By: Derek Hawkins//April 18, 2016//
7th Circuit Court of Appeals
Case Name: Six Star Holdings, LLC et al v. City of Milwaukee
Case No.: 15-1608
Officials: WOOD, Chief Judge, ROVNER, Circuit Judge, and SHAH, District Judge
Focus: Ordinance
Damages awarded to entities challenged now repealed ordinance for operation of gentleman’s club affirmed.
“We recognize that Ferol is challenging the Milwaukee ordinances as applied, not facially. But the distinction has little force in the present circumstances. As the Supreme Court has explained, ”the distinction between facial and as applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 331 (2010). Rather, “it goes to the breadth of the remedy employed by the Court”: a facial challenge usually invites prospective relief, such as an injunction, whereas an as-applied challenge invites narrower, retrospective relief, such as damages. Id. In this case, the need for an injunction has disappeared, and so we are left only with Ferol’s request for damages. That aspect of the case does not depend on the legal theory he is using. Ferol had already suffered an injury from the unconstitutional ordinances. It alleged—and a jury ultimately found— that it refrained from protected speech in response to the City’s unconstitutional ordinances. This describes an injuryin-fact sufficient to support standing. See Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988). It is fairly traceable to the unconstitutional ordinances—Ferol alleged that, but for the ordinances, it would have engaged in protected speech, and a jury ultimately found this to be true. Damages redress the harm that Ferol suffered by replacing the lost profits Ferol would have earned if it had been able to open its club at the planned time.”
Affirmed