Kole v. Vill. of Norridge, No. 11 C 3871

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Writing for the CourtThomas M. Durkin
PartiesTony Kole, et al., Plaintiffs, v. Village of Norridge, et al., Defendants.
Decision Date19 April 2013
Docket NumberNo. 11 C 3871

Tony Kole, et al., Plaintiffs,
Village of Norridge, et al., Defendants.

No. 11 C 3871


Dated: April 19, 2013

Judge Thomas M. Durkin


Plaintiffs Tony Kole and Ghost Industries, LLC sued the Village of Norridge (the "Village") and various Village officials for allegedly impeding Plaintiffs' attempts to open and operate a gun store in the Village. Presently before the Court is Defendants' Motion to Dismiss Plaintiffs' Amended Complaint. R. 13. On March 22 and 28, 2012, the Court (Judge Norgle) issued orders (i) dismissing all claims against Village Police Chief James Jobe and Village Clerk Judith Bernardi and all individual-capacity claims against Village Attorney Mark Chester, R. 55, and (ii) dismissing all individual-capacity claims against the remaining Village officials. R. 54. This Order now addresses Plaintiffs' claims against the Village itself and the remaining official-capacity claims against the individual defendants. For the reasons explained below, Defendants' motion to dismiss is granted in part and denied in part.1

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Legal Standard

A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g., Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). A complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Under notice pleading standards, a plaintiff's "factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). Put differently, a "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "In evaluating the sufficiency of the complaint, [courts] view it in the light most favorable to the plaintiff, taking as true all well-pleaded factual allegations and making all possible inferences from the allegations in the plaintiff's favor." AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). Courts also "consider documents attached to the complaint as part of the complaint itself." Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 764 (7th Cir. 2010). The following background is a summary of Plaintiffs' allegations, viewed in the light most favorable to Plaintiffs.

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On November 16, 2010, Plaintiffs applied to the Village for a weapons dealer business license. They wanted to open a gun store in the Village at 7601 West Montrose Avenue, Suite 2. At the time, a Village ordinance (the "Ordinance") provided that it was unlawful to sell firearms without a license from the Village. See Village of Norridge Code of Ordinances § 22-361 (1972). Plaintiffs executed a lease for the premises while they were waiting for the Village to issue the weapons dealer business license and for the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") to issue their Federal Firearms License.

The ATF arranged an inspection of the premises as part of the Federal Firearms License application process.2 But the ATF cancelled the inspection after the Village refused to give an approval to proceed and told the ATF that Plaintiffs would not be allowed to transfer firearms on the premises.

Shortly thereafter, the Village informed Plaintiffs that it was reluctant to issue them a license because "God forbid something should ever happen." Although the Ordinance generally allowed licensed gun stores, there were no gun stores in the Village. The Village originally enacted the Ordinance to accommodate K-Mart, but by 2010, K-Mart had voluntarily stopped selling firearms.

On November 30, 2010, Plaintiffs—under economic duress, they allege—ultimately entered into an agreement with the Village (the "Agreement"). The

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Agreement provides that the Village would issue Plaintiffs a weapons dealer business license, but subject to strict terms and conditions. Taken together, the terms and conditions require Plaintiffs to sell guns over the Internet and by mail, instead of through in-person retail sales. Those terms and conditions include:

• Plaintiffs may not deliver firearms or ammunition to any recipient at the premises;
• All deliveries from the premises must be sent in unmarked packaging for used firearms and in the original packaging for new firearms;
• Plaintiffs cannot store firearms or ammunition on the premises overnight or for more than 12 hours a day, and any inventory must be disabled by a locking device or secured in a locked cabinet;
• Plaintiffs cannot maintain a sales or retail display of firearms or ammunition on the premises;
• Plaintiffs cannot 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 must submit to fingerprinting and annual criminal background checks, at the Village's expense;
• Plaintiffs must install and maintain a video surveillance system;
• Plaintiffs must 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 must allow one random and two scheduled inspections of the premises per month.

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In addition to the terms and conditions in the Agreement, the Ordinance itself also requires Plaintiffs to provide daily reports of their firearm sales to the Village Police Chief. See Village of Norridge Code of Ordinances § 22-362 (1972).

Under the Agreement, Plaintiffs' license was for an initial one-year term, subject to renewal for two additional one-year terms as long as Plaintiffs complied with the terms of the Agreement. The Agreement also exempts Plaintiffs from any changes made to the Ordinance during that three-year time period, including if the Village later repealed the Ordinance and banned gun stores outright.

With the Agreement in place, Plaintiffs moved forward. The ATF conducted its inspection and issued Plaintiffs a Federal Firearms License on January 18, 2011. Plaintiffs then began to operate their business out of the premises.

Shortly thereafter, on February 9, 2011, the Village amended its ordinance (the "Revised Ordinance") as the parties apparently anticipated. The Revised Ordinance limits the number of weapons dealer business licenses to one (e.g., the license issued to Plaintiffs) through April 30, 2013. As of April 30, 2013, the Revised Ordinance terminates that type of license altogether and bans gun stores from the Village. As a result, once the Agreement and its three-year exemption from the Revised Ordinance expires on November 30, 2013, Plaintiffs may be forced to close up shop, or at least relocate their business outside the Village.

On February 14, 2011, Village Trustee Dominic Falagario told the Norridge Harwood Heights News—falsely, according to Plaintiffs—that "the one current

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Village weapons dealer licensee has agreed that it will cease doing business in the village no later than April 30, 2013."

On June 7, 2011, Plaintiffs filed this lawsuit against the Village, Village President Ronald Oppedisano, Village Trustees Ursula Kucharski, Dennis Stefanowicz, Dominic Sulimoski, Dominic Falagario, Jacqueline Gregorio, and Robert Martwick, Village Police Chief James Jobe, Village Clerk Judith Bernardi, and Village Attorney Mark Chester. The 73-page Amended Complaint is divided into 18 counts with 9 federal and 9 pendant state law claims (as discussed below, because many of the counts combine multiple theories into a single count, Plaintiffs actually assert well over 18 legal theories). In short, Plaintiffs allege injuries related to (1) the review process while the Village was considering their license application, (2) the terms and conditions imposed by the Agreement, and (3) the Revised Ordinance's upcoming ban on gun stores. Plaintiffs seek various remedies, including compensatory damages and injunctive and declaratory relief.


Count I: 42 U.S.C. § 1983 - U.S. Const. Amends. I, II, IV, V & XIV

Count I contains a hodgepodge of constitutional claims pursuant to 42 U.S.C. § 1983, which provides a cause of action against "[e]very person who, under color of [law], 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." In Count I, Plaintiffs allege violations of the First, Second, Fourth, and Fifth Amendments (incorporated

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against local governments under the Fourteenth Amendment). Plaintiffs' Second Amendment claim broadly attacks the Agreement's terms and conditions and the Revised Ordinance's upcoming ban on gun stores. Plaintiffs' other claims are less clear and are often only explained, if at all, in Plaintiffs' response to Defendants' motion to dismiss. Plaintiffs' First Amendment claim is based on the Agreement's restrictions on retail displays and exterior signage and also alleges that the Agreement and Revised Ordinance are...

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