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Second Amendment Arms v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

August 29, 2017

SECOND AMENDMENT ARMS, et al., Plaintiffs,
v.
CITY OF CHICAGO, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge.

         Before the Court is Defendants City of Chicago, Mayor Rahm Emanuel, Superintendent of Police Eddie Johnson, and City Clerk Anna Valencia's motion for summary judgment [204]. For the reasons set forth below, Defendants' motion [204] is denied. This case is set for further status on September 28, 2017, at 9:30 a.m.

         I. Background

         The Court takes the relevant facts from the parties' Local Rule 56.1 statements [204-2; 215-1; 215-10; 217]. The Court construes the facts in the light most favorable to the nonmoving party-Plaintiffs. On July 2, 2010, the City of Chicago enacted a new handgun ordinance that effectively banned the sale of firearms within the city limits (the “2010 Ordinance”). [215-10, ¶ 13.] That same day, Plaintiff R. Joseph Franzese, the sole proprietor of Plaintiff Second Amendment Arms (“SAA”), submitted a business license application to sell firearms at 415 West Armitage Avenue in Chicago. Id. ¶ 10; [217, ¶ 1]. There is no dispute that retail firearm sales were prohibited in the City of Chicago on July 2. [215-10, ¶ 13.] There is also no dispute that 415 West Armitage Avenue is the only location for which Plaintiffs Franzese or SAA submitted a business license application to open a retail firearm store between January 1, 2010 and June 25, 2014-the date on which the 2010 Ordinance was repealed. Id. ¶¶ 13, 14.

         At the time that Plaintiffs submitted their business license application, 415 West Armitage Avenue was advertised as a “commercial space for lease.” [215-4; 217, ¶ 5.] That was not accurate. 415 West Armitage was (and has been through the filing of the instant motion) zoned RM-5 under Chicago's zoning ordinance. [215-10, ¶ 11.] The “R” denotes “residential districts [that] are intended to create, maintain and promote a variety of housing opportunities for individual households and to maintain the desired physical character of the city's existing neighborhoods.” Municipal Code of Chicago § 17-2-0101 (emphasis in original). Districts zoned RM-5 “are intended to accommodate multi-unit residential buildings.” Id. § 17-2-0104-C (emphasis omitted). Municipal Code Section 17-2-0207 describes the permitted uses of properties zoned RM-5. Plaintiffs admit that this “residential zoning classification does not permit business or retail uses, either as of right or as a special use.” [215-10, ¶ 12.]

         Plaintiffs' application for a business license was denied, although the content of that denial is disputed. There is no written record of the denial, but both parties agree that Plaintiffs were informed that their license was being denied because of Chicago's gun sale ordinance. [217, ¶ 10.] Defendants maintain that Plaintiffs were also told their application was being denied because of the residential zoning restriction, but Plaintiffs dispute this. Id. ¶¶ 9-10. Plaintiffs submit documents showing that Defendants knew about and had discussed denying the application based on the residential zoning obstacle in addition to the 2010 Ordinance. [215-5, at 1-4.] An email between Defendants and officials at the Department of Justice states that “Mr. Franzese was advised that that location was not zoned for business use and the license application did not meet the zoning approval requirement.” [215-9, at 14.]

         Plaintiffs contend that had they been informed that the application was denied because the location was not zoned for retail uses, they “would have immediately amended the application with a new location or simply filed a new location.” [217, ¶ 11.] They argue that the “only reason” they did not do so was “(A.) no one told [them] the Armitage location was not zoned commercial; (B.) the choice of location was not cited to [them] as a reason for denial of [the] Application; and (C.) given the City gun ban Ordinance, it would not have matter what location [they] had chosen to list on [the] Application, as the Application would have been denied because of gun ban store.” Id. ¶ 12. Defendants dispute that Plaintiffs would have ever filed a new or amended application. Id. However, “even if SAA had submitted an application that complied with the requirements of the Chicago Zoning Ordinance at or about the same time it submitted its application for a gun store at 415 West Armitage, the City would not have issued a business license to SAA for a gun store because [the 2010 Ordinance] prohibited gun stores in Chicago.” [215-8, at 4.]

         In 2015, this Court allowed SAA to pursue its challenge to the 2010 Ordinance based on its claim for monetary damages caused by the gun store prohibition-specifically, lost business. [182, at 28.] Defendants have now moved for summary judgment on that claim [204].

         II. Legal Standard

         Summary judgment is proper where “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). To establish that a material fact is undisputed, the movant “must support the assertion by * * * citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations * * *, admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). In determining whether summary judgment is appropriate, the Court should construe all facts and reasonable inferences in the light most favorable to the non-moving party. See Carter v. City of Milwaukee, 743 F.3d 540, 543 (7th Cir. 2014). Rule 56(a) “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against any party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party would bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Put another way, the moving party may meet its burden by pointing out to the court that “there is an absence of evidence to support the nonmoving party's case.” Id. at 325.

         To avoid summary judgment, the opposing party then must go beyond the pleadings and “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and citation omitted). The “mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].” Anderson, 477 U.S. at 252.

         III. Analysis

         Defendants advance one argument in favor of summary judgment: standing. “No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U.S. 811, 818 (1997). For that reason, “[s]tanding is a threshold question in every federal case.” Freedom From Religion Found., Inc. v. Zielke, 845 F.2d 1463, 1467 (7th Cir. 1988). To show standing, a plaintiff must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “The part[ies] invoking federal jurisdiction”-here, Plaintiffs-“bear[] the burden of establishing these elements.” Lujan, 504 U.S. at 561.

         The SAA's claim for monetary damages related to its lost business is an as-applied challenge. See Six Star Holdings, LLC v. City of Milwaukee, 821 F.3d 795, 803 (7th Cir. 2016) (“[A] facial challenge usually invites prospective relief, such as an injunction, whereas an as-applied challenge invites narrower, retrospective relief, such as damages.”). But “the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge.” Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 331 (2010). “As a general matter, a plaintiff who wishes to engage in conduct arguably protected by the Constitution, but proscribed by a statute, successfully demonstrates an immediate risk of injury.” Bell v. Keating, 697 F.3d 445, 451 (7th Cir. 2012). Thus, “when a plaintiff expresses a credible intention to disobey a statute, a sufficient likelihood of injury exists, and a pre-enforcement ...


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