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City of Chicago Wants Fee Request Tossed Out

May 5, 2011 | Posted in : Fee Award Factors, Fee Dispute, Fee Entitlement / Recoverability, Fee Issues on Appeal, Fee Request, Prevailing Party Issues

A recent NLJ story, “Chicago Wants Appeals Court to Shoot Down Legal Fee Request” reports that lawyers for the City of Chicago maintain the plaintiffs’ attorneys in the gun rights case that reached the U.S. Supreme Court should not be awarded attorney fees because the city voluntarily repealed its handgun ban before an judgment was issued.  At issue, in the fee dispute is whether plaintiffs’ lawyers, including Alan Gura of Gura & Possessky in Alexandria, VA, were the so-called “prevailing parties” in the Second Amendment litigation.

In McDonald v. Chicago, the U.S. Supreme Court ruled for the plaintiffs, declaring that individuals have a right to possess firearms, at least in their homes.  The high court reversed the U.S. Court of Appeals for the 7th Circuit and remanded the case to the trial court.  Before the case returned to the trial court, however, Chicago repealed the city’s handgun ban.  Chicago lawyer’s said the city’s handgun repeal was a voluntary action.  No judgment required the city to act.  Gura’s suit against Chicago was dismissed as moot and the trial judge in the case declined to award attorneys’ fees to him and to the National Rifle Association, which was involved in a parallel suit in nearby Oak Park.  Gura is appealing the trial judge’s ruling.

Chicago’s lawyers said the plaintiffs’ claims “were properly dismissed before they were resolved by judgment, consent decree or other judicially enforceable order.”  The plaintiffs, the city lawyers said, did not win and now are trying to ‘water down’ settled law that prohibits an award of attorneys’ fees in cases in which there was no final court order.  Gura called Chicago’s position “absurd”.  Gura added, “there was nothing voluntary about what the City of Chicago did.  The city was compelled to change its law by the Supreme Court.”