Second Amendment Arms v. City of Chi., Case No.: 10–cv–4257

• Court: United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
• Writing for the Court: Robert M. Dow, Jr., United States District Judge
• Citation: 135 F.Supp.3d 743
• Decision Date: 28 September 2015
• Docket Number: Case No.: 10–cv–4257
• Parties: Second Amendment Arms, et al., Plaintiff, v. City of Chicago, et al., Defendants.

135 F.Supp.3d 743

Second Amendment Arms, et al., Plaintiff,
v.
City of Chicago, et al., Defendants.

Case No.: 10–cv–4257

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

Signed September 28, 2015

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David G. Sigale, Law Firm Of David G. Sigale, P.C., Glen Ellyn, IL, Walter Peter Maksym, Jr., Attorney at Law, Chicago, IL, for Plaintiffs.

Andrew W. Worseck, David Michael Baron, William Macy Aguiar, City of Chicago, Department of Law, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

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

Plaintiffs are gun owners and retailers who challenge the current and former versions of the City of Chicago's ordinance governing the use, sale, and possession of firearms within the City, arguing that those ordinances violated, and continue to violate, their constitutional rights. Before the Court is Defendants' motion to dismiss [155] Plaintiffs' fourth amended complaint. For the reasons set forth below, Defendants' motion [155] is granted in part and denied in part. A status hearing is set for 10/22/2015 at 9:00 a.m.

I. Background¹

A. Chicago's Gun Ordinances

On June 28, 2010, the Supreme Court issued a landmark decision holding that the Second Amendment applied to the states by way of the Fourteenth Amendment, making state and municipal gun laws subject to the same Second Amendment standards that apply to federal gun laws. McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). This forced the City of Chicago to rewrite its 1982 ordinance banning the possession of handguns within city limits. Four days after McDonald, Chicago passed a new ordinance (the "2010 Ordinance"), allowing the possession of guns within the City subject to a series of regulations governing both sale and ownership.

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Plaintiffs filed their original complaint [1] in this case one week later, on July 9, 2010.

Approximately three-and-a-half years later, a court in the Northern District of Illinois concluded that certain provisions in the 2010 Ordinance effectively banning the sale and transfer of firearms were unconstitutional. Ill. Ass'n of Firearms Retailers v. City of Chicago, 961 F.Supp.2d 928, 947 (N.D.Ill. Jan. 6, 2014) (regarding MCC² § 8–20–100 and § 17–16–0201, which banned gun sales and transfers other than inheritance). This prompted yet another round of revisions from the City of Chicago, which issued a revised gun ordinance approximately six months later, in July 2014 (the "2014 Ordinance").

As gun laws in the City of Chicago have evolved over the past four years, so too have Plaintiffs' allegations. [See 1, 4, 6, 51, 112, 146.] Now before the Court is Defendants' motion to dismiss [155] Plaintiffs' fourth amended complaint [146], which represents Plaintiffs' sixth attempt to crystallize their allegations and coherently frame their challenges to the City's gun laws. In their fourth amended complaint, Plaintiffs focus primarily on provisions within the 2014 Ordinance, but also make reference to purported harms stemming from provisions in the 2010 Ordinance.³ Most of the provisions at issue are short and self-explanatory, and thus need no advanced introduction. However, certain provisions (namely, the zoning and special-permit provisions) are more complex and difficult to assess out of context. Accordingly, the Court provides the following summary of the various zoning provisions at issue in this case.

1. Zoning Regulations in the 2014 Ordinance

Plaintiffs object to four zoning regulations in the 2014 Ordinance. Two of those provisions (MCC §§ 4–144–750, 17–9–0128) are self-explanatory: they say that firearms retailers can't be located within 500 feet of schools or parks. The other two provisions (MCC §§ 17–3–0207, 17–4–0207) are more complicated, as they involve complex tables that subdivide the City into discrete residential, commercial, and downtown zones, and then detail whether various land uses are permitted within each zone and, if so, what type of permitting application is required to gain approval for each particular land use.

a. MCC § 17–3–0207

MCC § 17–3–0207 is a zoning ordinance that details land-use restrictions for various business operations across Chicago's six zones: B1 (neighborhood shopping district), B2 (neighborhood mixed-use district), B3 (community shopping district), C1 (neighborhood commercial district), C2 (motor-vehicle-related commercial district), and C3 (commercial, manufacturing, and employment district). Section 17–3–0207 says that firearms retailers can be built in Chicago's C2 and C3 zones—a restriction that also applies to light and heavy equipment sales/rental facilities, RV or boat storage facilities, and vehicle storage and towing facilities. There are several land uses that are regulated more extensively than firearms retailers under the provision (e.g., cemeteries, mausoleums, columbarium facilities; coke and coal bulk material facilities; shooting ranges; cannabis cultivation

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centers), and there are multiple operations that are relegated specifically to the three commercial zones: C1, C2, and C3 (e.g., detention and correctional facilities, hospitals, adult use facilities, stables, urban farms, construction storage yards, inter-track wagering facilities, flea markets, car washes, vehicle repair shops, recycling facilities, poultry slaughtering and retail sales facilities).

Section 17–3–0207 also explains the type of permit required to build a particular facility in each zone, which generally is either (a) no permit, or (b) a "special use" permit, where the intended land use "may be allowed if reviewed and approved in accordance with the special use procedures of § 17–13–0900." See MCC §§ 17–2–0202, 17–2–0203. Section 17–13–0900 sets out the procedure for submitting a special-use permit, which generally entails an application to the Zoning Board of Appeals, a recommendation from the Zoning Administrator to the Zoning Board of Appeals, a public hearing before the Zone of Appeals, and a final decision within 120 days of the application date. See MCC §§ 17–13–0900–10. At least 56 categories of land uses require special-use permits in at least one zone, and a number of categories, in addition to firearms facilities, require special-use permits regardless of the zone (e.g., group community homes, domestic violence shelters, nursing homes, temporary overnight shelters, transitional residences and shelters, detention and correctional facilities, lodges and private clubs, community centers and recreational buildings, religious assembly facilities, schools, major utilities, adult use facilities, stables, drive-thru facilities, inter-track wagering facilities, payday lenders, pawn shops, flea markets, poultry slaughtering and retail sales facilities, fortune telling services, gas stations, hotels/motels, hookah bars, valuable objects dealers, outdoor vehicle storage and towing, freestanding wireless towers, cannabis dispensing organizations).

b. MCC § 17–4–0207

MCC § 17–4–0207 is another zoning ordinance that details land-use restrictions for the four zoning districts in Chicago's downtown area: DC (downtown core district), DX (downtown mixed-use district), DR (downtown residential district), and DS (downtown service district). See MCC § 17–4–0101–05. Section 17–4–0207 allows firearms retailers in Chicago's DS district only—a distinction that also applies to detention and correctional facilities; building maintenance services; day labor employment agencies; certain sports facilities; flea markets; cremating facilities; residential support services; various vehicle service, sale, and storage facilities; and certain recycling facilities. Certain land-use categories are restricted completely under this provision (e.g., coke & coal bulk material facilities, cannabis dispensing organizations), and approximately 45 land-use categories are limited to two or fewer of Chicago's four downtown zoning districts. Section 17–4–0207 also provides the type of permit required to build a particular facility in each district (i.e., no permit, or a special-use permit), and firearms facilities is one among 39 land-use categories that requires a special-use permit in at least one zoning district, and one of 26 land-use categories that requires a special-use permit regardless of the zoning district.

II. Legal Standard

In reviewing the sufficiency of a complaint, a district court must accept all well-plead facts as true and draw all permissible inferences in favor of the plaintiff. Agnew v. Nat'l Collegiate Athletic Ass'n, 683 F.3d 328, 334 (7th Cir.2012). A plaintiff must provide "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a), such that the defendant is given "fair notice

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of what the * * * claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127...