Judge Richard Matsch of the US District Court for the District of Colorado has ordered the US Postal Service to take all steps necessary to allow Tab Bonidy to park in the post office parking lot in Avon with a firearm in his car. This case, Bonidy et al v. USPS et al, has been through many twists and turns since it was first started in late 2010. The case was brought by attorney Jim Manley and the Mountain States Legal Foundation on behalf of Mr. Bonidy and the National Association for Gun Rights.
While this case was originally dismissed in 2011, Judge Matsch gave the plaintiffs leave to file an amended petition in April 2011. They did and this win is a result of that.
Judge Matsch in his Memorandum Opinion and Order concluded:
In sum, openly carrying a firearm outside the home is a liberty protected by the Second Amendment. The Avon Post Office Building is a sensitive place and the ban imposed by the USPS Regulation is a presumptively valid restriction of that liberty. The Plaintiff has failed to present evidence to rebut that presumption. The parking lot adjacent to the building is not a sensitive place and the Defendants have failed to show that an absolute ban on firearms is substantially related to their important public safety objective. The public interest in safety and Mr. Bonidy’s liberty can be accommodated by modifying the Regulation to permit Mr. Bonidy to “have ready access to essential postal services” provided by the Avon Post Office while also exercising his right to self-defense. Accordingly, it isThus, while the Post Office is considered a sensitive place under the Heller dicta, the parking lot is not.
ORDERED, that the Defendants take such action as is necessary to permit Tab Bonidy to use the public parking lot adjacent to the Avon Post Office Building with a firearm authorized by his Concealed Carry Permit secured in his car in a reasonably prescribed manner, and it is
FURTHER ORDERED, that the other claims of unconstitutionality of 39 C.F.R. § 232.1(l) made by Plaintiffs are denied.
The Mountain States Legal Foundation, as one might expect, is quite pleased with the result as well they should be.
DENVER, CO. A Colorado federal district court ruled today in favor of a Colorado man and a national gun rights group holding that a U.S. Postal Service regulation barring firearms in its parking lots violates their right to keep and bear arms under the Constitution. The district court ruled, “openly carrying a firearm outside the home is a liberty protected by the Second Amendment [and the] parking lot adjacent to [Avon’s Post Office Building] is not a sensitive place [such that] an absolute ban on firearms is substantially related to [Defendants’] important public safety objective.” Tab Bonidy, who is licensed to carry a handgun and regularly carries a handgun for self-defense, drives several miles from his home, where mail delivery is not available, to Avon to collect his mail. On arrival in Avon, however, he is barred by federal regulation from carrying a firearm, or parking his vehicle if it contains a firearm, on Postal Service land. In July 2010, Mr. Bonidy asked that the regulation be withdrawn; the Postal Service refused. Mr. Bonidy and the National Association for Gun Rights filed their lawsuit in October 2010.
“We are pleased the court struck down the Postal Service’s regulation as it applies to the Avon parking lot,” said William Perry Pendley of Mountain States Legal Foundation (MSLF); MSLF represents Mr. Bonidy and the group.
In 2007, the Postal Service renewed its total ban on firearms on Postal Service property, first promulgated in 1972:
"Notwithstanding the provisions of any other law, rule or regulation, no person while on Postal property may carry firearms, other dangerous or deadly weapons, or explosives, either openly or concealed, or store the same on Postal property, except for official purposes."
39 C.F.R. § 232.1(l). This regulatory prohibition, which carries a fine, imprisonment for 30 days, or both, is broader than the federal statute, which prohibits private possession of firearms in federal facilities, except those firearms carried “incident to hunting or other lawful purposes.” 18 U.S.C. § 930(d)(3). This statutory exception does not apply in federal court facilities, where a total ban is enforced. 18 U.S.C. § 930(e)(1).
The Postal Service’s total ban on firearms possession impairs the right to keep and bear arms as protected by the Second Amendment even when individuals are traveling to, from, or through Postal property because the Postal Service does not allow people to store a firearm safely in their vehicles. Anyone with a hunting rifle or shotgun in his car, or a handgun in his glove compartment for self-defense, violates the Postal Service ban by driving onto Postal Service property. Thus, the ban also denies the right to keep and bear arms everywhere a law-abiding gun owner travels before and after visiting Postal Service property.
Is this just a Colorado decision or will it be applied across the country?
ReplyDeleteWhile I applaud this small victory we still have a LOOOONG way to go. Our 'wannabe' masters still believe that the 2A says;
ReplyDeleteA disorganized and disoriented militia, being necessary for the security of a state free to do anything it wants, the right of the people to keep and bear benign-looking, non-military guns whose magazine capacities do not exceed an arbitrarily determined number of rounds, and bear arms in a non-scary way, shall be tolerated as an opiate of the masses unless the people really try to bear arms (except during hunting season on government-approved lands) or as long as the arbitrary licensing requirements of the several states are obeyed, shall not be infringed (pending acts of Congress, acts of state legislatures, county commissions and city councils, to the contrary).
BobS
Post offices are not sensitive places, irrespective of the dicta in Heller. A sensitive place, is by definition, a place where the government assumes full responsibility for the safety of the citizens it disarms on entering said sensitive place - to the point where they can be sued for damages if they fail to perform. The post office does no such thing. It is a gun free zone - aka victim disarmament zone, aka free fire zone for criminals and crazies. For a real sensitive place, think federal courthouse with armed marshals. Maybe this result is the best we can get, but I would hesitate to call it a win.
ReplyDeleteMiguel -- Just a Colorado case, unless USPS appeals it all the way to SCOTUS and loses. Even if USPS appeals to 10th Circuit, loses, and SCOTUS refuses cert, it would then affect only CO, KS, NM, OK, UT, and WY. It only becomes nationally binding if SCOTUS rules that way.
ReplyDeleteHOWEVER, it certainly is precedential and can be used as an argument in cases in other districts and circuits.
RKV -- While I agree with your definition of "sensitive", I would argue that SCOTUS did not, given they list both schools and government buildiongs as being among sensitive locations.
HOWEVER, please note that (first): as you say, this was given in dicta, not as a holding; and (second): they merely stated that the Heller decision DID NOT challenge such prohibitions. . . in fact they did not even actually _analyze_ such prohibitions, as it wasn't necessary to resolve Heller. (And such reservations are actually a sign of a GOOD ruling -- you're only supposed to settle the actual controversy presented; in Heller, the controversy was limited to self-defense with a handgun IN THE HOME).
Technically, the question as to what a "sensitive place" is, and whether a ban would be Constitutional even there, were left open (although, with the definition of "sensitive place" you and I favor, I would argue such a ban IS Constututional, just as it is unquestionably OK to disarm a prisoner in custody).
Note that the judge allowed the sensitive place argument to be "presumptive" because the plaintiff did not specifically challenge that to the required extent, or at all. So from a precedent standpoint, someone can still go back and with this ruling in full force still attack that presumption.
ReplyDeleteIn other words, the judge carefully left that door open by essentially saying, "Nobody is arguing over the sensitivity of the inside of the post office, so we're just going to assume it is off limits and go from there."
It's a lot like the footnote in Heller that the court was not ruling on the constitutionality of a permit-to-own system only because nobody asked them to. They didn't say they were OK; they just said nobody presented an argument that they were not.
Future plaintiffs can still go back and challenge the presumption that the public portions of the building are a sensitive place. That said, I would not do so. Yet.
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ReplyDeleteYou are all missing the big words. The words that will actually make a difference.
ReplyDelete"In sum, openly carrying a firearm outside the home is a liberty protected by the Second Amendment."
That's the big win. If OC is a liberty protected by the 2A, what's New Jersey going to do when people start to open carry? That's a big step on the way to a circuit split and a forced US Supreme Court case.
I agree, Sean. And I see the Wisconsin case where the judge stated that open carry was not realistically viable in urbanized society these days as pushing for a Shall Issue or Constitutional Carry scheme in general, because a lot of Americans live and work where "discrete carry" is simply more viable.
ReplyDeleteNot that I think Open Carry should be regulated beyond the general possession and usage limits that would apply to ANY firearm wearer (no prohibited persons, no unsafe handling, no unnecessary discharges in crowded areas, etc.) Nor do I think that "printing" should be a violation of CCW regulations.
Now here's a Twist: Let us Stipulate that a Federal Court House is a Sensitive Place. Does this apply to ITS Parking Lot? And will this same Judge rule the same way if someone files a Suit challenging the Firearm Ban of the Federal Parking Lot?
ReplyDeleteIS Sauce for the Goose Sauce for the Gander?
Sean, "the big words" don't apply in many states as of now. Would that it were otherwise.
ReplyDeleteThe big challenge is getting Federal judges to write those words down. Once they do, it becomes a "controversy" that the higher courts can take up. If they never say that, higher courts will just go on as they have, ignoring the right.
ReplyDeleteIt would be nice to get Congress to define "sensitive place."
ReplyDeleteI suggest:
"Sensitive places include only those places the general public cannot enter in the normal course of business, or, any place the general public can enter in the normal course of business that has in place active control measures at each public entrance to include: metal detectors and/or physical screening and armed security personnel."
To use the Post Office example: the parking lot, box lobby, and customer service counter area are not "sensitive" as they are open to the public - behind the counter or behind the "employee's only" door are off-limits to the public and thus sensitive.
The various Federal agencies always have locked access doors beyond their lobbies, those would remain off limits as the public cannot go there without an escort and permission.
The military bases typically require passes, no change for them. Airport screening and secure areas with locked doors would be unaffected (not saying I'm for that, but it would disarm one angle of complaint).
Federal Park buildings would not be sensitive except the "employee only" areas.
Want to call the various monuments and buildings sensitive? Put your (our) money where your mouth is and put in screening. If they are truly sensitive it should be easy to justify the cost.
This should not even gone to court or it is worded wrong. It states "that the Defendants take such action as is necessary to permit Tab Bonidy to use the public parking lot adjacent to the Avon Post Office Building with a firearm authorized by his Concealed Carry Permit secured in his car in a reasonably prescribed manner". It is already perfectly legal to go to a Post Office and park on public land while a firearm is in the vehicle.
ReplyDeleteThe problem is if the parking lot is owned by the USPS. IE if you go to a small PO that is on main st USA and you park on mail street it is perfectly legal. If you use a PO that is a stand alone PO and has its own parking lot that is own by USPS you are in violation.
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