Second Amendment Arms v. City of Chi.
| Decision Date | 10 March 2020 |
| Docket Number | Case No. 10-cv-4257 |
| Parties | SECOND AMENDMENT ARMS, R. JOSEPH FRANZESE, individually and d/b/a SECOND AMENDMENT ARMS, and TONY KOLE, Plaintiffs, v. CITY OF CHICAGO, LORI LIGHTFOOT, CHARLES BECK, and ANNA VALENCIA, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Plaintiffs are firearms owners and retailers who seek lost profits from a business they could not open because of a City of Chicago ordinance, later declared unconstitutional, and who challenge the constitutionality of a separate ordinance that bans the sale or possession of laser sights within the city. Currently before the Court is Defendants' motion for summary judgment and to exclude the testimony of Robert Southwick [251]. The motion [251] is granted in part (as to the exclusion of Southwick's proposed testimony) and denied without prejudice in part (as to summary judgment on Counts I and III). As explained below, each side is directed to file a supplemental brief on two underdeveloped issues (nominal damages and the laser sight ban) by March 31, 2020 and a supplemental reply brief by April 21, 2020.
The Court takes the relevant facts primarily from the parties' Local Rule 56.1 statements, [254], [255], [260-2], [260-3], [261], [261-1], [261-2], and [261-3]. The following facts are undisputed except where a disagreement between the parties is noted. The Court construes the facts in the light most favorable to the nonmoving party—Plaintiffs.
Plaintiff R. Joseph Franzese is a resident of Hainesville, Illinois, a town located approximately 40 miles outside of Chicago. [255-1] at 4. Franzese is a self-employed barber. [255-1] at 27. Plaintiff Second Amendment Arms ("SAA") is Franzese's "doing business as" company. [146] at ¶ 2. SAA operated from approximately 2008 or 2009 until sometime in 2011, 2012, or 2013, first in unincorporated Deerfield, Illinois, and then, in Lake Villa, Illinois. [255-2] at 5-6; [255-1] at 6-7, 17. Plaintiff Tony Kole is a resident of Arlington Heights, Illinois. [255-3] at 3.
Defendant City of Chicago is a municipal entity organized under the Constitution and laws of the State of Illinois. [146] at ¶ 5; [190] at ¶ 5. The other Defendants are City officials purportedly sued in their official capacities. Defendant Lori Lightfoot is the City's Mayor. Mayor Lightfoot replaced former Mayor Rahm Emanuel, who was named as a defendant in his official capacity. [146] at ¶ 6. Defendant Charles Beck is the City's interim Superintendent of the Chicago Police Department. Acting Superintendent Beck replaced former Superintended Eddie Johnson, who replaced former Superintendent Garry McCarthy, who was named as a defendant in his official capacity. See id. at ¶ 7. Defendant Anna Valencia is the Clerk of the City of Chicago. Clerk Valencia replaced former Clerk Susana Mendoza, who was named as a defendant in her official capacity. Id. at ¶ 8.
Franzese began doing business as Second Amendment Arms in 2008 or 2009 by selling firearms out of a friend's home in unincorporated Deerfield, Illinois. [255-2] at 5-6; [255-1] at 6-7. When his friend moved sometime in late 2009, Franzese began selling firearms out of a 300-square-foot space in his accountant's office in Lake Villa, Illinois. Id. at 6-7, 10. Franzese sold firearms and firearms accessories, but no ammunition or clothing. Id. at 8. He sold firearms, deposited the proceeds in his bank account, and filled out the paperwork required by federal law. [264-1] at 21. Franzese ceased operation of SAA at the Lake Villa location sometime in 2011, 2012, or 2013. [255-1] at 6-7, 17; [255-2] at 5-6. He did not employ any staff at the Lake Villa store, though he paid an accountant to keep the business's records and prepare its tax returns. [255-1] at 11; 15. He did not keep a written budget for the Lake Villa store. Id. at 15. Apart from a "couple little [advertising] events," Franzese relied largely on "word of mouth" or "peer-to-peer" communication to generate business for SAA. Id. at 24. Franzese estimates that SAA sold approximately 300 firearms in total from the Lake Villa store. [255-1] at 7-8. He possesses no documentation of SAA's sales and accounts or of the Lake Villa store's operation that would establish that SAA was a profitable business. Id. at 8-9. He could not provide an estimate of his Lake Villa business's annual profits. Id. at 14. Apart from tax returns reflecting aggregate amounts of sales revenue, Franzese possesses no documentation at all concerning the operation of the Lake Villa store. Id. at 9.
The SAA tax returns that Plaintiffs produced in this lawsuit were for the years 2011 and 2010 and the months of November and December of 2009. [255-6]; [255-1] at 26. Those tax returns indicate that Franzese's total taxable receipts in 2011 were less than $2,000 for the entire year; that for four of the months in 2010 he had no taxable receipts; and that there were only two months in 2010 in which he had taxable receipts over $1,000. [255-1] at 26-27.
On July 2, 2010, the City Council enacted an ordinance (the "2010 Ordinance") that, among other things, prohibited the sale or transfer of firearms within the City of Chicago, effective onJuly 12, 2010. See [255-4] at 17. 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) (). 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"). The 2014 Ordinance permits the sale of firearms subject to certain restrictions. See [255-5].
On July 2, 2010, Franzese submitted an application for SAA to sell firearms at 415 West Armitage Avenue, Floor 1, Chicago, Illinois 60614.1 He chose that location on the advice of his previous counsel and because there was a sign on the front of the building that said the location was commercial space. [255-1] at 20. The zoning classification for that property address did not and does not permit business or retail uses, either as of right or as a special use. See [204-2] ¶¶ 10-12; [215-10] ¶¶ 10-12. At the time Franzese submitted his application for a business license, he had never visited the property at 415 West Armitage, spoken with the property owner about leasing the property, or inquired with the property's management service to confirm whether a retail operation would be permitted on site. [255-1] at 20. While he was waiting for the City to respond to his business license application, he was still operating SAA at the Lake Villa location. [264-1] at 61.
Franzese planned to operate SAA's Chicago stores with Joe LaJoy and Roman Tapkowski. He intended LaJoy to be the Chief Operating Officer, and Tapkowski the Chief Training Officer.[255-7]. LaJoy owns and manages LaJoy Precision in Fox Lake, Illinois, a gunsmithing and firearm manufacturing business and a firearm and archery instruction center. [255-1] at 6; [255-8] at 5. LaJoy's business provides training and sells firearms, ammunition, holsters, gun cleaning equipment, targets, gun cases, parts, accessories, optics, optic accessories, and other sporting goods. [263-6] at 6. LaJoy has been in the gunsmithing industry for 29 years, id. at 8, and he has worked in the retail firearms industry since he was 21 years old. Id. at 26. LaJoy is also a certified NRA instructor for the pistol, rifle, shotgun, personal protection, home and outdoor firearms safety. He is also a certified range safety officer. He was one of the first Illinois concealed carry instructors and is also certified to teach concealed carry courses in Utah, Florida, and Wisconsin. Id. at 27.
Tapkowski was a Chicago Policer Officer for 32 years. [255-9] at 4. He taught small arms in the Illinois National Guard in the 1970s. Id. at 5. He was then a firearms trainer from 2006 to 2017. Id. at 5. He has taught classes on basic security, private investigation, armed security, Illinois concealed carry, and tactical training. Id. He has also written several manuals on those topics, including a Chicago Handgun Compliance course, the private security firearms courses for the Illinois Department of Financial and Professional Regulation, and an Illinois concealed carry course. Id. Tapkowski is an Illinois concealed carry instructor, an NRA certified law enforcement handgun and shotgun instructor, an NRA certified range safety officer, and the range safety officer at the Conservation Club in Kenosha, Wisconsin. Id. Beginning in 2008 or 2009, Tapkowski and Franzese began discussing the possibility of Tapkowski teaching firearms training courses for SAA. Id. at 6.
In May 2011, ten months after applying for a Chicago business license for SAA and filing this lawsuit (and months after Franzese says he wanted to open SAA's first two Chicago stores),Franzese completed a "business plan" for SAA. See [255-7]; [255-1] at 21. That plan lists LaJoy as SAA's chief operations officer and Tapkowski as SAA's chief training officer. [255-7] at 3. The plan lists the locations for SAA's stores as "Fullerton Ave., far North West City area, Goose Island and a South side retail business TBD due to the outcome of Lawsuit (SAA v. Chicago)." Id. The plan states that "[a]ll facets of working (out of the box) Firearms will be sold" at the stores. Id. at 4. Under the heading "Marketing," the plan states that "SAA will be focused on Males and Females 18-65 years of age, urban and Educated buyers with median...
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