Deerfield Assault Weapons Ban Upheld By Divided Appeals Court

ELGIN, IL — Deerfield could soon begin enforcing its ban on certain semi-automatic long guns following an opinion released last week by a state appeals court.

A divided three-judge panel of the Illinois 2nd District Appeals Court on Friday lifted permanent injunctions issued last year by a Lake County judge that had forbidden village officials from enforcing any part of the assault weapons ban ordinance trustees passed unanimously in April 2018.

The ruling found Deerfield had the power to regulate assault weapons at the time and sent the case back to Lake County circuit court for further proceedings. Lawsuits challenging Deerfield's ban from two sets of plaintiffs — Daniel Easterday and the groups Illinois State Rifle Association and Second Amendment Foundation, as well as John Wombacher and the group Guns Save Life — were consolidated into a single appeal.

The challenges argued the ban was forbidden under the 2013 laws that created a new legislative framework for legal firearm ownership after a federal court in found Illinois' previous gun laws were unconstitutional the year before.

Those new laws — the Concealed Carry Act and the Firearm Owners Identification Card Act, or FOID Card Act — allowed local governments to pass their own assault weapons regulations as long as they did so within 10 days of the Concealed Carry Act's passage in July 2013. The law also specifically allowed for those regulations to be amended in the future.

Back in 2013, the Deerfield Village Board passed an ordinance defining assault weapons and mandating certain measures be taken when transporting or storing them, but stopping short of an outright ban.

Judge Kathryn Zenoff agreed with the village's interpretation that lawmakers in Springfield had provided for a brief window for local governments to retain the power to regulate assault weapons — and the village had done so.

"Deerfield understood that if it failed to regulate such weapons by July 20, 2013, it would forever lose its power to do so," Zenoff said in her 36-page opinion. "Although Deerfield was not ready to impose a total ban on assault weapons, it did not want to lose its regulatory authority on this matter. Deerfield believed that if it timely regulated assault weapons, it could amend those regulations at any time and in any manner it wished."

Following a February 2018 mass shooting at a high school in Parkland, Florida, Deerfield Mayor Harriet Rosenthal directed village staff to draw up an amendment to the ordinance that includes a total prohibition on possession of assault weapons. The language of the amended ordinance is closely modeled on Highland Park's firearm ban, which has been upheld by federal appeals courts.

"I believe the time has now come to revisit a complete ban of assault weapons," Rosenthal said at the time. "We hope that our local decision helps spur state and national leaders to take steps to make our communities safer."

Easterday and Wombacher each filed suit in Lake County court challenging the ordinance. Deerfield was represented pro bono by Chris Wilson of Perkins Coie and the Brady Center to Prevent Gun Violence.

In June 2018, before the ordinance could take effect, Lake County Associate Judge Luis Berrones issued a temporary restraining order blocking it from being enforced. Berrones followed that order with a permanent injunction in March 2019. Attorneys for the village appealed prematurely in their first attempt, which Zenoff and two other judges dismissed in June 2019.

After the cases were formally merged and elements of Berrones' decision were rendered final, Deerfield's appeal was accepted earlier this year, with oral arguments held in June.

While Zenoff's opinion found that Deerfield had the authority to enforce an outright ban on assault weapons, the question of how to interpret its ban on "large capacity magazines" was more complicated.

Deerfield's ordinance did not initially include such magazines, which it defined as those able to hold more than 10 bullets. After that was noted in Wombacher's lawsuit and Berrones' temporary restraining order, trustees further amended the amended ordinance to include a magazine prohibition.

"On appeal, Deerfield maintains that large capacity magazines are commonly understood as components of assault weapons. Deerfield would have us believe that large capacity magazines are also exclusively components of assault weapons," Zenoff said. "Essentially, Easterday and Guns Save Life contend that large capacity magazines are not exclusive to assault weapons and can be used with handguns."

On this point, the majority on the appellate panel agreed with the lower court's ruling. Because state law clearly forbids local governments from regulating handguns — the 10-day window in July 2013 for villages to retain regulatory authority only applies to assault weapons — and because many extended magazines for handguns hold more than 10 bullets, the judges found the village cannot ban ammunition used for handguns.

The village's assault weapon definition includes some styles of semi-automatic pistols "when not designed to be held and fired by the use of a single hand." It was not immediately clear whether ammunition for such weapons — models like the Uzi, MAC-10 and TEC-9 — would be covered under the court's ruling.

Village Attorney Steve Elrod, who supervised Chris Wilson's legal team from Perkins Coie, said in a statement Monday that Zenoff's Dec. 4 opinion accepted all the village's arguments concerning its home rule authority and interpretation of state firearm and municipal laws.

"We were troubled with the legal interpretations and legal reasoning set forth in the trial court’s opinion, and we are pleased that the Appellate Court corrected the analysis, as a matter of law," Elrod said. "As the Appellate Court correctly determined, Deerfield was well within its authority as a home rule unit to adopt the assault weapon ban."

RELATED: Cook County Assault Weapons Ban Upheld By Federal Appeals Court

While Judge Donald Hudson concurred with Zenoff's opinion, Judge Robert McClaren dissented, arguing that the trial court should have been affirmed.

McClaren said that Deerfield's 2013 ordinance had not actually regulated the ownership of assault weapons, merely their possession, an argument that had not been raised by the plaintiffs. He disagreed with the majority that the two concepts are interchangeable.

The village's 2018 ban "annulled the 2013 ordinance, wiping out the right to ownership of assault weapons that Deerfield had explicitly recognized in 2013. It was a complete reversal of its 2013 ordinance, now prohibiting that which had previously clearly been allowed," McClaren said.

The dissenting judge also rejected the village's argument that its 2018 ordinance qualified as an amendment and was therefore permitted under state law.

"There is a riddle attributed to Abraham Lincoln: how many legs does a dog have if you call his tail a leg? The answer, of course, is four; calling a tail a leg does not make it a leg," McClaren said. "Similarly, here, the simple act of calling the 2018 ordinance an amendment of the 2013 ordinance does not make it one."

RELATED: Supreme Court Allows Cook County Assault Weapons Ban To Stand

Lead plaintiff Daniel Easterday, a firearms instructor at a suburban gun shop, said he was personally disappointed in the ruling.

"I disagree with it, because I believe what Deerfield did was not amending an ordinance, and an end run around the spirit of what the state intended," Easterday said. "The state basically, in 2013, said, 'Either you're going to do it or you're not. Don't sit on the fence.' Deerfield sat on the fence, then decided later to get off the fence, and I think that was against the spirit of the preemption language of the Conceal Carry Act and the FOID Act as amended in 2013."

Easterday said the other plaintiffs are reviewing the decision and determining whether to ask the Illinois Supreme Court to reverse the appellate panel's ruling. They have until the end of the first week of January to ask the state's highest court to hear the case.

According to Elrod, Deerfield's village attorney, there is no longer any legal restriction stopping the village from enforcing the ban now that the trial court's permanent injunction has been vacated.

Village officials announced police intend to begin enforcing the ordinance immediately. Although it will initially be "primary through education and voluntary compliance," according to a statement from the office of Deerfield Village Manager Kent Street, officers may issue citations for any violations of the ordinance.

“We are pleased the court validated our right to regulate this important public safety measure. I continue to believe that these weapons have no place in our community,” Deerfield Mayor Harriet Rosenthal said in the statement. “I thank all of the residents, especially students, who called for action following the shooting at Marjory Stone Douglas High School.”

Read: Complete Dec. 4 opinion in Easterday v. Village of Deerfield »
Listen: Complete June 9 oral argument audio »