ANNEX BOOKS, INC. v. CITY OF INDIANAPOLIS (October 1, 2010)

The City of Indianapolis passed an ordinance that restricted adult bookstores’ hours of operation. After the district court rejected a challenge to the ordinance, the Seventh Circuit reversed and remanded (the opinion and intheiropinion). The Court concluded that the evidentiary record did not satisfy intermediate scrutiny. The record evidence it related to the dispersal of adult businesses offering live entertainment -- instead of relating to hours restrictions on businesses not offering live entertainment. On remand, the City offered one additional piece of evidence at a preliminary injunction hearing. It was a study that concluded that Sioux City, Iowa saw a reduction in crime after it dispersed adult businesses. Judge Barker (S.D. Ind.) denied the injunction. The City appeals.

In their opinion, Chief Judge Easterbrook and Judges Flaum and Rovner affirmed. The Court found several flaws in the City's position. First, the study, like the earlier evidence, related to a dispersal ordinance, not a restricted-hours ordinance. Second, the study did not control for any other variables (like bars opening or closing, for example). Third, more police protection for adult business patrons is preferable to closing them. Given the state of the record, the Court concluded that the district court did not abuse its discretion in denying the injunction.