Updated 12:13 p.m.
When the U.S. Supreme Court ruled against Chicago's handgun ban last June, civil rights attorney Alan Gura considered himself a winner in the landmark case.
Judge Milton Shadur of Chicago federal district court, however, did not see a victory at all. Shadur ruled against Gura's demand for legal fees.
Shadur said Gura, of Alexandria's Gura & Possessky, was not the prevailing party because Chicago, days after the high court ruling, repealed and amended the city's gun law. Inducing a defendant to change conduct, the judge said, pointing to Supreme Court precedent, isn’t enough to declare victory and earn a right to pursue legal fees.
Gura took the dispute to the U.S. Court of Appeals for the 7th Circuit, setting up an appeal that asked the question: What does it mean to “win” in the Supreme Court? Today, the appeals court answered the question.
A unanimous three-judge panel ruled in favor of Gura’s legal fee request, reversing Shadur and sending the dispute back to U.S. District Court for the Northern District of Illinois. The court instructed Shadur to award reasonable fees. Gura has not publicly identified the amount he is seeking from Chicago.
Chief Judge Frank Easterbrook, sitting with Judges Richard Posner and William Bauer, said in the five-page ruling that lead plaintiff Otis McDonald achieved a decision that altered the legal relationship of the parties. (Lawyers for the National Rifle Association, a plaintiff in a related suit, also pursued fees on appeal. The court ruled simultaneously today in favor of McDonald and the NRA.)
“Many a defendant gives up after a district court’s final decision and does not appeal; some other parties settle to avoid the risk of reversal,” Easterbrook said. “If a cessation of hostilities after a district court’s decision does not deprive the victor of prevailing party status, why should conceding defeat after a decision by the Supreme Court do so?”
Lawyers for Chicago and the Village of Oak Park argued in the appeal that the Supreme Court ruling addressed a preliminary legal issue that did not resolve the plaintiffs’ claims.
A lawyer for Chicago, Suzanne Loose, assistant corporation counsel, said in court papers the high court decision in McDonald v. Chicago did not itself strike down the city's handgun ban. The city, Loose said, voluntarily amended its ordinance in the absence of any court order to make changes.
The appeals court said after the Supreme Court ruled the Second Amendment applies to states and municipalities, the defendant’s handgun bans could not be sustained. Easterbrook said Chicago and Oak Park “bowed to the inevitable” before Shadur could issue a final judgment.
“The district court was right to observe that plaintiffs did not receive a favorable judgment from it,” Easterbrook said today. “But they did better: They won in the Supreme Court, which entered a judgment in their favor.”
A spokesperson for the city’s Department of Law was not immediately reached by phone and e-mail this morning. Gura was traveling this morning and not immediately available for comment.
"Obviously we are very pleased with the decision," Gura said. "It's fairly obvious we prevailed in this case and the city is liable for that." Gura said he hopes "the city will come to its senses to resolve this without any additional litigation."