941 F. Supp. 2d 933
N.D. Ill.2013Background
- Plaintiffs applied for a weapons dealer license on Nov 16, 2010 for 7601 W Montrose Ave, Suite 2.
- Village ordinance 22-361 required a license to sell firearms; ATF inspected but the Village delayed clearance.
- Village agreed in Nov 2010 to issue a license under restrictive terms (Agreement), including internet/mail order sales and numerous on-site controls.
- ATF obtained a Federal Firearms License on Jan 18, 2011; Plaintiffs began operating under the Agreement.
- Village amended ordinance (Revised Ordinance) on Feb 9, 2011, limiting licenses and eventually banning gun stores after Nov 30, 2013.
- In Feb 2011 a Village Trustee publicly asserted an agreement with the current licensee to cease by Apr 30, 2013, which Plaintiffs allege was false.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Count I complies with Rule 8/10 | Kole alleges multiple constitutional theories under one count. | Count I is duplicative and lacks notice for distinct amendments. | Count I dismissed with leave to amend into separate counts per amendment. |
| Second Amendment viability and scope | Agreement/Ordinance burdens Second Amendment rights; standing via Ezell framework. | Regulation on sale/dispensing firearms is presumptively lawful regulatory measure. | Second Amendment issues not resolved on motion; plaintiffs may amend; court applies Ezell framework. |
| Preemption and Dormant Commerce Clause | Agreement/Revised Ordinance conflict with federal licensing and burden interstate commerce. | No express field preemption; no clear conflict with federal license; dormant commerce claim inadequately pleaded. | Count II: preemption granted (no express/field preemption), Dormant Commerce Clause claim denied on preemption; proper to amend with fuller facts. |
| First Amendment — commercial speech and prior restraints | Restrictions on displays and signage and the idea of prior restraints burden commercial speech. | Some restrictions may be permissible; not all constitute prior restraints; coercive effects unresolved. | Count III partially granted (ban on displays and prior restraint claims dismissed), exterior signage restrictions survive a plausible claim; further development allowed. |
| Retaliation claims and intracorporate conspiracy | Defendants retaliated for protected activity; theory includes multiple amendments. | Counts without proper pleading fail; intracorporate conspiracy doctrine applies. | Count IV dismissed; Count V dismissed to extent duplicative; Counts VI and related conspiracy claims dismissed under intracorporate doctrine. |
Key Cases Cited
- Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) (standing to challenge restrictions on third-party rights and the right to acquire)
- Heller v. District of Columbia, 554 U.S. 570 (U.S. 2008) (personal right to keep and bear arms; not unlimited; presumptively lawful regulatory measures discussed)
- McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) ( Second Amendment applies to states; contextual limits on regulations)
- United States v. Williams, 616 F.3d 685 (7th Cir. 2010) (application of intermediate scrutiny to firearm-related restrictions)
- United States v. Biswell, 406 U.S. 311 (U.S. 1972) (upsupported warrantless inspections of licensed firearm dealers under Fourth Amendment)