United States District Court, N.D. Illinois, Eastern Division
AMENDED MEMORANDUM OPINION & ORDER
Honorable Thomas M. Durkin United States District Judge.
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).
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.
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.
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.
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.
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
‘B-3' GENERAL BUSINESS DISTRICT and ‘C'
COMMERCIAL DISTRICT could accommodate your office.” R.
238 at 9; PSMF ¶ 8.
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.
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.
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.
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.
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
• 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;
• 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
• 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.
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.
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
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.
The 2011 Ordinance
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. P-Ex. 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, 2013.” P-Ex. 10. The
Ordinance further provided that it would terminate weapons
business licenses altogether as of April 30, 2013. P-Ex. 10.
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.
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.
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 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.
The 2013 Ordinance
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
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
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 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.
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.
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.
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.
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
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.
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.
The 2014 Ordinance
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 Ordinance). PR ¶ 41.
The 2014 Ordinance also reduced the distancing requirement to
within 500 feet of a sensitive site. PR ¶ 41.
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 ...