Kole et al v. Village of Norridge, et al

Filing 243

AMENDED MEMORANDUM Opinion and Order: During a status hearing held on 11/3/2017, this Court set a briefing schedule on an anticipated motion for reconsideration by defendant. Upon further review, this Court is amending and reissuing its opinion to eliminate a discussion that was not central to its holding. A status hearing is set for 11/20/2017. At that hearing, defendant may report on whether it still intends to file a motion for reconsideration or whether that briefing schedule should be stricken. Status hearing set for 11/20/2017 at 09:00 AM. Signed by the Honorable Thomas M. Durkin on 11/6/2017:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TONY KOLE AND
GHOST INDUSTRIES, LLC,
Plaintiffs,
v.
VILLAGE OF NORRIDGE,
Defendant.

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No. 11 C 3871
Judge Thomas M. Durkin

AMENDED MEMORANDUM OPINION & ORDER
Plaintiffs Tony Kole and Ghost Industries, LLC sued the Village of Norridge
(the “Village”) for impeding plaintiffs’ attempts to operate a licensed gun store in
the Village. Plaintiffs raise a variety of constitutional claims pursuant to 42 U.S.C.
§ 1983, including for violations of the Second and Fourteenth Amendments (Count
I), violations of Fourteenth Amendment substantive due process (Count II),
violations of the dormant commerce clause (Count III), violations of the First
Amendment (Count IV), and violations of the Fourteenth Amendment right to equal
protection of the law (Count VIII). Plaintiffs also seek declaratory relief under the
Illinois Constitution (Count V) and claim that the Village retaliated against them
for asserting their Second and Fourteenth Amendment rights (Counts VI and VII).
Several months after this Court denied in part a motion to dismiss plaintiffs’
claims and a few weeks after the Court entered a temporary restraining order to
preserve the status quo, the Village amended its weapons dealer ordinance from an
outright ban (with a time-limited exception for plaintiffs) to a set of zoning

requirements. Plaintiffs sought to enjoin enforcement of the amended ordinance,
and this Court held a preliminary injunction hearing. When the Court was about to
rule on plaintiffs’ motion for a preliminary injunction, the Village again amended its
weapons dealer ordinance to make the zoning requirements less restrictive.
Plaintiffs do not challenge the legality of the most recent ordinance, and they
have stopped pursuing the possibility of operating a gun store in the Village. They
therefore no longer make facial constitutional challenges to the Village’s ordinances
or request injunctive relief. R. 226 at 3. Instead, they make as-applied challenges to
the prior ordinances and to an agreement they signed with the Village, and they
seek damages for the time period those ordinances and agreement were in effect. Id.
Plaintiffs and the Village have filed cross-motions for summary judgment. R.
191; R. 196. Plaintiffs seek summary judgment on Counts I, III, IV (in part), VI, and
VII only. R. 196; R. 206 at 2. The Village seeks summary judgment on all claims. R.
191; R. 195. The Court ordered the parties to file summary judgment motions on
liability only as an initial matter, leaving the issue of damages for another day.
For the reasons explained below, the Court denies both parties’ motions for
summary judgment on Counts I, IV (in part), VI, and VII. The Court grants the
Village’s motion for summary judgment on the remaining counts.
Background1

The Court cites the Village’s Statement of Material Facts (R. 190) as “DSMF
¶ __,” plaintiffs’ Response (R. 220) as “PR ¶ __,” plaintiffs’ Statement of Material
Facts (R. 197) as “PSMF ¶ __,” the Village’s Response (R. 219) as “DR ¶ __,” and
plaintiffs’ Response to the Village’s Statement of Additional Material Facts (R. 236)
1

2

Although most of the material facts in this case are undisputed, several fact
disputes remain as set forth below. In July 2010, Kole organized Ghost Industries, a
firearm sales business engaged in interstate commerce. DR ¶¶ 3, 4; PR ¶¶ 4-5, 8.
Kole originally told the Village he planned to operate an online-only business and to
lease office space “for administrative purposes only.” PR ¶¶ 9, 12. In an August 11,
2010 email, the Village’s engineer and building commissioner Brian Gaseor advised
Kole to “check our ordinance for Weapons Dealers” and informed him that “[l]ots ‘B3’ GENERAL BUSINESS DISTRICT and ‘C’ COMMERCIAL DISTRICT could
accommodate your office.” R. 238 at 9; PSMF ¶ 8.
After communicating with Gaseor, Kole entered into a one-year lease on
October 1, 2010 for a property in the Village. DR ¶ 6; PR ¶ 13. That rental property
would have needed to be renovated before it could be used as a retail space. PR
¶ 13. The lease allowed for mutual cancellation on or before December 31, 2010 if
Kole “failed to obtain a Federal Firearms License [‘FFL’]” as long as he “exercised
due diligence” in the attempt. P-Ex 7 ¶ 9.
Regulations give the Bureau of Alcohol, Tobacco, Firearms and Explosives
(“ATF”) the right to perform an inspection before issuing an FFL. PR ¶ 13. When
Kole was en route to an ATF inspection for his FFL, he received a call from the ATF
investigator cancelling it. DR ¶ 7; P-Ex. 16 at 31. The parties dispute whether the
Village had a hand in the cancellation, with Kole testifying that it did. DR ¶ 7.

as PR-DAF ¶ __. The exhibits filed in support of plaintiffs’ Statement of Material
Facts are cited as P-Ex __.
3

Following the cancellation, Kole spoke with Gaseor and reminded him that
Kole leased an office based on the Village’s representations about zoning and the
Village’s weapons dealer ordinance. DR ¶ 8. Kole and his attorney then had
numerous communications with the Village’s attorney Mark Chester. DR ¶ 9; PR
¶ 15. Chester explained to Kole that the Village’s weapons dealer ordinance was
written in 1972 in response to a request by Kmart, and “everyone had forgotten the
ordinance existed until Kole came along.” DR ¶ 10; PR ¶ 10.
A.

The Agreement

On November 30, 2010, Kole and the Village entered into an Agreement
whereby the Village would issue Kole a weapons dealer business license subject to a
number of terms and conditions. PR ¶ 21; DR ¶ 11. Agreement negotiations
involved several back-and-forth letters between Kole and Chester. PR ¶¶ 16-20.
Kole’s attorney was involved in this exchange and approved at least one version of
the Agreement. PR ¶ 17.
The Agreement’s terms and conditions included:


Plaintiffs could not deliver firearms or ammunition to any recipient at
the premises (i.e., there could be no retail sales);



All deliveries from the premises had to be sent in unmarked
packaging for used firearms and in the original packaging for new
firearms;



Plaintiffs could not store firearms or ammunition on the premises
overnight or for more than 12 hours a day, and any inventory had to be
disabled by a locking device or secured in a locked cabinet;



Plaintiffs could not maintain a sales or retail display of firearms or
ammunition on the premises;



Plaintiffs could not post exterior signage advertising their location to
the public or indicating that they sell firearms and must comply with
limits on interior signage;
4



Plaintiffs’ officers and employees had to submit to fingerprinting and
annual criminal background checks, at the Village’s expense;



Plaintiffs had to install and maintain a video surveillance system;



Plaintiffs had to abide by monthly limits on the quantity of firearms
and ammunition received at the premises and a limit on the quantity
of firearms and ammunition that may be on the premises at any one
time; and



Plaintiffs had to allow one random and two scheduled inspections of
the premises per month.

P-Ex. 8.
The Agreement provided that “Norridge will renew Ghost’s License twice
annually provided that Ghost remains in compliance with this Agreement and to
exempt Ghost from any change in its business license ordinances and rules in any
amendments Norridge may make to its Code of Ordinances.” PR ¶ 13. The
Agreement explained that “in the event that Norridge repeals its Weapons Dealer
Ordinance within thirty six months of the execution of the Agreement, Norridge will
exempt Ghost from the repeal during that period.” P-Ex. 8.
Fact disputes remain as to whether, and to what degree, Kole negotiated the
Agreement with the Village under economic duress or unwillingly because it was
the only way he could get a weapons dealer license. He was undisputedly
unemployed at the time and had already signed a lease. PR ¶¶ 7, 13; DR ¶¶ 6, 8. He
testified that he was “[u]nder duress” because he was “unemployed,” “had a small
amount of savings,” and “was investing all of [his] savings into this business
venture.” P-Ex 15 at 61; DR ¶ 11. He testified that he would not have agreed to any
Agreement terms if he was not under such duress. P-Ex 15 at 62.

5

But Kole also was represented by counsel during the Agreement negotiations,
and, as the Village emphasizes, at one point Kole sent a letter to Chester with
suggested terms, many of which closely resemble those in the Agreement. PR ¶ 16
(“I [Kole] am restating the negotiable terms that the Company would like to reach
an agreement with the Village . . . . Please contact me at your earliest convenience
so that we can schedule a meeting to discuss the terms of an agreement and allow
the Company to address the Village’s concerns with regard to ensuring that the
safety of the community is the top priority of the Company.”). Among those terms
were agreements not to “post or erect any signage” and to “sell the majority of
firearms and ammunition to Nonlaw enforcement personnel through internet and
direct sales.” PR ¶¶ 16 & 22. The Village also points out that other Agreement
terms were requirements in plaintiffs’ lease, and plaintiffs had the opportunity to
cancel that lease prior to December 31, 2010 if, with due diligence, they were unable
to obtain an FFL. PR ¶ 22; R. 238 at 10. The Village further notes that plaintiffs
have not quantified the degree of savings Kole had invested at the time. DR ¶ 11.
B.

The 2011 Ordinance

On February 9, 2011, the Village revised its weapons dealer ordinance. DR
¶ 17; PR ¶ 23. The 2011 Ordinance limited the number of weapons business licenses
in the Village to one (i.e., the license issued to plaintiffs) through April 30, 2013. PEx. 10. The Ordinance stated that “the one current Village weapons dealers licensee
has agreed that it will cease doing business in the Village no later than April 30,

6

2013.” P-Ex. 10. The Ordinance further provided that it would terminate weapons
business licenses altogether as of April 30, 2013. P-Ex. 10.
Kole testified that sometime in 2011, after operating for about six months to
a year, he realized that he wanted to shift his business model to a retail sales
business with outside signage and advertising in order to increase revenue, which
he could not do pursuant to the Agreement. DR ¶ 16; PR ¶ 24. In June 2011,
plaintiffs filed this lawsuit challenging the 2011 Ordinance and the conditions
imposed by the Agreement. R. 1.
In March 2013, Kole began working again in his former job as an elevator
constructor. PR ¶ 39. He hired an independent contractor to operate Ghost
Industries on a part-time basis. PR ¶ 39. A month later, in April 2013, this Court
granted in part and denied in part a motion to dismiss, finding, among other things,
that plaintiffs had stated a valid Second Amendment claim challenging the
Agreement and 2011 Ordinance. R. 79.
As of April 30, 2013, the status of plaintiffs’ weapons dealer license was
uncertain. The 2011 Ordinance, by its terms, terminated all weapons dealer licenses
in the Village as of April 30, 2013. P-Ex. 10. The 2011 Ordinance further stated that
plaintiffs “agreed” to “cease doing business in the Village no later than April 30,
2013.” P-Ex. 10. Under the Agreement, however, “Norridge . . . exempt[ed] Ghost
from the repeal” of its prior ordinance for 36 months (i.e., from November 30, 2010
through November 30, 2013). P-Ex. 8. On November 27, 2013, this Court granted

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plaintiffs’ motion for a temporary restraining order allowing plaintiffs to remain in
business and preserving the status quo while this case was pending. R. 108.
C.

The 2013 Ordinance

On December 11, 2013, a few weeks after this Court granted plaintiffs’
motion for a TRO, the Village again revised its weapons dealer ordinance. The 2013
Ordinance contained zoning restrictions rather than a limitation on weapons
business licenses. DR ¶ 20; PR ¶ 32. The 2013 Ordinance prohibited gun stores from
operating “within one thousand feet (1,000’) of the property boundary of any: a)
public or private nursery, elementary, or secondary school; b) childcare facility; c)
government building; d) public park, playground, playing field, forest preserve, or
other recreational area; or (e) place of religious worship.” P-Ex. 11 § 22-362. It
further provided that a “licensee hereunder may locate its business as a special use
in the Village’s B-3 General Business District, subject to the requirements of the
Zoning Ordinance of the Village of Norridge, as amended.” P-Ex. 11 § 22-364(G).
These restrictions undisputedly left only 0.57% of the total Village land area
including roads available to locate a gun store (or 0.76% of the total Village land
area excluding roads). DR ¶ 23 & P-Exs. 12, 16. More than half (62.61%) of the
Village’s total land area is zoned for residential use, and 10.32% is zoned for
commercial use. PR ¶ 32.
The property Kole was leasing for his online sales business did not meet the
2013 Ordinance’s requirements. DR ¶ 22; PR ¶ 14. He began to look for available

8

space for a retail store, including using a feature on the Village’s website that would
tell him if a selected location met the 2013 Ordinance’s requirements. DR ¶ 22.
Unless Kole first obtained a zoning variance, the 2013 Ordinance restricted
potential locations for a gun store to one strip mall with two potential rental units
available. DR ¶¶ 24-25; P-Ex. 16 at 54-55, 192-96, 238; P-Ex. 14 at ¶ 10; P-Ex. 15 at
73. Kole called the leasing agent of those two rental units multiple times, but she
never called him back. DR ¶ 25. As of February 9, 2016, these rental units were still
vacant. DR ¶ 25. Kole found one potential rental space for a retail store with a
landlord who was initially agreeable, but that space did not meet the zoning
requirement. DR ¶ 26.
As of August 8, 2014, Ghost was operating on a limited basis, DR ¶ 30, Kole
let his rental lease lapse at his original location. DR ¶ 32; PR ¶ 7. After that,
plaintiffs’ only sales were from Kole’s personal collection. DR ¶ 34.
The parties dispute the reason for Ghost’s decline. Kole claims the reason he
began operating on a limited basis was because he did not have a retail storefront,
which reduced his profitability. P-Ex 15 at 96-97, 101. He points out that his two
main distributors revoked his credit lines because they required a physical
storefront. DR ¶ 30; P-Ex 15 at 97; P-Ex 16 at 69-70; P-Exs. 20-21. Without these
credit lines, Kole’s business options were limited, including because he could not
purchase from a distributor until he took a payment from a customer. DR ¶ 31.
The Village disputes that the lack of a retail storefront “caused Plaintiffs to
not have the resources to remain a viable business.” DR ¶ 30. The Village points to

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plaintiffs’ decent profits from its online business: $64,053 in 2011, $141,162 in 2012,
and $136,450 in 2013. PR ¶¶ 26-28. The Village claims the reason for plaintiffs’
limited operations and decline in 2014 was that Kole had returned to work as a fulltime elevator constructor in March 2013. DR ¶ 30. And the Village notes that Kole’s
creditors never accommodated his online business model. DR ¶ 30.
On August 18, 2014, this Court held a preliminary injunction hearing to
determine whether to enjoin the 2013 Ordinance. At that hearing, the Village’s
engineer and building commissioner Gaseor testified that it was “Correct” that
“literally then, the only area [plaintiffs] could move into without having a zoning
variance is that [strip mall] area we spoke of.” P-Ex. 16 at 195. Gaseor testified that
it would be possible for plaintiffs to apply for a zoning variance, but no one had ever
tried to do so for a gun store to his knowledge, and so he had no basis for knowing
what would happen if plaintiffs did. DR ¶ 26 & P-Ex 16 at 190-9. And Gaseor
testified that plaintiffs could not apply for a zoning variance without first obtaining
a lease agreement or demonstrating an intent to purchase the property in question.
P-Ex 16 at 228. Gaseor also acknowledged at the hearing that he is not “aware of
any studies, any data, regarding any negative effects of gun stores.” DR ¶ 26.
D.

The 2014 Ordinance

On December 10, 2014, prior to this Court’s ruling on plaintiffs’ preliminary
injunction motion, the Village again amended its weapons dealer ordinance. PR
¶ 41. The 2014 Ordinance added more zoning districts for weapons dealers to locate
(B-2, B-3, B-5, and C districts as opposed to just C districts under the 2013

10

Ordinance). PR ¶ 41. The 2014 Ordinance also reduced the distancing requirement
to within 500 feet of a sensitive site. PR ¶ 41.
In mid-2015, Kole attempted to re-lease his old premises, but the owner did
not agree. DR ¶ 35. As of August 2016, Ghost was out of business and Kole’s LLC
for Ghost involuntarily dissolved. DR ¶ 36.
Standard
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The Court considers the entire evidentiary record and must view all
of the evidence and draw all reasonable inferences from that evidence in the light
most favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013).
To defeat summary judgment, a nonmovant must produce more than “a mere
scintilla of evidence” and come forward with “specific facts showing that there is a
genuine issue for trial.” Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013).
Ultimately, summary judgment is warranted only if a reasonable jury could not
return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
Where the parties have filed cross-motions for summary judgment, the Court
applies this standard to each motion separately in order to determine whether there
is a genuine dispute of material fact and whether judgment should be entered as a
matter of law. Marcatante v. City of Chicago, 657 F.3d 433, 438-39 (7th Cir. 2011).

11

In ruling on each cross-motion for summary judgment, the Court draws inferences
in favor of the party against whom the motion under consideration is made. Siliven
v. Ind. Dep’t of Child Servs., 635 F.3d 921, 925 (7th Cir. 2011).
Analysis
I.

Standing
The Village begins by challenging plaintiffs’ standing. The Village claims it is

entitled to summary judgment on all of plaintiffs’ claims because plaintiffs are no
longer bringing facial challenges, and they lack standing to bring as-applied
challenges to the constitutionality of the repealed 2011 and 2013 Ordinances and
the expired Agreement. “An as-applied challenge is one that charges an act is
unconstitutional as applied to a plaintiff’s specific activities even though it may be
capable of valid application to others.” Surita v. Hyde, 665 F.3d 860, 875 (7th Cir.
2011).
The Seventh Circuit decided standing issues in the First Amendment context
that are very similar to those here in Six Star Holdings, LLC v. City of Milwaukee,
821 F.3d 795 (7th Cir. 2016). And, as the Seventh Circuit’s Second Amendment
decision in Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) (“Ezell I”), showed,
analogizing to the First Amendment context is appropriate in Second Amendment
cases. See id. at 697, 701-02; id. at 703 (“[b]orrowing from the [Supreme] Court’s
First Amendment doctrine” to determine standard of review for Second Amendment
challenges); id. at 706-07 (“we and other circuits have already begun to adapt First
Amendment doctrine to the Second Amendment context”).

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In Six Star, the court held that plaintiffs had standing to bring as-applied
First Amendment challenges to repealed ordinances that prevented plaintiffs from
opening adult entertainment clubs in Milwaukee. 821 F.3d at 803. The Six Star
court began with settled standing principles. “Article III standing ‘requires the
litigant to prove that he has suffered [1] a concrete and particularized injury [2]
that is fairly traceable to the challenged conduct, and [3] is likely to be redressed by
a favorable decision.’” Id. at 801 (quoting Hollingsworth v. Perry, 133 S. Ct. 2652,
2661 (2013)). “As the party invoking federal jurisdiction,” a plaintiff “bears the
burden of establishing these elements.” Id. (quotation marks omitted). “At the
pleading stage, general factual allegations of injury resulting from the defendant’s
conduct may suffice, but at summary judgment, the plaintiff must set forth by
affidavit or other evidence specific facts” supporting standing. Id. at 801-02
(quotation marks and alterations omitted).
The Six Star plaintiff “alleged—and a jury ultimately found—that it
refrained from protected speech” of opening an adult entertainment club “in
response to the City’s unconstitutional ordinances.” Id. at 803. The Seventh Circuit
found that “[t]his describe[d] an injury-in-fact sufficient to support standing.” Id.
And the injury-in-fact was “fairly traceable to the unconstitutional ordinances”
because the plaintiff “alleged that, but for the ordinances, it would have engaged in
protected speech” by opening such a club, “and a jury ultimately found this to be
true.” Id. Turning to the third element of standing, the Six Star court found that
“[d]amages redress the harm . . . by replacing the lost profits [plaintiff] would have

13

earned if it had been able to open its club at the planned time.” Id. The Court finds
Six Star’s reasoning with respect to each standing element to be directly applicable
here.
Injury-in-fact. Like in Six Star, plaintiffs in this case have set forth specific
facts that satisfy the first standing element of injury-in-fact. As further discussed
below in addressing plaintiffs’ Second and Fourteenth Amendment claims, plaintiffs
have produced evidence that “in response to” the Ordinances and Agreement, they
“refrained from protected” conduct of opening a retail gun store to fulfill Village
residents’ right to acquire firearms under the Second Amendment. See id.; see also,
e.g., Ezell I, 651 F.3d at 696 (firing-range facilities supplier had injury-in-fact
sufficient to support standing because it was “harmed by the firing-range ban and
[wa]s also permitted to act[ ] as [an] advocate[ ] of the rights of third parties who
seek access to its services”) (quotation marks omitted); Teixeira v. County of
Alameda, 2017 WL 4509038, at *6 (9th Cir. Oct. 10, 2017) (en banc) (“Teixeira, as
the would-be operator of a gun store, thus has derivative standing to assert the
subsidiary right to acquire arms on behalf of his customers”).
The Village claims plaintiffs did not suffer any injury-in-fact with respect to
the 2011 Ordinance because it never applied to them. It is true that the Agreement
exempted plaintiffs from the 2011 Ordinance for 36 months, and by the time the 36
months ended, this Court had entered a TRO preserving the status quo. But Six
Star shows that lack of enforcement of an ordinance against a plaintiff is not
dispositive of standing. The Six Star court explained that a plaintiff could satisfy

14

the injury-in-fact requirement by bringing a “pre-enforcement challenge” if “the
threat of enforcement” of the repealed licensing ordinance when it was in effect
“caused injury that was ‘actual or immediate, not conjectural or hypothetical.’” Six
Star, 821 F.3d at 802 (quoting Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334,
2341 (2014)). This Court already determined when denying the Village’s motion to
dismiss that the 2011 Ordinance posed an actual and immediate threat. It found
that “Plaintiffs’ professed ‘fear’ that the [2011] Ordinance w[ould] be applied against
them” was “hardly speculative” where the Agreement’s exemption was set to expire
on November 30, 2013. R. 79 at 16. “And by eliminating the one remaining weapons
dealer business license,” as of April 30, 2013, “the [2011] Ordinance clearly
target[ed] Plaintiffs.” Id. Six Star shows that the real threat of enforcement of the
2011 Ordinance against plaintiffs constitutes an injury-in-fact for standing
purposes.
The Village also argues that plaintiffs do not have an injury-in-fact based on
the 2013 Ordinance. The Village claims plaintiffs never made concrete plans to
operate a retail sales business in the Village, making the “threat of enforcement” of
the 2013 Ordinance “conjectural or hypothetical.” R. 195 at 6 (quoting Six Star, 821
F.3d at 802). But, as further discussed below, the undisputed evidence shows that
plaintiffs did make plans to open a retail gun store while the 2013 Ordinance was in
effect, including trying unsuccessfully to obtain a lease at the two rental properties
available under the 2013 Ordinance.

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Fairly Traceable. Turning to the second element of standing, plaintiffs also
have produced evidence “that, but for” combination of the Ordinances and the
Agreement, they “would have engaged in protected” conduct of opening a retail gun
store. See Six Star, 821 F.3d at 803. As explained below, the Court finds a disputed
issue of material fact as to whether and for what time period this was true. But, as
in Six Star, this evidence is sufficient at the summary judgment stage to show that
plaintiffs’ injury-in-fact was “fairly traceable” to the challenged ordinances. See id.
The Village argues that the second element of standing is not satisfied with
respect to the Agreement in particular. It claims that plaintiffs’ alleged harms are
not fairly traceable to the Village because all of the Agreement’s terms were selfimposed. The Village cites evidence that Kole originally intended to operate an
online-only business as reflected in the Agreement, that many of the Agreement
terms were suggested by Kole, and that others were already required by Kole’s
landlord. But there is also evidence that at the time the Agreement was negotiated,
Kole had already signed a lease and invested in the business, and the Village was
holding up the process. It is not clear from the summary judgment record what
exactly transpired in negotiations between Kole and the Village, and in particular
whether Kole volunteered the terms suggested in his letter to Chester or whether
the Village demanded them as necessary conditions to giving Kole a weapons dealer
license.
The Court therefore finds disputed issues of material fact as to whether the
Agreement was negotiated under economic distress and its terms coerced. If it was,

16

then a reasonable jury could determine that the Agreement violated the
“unconstitutional conditions” doctrine, which “prevent[s] the government from
achieving indirectly what the Constitution prevents it from achieving directly.” See
Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d
962, 986 (7th Cir. 2012). The doctrine “prevents the government from awarding or
withholding a public benefit for the purpose of coercing the beneficiary to give up a
constitutional right or to penalize his exercise of a constitutional right.” Id.
Plaintiffs have set forth sufficient evidence that harms caused by the Agreement
were unconstitutional conditions fairly traceable to the Village to satisfy the second
element of standing.
Redressability. Turning to the third element of standing, although the
Court has deferred the question of damages, it finds that the “damages” plaintiffs
seek would “redress the harm” suffered in the form of any lost profits plaintiffs are
able to prove. See Six Star, 821 F.3d at 803. Accordingly, plaintiffs have standing to
bring their as-applied challenges to the Agreement, the 2011 Ordinance, and the
2013 Ordinance.2
II.

Count I – Second and Fourteenth Amendment
Plaintiffs and the Village cross-move for summary judgment on plaintiffs’

Second and Fourteenth Amendment claims in Count I. Second and Fourteenth
Nor does the fact that the challenged Ordinances are repealed moot plaintiffs’
damages claims. As the Six Star court held, the repeal of challenged ordinances
does not moot the case if plaintiffs continue to pursue damages. 821 F.3d at 799
(“Once the ordinances were repealed, the plaintiffs dropped their requests for
injunctive relief but continued to pursue damages. The latter request saves the case
from mootness.”).

2

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Amendment jurisprudence has evolved significantly in recent years. In District of
Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court struck down the
District of Columbia’s ban on the possession of handguns. The Supreme Court
concluded that the Second Amendment codifies a preexisting “individual right to
possess and carry weapons in case of confrontation.” Id. at 592. Two years later in
McDonald v. City of Chicago, 561 U.S. 742 (2010), the Court held that the
Fourteenth Amendment due process clause incorporates against states the Second
Amendment right to possess a handgun in the home for self-defense.
These opinions left open many questions, including the level of scrutiny to
apply to firearm regulations. The Heller Court “specifically excluded rational-basis
review.” Ezell I, 651 F.3d at 701. But it also made clear that certain gun control
measures would pass constitutional scrutiny. See Heller, 554 U.S. at 626-27
(“nothing in our opinion should be taken to cast doubt on longstanding prohibitions
on the possession of firearms by felons and the mentally ill, or laws forbidding the
carrying of firearms in sensitive places such as schools and government buildings,
or laws imposing conditions and qualifications on the commercial sale of arms”); see
also McDonald, 561 U.S. at 786 (“repeat[ing] those assurances” from Heller).
In Ezell I, the Seventh Circuit set forth a two-part framework to resolve
Second Amendment cases. Incorporated within that framework is a determination
of the rigor of judicial review the Court will apply. “The threshold question is
whether the regulated activity falls within the scope of the Second Amendment.”
Ezell v. City of Chicago, 846 F.3d 888, 892 (7th Cir. 2017) (“Ezell II”). “This is a

18

textual and historical inquiry; if the government can establish that the challenged
law regulates activity falling outside the scope of the right as originally understood,
then ‘the regulated activity is categorically unprotected, and the law is not subject
to further Second Amendment review.’” Id. (quoting Ezell I, 651 F.3d at 703).
If the regulated activity is not outside the scope of the Second Amendment,
“then there must be a second inquiry into the strength of the government’s
justification for restricting or regulating the exercise of Second Amendment rights.”
Ezell I, 651 F.3d at 703. This inquiry evaluates “the regulatory means the
government has chosen and the public-benefits end it seeks to achieve.” Id. “[T]he
rigor of this judicial review will depend on how close the law comes to the core
Second Amendment right and the severity of the law’s burden on the right.” Id.
“Severe burdens on the core right of armed defense requires a very strong publicinterest justification and a close means-end fit; lesser burdens, and burdens on
activity lying closer to the margins of the right, are more easily justified.” Ezell II,
846 F.3d at 892. “In all cases the government bears the burden of justifying its law
under a heightened standard of scrutiny.” Id.
A.

Step 1

“The relevant time period for the first-step historical analysis” for purposes
of both the Second and Fourteenth Amendments “is 1791.” Ill. Ass’n of Firearms
Retailers v. City of Chicago, 961 F. Supp. 2d 928, 935 (N.D. Ill. 2014) (citing Moore
v. Madigan, 702 F.3d 933, 935 (7th Cir. 2012)). And the defendant “bears the

19

burden of first establishing that the [ordinances] regulate[ ] activity generally
understood in 1791 to be unprotected by the Second Amendment.” Id. at 936.
In Illinois Association of Firearms Retailers, a court in this district considered
a challenge to a City of Chicago ordinance banning virtually all sales and transfers
of firearms in the City. See id. at 936-37. Like in that case, the challenged
Ordinances and Agreement heavily regulate firearms sales and transfers within the
Village. That means the Village specifically “bears the burden of demonstrating that
firearms sales and transfers are categorically outside the scope of the Second
Amendment as it was understood in 1791.” See id. at 937.
Recent case law appears to foreclose the Village’s argument that the
regulated conduct in this case falls outside the scope of the Second Amendment.
And even if it did not, the sources the Village cites do not meet its burden.
1.

Recent Case Law

Addressing a firing-range ban in Ezell I and later a set of firing-range zoning
restrictions in Ezell II, the Seventh Circuit reasoned that the “core individual right
of armed defense” as generally understood in 1791 “include[d] a corresponding right
to acquire and maintain proficiency in firearm use,” because “the core right to
possess firearms for protection ‘wouldn’t mean much without the training and
practice that make it effective.’” Ezell II, 846 F.3d at 892 (quoting Ezell I, 651 F.3d
at 704). Analogizing to Ezell I in its recent en banc decision in Teixeira, the Ninth
Circuit explained that “[a]s with purchasing ammunition and maintaining
proficiency in firearms use, the core Second Amendment right to keep and bear

20

arms for self-defense ‘wouldn’t mean much’ without the ability to acquire arms.”
Teixeira, 2017 WL 4509038, at *6 (quoting Ezell I, 651 F.3d at 704). This is also
what the Tennessee Supreme Court observed back in 1871: “[t]he right to keep
arms, necessarily involves the right to purchase them.” Andrews v. State, 50 Tenn.
165, 178 (1871). And it is what the district court determined in Illinois Association
of Firearms Retailers: “the right to keep and bear arms for self-defense under the
Second Amendment . . . must also include the right to acquire a firearm, although
that acquisition right is far from absolute.” 961 F. Supp. 2d at 930. Both the courts
in Teixeira and Illinois Association of Firearms Retailers in turn found that the
right to acquire firearms is directly implicated by laws directly or functionally
banning firearm sales in a given area. See id.; Teixeira, 2017 WL 4509038, at *6.
This Court agrees with the courts in Teixeira and Illinois Association of
Firearms Retailers that the Second Amendment right to keep and bear arms for
self-defense necessarily includes the right to acquire a firearm, and that this right is
implicated by local laws directly or functionally banning firearm sales. This
conclusion plainly follows from the Seventh Circuit’s reasoning in Ezell I and II.
2.

The Village’s Evidence

In any event, the Village has not met its burden to show that the regulated
conduct falls outside the scope of the Second Amendment. The Village—like the
City of Chicago in Illinois Association of Firearms Retailers, 961 F. Supp. 2d at
937—points to a few state statutes prohibiting the sale of certain firearms that were
enacted more than 50 years after 1791 but before the Fourteenth Amendment. R.

21

195 at 10-11. The Village also points to many post-Fourteenth Amendment state
bans on firearm sales. Id. at 11-12. Because of the timing of their enactment,
“[t]hese statutes are . . . not very compelling historical evidence for how the Second
Amendment was historically understood.” Ill. Ass’n of Firearms Retailers, 961 F.
Supp. 2d at 937. The founding-era sources cited by plaintiffs are more relevant.
E.g., Thomas Jefferson, 6 Writings 252-53 (P. Ford ed. 1895) (“Our citizens have
always been free to make, vend, and export arms.”); CURWEN, SOME
CONSIDERATIONS ON THE GAME LAWS 54 (1796) (“What law forbids the
veriest pauper, if he can raise a sum sufficient for the purchase of it, from mounting
his Gun on his Chimney Piece, with which he may not only defend his Personal
Property from the Ruffian, but his Personal Rights, from the invader of them.”)
(emphasis added). And regardless, “citation to a few isolated statutes . . . ‘fall[s] far
short’ of establishing that gun sales and transfers were historically unprotected by
the Second Amendment.” Ill. Ass’n of Firearms Retailers, 961 F. Supp. 2d at 937
(quoting Ezell I, 651 F.3d at 706).
The Village also cites prohibitions on firearm possession and carrying in
sensitive places prior to 1791 and through today. R. 195 at 8-20. Citing language
from Heller recognizing that such “laws prohibiting the carrying of firearms in
sensitive places” are “presumptively lawful,” 554 U.S. at 626-27 & n.26, the Village
argues that “commercial arms sales in sensitive places are categorically
unprotected” under the Second Amendment. R. 225 at 15. But the Seventh Circuit
in Ezell II rejected this very argument—i.e., that distancing requirements from

22

sensitive places are “essentially immune from challenge under Heller.” 846 F.3d at
894. The Court finds that the Village’s evidence of longstanding restrictions on
firearm possession in sensitive places does not show that “firearms sales and
transfers are categorically outside the scope of the Second Amendment as it was
understood in 1791.” See Ill. Ass’n of Firearms Retailers, 961 F. Supp. 2d at 937
(emphasis added).
Finally, the Village points to state and federal licensing requirements for
firearms dealers, explaining that even though these requirements “are of 20th
century vintage, their prevalence establishes them as longstanding regulations that
do not impinge upon the right protected by the Second Amendment.” R. 195 at 1214. Like the Fourth Circuit in United States v. Hosford, 843 F.3d 161 (4th Cir.
2016), however, this Court finds the “condition or qualification” of obtaining a
license for firearm dealing—a “longstanding condition or qualification on the
commercial sale of arms” under Heller (554 U.S. at 626-27 & n.26)—to be
completely distinct from “a functional ban on firearm acquisition.” Hosford, 843
F.3d at 166 (distinguishing licensing requirements in that case from functional ban
in Illinois Association of Firearms Retailers). Indeed, plaintiffs “do not contest” that
licensing requirements and other “laws imposing conditions and qualifications on
the commercial sale of arms are presumable acceptable”—they instead challenge

23

what they claim was a ban (in the 2011 Ordinance and Agreement) and a functional
ban (in the 2013 Ordinance) on firearm acquisition in the Village. R. 206 at 8.3
Because the Village’s “proffered historical evidence fails to establish that
governments banned gun sales and transfers at the time of the Second
Amendment’s enactment,” the Court “move[s] on to the second step of the inquiry.”
See Ill. Ass’n of Firearms Retailers, 961 F. Supp. 2d at 937.
B.

Step 2

The second inquiry functions as a sliding scale. “Severe burdens on the core
right of armed defense require a very strong public-interest justification and a close
means-end fit; lesser burdens, and burdens on activity lying closer to the margins of
the right, are more easily justified.” Ezell II, 846 F.3d at 892.
The Seventh Circuit in Moore established that “the breadth of restriction,”
and thus the degree of means-end fit required, “is not just a function of what is
affected, but also who is affected.” Ill. Ass’n of Firearms Retailers, 961 F. Supp. 2d at
936 (citing Moore, 702 F.3d at 940). “So Moore ultimately looked to two factors on
the sliding scale to fashion the level of scrutiny: how much activity was regulated (a
blanket prohibition on gun carriage and not a lesser burden on armed self-defense),
and who was regulated (law-abiding citizens and not people with criminal records).”
As Judge Tallman reasoned in his partial concurrence and partial dissent in
Teixeira, “Justice Scalia’s footnote in Heller” about presumptions of unlawfulness
“could not have been addressing county ordinances meant to restrict firearm
acquisition and possession as much as a local government can get away with.” 2017
WL 4509038, at *18. Like Judge Tallman found in Teixeira and as further set forth
below, the record here shows evidence of “animus” of the Village toward plaintiffs.
Id. For this reason as well, the Court finds that the “ordinance[s] do[ ] not fall
within the Heller categories and do[ ] not earn its presumption of lawfulness.” Id.
3

24

Id. “[T]he quantity and persuasiveness of the evidence required to justify each
ordinance varies depending on how much it affects the core Second Amendment
right to armed self-defense and on whose right it affects.” Id.
1.

Standard of Scrutiny

To determine the appropriate level of scrutiny in this case, the Court needs to
look no further than the Seventh Circuit’s decisions in Ezell I and II. Like the firingrange ban in Ezell I, the 2011 Ordinance “prohibit[ed]” “the law-abiding, responsible
citizens” of the Village from participating in “an important corollary to the
meaningful exercise of the core right to possess firearms for self-defense” by
acquiring firearms in the Village. 651 F.3d at 708 (quotation marks omitted). It is
true that the Agreement gave plaintiffs a 36-month grace period to operate an
online-only business. But the Agreement prevented plaintiffs from operating a
retail sales business, and it had an expiration date after which plaintiffs would be
subject to the full ban of the 2011 Ordinance.
The Ezell II decision indicates that the Agreement and its burdens on Second
Amendment rights should be evaluated “in tandem” and “as a package” with the
2011 Ordinance. See 846 F.3d at 894. Operating in tandem, the Agreement and the
2011 Ordinance prevented anyone in the Village from walking into a store and
legally purchasing a firearm for self-defense. Because they effectively operated as a
gun-store ban much like the firing-range ban in Ezell I, the 2011 Ordinance and
Agreement require “a strong public-interest justification” and a close means-end
fit—i.e., a showing “more rigorous” than intermediate scrutiny “if not quite ‘strict

25

scrutiny.’” 651 F.3d at 708; see also Ill. Ass’n of Firearms Retailers, 961 F. Supp. 2d
at 938 (regulations that “prevent the acquisition of firearms within Chicago” were
“substantial burdens that deserve[d] more stringent scrutiny than intermediate
scrutiny”).4
Just as the 2011 Ordinance and Agreement are analogous to the firing-range
ban addressed in Ezell I, the 2013 Ordinance is analogous to the firing-range zoning
restrictions addressed in Ezell II. The Ezell II Court made clear that all of an
ordinance’s requirements must be evaluated as “a single regulatory package” to
determine whether the ordinance is “carefully drafted to serve actual public
interests while at the same time making” an exercise of Second Amendment rights
“practicable” in the municipality at issue. 846 F.3d at 894. “The combined effect of
the manufacturing-district classification and the distancing restriction” in Ezell II
left “only about 2.2% of the city’s total acreage even theoretically available to site a
shooting range (10.6% of the total acreage currently zoned for business, commercial,
and manufacturing use).” Id. The Seventh Circuit found that these zoning
regulations “severely burdened Second Amendment rights,” meaning that the City
was required “to establish a close fit between the challenged zoning regulations and

Plaintiffs argue that the 2011 Ordinance “transcends levels of scrutiny and is
unconstitutional on its face.” R. 206 at 8. The Court declines to go that far. In both
Moore and Ezell I, even though the ordinances effectively amounted to total bans,
the Seventh Circuit did not categorically reject the bans, but instead gave the
government a chance to justify them and evaluated the empirical strengths of that
justification. Moore, 702 F.3d at 937-40; Ezell I, 651 F.3d at 689-90. The Court will
do the same here.
4

26

the actual public benefits they serve—and to do so with actual evidence, not just
assertions.” Id.
It is undisputed that the combined effect of the zoning classification and the
distancing restriction in the 2013 Ordinance left an even smaller percentage—
0.57% of the Village acreage including roads and 0.76% excluding roads—available
for gun stores than the 2.2% of acreage available for firing ranges in Ezell II. See id.
And in that area, Kole could not find a single location available to rent. DR ¶ 23 &
P-Exs. 12, 16. This is far from the “reasonable opportunity for protected activity”
with “an ample amount of land area available” that the Village claims. R. 225 at 20.
Nor does the evidence demonstrate that obtaining a zoning variance was a
realistic possibility. Gaesor testified that no one had ever tried to obtain a variance
for a gun store to his knowledge, and so he had no basis for knowing what would
happen if plaintiffs did. DR ¶ 26 & P-Ex 16 at 190-9. And Gaseor testified that
plaintiffs could not apply for a zoning variance without first obtaining a lease
agreement or demonstrating an intent to purchase property. P-Ex 16 at 228.
Analogizing to the First Amendment context as the Seventh Circuit found
appropriate in Ezell I, the possibility of exercising a constitutional right “must be
more than ‘merely theoretically available’—‘it must be realistic as well.’” Horina v.
City of Granite City, Ill., 538 F.3d 624, 635 (7th Cir. 2008) (quoting Gresham v.
Peterson, 225 F.3d 899, 906 (7th Cir. 2000)). Under the 2013 Ordinance, exercising a
Second Amendment right to acquire a firearm for self-defense in the Village was not
a realistic possibility.

27

It is for this reason that the Village’s attempts to analogize to the zoning
regulations addressed by the Ninth Circuit in Teixeira fail. In Teixeira, Alameda
County adopted a “500-foot from sensitive area” distancing restriction (much like
the less restrictive, 500-foot parameter in the 2014 Ordinance that plaintiffs do not
challenge (R. 206 at 19)). See 2017 WL 4509038 at *2-3. And exhibits attached to
the plaintiff’s complaint demonstrated that under this restriction, “Alameda County
residents [could] freely purchase firearms within the County.” Id. at *6-7. “As of
December 2011, there were ten gun stores in Alameda County,” and “[i]n fact,
Alameda County residents c[ould] purchase guns approximately 600 feet away from
the proposed site of Teixeira’s planned store, at a Big 5 Sporting Goods Store.” Id. at
*7. The Ninth Circuit therefore found that “Teixeira did not adequately allege in his
complaint that Alameda County residents [could] not purchase firearms within the
County as a whole, or within the unincorporated areas of the County in particular.”
Id. at *6. The Teixeira court explicitly distinguished Ezell II as “involv[ing] an
entirely different situation with regard to the availability of a gun-related service to
county residents,” where the regulations “‘though not on their face an outright
prohibition on gun ranges, nonetheless severely restrict[ed] the right of Chicagoans
to train in firearm use at a range.’” Id. at *7 (quoting Ezell II, 846 F.3d at 894).
Unlike in Teixeira where an Alameda County resident could purchase a
firearm 600 feet away from the plaintiff’s planned store, the 2013 Ordinance meant
that no Village resident could purchase firearms from a storefront anywhere in the
Village. First categorically and then functionally, the Village prohibited any retail

28

gun store from operating in its boundaries between February 2011 and December
2014.
Thus, just as in Ezell I, a burden higher than intermediate scrutiny applies to
the 2011 Ordinance and Agreement, and just as in Ezell II, a burden higher than
intermediate scrutiny applies to the 2013 Ordinance. “Stated differently, the
[Village] must demonstrate that” firearm acquisition from a licensed firearm retail
store in the Village “creates such genuine and serious risks to public safety” that
the Ordinances are “justified.” Ezell I, 651 F.3d at 709; accord Ill. Ass’n of Firearms
Retailers, 961 F. Supp. 2d at 940 (“the City must demonstrate that otherwise
legitimate gun sales and transfers create such genuine and serious risks to public
safety that prohibiting them within Chicago is justified”).
2.

The Village’s Justifications

The Village cites two objectives that it claims justified the 2013 Ordinance
and the combination of the 2011 Ordinance and the Agreement. First, the Village
claims a compelling interest in public safety served by reducing weapons possession
in sensitive places. In support, the Village points to the Gun Free School Zones Act,
which restricts weapons possession within 1,000 feet of school grounds. 18 U.S.C.
§ 921(a)(25). It points to evidence that in the United States generally, 283 people
were killed and 330 people were wounded in mass shootings in schools, government
buildings, and religious buildings since 1982. PR-DAF ¶ 2. It also cites: (1) a study
of school shootings from 1986 through 1990 finding that a sizeable number of
incidents occurred around school buildings; (2) a study showing that homicide is the

29

second leading cause of death of youths ages 5-18; (3) a study showing that 69% of
homicides committed at school in the United States between 1994 and 1999 were
committed with a firearm; (4) a study showing that student perpetrators purchased
the firearms used in 9.6% of school-associated homicide events from 1992 through
1999; and (5) a study finding that 54% of schools within 17 square miles of D.C. had
experienced at least one burst of gunfire within 1,000 feet. R. 195 at 22.
Second, the Village claims a compelling interest in reducing crime. It points
to evidence that between 2012 and 2015, federal firearms licensees in Illinois
reported theft or loss of 1,247 firearms. PR-DAF ¶ 3. It cites a statistic that between
2009 and 2013, local weapons dealers sold more than 3,173 firearms later recovered
in crimes in Chicago, with 12% of those firearms moving from a local retailer to a
crime scene in less than three years. PR-DAF ¶¶ 4-5. And it cites a 2004 study of
inmates in correctional facilities showing that licensed gun dealers were the source
of handguns for 11.4% of those incarcerated. R. 195 at 24.
Public safety and reducing crime are certainly important public interests.
See, e.g., Ezell II, 846 F.3d at 895 (“preventing crime” is an “important public
concern[ ]”). But just as in Ezell I and II, the Village has done little to show the
“close fit” between these interests and the means employed (i.e., the 2011 and 2013
Ordinances and the Agreement, which resulted in an effective prohibition on retail
gun stores in the Village).
As in Ezell I, the Village cites “no data or expert opinion” regarding the
impact of the types of restrictions imposed on firearm sales and acquisition (as

30

opposed to firearm possession) on crime rates and public safety. See 651 F.3d at 709.
And like in Ezell II, the Village “has provided no evidentiary support for” its claims
that limiting gun stores to certain “districts and distancing them from” “sensitive
places” like schools and places of worship, would in fact “reduc[e] the[ ] risks” it
identifies. See 846 F.3d at 895. To the contrary, as in Ezell II, the Village’s “own
witness[ ] testified to the lack of evidentiary support for these assertions.” 846 F.3d
at 895 (emphasis in original); see DR ¶ 26 (Gaseor testified at the preliminary
injunction hearing that he was not “aware of any studies, any data, regarding any
negative effects of gun stores”).
There is another flaw in the Village’s argument. The Village would have the
Court independently evaluate the 1000-foot buffer from schools in the 2013
Ordinance and find it constitutional based on the Gun Free School Zones Act, which
prohibits possession of weapons within 1000 feet of schools. R. 195 at 28. The
Village then would have the Court separately address the zoning requirements in
the 2013 Ordinance. Id. at 29-30. But as Ezell II makes clear, the Court must
consider all of the conditions imposed by the 2013 Ordinance “in tandem” to
determine whether they are “carefully drafted to serve actual public interests while
at the same time making [acquiring firearms] practicable” in the Village. 846 F.3d
at 894 (emphasis added). And here, considered in tandem, the 2013 Ordinance’s
conditions clearly did not make acquiring firearms practicable.
Nor is it an “answer . . . that plenty of gun [stores] were located in the
neighboring suburbs,” even close ones. Ill. Ass’n of Firearms Retailers, 961 F. Supp.

31

2d at 938. As plaintiffs properly explain, this justification by the Village amounts to
a “not in my backyard” rationale that courts have consistently rejected. As “[i]n the
First Amendment context, . . . ‘one is not to have the exercise of his liberty of
expression in appropriate places abridged on the plea that it may be exercised in
some other place.’” Ezell I, 651 F.3d at 697 (quoting Schad v. Borough of Mt.
Ephraim, 452 U.S. 61, 76–77 (1981)). “[T]his reasoning makes sense, because if all
cities and municipalities can prohibit gun sales and transfers within their own
borders, then all gun sales and transfers may be banned across a wide swath of the
country if this principle is carried forward to its natural conclusion.” Ill. Ass’n of
Firearms Retailers, 961 F. Supp. 2d at 939. “[T]he fact that [Village residents] may
travel outside the [Village] to acquire a firearm does not bear on the validity of the
ordinance inside the [Village].” Id.
For these reasons, the Village has not established the required means-end fit
between the challenged regulations and its justifications. The Village appeared to
recognize as much when, just as this Court was about to rule on plaintiffs’ motion
for a preliminary injunction, the Village enacted the 2014 Ordinance that still
incorporates a distancing restriction from sensitive places but is significantly less
restrictive.
3.

Fact Issues Bearing on Plaintiffs’ As-Applied Challenges

2011 Ordinance and Agreement. The Village further argues that even if
the 2011 Ordinance was facially unconstitutional, it was not unconstitutional as
applied to plaintiffs because prior to the time that the 2011 Ordinance was repealed

32

in December 2013, the Agreement exempted plaintiffs. And the Village argues that
the Agreement was not unconstitutional as applied to plaintiffs because it was
voluntary.
As explained above, however, the Agreement’s constitutionality as applied to
plaintiffs depends on the disputed factual issue of whether and to what extent it
was coerced. If it was a coerced condition, then its restrictions preventing plaintiffs
from operating a retail gun store would be unconstitutional just like the ban in the
2011 Ordinance. If it was not coerced, on the other hand, then the Agreement would
constitute a valid waiver of Kole’s constitutional rights. The Agreement was
negotiated by the parties, Kole was represented by counsel during those
negotiations, and, aside from the disputed issue of coercion, there has been no
showing of unequal bargaining power between Kole and the Village. See Leonard v.
Clark, 758 F. Supp. 616, 619 (D. Or. 1991), aff'd, 12 F.3d 885 (9th Cir. 1993) (“a
party is deemed to have voluntarily and knowingly waived its constitutional rights
through a contract where 1) the parties to the contract have bargaining equality; 2)
the parties have negotiated the terms of the contract; and 3) the waiving party is
advised by competent counsel”) (citing Erie Tel., Inc. v. City of Erie, 853 F.2d 1084,
1097 (3d Cir. 1988); GLF Const. Corp. v. Dallas Area Rapid Transit, 546 F. App’x
429, 430 (5th Cir. 2013) (“a strong public policy favoring freedom of contract allows
contracting parties to waive statutory, or even constitutional rights”).
The 2011 Ordinance’s constitutionality as applied to plaintiffs depends in
part on the Agreement’s constitutionality. If the jury finds the Agreement non-

33

coerced, then the Village is correct that plaintiffs would not have an as-applied
claim under the 2011 Ordinance because they would have entered into a voluntary
Agreement that exempted them from the 2011 Ordinance for its entire duration.
If the jury finds the Agreement to be coerced such that it was an
unconstitutional condition, by contrast, the Court finds disputed issues of material
fact as to the constitutionality of the combination of the 2011 Ordinance and
Agreement as applied to plaintiffs. As the Seventh Circuit found in Six Star, the
plaintiff could bring an as-applied, “pre-enforcement challenge” to a repealed
ordinance even if it never applied for a license under that ordinance based on an
injury caused by “the threat of enforcement.” 821 F.3d at 802. The district court in
Six Star “put the questions of causations and damages before a jury” to determine
whether plaintiff would have opened a “gentlemen’s club . . . but for the existence of
the” ordinances at issue. Id. at 801. The plaintiff in Six Star “suffer[ed] an injury
from the unconstitutional ordinances” where “a jury ultimately found . . . that it
refrained from protected [conduct] in response to the City’s unconstitutional
ordinances.” Id. at 803.
The fact that plaintiffs did not in fact attempt to open a retail gun store
under the 2011 Ordinance and Agreement is not dispositive of their as-applied
challenge if the 2011 Ordinance and Agreement together caused plaintiffs to refrain
from protected conduct. Whether the 2011 Ordinance and Agreement in fact caused
plaintiffs to refrain from protected conduct depends in part on the Agreement’s
voluntariness and also on Kole’s credibility in testifying that he had an intent to

34

open a retail gun store at some point in 2011, which in turn is a question for the
jury. See, e.g., Darchak v. City of Chicago Bd. of Educ., 580 F.3d 622, 633 (7th Cir.
2009) (“intent and credibility” should “go to a jury unless no rational factfinder
could draw the contrary inference”) (quotation marks omitted).
The Court thus finds genuine issues of material fact as to whether plaintiffs
refrained from opening a retail store as a result of the Agreement and the 2011
Ordinance prior to the time the 2011 Ordinance expired. If so, then the questions of
the period of time for which this was true and plaintiffs’ resulting damages also are
questions for the jury. See, e.g., Six Star, 821 F.3d at 803 (causation satisfied if jury
finds that “but for the ordinances, [plaintiff] would have engaged in protected
speech,” and “[d]amages redress the harm that [plaintiff] suffered by replacing the
lost profits [plaintiff] would have earned if it had been able to open its club at the
planned time”).
2013 Ordinance. The as-applied inquiry is easier with respect to the 2013
Ordinance. The undisputed facts show that at least for some period of time, the
2013 Ordinance functionally restricted plaintiffs’ intent to open a retail gun store in
the Village. The length of time for which that was true and the resulting damages
are questions for the jury that depend in part on disputed issues of fact as to why
plaintiffs stopped operating in August 2014. See Six Star, 821 F.3d at 803.
III.

Count II – Substantive Due Process
Only the Village moves for summary judgment on Count II, plaintiffs’

substantive due process claim. As the court in Second Amendment Arms v. City of

35

Chicago, 135 F. Supp. 3d 743 (N.D. Ill. 2015), found when addressing a
substantially similar substantive due process claim to plaintiffs’, “where another
Amendment ‘provides an explicit textual source of constitutional protection against
[the alleged] source of physically intrusive government conduct, that Amendment,
not the more generalized notion of substantive due process, must be the guide for
analyzing [the] claims.’” Id. at 763 (quoting Graham v. Connor, 490 U.S. 386, 395
(1989)). Like in Second Amendment Arms, “the right to sell firearms is a Second
Amendment concern, and the right to display firearms falls under the protections of
the First Amendment. As such, this portion of Plaintiff’s substantive due process
challenge is dismissed, as Plaintiff must pursue these theories under his First and
Second Amendment claims.” Id.
Plaintiffs also claim a violation of their “right to their livelihood of choice.” R.
226 at 33. But the facts underlying this claim are the same as those underlying
their Second Amendment claim—i.e., a challenge to “the effective ban on opening a
constitutionally-protected firearms store within the Defendant’s municipal limits.”
R. 226 at 33. As the Second Amendment Arms court found, this “right to earn his
livelihood” component of plaintiffs’ substantive due process claim is likewise “a
Second Amendment claim in Fourteenth Amendment [substantive due process]
clothing, and thus the Second Amendment must be ‘the guide for analyzing’” it. 135
F. Supp. 3d at 764 (quoting Graham, 490 U.S. at 395)). The Court therefore grants
the Village’s motion for summary judgment on Count II.

36

IV.

Count III – Dormant Commerce Clause
Both plaintiffs and the Village seek summary judgment on plaintiffs’

dormant commerce clause claim in Count III. The Constitution generally gives
Congress the power to regulate interstate commerce. U.S. Const. Art. I, § 8 (“The
Congress shall have power . . . To regulate Commerce . . . and among the several
States.”). Although the commerce clause does not expressly limit state power over
interstate commerce, courts have long recognized that in certain circumstances,
state and local laws imposing substantial burdens on interstate commerce are not
allowed. “This ‘negative’ aspect of the Commerce Clause is often referred to as the
‘Dormant Commerce Clause’ and is invoked to invalidate overreaching provisions of
state regulation of commerce.” Alliant Energy Corp. v. Bie, 330 F.3d 904, 911 (7th
Cir. 2003).
Under the dormant commerce clause, state and local laws are generally
analyzed under a two-tier approach. The first step is to determine whether the law
“regulates evenhandedly with only ‘incidental’ effects on interstate commerce, or
discriminates against interstate commerce.” Oregon Waste Sys., Inc. v. Dep’t of
Envtl. Quality, 511 U.S. 93, 99 (1994) (quoting Hughes v. Oklahoma, 441 U.S. 322,
336 (1979)). A law is discriminatory if it involves “differential treatment of in-state
and out-of-state economic interests that benefits the former and burdens the
latter.” Id. Plaintiffs do not argue that the 2011 and 2013 Ordinances and the
Agreement are discriminatory under this step.

37

Instead, plaintiffs argue that under the second step, the 2011 and 2013
Ordinances and the Agreement “unconstitutionally burden interstate commerce
with no local purpose (except an improper political purpose).” R. 226 at 35. The
second step applies a balancing test from Pike v. Bruce Church, Inc., 397 U.S. 137
(1970):
Where the statute regulates even-handedly to effectuate a legitimate
local public interest, and its effects on interstate commerce are only
incidental, it will be upheld unless the burden imposed on such
commerce is clearly excessive in relation to the putative local benefits. If
a legitimate local purpose is found, then the question becomes one of
degree. And the extent of the burden that will be tolerated will of
course depend on the nature of the local interest involved, and on
whether it could be promoted as well with a lesser impact on interstate
activities.
Id. at 142 (citation omitted, emphasis added). The Seventh Circuit has explained
that “a plaintiff has a steep hill to climb” to meet this standard, Midwest Title
Loans, Inc. v. Mills, 593 F.3d 660, 665 (7th Cir. 2010) (quotation marks omitted),
and has likened it to “normal rational-basis” review. Nat’l Paint & Coatings Ass’n v.
City of Chicago, 45 F.3d 1124, 1131-32 (7th Cir. 1995).
Plaintiffs do not show how the Agreement and the 2011 and 2013 Ordinances
burden interstate commerce. See Pike, 397 U.S. at 142. In any event, any burden on
interstate commerce is not “clearly excessive in relation to the putative local
benefits” in this case. Id. Plaintiffs claim that the Village’s only motivation was
political, and “dislike of guns is not a legitimate [local] interest.” R. 226 at 35. In
support of their claim of political motivation, plaintiffs cite an alleged statement by
Chester to Kole that the Village president and trustees were concerned about their

38

“political careers” suffering “should something ever happen” as a result of Kole’s
gun store. But this statement is inadmissible hearsay. See DR ¶ 10. And even if it
was admissible, this single statement does not show, as plaintiffs claim, that the
Village acted “for solely political reasons” (R. 226 at 36) and had no legitimate
purpose for its actions.
Indeed, to the contrary, the Village has cited interests in public safety and
crime prevention, and it has cited statistical evidence in support. The Court has
already found these to be important local interests. Although the Court did not find
this evidence sufficient to satisfy a higher than intermediate scrutiny standard for
purposes of Second and Fourteenth Amendment review, the Court does find that it
satisfies the standard akin to “normal rational-basis” review from Pike.
V.

Count IV – First Amendment
Plaintiffs seek summary judgment on the portion of their First Amendment

claim in Count IV challenging the Agreement’s exterior sign prohibition. R. 235 at
19. Defendants seek summary judgment on plaintiffs’ First Amendment challenge
to both the Agreement’s exterior sign prohibition and its weapons display
prohibition. This Court already dismissed plaintiffs’ First Amendment claim
regarding the Agreement’s weapons display prohibition as a matter of law. R. 79 at
28-29. So the record is clear, however, the Court grants the Village’s motion for
summary judgment on that claim for the same reasons set forth in the motion to
dismiss ruling. See id.

39

The First Amendment protects commercial speech but “accords a lesser
protection to commercial speech than to other constitutionally guaranteed
expression.” Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447
U.S. 557, 562-63 (1980). Restrictions on commercial speech are analyzed under a
form of “intermediate” scrutiny. Florida Bar v. Went For It, Inc., 515 U.S. 618, 623
(1995). In Central Hudson, the Supreme Court established a four-part test for
analyzing restrictions on commercial speech:
At the outset, we must determine whether the expression is protected
by the First Amendment. [1] For commercial speech to come within
that provision, it at least must concern lawful activity and not be
misleading. [2] Next, we ask whether the asserted governmental
interest is substantial. If both inquiries yield positive answers, we
must determine whether [3] the regulation directly advances the
governmental interest asserted, and [4] whether it is not more
extensive than is necessary to serve that interest.
447 U.S. at 566.
In its motion to dismiss opinion, the Court found that plaintiffs’ challenge to
the Agreement’s restriction on exterior signage to promote Ghost’s internet sales
business survived the first prong of the Central Hudson test. R. 79 at 29-30. The
Agreement broadly prohibited “any exterior signage indicating to the public that its
offices are located on the Premises or indicating the business of Ghost (i.e., weapons
sales).” R. 115-3 ¶ 4. Thus, for example, the Agreement prohibited plaintiffs from
posting exterior signs even referring potential customers to their internet site. As a
result, “the limit on exterior signage does concern at least some lawful activity.” R.
79 at 29.

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The next question is whether the asserted government interest is substantial.
Cent. Hudson, 447 U.S. at 566. The Village says the restrictions serve “aesthetic
interests.” R. 238 at 20; R. 225 at 19. In a case considering regulations that
distinguish between on-site and off-site signage, the Seventh Circuit determined
that an “interest[ ] in . . . aesthetics” qualifies as a “substantial municipal goal[ ].”
Lavey v. City of Two Rivers, 171 F.3d 1110, 1114 (7th Cir. 1999). Accordingly, the
Village has asserted a substantial government interest under the second prong.
As in Lavey, the restriction’s constitutionality thus turns on the third and
fourth prongs of the Central Hudson test. Under those prongs, the Supreme Court
has “invalidated commercial speech regulations because the underinclusiveness of
the restriction made the fit between the regulation’s goals and the restrictions not
sufficiently close.” Id. (discussing City of Cincinnati v. Discovery Network, 507 U.S.
410 (1993)). “In Discovery Network, the Court struck down a city ordinance that
prohibited

commercial

handbills

while

allowing

newspapers

displayed

on

newsracks. The Court determined that this underinclusiveness . . . revealed the
absence of a sufficient fit between these restrictions and the ordinance’s safety and
aesthetic goals.” Id. Similarly in Ballen v. City of Redmond, 466 F.3d 736 (9th Cir.
2006), the Ninth Circuit upheld a determination that a commercial signage
ordinance was an impermissible restriction on commercial speech where it
contained ten categories of content-based exceptions. The Ninth Circuit held that
“[t]he City . . . failed to show how the exempted signs reduce vehicular and

41

pedestrian safety or besmirch community aesthetics any less than the prohibited
signs.” Id. at 743.
Here, the Village has not provided any record support linking its stated
interest in aesthetics to the Agreement’s exterior signage prohibition. It has not
shown why allowing interior signs but not exterior signs furthered that interest or
that it imposed similar restrictions on any other companies. Based on the
(underdeveloped) summary judgment record on this issue, the Court finds genuine
issues of material fact as to whether the Agreement’s restriction on signage for
plaintiffs’ business is really a content-based, “underinclusive[ ]” condition that fails
the Central Hudson test. See Lavey, 171 F.3d at 1114.
In sum, the Court grants the Village’s motion for summary judgment with
respect to the weapons display portion of plaintiffs’ First Amendment claim, and
denies both plaintiffs’ and the Village’s motions for summary judgment with respect
to the exterior signage portion of the claim.
VI.

Count V – Declaratory Judgment, Illinois Constitution
Plaintiffs have abandoned all of their Illinois Constitution claims in Count V

except their claim under Article I, Section 22 (Illinois’ version of the Second
Amendment), and they do not move for summary judgment on their Article I,
Section 22 claim. R. 226 at 40-41. But the Village does move for summary judgment
on Count V.
In the remaining portion of Count V, Plaintiffs seek declaratory judgments
under Article I, Section 22 of the Illinois Constitution. Because the challenged

42

Ordinances and Agreement are no longer in effect, however, plaintiffs’ claims for
declaratory judgment are moot. E.g., Markadonatos v. Village of Woodridge, 760
F.3d 545, 546 (7th Cir. 2014) (“the ordinance has been repealed and the repeal
moots the plaintiff’s request for declaratory and injunctive relief”); Roehl v. City of
Naperville, 857 F. Supp. 2d 707, 710–11 (N.D. Ill. 2012) (“claim for declaratory relief
is moot” when challenged ordinance has been repealed). Although plaintiffs’
damages claims are not moot for the reasons explained in n.2 above, plaintiffs do
not sue for damages under the Illinois Constitution, and for good reason: “Illinois
courts will not entertain a suit for damages under the Illinois constitution.” E.g.,
Klein v. Village of Mettawa, 2014 WL 1661631, at *4 (N.D. Ill. Apr. 25, 2014)
(declaratory relief claim under the Illinois Constitution was moot). The Court
therefore grants the Village’s motion for summary judgment on plaintiffs’ claim
under Article I, Section 22 of the Illinois Constitution.
VII.

Counts VI and VII – Retaliation
Plaintiffs and the Village cross-move for summary judgment on plaintiffs’

claims for retaliation for exercising their rights under the Second (Count VI) and
Fourteenth (Count VII) Amendments.
As an initial matter, the Village contests whether a retaliation claim can
arise under the Second Amendment. It points out that plaintiffs cite no authority
recognizing a retaliation claim under the Second Amendment and instead rely on
First Amendment retaliation cases. As the Eastern District of Kentucky recently
reasoned, however, “although § 1983 retaliation claims have traditionally been

43

brought based on First Amendment activities, when ‘certain provisions of the
Constitution define individual rights with which the government generally cannot
interfere—actions

taken

pursuant

to

those

rights

are

protected

by

the

Constitution.’” Horn v. City of Covington, 2015 WL 4042154, at *8 (E.D. Ky. July 1,
2015) (quoting Thaddeus–X v. Blatter, 175 F.3d 378, 386 (6th Cir. 1999)). The
Second Amendment guarantees precisely such an “individual right.” Heller, 554
U.S. at 592. On this basis, the Horn court recognized a Second Amendment
retaliation claim. 2015 WL 4042154, at *8-9. Like the Eastern District of Kentucky
in Horn, this Court finds it appropriate to apply First Amendment retaliation
doctrine in the Second Amendment context (as the Court already did in its motion
to dismiss opinion, R. 79). See also Ezell I, 651 F.3d at 697, 701-03, 706-07
(borrowing from First Amendment doctrine in Second Amendment case).
Borrowing from First Amendment doctrine, a Second Amendment retaliation
claim has three elements: plaintiffs (1) “engaged in a constitutionally protected
activity”; (2) “suffered a deprivation that would likely deter protected activity in the
future”; and (3) “a causal connection between the two.” R. 79 at 33 (citing Watkins v.
Kasper, 599 F.3d 791, 794 (7th Cir. 2010)).
This Court already has found that plaintiffs “engaged in constitutionally
protected activity” under the Second and Fourteenth Amendments (with fact issues
remaining as to the time period in which they did so and the amount of damages
sustained). The Village claims plaintiffs cannot show the required causal connection
between plaintiffs’ conduct and any deprivation because “the Village obviously acted

44

because its 1972 Ordinance was out of date, not because Plaintiffs sought to
exercise their Second Amendment rights.” R. 238 at 21-22. The Village says the
Agreement was voluntary and the Ordinances were a result of the Village’s
independent “stud[y]” of its “weapons dealer regulations under a new regime of gun
rights.” R. 238 at 21.
The Court finds that the Village’s motive is far from “obviously” neutral
based on the facts in the record. To the contrary, a reasonable jury could find that
the Village acted with animus toward plaintiffs. The facts show, for example, that
the Village’s 1972 weapons dealer ordinance lay dormant for nearly 40 years until
plaintiffs asked for a weapons dealer license. When plaintiffs did, the Village
negotiated a strict Agreement with plaintiffs regarding the conditions under which
they could operate—an Agreement that a reasonable jury could find coerced. The
Village then enacted the 2011 Ordinance putting a time-limit on plaintiffs’ firearms
dealer license. And later, in apparent response to events in this lawsuit, the Village
enacted the 2013 Ordinance that appeared less restrictive but in fact made it
functionally impossible for plaintiffs to open a retail gun store in the Village. In
light of these facts, a reasonable jury could find that the 2011 and 2013 Ordinances
were enacted and the Agreement insisted upon in retaliation for plaintiffs’
constitutionally protected conduct (i.e., a “causal connection”) and this was a
“deprivation that would likely deter protected activity in the future.” See R. 79 at
33. The Court therefore finds genuine issues of material fact on plaintiffs’

45

retaliation claims in Counts VI and VII.5 See Darchak, 580 F.3d at 633 (“intent”
should “go to a jury unless no rational factfinder could draw the contrary
inference”).
VIII. Count VIII - Equal Protection
Plaintiffs “are no longer pursuing their equal protection claim.” R. 226 at 43.
Accordingly, the grants the Village’s motion for summary judgment on that claim.
Conclusion
For the foregoing reasons, the Court denies the Village’s and plaintiffs’ crossmotions for summary judgment (R. 191; R. 196) on plaintiffs’ Second and
Fourteenth Amendment claims in Count I and plaintiffs’ corresponding retaliation
claims in Counts VI and VII. The Court also denies the Village’s and plaintiffs’
cross-motions for summary judgment on plaintiffs’ First Amendment claim
regarding the exterior signage prohibition in Count IV.
The Court grants the Village’s motion for summary judgment (R. 191) with
respect to plaintiffs’ remaining claims: Count II (substantive due process); Count III
(dormant commerce clause); Count V (declaratory judgment under the Illinois
Constitution); and Count VIII (equal protection).

As plaintiffs acknowledge, they will not be able to achieve a “double recovery
for their damages” on their Count I claims and their Count VI and VII retaliation
claims. R. 226 at 43.

5

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ENTERED:
_________________________
Honorable Thomas M. Durkin
United States District Judge

Dated: November 6, 2017

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