entry #22, all defendants file for extension of time to file answer, unopposed, granted 11//14/2022 - extended to 12/13/2022

Depending on how you want to count it, 2 requests by Raoul on the docket, 4 by all defendants.

 

 

All defendants would include Raoul, correct?

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Per Docket Entry #25: the general position of the defendants' is:

 

Quote

To the extent that Plaintiffs allege that they have previously taken public transit, the Plaintiffs knowingly and voluntarily waived any Second Amendment right they may have had to carry firearms while taking public transit.

 

By taking public transportation, you willing surrender your 2A rights.

Edited by OneGun
typo
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On 1/21/2023 at 11:57 AM, OneGun said:

Per Docket Entry #25: the general position of the defendants' is:

 

By taking public transportation, you willing surrender your 2A rights.

 

On 12/21/2022 at 11:20 PM, Euler said:

I got access to the they documents filed, not just the docket entries. The defendants didn't actually demand a jury trial. They were just responding to the demand for a jury by the plaintiffs.

 

Their responses, in summary, amount to:

  1. To any extent that plaintiffs take public transit currently and knowingly comply with the law, they have already knowingly waived their 2nd Amendment rights.
  2. The plaintiffs have no standing to challenge the prohibition, because they have not been charged with violating it.
  3. The plaintiffs have no standing to sue the defendants, because the defendants have not charged them with any crimes.
  4. The plaintiffs may not seek reimbursement for legal fees, because the individual defendants have qualified immunity and the 11th Amendment protects the state.

I find the logic a bit bizarre.

 

Taken together, points 1-3 mean that law-abiding individuals may never seek relief from grievances with the government. Ironically, that's a blazingly strong argument never to comply with any law, including any firearm law. "Oh, you obeyed the law? Well, that means you waived your rights. You can't assert them now."

 

I don't think anyone expects Kim Foxx or Kwame Raoul to write a personal check for the plaintiffs' legal fees.

 

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  • 1 month later...
  • 3 weeks later...
  • 1 month later...

On April 17, there was a status hearing. The schedule for this case is now:

 

5/1/2023: Amended pleadings, new counts or parties, and third-party complaints due

7/1/2023: Summary disclosure of expert witness verbal testimony due

8/1/2023: Supplemental materials for disclosures due

9/1/2023: Fact discovery closes

10/1/2023: Disclosure of expert witness written testimony due

10/31/2023: All discovery closes

12/4/2023: Dispositive motions due

1/16/2024: Responses to motions due

2/6/2024: Replies to responses due


[No doubt some of those dispositive motions will be for dismissal and summary judgment.]

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