HC Gun & Knife Shows Inc. v. City of Houston, 98-20497
| Decision Date | 20 January 2000 |
| Docket Number | No. 98-20497,98-20497 |
| Parties | (5th Cir. 2000) HC GUN & KNIFE SHOWS, INC., d/b/a High Caliber Gun & Knife Shows, Inc., TODD BEAN, individually and d/b/a High Caliber Gun & Knife Shows, d/b/a High Caliber Gun & Knife Shows, Inc., Plaintiffs-Appellees, v. CITY OF HOUSTON, Defendant-Appellant |
| Court | U.S. Court of Appeals — Fifth Circuit |
[Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Texas.
Before DUHE, BARKSDALE, and DENNIS, Circuit Judges.
Primarily at issue is whether Texas law preempts a City of Houston ordinance regulating gun shows conducted on city property. The City contests the partial summary judgment granting declaratory and injunctive relief to HC Gun & Knife Shows, Inc., and Todd Bean, individually and d/b/a High Caliber Gun & Knife Shows; the judgment on a jury verdict awarding lost profits to Appellees; and attorney's fees awarded Appellees. We AFFIRM.
Bean and his successor corporation (Appellees) have held gun and knife shows since 1988. From 1990 until late 1993, they conducted ten at the City's George R. Brown Convention Center (the center).
In June 1993, the Houston City Council passed an ordinance requiring all persons attending gun shows at city-owned facilities, inter alia: (1) to sign a form declaring the firearms in their possession (registration requirement); and (2) for all firearms brought to such shows, to either remove the firing pins or install key-operated trigger locks (disabling requirement). HOUSTON, TEX. CODE OF ORDINANCES 12-24.
Bean conducted three shows at the center in 1993, but canceled the fourth, scheduled for that December, because of the ordinance's registration and disabling requirements. No shows were held at the center between December 1993 and March 1997.
In January 1996, Appellees filed this action in state court, alleging that the ordinance's registration and disabling requirements effectively prevented them from holding shows on city-owned property: the registration requirements would cause delay, expense, and impositions that would deter attendance; removal of the firing pins would damage many of the guns shown and traded at the shows; and installation of trigger locks would be cost prohibitive and result in delays that would greatly reduce attendance. The City removed this action to federal court.
In early 1997, the district court denied summary judgment for the City and granted partial summary judgment for Appellees. Declaratory relief was premised on the ordinance being preempted by TEX. LOCAL GOV'T CODE 215.001, which prohibits, inter alia, municipal regulation of the "transfer, private ownership, keeping, transportation, ... or registration of firearms"; and on the ordinance being violative of the commercial speech protections guaranteed by the United States and Texas Constitutions. The City was permanently enjoined from enforcing the ordinance.
Following a trial on damages that May, the jury awarded $329,000 for lost profits. In addition, the court awarded Appellees $54,442 (stipulated amount) for attorney's fees and expenses.
The City contends that the preemption and commercial speech holdings are erroneous; that the court abused its discretion by refusing to order production of documents relating to, and by excluding evidence of, Appellees' gross revenues and expenses, including with respect to shows conducted outside the Houston area; that the evidence is insufficient to support the verdict; and that, because the judgment must be reversed, so must the fees award.
The summary judgment is reviewed de novo, pursuant to the same standard applied by the district court. E.g., Drake v. Advance Const. Service, Inc., 117 F.3d 203, 204 (5th Cir. 1997). It is proper when the summary judgment record, viewed in the light most favorable to the non-movant, establishes that "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law". FED. R. CIV. P. 56(c); Drake, 117 F.3d at 204.
The ordinance requires applicants seeking to use the center for gun shows to execute an agreement which includes, inter alia, covenants (1) to provide and compensate off-duty City police officers to provide security for the show; (2) that all persons in attendance will be required to sign a form declaring all weapons in their possession; and (3) to comply with the city's regulations, which require either the removal of firing pins or the installation of trigger locks on all firearms brought into the facility.1
The Texas statute, TEX. LOC. GOV'T CODE ANN. 215.001, held by the district court to preempt the ordinance, prohibits municipalities from regulating, inter alia, "the transfer, private ownership, keeping, transportation, ... or registration of firearms".2
The City's brief devotes less than four pages (one of which is devoted to quoting 215.001) to preemption. Essentially, the City contends that the ordinance is not preempted by 215.001(a), because, rather than restricting the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, the ordinance is instead a valid exercise of the City's authority, under 215.001(b)(2), to regulate the discharge of firearms within the city limits.
The district court rejected this contention, reasoning that, although the ordinance's disabling requirement (removal of firing pins or installation of trigger locks) prevents the discharge of firearms, the ordinance also seeks to regulate the transfer, private ownership, or keeping of firearms, which is prohibited by 215.001(a). It concluded that, through the ordinance, the City "attempts to occupy all but a hair's width of the entire field of the regulation of gun shows"; and that, if the City's interpretation of 215.001(b)(2) (discharge-exception) were accepted, it would "swallow[] the general rule preempting municipal regulation of firearms". We agree.
The City does not address the ordinance's registration requirement; nor does it make any attempt to defend that requirement as a regulation relating to firearms-discharge. In any event, pursuant to our review of whether the ordinance is preempted, it is obvious that the registration requirement is not related to preventing such discharge. Therefore, the ordinance is not authorized by 215.001(b)(2). Moreover, the registration requirement is expressly preempted by 215.001(a).
In district court, the City maintained that the disabling requirement was authorized by 215.001(b)(6), which permits municipal regulation of the conduct of persons in certain public places; and that the ordinance is an exception to the City's more restrictive ban on possession of all firearms on city premises. But, the City does not make those contentions here and, therefore, has abandoned them. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Instead, the City relies on a Texas Attorney General opinion that a different ordinance, HOUSTON, TEX. CODE OF ORDINANCES 28-47, which makes it unlawful for a child to discharge a firearm within the City limits, is not preempted by 215.001(a). Op. Tex. Att'y Gen. No. 94-56 (1994). Unlike the ordinance now at issue, the ordinance addressed by the Attorney General prohibited only firearms-discharge; it did not impose registration or disabling requirements such as those now at issue.
In sum, based on our review of the summary judgment record, the ordinance is preempted by TEX. LOC. GOV'T CODE ANN. 215.001(a); it is not authorized by the discharge-exception in subpart(b)(2). Because we so hold, we need not reach the federal and state commercial speech constitutional issues. See County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 154 (1979) ().
The City moved for summary judgment in April 1996; Appellees, that May. By a May scheduling order, the discovery deadline was early January 1997, with trial in late March. In late November 1996, the parties moved jointly to extend the discovery deadline until the end of February 1997; the motion was granted in early December.
In mid-January 1997, the City requested documents related to all gun shows conducted by Appellees. But, one week later, they were awarded partial summary judgment. Accordingly, in mid-February, the parties' joint motion to limit discovery to Appellees' damages was granted.
In early March, one week after the discovery deadline, the parties moved jointly to continue trial. On 13 March, it was continued until mid-May.
That same day (13 March), Appellees moved for a protective order, contesting the relevancy of the requested documents pertaining to non-Houston shows. On 31 March, the City moved to compel document production and to amend the scheduling order; it maintained that, in order to determine Appellees' profit margins, it was necessary to review documents related to all of their shows.
On 29 April, the court granted the protective order and denied the motion to compel. Noting that the case was no longer at an early stage of pre-trial discovery, and that the partial summary judgment had narrowed discovery to damages for Appellees' inability to conduct shows at the center, the court held that the document requests were overly broad, unreasonable, and unduly burdensome.
On Thursday, 15 May 1997, only four days before trial set for Monday, 19 May, the City moved to continue trial for 45 days, claiming that it had received incomplete information to allocate Appellees' overhead expenses and income in order to calculate their profit margin. The continuance was denied at a hearing conducted the following day. At trial, the City repeatedly, but unsuccessfully, re-urged the relevance of the non-Houston evidence.
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