CHICAGO — A Chicago federal judge will allow an online gun dealer to continue its lawsuit against the village of Norridge, alleging the village unconstitutionally used an ordinance to block it from opening a shop there.
Tony Kole, of Ghost Industries LLC, filed suit against Norridge in 2011 for blocking his efforts to open a licensed gun shop in the village.
In his complaint, Kole claimed the village infringed his rights under the Second and 14th Amendments, as well as additional alleged violations of due process, equal protection and the dormant commerce clause.
Kole claimed the village sought retribution against the shop for exercising Second and 14th Amendment rights.
U.S. District Judge Thomas M. Durkin, in an order issued at the end of October, noted after the court had applied a temporary restraining order, the village had changed its gun dealer ordinance from a straight ban to several zoning requirements, apparently to sidestep the lawsuit.
“[The] plaintiffs sought to enjoin enforcement of the amended ordinance and this court held a preliminary injunction hearing,” Durkin wrote. “When the court was about to rule on [the] plaintiffs’ motion for a preliminary injunction, the village again amended its weapons dealer ordinance to make the zoning requirements less restrictive.”
For its part, the village claims Kole and Ghost Industries didn’t suffer any injuries related to the 2011 or 2013 ordinances, because Kole never submitted firm plans to operate a retail business in the village.
Citing the Ezell I and Ezell II cases, Durkin noted that any regulations and their burdens should be evaluated in tandem when considering burdens to Second Amendment rights.
“Operating in tandem, the agreement and the 2011 ordinance prevented anyone in the village from walking into a store and legally purchasing a firearm for self-defense,” Durkin said in the decision.
Durkin also noted that a 2013 ordinance left a smaller percentage of village land as a viable location for gun stores. Kole claimed he couldn’t find a viable area within the permitted area to open a shop.
“This is far from the ‘reasonable opportunity for protected activity’ with ‘an ample amount of land area available’ that the village claims,” Durkin pointed out.
Moreover, the court noted that there is little evidence that Kole would have been able to get a zoning variance for his business.
The village claims it was acting to protect public safety by reducing the chances for weapon possessions in certain areas, including near schools and churches.
But the judge said the village didn’t provide much proof of a fit between its goals and the efforts it took to achieve them.
Durkin also stated that there was evidence that the village acted with bias against Kole, including the fact that the village’s weapons dealer ordinance had been dormant until the plaintiffs sought a license.
Durkin rejected both parties’ cross-motions for summary judgment on the Second and 14th Amendment claims and claims of retaliation by Kole and Ghost Industries, and on the plaintiffs’ First Amendment claim prohibitng certain kinds exterior signs.
Durkin granted the village’s motion for summary judgment with respect to the plaintiffs’ claims regarding substantive due process, the dormant commerce clause, equal protection and declaratory judgment under the Illinois Constitution.
Kole and Ghost Industries are represented by attorneys David G. Sigale, of Glen Ellyn, and Walter Peter Maksym Jr., of Chicago.
Norridge is defended by the firm of Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer P.C., of Chicago.