In the
United States Court of Appeals
For the Seventh Circuit
No. 09-4156
A NNEX B OOKS, INC., et al.,
Plaintiffs-Appellees,
v.
C ITY OF INDIANAPOLIS, INDIANA,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. IP 03-CV-00918 SEB TAB—Sarah Evans Barker, Judge.
A RGUED S EPTEMBER 20, 2010—D ECIDED O CTOBER 1, 2010
Before E ASTERBROOK, Chief Judge, and F LAUM and
R OVNER, Circuit Judges.
P ER C URIAM. This suit began when the City of
Indianapolis required adult bookstores to be closed all
day on Sunday and between midnight and 10 a.m. on
other days. We held last year that the empirical support
for this ordinance was too weak to satisfy the require-
ment of intermediate scrutiny, which applies to such laws.
581 F.3d 460 (7th Cir. 2009), relying on Los Angeles v.
2 No. 09-4156
Alameda Books, Inc., 535 U.S. 425 (2002), and Renton v.
Playtime Theatres, Inc., 475 U.S. 41 (1986). The existing
record concerned only laws affecting businesses that
offered live entertainment (which plaintiffs do not) or
dispersing adult businesses; the law in Indianapolis
requires closure rather than dispersal and covers stores
that sell only books and videos for reading or viewing
at home. The City needs evidence about the effects of
the sort of law it enacted. We suggested that experience
in Indianapolis itself could supply the required data:
Before the City’s ordinance took its current form, plain-
tiffs had been treated like other bookstores, so it should
be possible to find out whether the new closing hours
reduced crime or produced other benefits. 581 F.3d at 463.
After the remand, plaintiffs asked the district court to
enter a preliminary injunction. A hearing was held, at
which Indianapolis offered a single piece of evidence:
Richard McCleary & Alan C. Weinstein, Do “Off-Site” Adult
Businesses Have Secondary Effects? Legal Doctrine, Social
Theory, and Empirical Evidence, 31 L. & Policy 217 (2009).
The authors concluded that dispersing adult stores that
sell for off-site reading or viewing reduced crime in
Sioux City, Iowa. Indianapolis contended that this
article supports its ordinance too. The district judge was
skeptical, and entitled to be so, for three reasons.
First, McCleary and Weinstein studied the effects of a
dispersal ordinance rather than an hours-of-operation
ordinance. McCleary and Weinstein hypothesized that
several adult businesses located nearby draw people
who pay with cash and thus are attractive to thieves, but
No. 09-4156 3
that when businesses are dispersed the critical mass of
“soft targets” is missing and any given patron is less
likely to be robbed. (Justice Kennedy had hypothesized
much the same thing in Alameda Books, 535 U.S. at 452–53
(concurring opinion).) An hours-of-operation ordinance,
by contrast, does not reduce the density of cash-carrying
patrons and may increase it, because, when stores are
open fewer hours, there may be more patrons per hour.
Second, we suggested in New Albany DVD, LLC v. New
Albany, 581 F.3d 556 (7th Cir. 2009), that readers may
decide for themselves what risks to run, and that cities
must protect readers from robbers rather than reduce
risks by closing bookstores. Third, the McCleary &
Weinstein study did not attempt to control for other
variables, such as the opening (or closing) of taverns, that
may account for a change in the rate of crime near
adult businesses. Our opinion had observed that a
multivariate regression is superior to a simple cross-
tabulation of the sort that McCleary and Weinstein con-
ducted. 581 F.3d at 464.
In response to the McCleary & Weinstein article, plain-
tiffs offered arrest data from Indianapolis itself. The
number of arrests near plaintiffs’ stores did not go
down when the revised ordinance took effect, and in
some areas arrests rose. Plaintiffs did not subject these
numbers to statistical analysis; like the City, plaintiffs
did not attempt to control for other variables, and the
numbers are sufficiently small that we doubt that
the standard tests of statistical significance have been
satisfied. But these data do imply that the change in
the plaintiffs’ business hours did not produce any mea-
4 No. 09-4156
surable benefit. And, as mandatory closing of bookstores
curtails speech, the district court concluded that the
ordinance had not been justified. The judge entered a
preliminary injunction. 673 F. Supp. 2d 750 (S.D. Ind. 2009).
Appellate review of an order granting or denying
a motion for a preliminary injunction is deferential.
Ashcroft v. ACLU, 542 U.S. 656, 664–65 (2004). The district
judge did not abuse her discretion. The single article
that Indianapolis offered suffers some of the short-
comings of the evidence we evaluated last year: it
concerns a dispersal ordinance rather than an hours-of-
operation limit, and the authors did not attempt to
control for other potential causes of change in the number
of arrests near adult establishments. The other new evi-
dence, derived from experience with this ordinance in
Indianapolis, appears to support the plaintiffs (though
a statistical analysis might show that the support is
illusory). Given the state of the record, the district
court’s decision is sound. The parties should devote
their energies to compiling information from which a
reliable final decision may be made after a trial on the
merits.
A FFIRMED
10-1-10