Bonidy et al v. USPS et al

U.S. District Court Judge Richard Matsch granted the defense’s motion to dismiss the suit brought by Debbie and Tab Bonidy against the U.S. Postal Service back on March 22nd. The Bonidys’ were suing the Postal Service over its ban on firearms on Postal Service property. When Judge Matsch issued his ruling, he gave the plaintiffs leave to file an amended complaint by April 11th.

Attorney Jim Manley of the Mountain States Legal Foundation filed an amended complaint on behalf of the Bonidys and the National Association for Gun Rights on Friday. The amended complaint narrows the focus of the challenge to the Postal Service’s ban on firearms to possession in the parking lot.

21. There is a public parking lot adjacent to the Avon Post Office; the parking lot is located on real property under the charge and control of the USPS.

22. West Beaver Creek Boulevard is designated an emergency snow route; thus,
parking on West Beaver Creek Boulevard is prohibited whenever snow accumulation exceeds two inches. Because of this restriction, public parking on West Beaver Creek Boulevard is often disallowed and is therefore sporadic and unpredictable throughout the winter.

23. The public USPS parking lot adjacent to the Avon Post Office is the only public
parking consistently available to patrons of the Avon Post Office.

The Second Amended Complaint notes that USPS security personal do not either electronically screen people entering the Avon Post Office for weapons nor do they limit access to those who have been screened and determined to be unarmed. This statement of fact is a new addition to the case.

The earlier complaints only have one claim for relief based upon USPS regulations that prevent the Bonidys from carrying firearms, either openly or concealed, on USPS property in violation of their Second Amendment rights.

The Second Amendment Complaint states two claims for relief. First, they challenge the USPS regulations which ban firearms on any real property “under the charge and control of the USPS, including firearms stored in private vehicles parked in the public parking lot adjacent to the Avon Post Office.”

The second claim for relief challenges the USPS regulations which ban the carrying of a functional firearm (openly carried or concealed) within the Avon Post Office. Both claims for relief state that these bans violate the Second Amendment right to keep and bear arms.

The Court is being asked to declare that USPS regulations, specifically 39 C.F.R. § 232.1(l), violates the plaintiffs’ Second Amendment right to keep and bear arms for self-defense. It is also being asked to permanently enjoin the Postal Service from enforcing 39 C.F.R. § 232.1(l) which bans possession of firearms on any real property under its control.

By separating the claim into two parts – inside the Post Office and outside in the parking lot – the plaintiffs are forcing the Department of Justice to try and make the case that an open-access public parking lot is as much a “sensitive area” as the inside of the Post Office. Common sense, to use a term in vogue with gun controllers, would clearly indicate that a parking lot is not a “sensitive area”.

There will be a  hearing today in Bonidy et al v. USPS et al on the government’s motion to dismiss this case. It is set for 2pm before Judge Richard Matsch in U. S. District Court for the District of Colorado.

My post on the complaint can be found here and another post on the USPS’s Motion to Dismiss can be found here.

The plaintiff’s response to the motion to dismiss is here and the defense’s reply to the response is here.

The case was brought on behalf of Avon, CO residents Debbie and Tab Bonidy along with the National Association for Gun Rights as an institutional plaintiff by the Mountain States Legal Foundation in early October 2010. The Bonidys, who both hold Colorado concealed carry permits, are challenging the Postal Service’s restriction on firearms on Postal Service property and especially in the parking lot. The Postal Service does not provide them with home delivery and they must go to the Avon Post Office to pick up their mail.

UPDATE: Judge Richard Matsch took all of 24 minutes to decide to grant the Defendant’s Motion To Dismiss the case. Plaintiffs have 20 days to file an amended complaint.

COURTROOM MINUTES
____________________________________________________________________________________
Hearing on Motion to Dismiss
1:56 p.m. Court in session.

Plaintiffs Tab and Debbie Bonidy and defendant United Postal Service’s client representative Rod Eves are present.

Court’s preliminary remarks and disclosure pursuant to Title 28 U.S.C § 455.

Mr. Manley answers questions asked by the Court regarding case facts and claims with respect to the postal service firearms’ regulation.

Argument by Ms. Farby [6].

Argument by Mr. Manley.

ORDERED: Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint, filed
December 6, 2010 [6], is granted with leave for plaintiffs to file an amended
complaint (20 days) by April 11, 2011.

2:20 p.m. Court in recess.

Hearing concluded.
Total time: 24 min.

Last week, Department of Justice attorneys representing the U.S. Postal Service filed a Motion to Dismiss the suit brought contesting the ban on firearms on Postal Service property. This suit was brought by the Mountain States Legal Foundation on behalf of Debbie and Tab Bonidy as well as the National Association for Gun Rights.

The Bonidys live outside of Avon, Colorado in an area which does not receive home mail service. As a  result, they have to pick up their mail at the Post Office in Avon where they are provided a free mail box. The Bonidys, both of whom have Colorado concealed carry licenses, want to be able to carry a handgun for self-protection on the way to, while, and upon returning from picking up their mail. Current postal regulations prohibit possession of a firearm on USPS property including the parking lots.

The Motion to Dismiss the plaintiffs’ complaint seeks to have it dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). The Postal Service argues that even if all the facts are true as presented, the Bonidys have failed to state a viable claim. They argue that the Bonidy’s Second Amendment claim is precluded by existing precedents of the U.S. Supreme Court and the Tenth Circuit Court of Appeals. They summarize their argument as follows:

First, the regulation does not even implicate the Second Amendment because that Amendment does not extend so far as to protect the carrying of firearms on postal property. Second, even assuming that the USPS regulation implicates conduct protected by the Second Amendment, the regulation would pass constitutional muster. If the Court reaches the issue, it should follow the vast majority of courts and analyze the USPS regulation under intermediate scrutiny. But the USPS regulation passes muster under any level of constitutional scrutiny, including strict scrutiny. Accordingly, the Court should uphold the USPS regulation and dismiss this lawsuit.

The attorneys for the Postal Service have divided their argument into three parts. First, they argue that the Heller decision made the Second Amendment a limited right. Second, they argue that Postal Service property including parking lots fall into the “sensitive places” exclusion of Heller. Third, they argue that even if the District Court does get to the point of conducting an independent analysis, they will find there is no Second Amendment right to have a handgun on Postal Service property and that intermediate scrutiny is the proper level of scrutiny.

The first of their arguments is that the Second Amendment is a limited right. They start by examining the Heller decision. They note that in Heller, “the Court repeatedly emphasized that the District of Columbia handgun ban extended ‘to the home, where the need for defense of self, family, and property is most acute.'” This emphasis on the home is to point out that the Second Amendment protection outside the home is more limited. They then go through some of the exceptions noted in Heller such as the mentally ill, felons, and laws forbidding the carrying of firearms in “sensitive” places. They then note that the Supreme Court limited the types of weapons protected. However, here they misstate Heller by saying that the Second Amendment protection was limited to “‘those in common use’ at the time of the Amendment’s passage” which implies that we are limited to flintlock pistols, Kentucky rifles, Brown Bess muskets, and fowling pieces.

As part of their argument that the Second Amendment is a limited right, they examine how lower courts have treated the Second Amendment and what level of scrutiny they applied post-Heller. In general, the cases they cite in defense of their position used intermediate scrutiny or some level approximating it if the courts got to the point of applying any level of scrutiny. This level of scrutiny generally requires the challenged law or regulation be substantially related to an important governmental objective.

However, many courts avoided trying to determine any level of scrutiny by comparing the law being challenged on Second Amendment grounds to the list of “longstanding prohibitions” provided in Heller. As an aside, I get the feeling that the Justice Department lawyers are trying to “guide” the District Court to take this approach.

The second of the arguments presented is that the USPS property is a sensitive place and thus the USPS regulations forbidding firearms do not violate the Second Amendment. After a discussion of how the Tenth Circuit and other Courts of Appeal have handled the Second Amendment and felons in possession, they note that courts have extended the logic of Heller “to conclude that prohibitions of firearms beyond those specifically enumerated in Heller do not violate the Second Amendment.” Included in this extension are misdemeanor domestic violence convictions, possession by drug users, and prohibitions against firearm possession by illegal aliens.

If categories of restrictions beyond those enumerated in Heller do not violate the Second Amendment, as the Tenth Circuit has held, then the constitutionality of the USPS regulation, a quintessential “law[] forbidding the carrying of firearms in sensitive places such as schools and government buildings,” Heller, 128 S. Ct. at 2817, follows a fortiori.

They specifically note that courts have interpreted sensitive places broadly. In a Fifth Circuit case, U.S. v Dorosan, a Postal Service employee’s conviction for having a handgun in his car on a USPS parking lot was upheld since they found the Postal Service “used the parking lot as a place of regular government business.” Other places that the Federal courts have found to be sensitive places include park facilities, fairgrounds, aircraft, proximity to a school zone, and National Park lands. On this last location, National Park lands, they devote a full page to U.S. v Masciandaro. This was a 2009 case in Virginia where the court found that though it wasn’t specifically mentioned in Heller it would “fall within any sensible definition of a ‘sensitive place.'” Indeed  this court found that roads and parking lots are even more sensitive because they are “frequented by large numbers of strangers, including children.” The Justice Department attorneys fail, however, to point out that later Congressional action specifically allowed firearms in National Parks as of February 2010.

The third and final argument raised on behalf of the Postal Service is that if this court does undertake an independent analysis it will find that the USPS regulation doesn’t violate the plaintiffs’ Second Amendment rights. Moreover, they argue that the appropriate standard to use is intermediate scrutiny. Their argument is that the USPS regulation is one of the “presumptively lawful regulatory measures” identified in Heller. As such, they say the Bonidy’s claim should be denied as a matter of law.

As Heller expressly approved the comparison of the Second Amendment to the First, 128 S. Ct. at 2799, 2821, this doctrine reinforces the notion that the “presumptively lawful regulatory measures” enumerated in Heller – such as restrictions on carrying firearms in “sensitive places” – are outside the reach of the Second Amendment altogether.

The Justice Department attorneys argue that this court should follow the majority of other courts and apply intermediate scrutiny. They argue that the USPS regulation banning firearms on their property is similar to a “time, manner, place” restriction that would bear intermediate scrutiny in the First Amendment context. The restrictions, they argue, are minor and consistent with the government acting in a proprietary capacity. The example they use for comparison is the USPS restrictions on the solicitation of “alms and contributions on postal premises” by charities.

The conclude their final argument in favor of dismissal by saying that the gun ban on USPS property would pass constitutional muster under any level of scrutiny, even strict scrutiny. They assert that the ban is in the interest of “promoting order and public safety and preventing criminal violence” on Postal Service property which courts have found to be legitimate and compelling. Moreover, the regulations are “narrowly tailored and substantially related to furthering public safety.” They end by quoting an aside from the Dorosan case where the Fifth Circuit Court of Appeals suggested Mr. Dorosan could have just parked elsewhere if he wanted to have a gun in the car and to abide by the regulation.

I do not know how this District Court will look upon this Motion to Dismiss. Nonetheless, this Motion to Dismiss is important outside this immediate case because it gives a good look at the mindset of Justice Department attorneys regarding the Second Amendment within the Obama Administration. Other post-McDonald challenges on Second Amendment grounds have been against states and municipalities and not the Federal government. In this case we see a Federal entity, albeit a semi-autonomous one, which has regulations prohibiting firearms on their property. The argument made by the Justice Department is, in essence, we are the government and we say we have a good reason for the regulation. Therefore, it doesn’t impact your precious little Second Amendment so sit down, shut up, and park elsewhere.

In the first part of October, attorney Jim Manley and the Mountain States Legal Foundation sued the United States Postal Service on behalf of Colorado residents Debbie and Tab Bonidy. The National Association for Gun Rights is also a party to the lawsuit as an organizational plaintiff. The suit was brought to challenge the USPS’s ban on functional firearms on any Postal Service property with few limited exceptions.

An amended lawsuit has now been filed in the case. There is little change in the amended complaint when compared to the original complaint. The first changes are that Postmaster General John Potter and Avon, Colorado Postmaster Steve Ruehle are now only being sued in their official capacities. The earlier complaint had both men being sued in both their official and individual capacities.

The remaining changes are, for the most part, stylistic in nature. For example, in paragraph 26 of the amended complaint, relief is asked from “continued enforcement and maintenance of Defendants’ unconstitutional laws, customs, practices, and policies.”

The first post on the lawsuit was picked up by a web news service for USPS managers and employees about two weeks after the lawsuit was filed. The link from PostalNews was put up a few days after two Postal Service employees were murdered at a small post office in western Tennessee. From the comments, you would have thought that Jim Manley was proposing some obscure pagan ritual involving human sacrifice.

One anti-gun postmistress went so far as to brag how she even made uniformed law enforcement officers leave their service weapons in their police cruiser rather than to allow a firearm into her post office. As it is, the murder of the Henning, TN USPS employees was committed by a (still) unknown assailant who chose to ignore both the USPS laws and regulations banning firearms and the criminal laws of the State of Tennessee regarding homicide.

Attorney Jim Manley and the Mountain States Legal Foundation are taking on the US Postal Service’s ban on any firearm on USPS property. The challenge is on behalf of Debbie and Tab Bonidy of Avon, Colorado and the National Association for Gun Rights. A lawsuit, Bonidy et al v. USPS et al, was filed Monday in U.S. District Court for the District of Colorado.

The Bonidys live in a rural area of Colorado that doesn’t have home mail delivery. Because of that, the local post office in Avon, Colorado provides the residents of the area with a post office box at no charge. While they both have Colorado concealed carry permits and regularly carry, the Bonidys cannot carry concealed or openly when picking up their mail. They even can’t leave their firearms locked in their car as this would violate 39 C.F.R. § 232.1(l). This regulation reads:

(l) Weapons and explosives. 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.

Violation of this regulation could subject them to a fine or imprisonment or both. Rather than risk this, they, through their attorney, requested that the USPS amend or repeal this provision as it was broader than other firearms restrictions on Federal property and because it went beyond what was allowed under the Heller decision.

In response to their letter, Mary Anne Gibbons, General Counsel for the USPS, informed the Bonidys that the USPS believed that it was on firm legal ground and that bringing firearms on Postal Service grounds would indeed violate 39 C.F.R. § 232.1(l). She said the Postal Service would be seeking the advice of the Justice Department on the issues raised on behalf of the Bonidys.

The lawsuit is seeking a permanent injunction against the enforcement of the Postal Service regulations on the grounds that:

By prohibiting Plaintiffs from possessing a functional firearm on real property under the charge and control of the USPS, Defendants currently maintain and actively enforce a set of laws, customs, practices, and policies that deprive Plaintiffs of the right to keep and bear arms, in violation of the Second Amendment.

In addition to the injunction, the plaintiffs are seeking costs, attorney fees, and any further relief that the Court may award.

In a parenthetical note, this is the first time that I am aware that the National Association for Gun Rights has been a party to any post-McDonald litigation. Due to their sensationalist “alerts” on Rep. Bobby Rush’s HR 45 as a means of fund-raising, they have not been taken too seriously in the past. If this lawsuit marks a change in their direction, so much the better.