Bonidy v. U.S. Postal Serv.

• Decision Date: 26 June 2015
• Docket Number: Nos. 13–1374,13–1391.,s. 13–1374
• Citation: 790 F.3d 1121
• Parties: Tab BONIDY; National Association for Gun Rights, Plaintiffs–Appellees/Cross–Appellants, v. UNITED STATES POSTAL SERVICE; Patrick Donahoe, Postmaster General; Michael Kervin, Acting Postmaster, Avon, Colorado, Defendants–Appellants/Cross–Appellees. Brady Center to Prevent Gun Violence, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

790 F.3d 1121

Tab BONIDY; National Association for Gun Rights, Plaintiffs–Appellees/Cross–Appellants

v.UNITED STATES POSTAL SERVICE; Patrick Donahoe, Postmaster General; Michael Kervin, Acting Postmaster, Avon, Colorado, Defendants–Appellants/Cross–Appellees.

Brady Center to Prevent Gun Violence, Amicus Curiae.

Nos. 13–1374

13–1391.

United States Court of Appeals, Tenth Circuit.

June 26, 2015.

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, CO, for Plaintiffs–Appellees/Cross–Appellants.

Jonathan L. Diesenhaus, S. Chartey Quarcoo, and Kathryn L. Marshall, Hogan Lovells U.S. 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.

Before TYMKOVICH, EBEL, and PHILLIPS, Circuit Judges.

Opinion

EBEL, Circuit Judge.

Plaintiff Tab Bonidy, who has a concealed-carry permit under Colorado law, sued the United States Postal Service (USPS) challenging 39 C.F.R. § 232.1(l ) (hereinafter “the regulation”), which prohibits the storage and carriage of firearms on USPS property. Bonidy claims the regulation is unconstitutional as applied to him because it violates his Second Amendment right to (1) bring his gun into the United States Post Office building in Avon, Colorado (hereinafter “post office building”), and (2) store the gun in the post office parking lot while he picks up his mail. The district court ruled, on cross-motions for summary judgment, that the regulation is constitutional insofar as it prohibits guns in the building, but unconstitutional insofar as it prohibits guns in the parking lot. Both parties appeal.

We have jurisdiction under 28 U.S.C. § 1291 and conclude that the regulation is constitutional as to all USPS property at issue in this case, including the Avon Post Office parking lot, because the Second Amendment right to bear arms has not been extended to “government buildings.” Government buildings, in this context, includes the government owned parking lot connected to the U.S. Post Office. Alternatively, even if we were to conclude that the parking lot did not qualify as a “government building,” we would uphold this regulation as constitutional as applied to the parking lot under independent intermediate scrutiny.

I. FACTS

Tab Bonidy lives in a rural area near Avon, Colorado. He has a concealed carry permit under Colorado law and regularly carries a handgun for self-defense. Avon's post office does not deliver mail to residents' homes; instead, it provides mailboxes in the post office building, and residents travel there to collect their mail. The post office lobby, where residents' mailboxes are located, is open to the public at all times. The post office does not regularly employ any security officers.

The post office building is a standalone structure with two adjacent parking lots: one is a restricted-access employee lot, and the other is an unsecured customer lot. A sign indicates that the customer lot is USPS property. There are also several city-owned public parking options nearby: five spots on the street in front of the post office, and three parking lots.

Because of the USPS firearms restriction, Bonidy has an assistant pick up his mail at the post office. Bonidy's attorney sent a letter to the USPS's General Counsel asking whether Bonidy would be prosecuted under the regulation if he carried his firearm into the post office building or stored it in his vehicle in the post office parking lot while collecting his mail. The USPS General Counsel replied in the affirmative, stating that “the regulations governing Conduct on Postal Property prevent [Bonidy] from carrying firearms, openly or concealed, onto any real property under the charge and control of the Postal Service.” Aplt.App. A20.

Bonidy sued for declaratory and injunctive relief, claiming that the regulation violated his Second Amendment right to bear arms for self-defense. After full discovery, Bonidy and the USPS filed cross-motions for summary judgment. The district court held that the regulation is constitutional insofar as it pertains to concealed firearms, based on Peterson v. Martinez, 707 F.3d 1197 (10th Cir.2013), which held that the Second Amendment protection does not include a right to carry a concealed firearm outside the home. The district court, applying a presumption of validity to the Postal Regulation and apparently applying a form of intermediate scrutiny, concluded that the regulation was constitutional as it applied to the post office building itself, but it was unconstitutional at least insofar as it prohibited Bonidy from carrying a gun in his car in the parking lot consistent with his Concealed Carry Permit. The government appealed the ruling invalidating 39 C.F.R. § 232.1(l ) insofar as carrying a gun in a car in the parking lot was concerned and Bonidy cross appealed, arguing that 39 C.F.R. § 232.1(l ) was unconstitutional both with regard to the postal building itself and the adjacent postal office parking lot.

II. STANDARD OF REVIEW

We review the district court's grant of summary judgment and interpretation of the Second Amendment de novo. See Peterson, 707 F.3d at 1207 ; United States v. Huitron–Guizar, 678 F.3d 1164, 1165 (10th Cir.2012). “Summary judgment is proper if, viewing the evidence in the light most favorable to the non-moving party, there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”Peterson, 707 F.3d at 1207.

III. ANALYSIS

Peterson, of course, controls our panel, and in accordance with that opinion we affirm the district court's ruling that 39 C.F.R. § 232.1(l ) is constitutional insofar as it pertains to concealed carry, both in the postal building itself and the adjacent parking lot. With regard to open carry, we affirm the district court's ruling upholding the constitutionality of 39 C.F.R. § 232.1(l ) insofar as the postal building itself is concerned and we reverse the district court's ruling invalidating 39 C.F.R. § 232.1(l ) insofar as it pertains to open carry in the postal office adjacent parking lot.

With regard to the issue of open carry, we are constrained by previous Tenth Circuit precedent. Our precedent on this matter is anchored in a single sentence contained in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) which extended Second Amendment rights to private citizens for the first time in U.S. Supreme Court precedent, holding that Washington D.C.'s ban on handgun possession in the home violates the Second Amendment. Id., at 635, 128 S.Ct. 2783.

In addition to the narrowness of that holding, the United States Supreme Court then proceeded to emphasize the narrowness by saying,

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial side of arms.¹

Heller, 554 U.S. at 626–27, 128 S.Ct. 2783.

Although one could argue that language was dicta, it was in fact an important emphasis upon the narrowness of the holding itself and it directly informs the holding in that case.

Then, to underscore the importance of that language and to remove any doubt about the care that went into it and its importance in understanding the holding in Heller, several years later the Court repeated that exact same language, with forceful affirmation. In McDonald v. City of Chicago, Illinois, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), a plurality of the Court said:

We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill,’ ‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.’ Id., at 626–27, 128 S.Ct., at 2816–2817. We repeat those assurances here. Despite municipal respondent's doomsday proclamations, incorporation does not imperil every law regulating firearms.

Id. at 786, 130 S.Ct. 3020 (emphasis added).

Bonidy suggests that this language is mere dicta and suggests that we should disregard it. But, we reject that suggestion. First, we have previously held that we are “bound by Supreme Court dicta almost as firmly as by the Courts' outright holdings, particularly when the dicta is recent and not enfeebled by later statements.” United States v. Serawop, 505 F.3d 1112, 1122 (10th Cir.2007) ; Surefoot LC v. Sure Foot Corp., 531 F.3d 1236, 1243 (10th Cir.2008). Second, this dicta squarely relates to the holdings itself, and therefore is assuredly not gratuitous. Third, this dicta was subsequently repeated largely verbatim and reendorsed by the Court several years later in McDonald, 561 U.S. at 925, 130 S.Ct. 3020.

Since Heller and McDonald we have quoted that same sentence and considered ourselves bound by it. See Peterson v. Martinez, 707 F.3d 1197 (10th Cir.2013) (upholding concealed carry restrictions). Thus, our own precedent causes us to conclude that the Second Amendment right to carry firearms does not apply to federal buildings, such as post offices. Therefore, we uphold the District Court's ruling that 39 C.F.R. § 232.1(l ) is constitutional as to the post office building itself.

Next, we address the application of that prohibition on the U.S. Postal Service parking lot adjacent to the building itself.

We conclude, on the facts of this case, that...