EAST ST. LOUIS - Plaintiffs challenging Illinois' so-called "assault weapon" ban moved to stay proceedings with agreement from the state’s lawyer, but U.S. District Judge McGlynn told them it was time to move forward.
In a conference on Jan. 12, he told them to prepare for an evidentiary hearing like a trial.
“Nobody is going to miss a summer vacation working on this. It’s going to be done before that,” McGlynn said.
Gov. J.B. Pritzker signed the law a year ago, banning the production and sale of specific weapons and placing conditions on current owners who purchased them legally.
McGlynn presides over four consolidated cases challenging the law in the Southern District of Illinois.
McGlynn entered an injunction against the law last year, but Seventh Circuit appellate judges found it premature and directed him to develop a record.
Plaintiffs posted notice that they’d petition the U.S. Supreme Court for a writ of certiorari, or “cert,” granting review of the Seventh Circuit decision.
McGlynn stated he’d proceed on the merits, and he set a telephone conference to get started.
During the conference, there was resistance from three plaintiff groups and the state.
Plaintiff counsel Matthew Rowen of Virginia said, “Given that the Supreme Court may have a different view of the law and given that our clock to seek cert is ticking, it may make more sense to pause any potential evidentiary presentation.”
McGlynn responded, “It’s not going to happen. We’re going forward.”
“You are going to have to think about what evidence you want to marshal, how you are going to present it, what witnesses you are going to use and how long it’s likely to take,” he said.
Assistant Attorney General Christopher Wells also argued for a stay.
“It’s a waste of resources for the court to conduct an evidentiary hearing if the plaintiffs think the legal standards are going to change,” he said.
Wells said a judge in the northern district stayed another case that day.
“The idea that we would have one case out of several race forward while the other cases are stayed, I don’t think it’s going to be well received by the Seventh Circuit,” he said.
McGlynn responded, “The Seventh Circuit has remanded this case to me for further proceedings.”
Thomas Maag of Wood River, representing a fourth group, took McGlynn’s side alone.
“The Langley plaintiffs are ready to proceed,” he said.
Maag added that he could make discovery disclosures in ten days or less.
Wells brought up waste again, and McGlynn said, “This case is not up on cert.”
“There have been multiple filings with the Supreme Court begging them to grant certiorari in this and in many other cases and they have consistently turned it down,” he said.
“We’re going to proceed in developing a record, and we’re going to proceed promptly,” he added.
Plaintiff counsel Carl Michel of Long Beach, California, also urged McGlynn to grant a stay.
Michel said the Supreme Court decided emergency petitions, not certiorari.
McGlynn said injunctive relief took about a year, “and now we’re here.”
“A lot of the record that would be developed here would be perfectly relevant to the other cases,” he said.
Lastly, Plaintiff counsel David Sigale of Lombard tried to change McGlynn's mind on a stay.
“We’re going to be preparing a cert petition and preparing for an evidentiary hearing at the same time,” he said.
McGlynn responded, “How many times have you guys briefed this case? How many times have you argued this case in how many courts?”
Michel said McGlynn could allow the parties to come up with a management plan or a case presentation like a trial notebook.
He predicted a can of worms.
McGlynn asked Wells what discovery the government needed to figure out whether or not the legislation it passed is constitutionally sound or unsound.
Wells named plaintiff experts he’d like to depose.
McGlynn said, “All that stuff is going to happen.”
“How are we going to fully develop the record so that when there is a final determination the courts can look at the various firearms, the various attachments, and decide whether or not they fall into whatever particular test they decide to apply?” he asked.
“How am I going to prove what firearms are commonly held or in common use? How am I going to prove the technical capabilities of these particular firearms?” he added.
McGlynn said, “You guys are going to decide what you’re fighting over.”
“Assault weapons is not a scientific term. It’s more of a political term, and it varies from who you talk to and it varies how it’s defined,” he added.
“We are going to analyze each of them with respect to whether they are truly reserved for military uses,” he continued.
He started a sentence but stopped and said, “Somebody’s dying to talk but they ought to be dying to listen.”
“It’s not a jury trial. This is a request for declaratory judgment,” he said.
“I’m going to keep a short leash on this,” he added.
McGlynn set another conference for Feb. 2.