Guns Save Life, Inc. v. Ali

• Citation: 2020 IL App (1st) 181846,447 Ill.Dec. 201,173 N.E.3d 212
• Decision Date: 13 March 2020
• Docket Number: No. 1-18-1846,1-18-1846
• Court: United States Appellate Court of Illinois
• Parties: GUNS SAVE LIFE, INC., DPE Services, Inc. d/b/a Maxon Shooter's Supplies and Indoor Range and Marilyn Smolenski, Plaintiffs-Appellants, v. Zahra ALI, solely in her capacity as Director of the Department of Revenue of Cook County, Thomas J. Dart, solely in his capacity as Cook County Sheriff, and the County of Cook, a county in the State of Illinois, Defendants-Appellees.

2020 IL App (1st) 181846

173 N.E.3d 212

447 Ill.Dec. 201

GUNS SAVE LIFE, INC., DPE Services, Inc. d/b/a Maxon Shooter's Supplies and Indoor Range and Marilyn Smolenski, Plaintiffs-Appellants,

v.Zahra ALI, solely in her capacity as Director of the Department of Revenue of Cook County, Thomas J. Dart, solely in his capacity as Cook County Sheriff, and the County of Cook, a county in the State of Illinois, Defendants-Appellees.

No. 1-18-1846

Appellate Court of Illinois, First District, FIFTH DIVISION.

Filing Date: March 13, 2020

Christian D. Ambler, of Stone & Johnson, Chtrd., of Chicago, and David H. Thompson, Peter A. Patterson, and John D. Ohlendorf, of Cooper & Kirk, PLLC, of Washington, D.C., for appellants.

Kimberly M. Foxx, State's Attorney, of Chicago (Cathy McNeil Stein, Cristin Duffy, and Paul A. Castiglione, Assistant State's Attorneys, of counsel), for appellees.

JUSTICE HALL delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs Guns Save Life, Inc. (GSL), DPE Services, Inc. d/b/a Maxon Shooter's Supplies and Indoor Range (Maxon), and Marilyn Smolenski (Smolenski) appeal the circuit court's grant of summary judgment in favor of defendants, Zahra Ali (Ali), Thomas J. Dart (Dart), and the County of Cook (County)¹ on their second amended complaint for declaratory judgment and injunctive relief. Plaintiffs sought to challenge the County's ordinance that imposed a tax on firearm sales and two types of ammunition sales (centerfire and rimfire) within the County.

¶ 2 Plaintiffs have raised the following issues on appeal: (1) whether the circuit court erred in partially granting defendants' section 2-619(a)(9) ( 735 ILCS 5/2-619(a)(9) (West 2016)) motion to dismiss because plaintiffs Maxon and Smolenski did not have standing to bring suit to challenge the firearms tax; and (2) whether the circuit court erred in granting summary judgment in favor of defendants on the remaining claims, namely: (a) whether the challenged firearms tax and ammunition tax violate the second amendment to the United States Constitution ( U.S. Const., amend. II ) and section 22 of article I of the Illinois Constitution ( Ill. Const. 1970, art. I, § 22 ), (b) whether the classifications in the ammunition tax violate the Uniformity Clause in Section 2 of Article IX of the Illinois Constitution ( Ill. Const. 1970, art. IX, § 2 ), and (c) whether the challenged firearms tax and ammunition tax are preempted by the Firearm Owners Identification (FOID Card Act) ( 430 ILCS 65/1 et seq. (West 2016)) and the Firearm Concealed Carry Act (Concealed Carry Act) ( 430 ILCS 66/1 et seq. (West 2016)).

¶ 3 For the reasons that follow, we affirm the judgment of the circuit court.

¶ 4 BACKGROUND

¶ 5 Plaintiffs filed their initial four-count complaint for declaratory judgment and injunctive relief challenging the firearms and ammunition taxes on December 17, 2015, alleging that defendants: (1) violated the second amendment ( U.S. Const., amend. II ) and section 22 of article I of the Illinois Constitution ( Ill. Const.1970, art. I, § 22 ), (2) violated the uniformity clause of the Illinois Constitution ( Ill. Const. 1970, art. IX, § 2 ), and (3) were preempted by section 13.1(b) of the FOID Card Act ( 430 ILCS 65/13.1(b) (West 2016)) and section 90 of the Concealed Carry Act ( 430 ILCS 66/90 (West 2016) ) as it applies to handguns and handgun ammunition.

¶ 6 Defendants moved to dismiss the complaint on January 29, 2016, alleging that plaintiffs lacked standing and that the complaint failed to state any claim on which relief could be granted.

¶ 7 Plaintiffs filed their first amended complaint on February 22, 2016, and a response to defendants' motion to dismiss on April 6, 2016 (pursuant to the circuit court's March 16, 2016, order).

¶ 8 According to the second amended complaint, on November 9, 2012, the County's Board of Commissioners (Board) passed a tax titled the Cook County Firearms Tax (firearms tax) which imposed a $25 fee for each firearm purchased by a citizen at a firearms retail business located in the County. Cook County Code of Ordinances (County Code), art. XX, §§ 74-665 through 74-675 (adopted Nov. 9, 2012) (County Code). The revenue from this tax was not directed to any specific fund. On November 18, 2015, the Board amended the County Code to impose a tax on the retail purchase of firearm ammunition at the rate of $0.01 per cartridge of rimfire ammunition and $0.05 per cartridge of centerfire ammunition (the ammunition tax). County Code, art. XX, § 74-676. The revenue from the ammunition tax was directed to the Public Safety Fund to fund operations related to public safety.

¶ 9 Plaintiffs alleged that GSL was a nonprofit corporation dedicated to protecting the second amendment rights of Illinois citizens to defend themselves. Some GSL members reside in the County and have paid both the firearm and ammunition taxes. GSL alleged however, that its members purchased firearms and ammunition less frequently in the County because of the taxes, and that some members avoid purchasing firearms and ammunition in the County because of the taxes.

¶ 10 Plaintiffs alleged that Maxon was a registered retailer of firearms and ammunition in the County. It operates a retail gun shop and indoor shooting range in Des Plaines, Illinois. Maxon sells rifles and handguns and their corresponding ammunition, including centerfire and rimfire. Maxon is owned and operated by DPE Services, Inc.

¶ 11 Plaintiffs alleged that Smolenski was a resident of the County and member of GSL who possessed a valid FOID card and a valid concealed carry license. Smolenski "frequently" engaged in firearms transactions and decided not to purchase a firearm in the County because of the tax. Specifically, on June 7, 2016, Smolenski bought 100 rounds of 9mm (centerfire) ammunition from Maxon and paid the $5 ammunition tax under protest. On June 8, 2016, her counsel submitted her protest of payment to the County's Revenue of Cook County (Department of Revenue). While Smolenski intends to continue purchasing ammunition in the County, the second amended complaint alleged that she did not intend to purchase as much as she otherwise would have. Further, Smolenski did not purchase a new firearm at Maxon because of the firearms tax.

¶ 12 On October 17, 2016, the circuit court issued a memorandum opinion and order granting in part and denying in part defendants' motion to dismiss. The order dismissed Smolenski's and Maxon's challenges to the firearms tax for lack of standing. The court found that Smolenski had no standing to challenge the firearms tax because she had not paid the tax and thus had not been injured by the tax. The court found that Maxon had no standing to challenge the firearms tax on behalf of its customers because there was no ban on the sale of the items at issue, nor was this a situation where the retailer passed a tax on to its customers. Rather the tax was borne by the customers. The circuit court found that GSL had associational standing to challenge both taxes because it alleged that its members paid both taxes; Smolenski had standing to challenge the ammunition tax because she paid it under protest; and Maxon had standing to challenge the ammunition tax because the second amended complaint pleaded facts alleging that compliance with the reporting requirements associated with the ammunition tax would cost it thousands of dollars per year, which gave Maxon a real interest in challenging the ammunition tax.

¶ 13 The circuit court denied defendants' motion to dismiss for failure to state any claim on which relief could be granted because: (1) plaintiffs were not seeking a refund of taxes paid such as to implicate the voluntary payment doctrine and (2) whether the taxes were valid as a matter of law was the ultimate issue in the litigation and determination of those issues on a motion to dismiss would be premature.

¶ 14 The parties subsequently filed cross-motions for summary judgment on the remaining claims.

¶ 15 On August 17, 2018, the circuit court denied plaintiffs' motion and granted summary judgment in favor of defendants. In its memorandum opinion and order, the court concluded that the taxes did not infringe on plaintiffs' federal and state constitutional rights to bear arms because they were proper exercises of the County's home rule taxing powers and did not, in any meaningful way, impede plaintiffs' ability to exercise their right to bear arms. The court found that plaintiffs had no evidence that the taxes would have the effect of preventing ownership or possession of firearms or that they affected the ability of law-abiding citizens to retain sufficient means of self-defense. The circuit court further found that even if the taxes burdened constitutionally protected conduct, they were substantially related to the important government interest of public safety because they provided funds to implement specific policies and programs designed to combat violence. Moreover, the taxes were outside the scope of preemption of the state laws because they were a valid exercise of the County's home rule power to tax. Finally, the court concluded that plaintiffs failed to carry their burden of demonstrating that the different rates of ammunition classification violated the uniformity clause.

¶ 16 This timely appeal followed, and oral argument was held on January 14, 2020.

¶ 17 ANALYSIS

¶ 18 Plaintiffs have raised the following issues on appeal: (1) whether the circuit court erred in partially granting defendants' section 2-619(a)(9) ( 735 ILCS 5/2-619(a)(9) (West 2016)) motion to dismiss because plaintiffs Maxon and Smolenski did not have standing to bring suit to challenge the firearms tax; and (2) whether the circuit court erred in granting summary judgment in favor of defendants on the remaining claims, namely: (a) whether the challenged firearms tax and ammunition tax violate the second amendment to the United States Constitution and Section 22 of Article I of the Illinois...