Wood River attorney Thomas Maag objects to Illinois State Police Director Brendan Kelly’s motion for a stay on non-Second Amendment claims in a southern Illinois gun ban challenge, arguing that the state is “terrified that this court will rule in accord with well established precedent on the topic.”
On June 12, Maag filed the response in the U.S. District Court for the Southern District of Illinois, objecting to Kelly’s motion to stay Maag’s previous request for partial summary judgment.
“Plaintiffs would have no problem with waiting until the close of discovery for briefing and ruling on said motion, if defendants would agree to stay enforcement of the statute until such a ruling on the statute,” Maag wrote. “Otherwise, innocent Illinois citizens will be subject to a statute, risking criminal prosecution and severe penalties, when the entire statute is unconstitutional. It is without doubt that defendants will not agree to such a stay on enforcement of the statute while they attempt to defend it.”
Maag argues that the plaintiffs agreed to temporarily forgo a ruling on non-Second Amendment issues after the court heard a consolidated motion for preliminary injunction limited to the Second Amendment claims in order to expedite a trial court decision.
“Plaintiffs were crystal clear they were not waiving those non-Second Amendment issues,” Maag wrote. “This court, at oral argument on the Second Amendment issues in the preliminary injunction, even commented that we will have to get to the non-Second Amendment issues in the future. That future is now.”
Maag previously filed a motion for partial summary judgment on behalf of the Langley plaintiffs on May 19.
“This court previously heard motions for preliminary injunction as to the Second Amendment claims in this case, specifically reserving the remaining claims in this case for future ruling,” Maag wrote. “One of those reserved claims was the vagueness claims. Granted, the preliminary injunction issue is presently pending in a higher court, which appears headed on a fast train to Washington D.C. However, this case is not stayed. The time to hear these claims is now.”
Maag argues that the “statute is void for vagueness.”
“In this case, multiple portions of the statute are so vague and ambiguous and to be indecipherable, not just by lay persons, but even by experts,” he wrote.
He added that “most of the act is so vague and ambiguous as to call into serious question the competence in the subject matter of the persons that wrote it.”
Maag wrote that if the case were to go to trial, the plaintiffs would focus on the vagueness of the ammunition capacity issues for feeding devices and the “rifles, duplicates, variants, or altered facsimiles with the capability of any such weapon.”
For example, Maag explained that not all “assault weapons” use magazines. Some weapons feed ammunition from cloth belts, feed strips, and “disintegrating links.”
He also argues that some weapons are not specifically identified as handguns, rifles or shotguns.
Maag claims the list of prohibited weapons was “written by persons with no actual knowledge of firearms, rather, it is just a list of guns that someone, without actual firearms knowledge, through (sic) might be similar, and even at that, failed.”
Attorney Kathryn Hunt Muse filed a motion to stay consideration of Maag’s motion for partial summary judgment on June 2.
“In the interest of judicial economy and to avoid piecemeal litigation and appeals, the court should continue its stay of the proceedings on these claims and deny without prejudice the Langley plaintiffs’ summary judgment motion,” Muse wrote.
She argues that if partial summary judgment was considered now, then any ruling would be “immediately appealable.”
“Given that briefing and argument will conclude in the Seventh Circuit regarding the current interlocutory appeals before briefing of the instant motion, deciding the Langley plaintiffs’ motion would generate a second interlocutory appeal too late for consolidation with the currently pending interlocutory appeals,” Muse wrote.
In Maag’s response, he noted that the Seventh Circuit has jurisdiction over Second Amendment issues, which are not the subject of his request.
“In fact, they have nothing to do with each other. Whether or not the Seventh Circuit (or ultimately the Supreme Court) affirms, or rejects, the Second Amendment claims in this case, at the preliminary injunction phase, will neither be the end of this issue, nor will it end the case,” Maag wrote. “At most, it will strongly suggest the ultimate outcome, of Second Amendment claims.”
“Vagueness and Fifth Amendment issues remain,” he added. “Every day that goes by, defendant is purporting to enforce this statute, to the detriment of the people of the state of Illinois. Justice delayed is in fact justice denied.”
In her motion to stay, Muse also argues that Maag’s motion for partial summary judgment requires discovery in an “inefficient manner,” and lifting the stay would “deprive this court of some of the benefits of consolidation.”
In his response, Maag questions what discovery Kelly would need in order to respond to his motion.
“The simple and obvious fact is that the state needs no discovery at all to respond to this motion,” Maag wrote. “Defendant is the Illinois State Police, with a claim of forensic laboratories and firearms experts on staff.”
“Either plaintiff is completely wrong on all of his alleged facts, and thus the factual basis of the motion is wrong, and if so, presumably the State of Illinois, with all of its resources and experts, can find one person to say so in an affidavit refuting an allegation material to the motion, and thereby creating an issue of fact in dispute, or, plaintiffs, a few oilfield workers from Crawford County, represented by a two person law firm, have out litigated the entire State legal system of the Illinois Attorney General, and filed a meritorious motion, along the line of a checkmate in 3 moves, and the State simply weeks to delay the inevitable,” he added.
As for Muse’s argument that litigating the motion for summary judgment would deprive the court of consolidation benefits, Maag argues that the defendants - not the plaintiffs - asked for consolidation in federal court.
“It is unseemly that now, having successfully removed this case and convinced this court to consolidate same, that defendant should not complain plaintiffs wishing to proceed with their two meritorious non-Second Amendment claims somehow interferes with the benefits of the consolidation that plaintiff did not ask for,” he wrote.
Maag argues that Kelly seeks a stay because he is “terrified that this court will rule in accord with well established precedent on the topic, and find the statute unconstitutional on, at least, non Second Amendment grounds, as it plainly is.”
U.S. District Judge Stephen McGlynn granted a statewide injunction for the four consolidated gun ban challenges on April 28 in the Southern District of Illinois. The state defendants appealed the ruling to the Seventh Circuit. Briefing is set to conclude on June 26 and oral arguments on June 29.
“In no way does this Court minimize the damage caused when a firearm is used for an unlawful purpose; however, this Court must be mindful of the rights guaranteed by the Constitution,” McGlynn wrote.
“While (the Illinois ‘assault weapons’ ban) was purportedly enacted in response to the Highland Park shooting, it does not appear that the legislature considered an individual’s right under the Second Amendment nor Supreme Court precedent.
“Moreover, (the ban) did not just regulate the rights of the people to defend themselves; it restricted that right, and in some cases, completely obliterated that right…” he continued.
The gun ban, or the Protect Illinois Communities Act, was signed into law on Jan. 10 by Gov. J.B. Pritzker. Since then, there have been several state and federal lawsuits challenging the law’s constitutionality.