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July 7, 2015
  Bonidy v. United States Postal Service - Tenth Circuit
Case Name: Bonidy v. United States Postal Service

Headline: Tenth Circuit Holds that Ban on Carrying or Storing Firearms on Post Office Property Does Not Violate the Second Amendment.

Area of Law: Second Amendment

Issue Presented: Does a federal regulation banning the carrying and storing of firearms on United States Postal Service ("USPS") property, including post office parking lots, a violation of the Second Amendment?

Brief Summary:

32 C.F.R. § 232.1(1) provides, in relevant part, that "no person while on postal property may carry firearms... either openly or concealed, or store the same on postal property, except for official purposes." Tab Bonidy ("Mr. Bonidy"), who possessed a concealed carry permit under Colorado law, was informed by the USPS that he would be in violation of the regulation if he carried a firearm on USPS property or stored the gun in his vehicle on a USPS parking lot. Mr. Bonidy challenged the firearm restriction as an infringement on his Second Amendment rights. The district court upheld the regulation as it applied to the post office building, but invalidated insofar as it applied to the post office parking lot. The Tenth Circuit affirmed in part and reversed in part, holding that 32 C.F.R. § 232.1(1), whether applied to the post office building or the parking lot, is consistent with the Second Amendment. The majority reasoned that D.C. v. Heller explicitly excluded the regulation of firearms in government buildings which extends to parking lots and that the government is entitled to discretion when it is regulating as a government-run business, as opposed to regulating as a sovereign. The majority concluded that even if the parking lot is not a government building, 32 C.F.R. § 232.1(1) is a general safety regulation that passes intermediate scrutiny.

Extended Summary:

32 C.F.R. § 232.1(1) prohibits carrying or storing firearms on USPS property. Mr. Bonidy, who possessed a license to carry a concealed firearm, challenged this regulation as a violation of the Second Amendment because (1) he cannot bring a firearm into the post office building; and (2) he cannot store his firearm in his vehicle while it is on the post office parking lot. The district court concluded that the regulation was constitutional insofar as it applied to the building itself, but unconstitutional as it applied to the parking lot. USPS appealed the district court ruling.

The majority initially stated that USPS was authorized to regulate firearms possession and storage on its property because D.C. v. Heller stated that "nothing in this opinion should be taken to cast doubt on the longstanding prohibitions on the possession of firearms...in sensitive places such as schools and government buildings." Mr. Bonidy countered by arguing that this language was mere dicta. However, the majority concluded that the Tenth Circuit is still bound by the Supreme Court's dicta.

The majority next stated that while the USPS is a state actor subject to the Constitution, it also functions as a private business. That said, the majority acknowledged that courts have given the government greater discretion when it is regulating as a private business as opposed to regulating as a sovereign. Therefore, a significant distinction can be made between this scenario and Heller and McDonald v. City of Chicago, Illinois, in which the government was regulating wholly private conduct and not state-owned business operations. The majority concluded that 32 C.F.R. § 232.1(1) was directly related to business objectives, mainly providing a safe environment for patrons and employees. The majority further stated that 32 C.F.R. § 232.1(1) only applies to the specific spatial area of the post office building and the adjacent parking lot.

Mr. Bonidy made the argument that 32 C.F.R. § 232.1(1) is overinclusive with respect to its safety objectives because the building is relatively unsecured and requiring him to pick-up his mail there forces him to "risk his life." The majority disposed of this argument by stating that USPS is not required to tailor its safety regulations to each customer or to each of its 31,000 nationwide locations. The majority pointed to U.S. Postal Serv. v. Council of Greenburgh Civic Associations in which the Supreme Court stated that the USPS must adopt general regulations that apply equally to all its nationwide locations. In any case, the majority added, tailoring safety protocol to each specific location would present an impossible burden.

The fact that Mr. Bonidy had a valid concealed firearm permit under Colorado law, the Court briefly noted, did not invalidate 32 C.F.R. § 232.1(1). As state concealed firearm laws do not trump federal law, state firearms licenses do not undermine USPS regulation.

With respect to the parking lot, the majority stated that post office parking lots often include collection boxes and that patrons must traverse through them in order to gain access to the post office building. For this reason, post office security is intertwined with security in the parking lot. The building and the parking lot are operated as a single integrated facility.

The majority stated that Second Amendment cases apply an intermediate level of scrutiny. The majority concluded that 32 C.F.R. § 232.1(1) is defensible under this level of scrutiny for the aforementioned reasons.

Judge Tymkovich issued a lengthy opinion concurring in part and dissenting in part. Judge Tymkovich agreed that intermediate scrutiny applied and that 32 C.F.R. § 232.1(1) was valid as it applied to the post office building itself. He disagreed insofar as the regulation applied to the parking lot on the grounds that the government had not met its burden under intermediate scrutiny. Specifically, USPS had not shown that prohibiting the storage of a firearm in the parking lot would promote safety in the post office building. Therefore, he would have held that 32 C.F.R. § 232.1(1) is overinclusive as it applied strictly to Mr. Bonidy.

To read the full opinion, please visit:
https://www.ca10.uscourts.gov/opinions/13/13-1374.pdf

Panel: Tymkovich, Ebel, and Phillips

Date of Issued Opinion: June 26, 2015

Docket Number: Nos. 13-1374, 13-1391

Decided: The Court affirmed the district court order upholding the constitutionality of 32 C.F.R. § 232.1(1) as applied to the post office building and reversed the district court order invalidating the regulation as applied to the parking lot.

Case Alert Author: Leland Churan

Counsel:

Daniel Tenny, Attorney (Stuart F. Delery, Assistant Attorney General, John F. Walsh, United States Attorney, and Michael S. Raab, Attorney, with him on the briefs), Civil Division, United States Department of Justice, Washington, D.C. for Defendants-Appellants/Cross-Appellees.

Steven J. Lechner (James M. Manley, with him on the briefs) Mountain States Legal Foundation, Lakewood, Colorado, for Plaintiffs-Appellees/Cross-Appellants.

Jonathan L. Diesenhaus, S. Chartey Quarcoo, and Kathryn L. Marshall, Hogan Lovells US LLP, Washington, D.C.; and Jonathan E. Lowy, Brady Center to Prevent Gun Violence, Legal Action Project, Washington, D.C., filed an amicus curiae brief for Brady Center to Prevent Gun Violence.

Author of Opinion: Hon. David M. Ebel

Case Alert Circuit Supervisor: Dawinder S. Sidhu

    Posted By: Dawinder Sidhu @ 07/07/2015 10:47 PM     10th Circuit  

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