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Second Amendment Arms, et al. v. City of Chicago et al

September 25, 2012


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.


Plaintiffs Second Amendment Arms, R. Joseph Franzese, Robert M. Zieman, Sr., ICarry, Shaun A. Kranish, and Tony Kole (collectively "Plaintiffs") filed a Second Amended Complaint

[51] alleging various constitutional and other legal infirmities in Chicago's Responsible Gun Owners' Ordinance ("the Ordinance"). Defendants the City of Chicago, Chicago Mayor Rahm Emanuel in his official capacity, Superintendent of the Chicago Police Department Garry McCarthy in his official capacity, and Chicago City Clerk Susana Mendoza in her official capacity (collectively "Defendants") have moved to dismiss the Second Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). [58]. They seek to dismiss all eighteen counts against official capacity defendants Emanuel, McCarthy, and Mendoza, and all or part of thirteen of the eighteen counts against the City of Chicago. For the reasons stated below, the motion to dismiss [58] is granted in part and denied in part. Plaintiffs are given 21 days to file a third amended complaint if they believe that they can cure any of the pleading deficiencies identified below.

I. Background*fn1

In March 1982, the City of Chicago ("the City") enacted an ordinance restricting the possession, ownership, and use of firearms within its borders. [51 at ¶ 12]. The provisions of this 1982 ordinance were codified, as updated and amended, in sections 8-20-010 through 8-20-260 of the Municipal Code of Chicago ("Municipal Code"). See [51 Ex. A]. The Supreme Court held, in McDonald v. City of Chicago, --- U.S. ---, 130 S. Ct. 3020 (June 28, 2010), that the Second Amendment right to keep and bear arms is fully applicable to the states by virtue of the Fourteenth Amendment. [51 at ¶ 13]. The City responded to this ruling on July 2, 2010, by passing the thirty-page Ordinance, [51 ¶ 14], which deleted and replaced sections 8-20-010 to 8-20-260 of the Municipal Code in their entirety. See [51 Ex. B at 4]. The Ordinance also amended several other related provisions of the Municipal Code, see [51 Ex. B at 2-4], including section 4-144-010. See [51 ¶¶ 17, 33]. The Ordinance became effective on July 12, 2010. [51 ¶ 16; Ex. B at 30.]

Plaintiffs allege that their rights protected by the Second Amendment and other constitutional provisions have been or will be infringed by the Ordinance in a variety of ways. Plaintiff Franzese, a federally licensed firearms dealer and principal of Plaintiff Second Amendment Arms [51 ¶ 1], desires to open two gun shops in the City but has been unable to do so because the City rejected his applications for weapons dealer business licenses. [51 at ¶ 33]. Even if he were able to obtain these licenses, he asserts, the Ordinance would impermissibly burden his businesses because he and his customers would be unable to transport or store firearms, and he would be unable to sell certain types of firearms and firearm accessories. [51 ¶¶ 34, 41]. Plaintiffs Zieman and Kole are Chicago residents who have been unable to purchase and transport firearms and firearm accessories in the City [51 ¶¶ 35-36, 42-43], and plaintiff Kole has been unable to maintain more than one operable firearm in his home [51 ¶ 38], or possess a firearm within the curtilage of his home or in his rented garage [51 ¶¶ 39-40]. Plaintiff Kranish, d/b/a Icarry, resides and does business in Rockford, Illinois. [51 ¶ 3]. He and Icarry want to gift handguns to qualified, law-abiding Chicago residents but fear prosecution under the Ordinance. [51 ¶ 37]. Plaintiffs seek a full panoply of relief, including declaratory judgments, preliminary and permanent injunctive relief, damages, costs, and attorneys' fees. See [51 ¶¶ 86, 91, 96, 103, 105, 107, 113, 115, 117].

The Second Amended Complaint presently before the Court represents Plaintiffs' fourth attempt to crystallize their allegations and coherently frame their challenges to the Ordinance. See [1], [4], [6], [51].*fn2 On July 27, 2011, with Defendants' Motion to Dismiss and the jumbled allegations set forth in Plaintiffs' First Amended Complaint pending before it, see [6], [18], the Court instructed Plaintiffs to clearly and intelligibly set forth their claims, in individual numbered counts, so as to enable Defendants and the Court to understand and address their allegations. See [41]; see also [73-1 at 12] ("This Court asked Plaintiffs in open court to amend and simplify the Complaint."). It appears that Plaintiffs have made some effort to comply with these instructions in the Second Amended Complaint. They follow up their more clearly articulated facts and allegations with eighteen numbered counts' worth of claims enumerating dozens of legal theories. Yet several of their claims remain difficult to decipher.

As the Court understands the Second Amended Complaint, all Plaintiffs allege in Counts I-VII that various provisions of the Ordinance violate their rights under the Second Amendment to the United States Constitution, as incorporated by the Fourteenth Amendment. They further allege in Count I that unspecified portions of Chicago's zoning ordinance are construed to restrict the availability of firearms, in Count III that Section 8-20-090 of the Ordinance violates the Supremacy Clause, and in Counts III and VI that certain portions of the Ordinance are unconstitutionally vague. All Plaintiffs seek in Count X relief under 42 U.S.C. § 1983 and Monell v. City of New York Department of Social Services, 436 U.S. 658 (1978); claim in Count XI that the Defendants violated the Sherman Antitrust Act, 15 U.S.C. § 1; and invoke Illinois state law in Count XIV to seek a declaratory judgment that the Ordinance violates nine clauses of the Illinois Constitution. Plaintiffs Zieman and Kole allege in Count VIII that section 8-20-050 of the Ordinance violates their Second Amendment rights by making it impractical and impossible for them and other Chicagoans to use firearms in self defense. Plaintiff Second Amendment Arms alleges in Count IX that the Ordinance impermissibly burdens interstate commerce; violates the Dormant Commerce Clause; violates the First, Second, Fourth, Fifth, and Fourteenth Amendments; and conflicts with various federal laws in violation of the Supremacy Clause. In Count XV, Second Amendment Arms seeks a writ of mandamus directing Defendants to issue the weapons dealer licenses for which Franzese applied. In Count XVI, Second Amendment Arms asserts a state law claim for tortious interference with prospective economic advantage. In Counts XII and XVII, Plaintiff Kole seeks restitution of the fees that he and a similarly situated class of individuals and entities paid the City to obtain firearms permits and registration certificates pursuant to the Ordinance. And in Counts XIII and XVIII, Plaintiff Zieman seeks a declaration that the 1982 ordinance was unconstitutional (under the United States and Illinois Constitutions), expungement of his and all others' convictions under the 1982 ordinance, recompense of various fees and expenditures that he and others incurred as a result of the City's enforcement of the 1982 ordinance, and the return of all firearms seized from him and others pursuant to the 1982 ordinance.

Defendants have moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) all of Plaintiffs' claims against official capacity Defendants Emanuel, McCarthy, and Mendoza. [58]. Defendants also have moved to dismiss, under Rules 12(b)(1) and 12(b)(6), Counts VIII-XVIII of the Second Amended Complaint in their entirety and Counts I and III in part. [58].*fn3

II. Legal Standard

The purpose of a Rule 12(b) motion to dismiss is not to decide the merits of the case. A Rule 12(b)(6) motion tests the sufficiency of the complaint, Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir.1990), while a Rule 12(b)(1) motion tests whether the Court has subject matter jurisdiction. Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999). In reviewing a motion to dismiss under either rule, the Court takes as true all factual allegations in Plaintiffs' complaint and draws all reasonable inferences in their favor. Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007); Long, 182 F.3d at 554. To survive a Rule 12(b)(6) motion to dismiss, the claim first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the claim must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir.2007) (quoting Twombly, 550 U.S. at 555). "A pleading that offers 'labels and conclusions' or a 'formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). However, "[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the * * * claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly, 550 U.S. at 555) (ellipsis in original).

III. Analysis

A. Plaintiffs' Representation

The Court notes at the outset that there is some confusion in its records as to which Plaintiffs are represented by counsel and which are not. According to the docket, no attorney appearance form has been filed on behalf of any of the Plaintiffs, notwithstanding Local Rule 83.16's requirement that attorney appearance forms must be filed "prior to or simultaneously with the filing of any motion, brief or other document in a proceeding before a judge or magistrate judge of this Court, or at the attorney's initial appearance before a judge or magistrate judge of this Court, whichever occurs first." The Second Amended Complaint was filed by an attorney, purportedly on behalf of all Plaintiffs, yet all Plaintiffs also signed the Second Amended Complaint in an apparent attempt to comply with Federal Rule of Civil Procedure 11(a), and several are listed as pro se on the docket. In short, the Court is not certain at this time which Plaintiffs are represented and which are not. The Court instructs counsel for Plaintiffs and any Plaintiffs who are not represented by counsel to be prepared to address this issue at the next status hearing.

B. Official Capacity Defendants

Defendants move to dismiss all counts to the extent that they name as Defendants Mayor Emanuel, Chief McCarthy, and Clerk Mendoza in their official capacities. They argue that the claims against these Defendants are duplicative of those against the City of Chicago. [60-1 at 23-24]. Plaintiffs disagree. Rather than refuting Defendants' argument, however, Plaintiffs respond with an ad hominem attack on the official-capacity Defendants. [73-1 at 24.] They also contend that "continued inclusion [of the official-capacity Defendants] is necessary, to hold them accountable, and to render them subject to mandamus and the other relief that may be granted should Plaintiffs prevail." [73-1 at 24.]

The Court agrees with Defendants to the extent that they seek to dismiss Plaintiffs' § 1983 claims against the official-capacity Defendants. Section 1983 creates a cause of action against "[e]very person, who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. Generally, an official capacity suit is brought against a high-ranking official as a means of challenging an unconstitutional policy, practice, or custom. Hill v. Shelander, 924 F.2d 1370, 1372 (7th Cir. 1991). But suing a government employee in his official capacity is akin to suing the entity that employs him and the standard for liability is the same. See, e.g., Kentucky v. Graham, 473 U.S. 159, 166-67 (1985). Thus, Defendants are correct that naming the official capacity defendants in addition to the City, the true party in interest, is redundant and fails to state a separate claim for relief. See Harris v. Denver Health Med. Ctr., No. 11-cv-01868, 2012 WL 1676590, at *7 (D. Colo. May 10, 2012) ("A § 1983 claim is properly plead against a municipality either by naming the municipality itself or by naming a municipal official in his or her official capacity. Naming either is sufficient. Naming both is redundant." (quotations and citation omitted)). The Court therefore grants Defendants' motion to dismiss the Counts sounding under § 1983, Counts I-X, XII, and XIII, against official-capacity Defendants Emanuel, McCarthy, and Mendoza. Notwithstanding the lack of reasoned argument from Plaintiffs, the Court denies Defendants' motion to dismiss Counts XI and XIV-XVIII against the official-capacity Defendants. These claims also remain pending against Defendant City of Chicago. Defendants have not pointed to any authority demonstrating that the same rule of party equivalence applies in non-§ 1983 actions brought against official-capacity defendants, so the Court declines to dismiss the claims on this basis at this time. For simplicity's sake, the Court will continue to use the collective term "Defendants" in its discussion of these counts.

C. Count I : "Ban on Gun Stores (U.S. Const. Amends. II & XIV)"

Plaintiffs raise two conceptually related but legally distinct claims in Count I. First, they allege that section 4-144-010 of the Municipal Code, as amended by the Ordinance, unduly burdens, impedes, and infringes upon their Second and Fourteenth Amendment rights by restricting weapons dealers' ability to "engage in the business of selling, or to sell, give away, or otherwise transfer, any firearm." [51 ¶¶ 46-47]. Second, they allege that, "[t]o the extent that the zoning ordinances of the City are construed to prohibit the reasonable availability of firearms through commercial firearms dealers, said zoning ordinances are also unconstitutional and void ab initio." [51 ¶ 48].

Defendants seek to dismiss under Rule 12(b)(6) only the latter portion of Count I. They assert that the claim does not comply with Federal Rule of Civil Procedure 8(a)(2) because "Plaintiffs fail to identify in their Complaint any provision of the Chicago Zoning Ordinance that would prohibit commercial sales of firearms." [60-1 at 3]. Plaintiffs respond by pointing to ¶ 20 of the Second Amended Complaint, in which they allege that "It is not apparent that Chicago's zoning ordinance specifically allows or forbids gun shops, except that 'the sale of firearms or ammunition' is forbidden as a 'home occupation' pursuant to § 17-9-0202-C (11)(q). On information and belief, Chicago will not issue a zoning permit for any use it deems may violate the penal ordinances of the City."

The Court agrees with Plaintiffs that this allegation, which Plaintiffs incorporated into Count I, adequately places Defendants on notice that Section 17-9-0202-C(11)(q) is being challenged on Second and Fourteenth Amendment grounds to the extent that it may impede Plaintiffs from opening gun stores. The Court therefore denies in part Defendants' motion to dismiss Count I. To the extent that Plaintiffs may take issue with other zoning provisions, however, the Court agrees with Defendants that the Second Amended Complaint in its current state is insufficient to apprise Defendants of any specific zoning provisions that they may be called upon to defend and ...

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