Georgiacarry.org, Inc. v. U.S. Army Corps of Eng'rs

• Decision Date: 09 June 2015
• Docket Number: No. 14–13739.,14–13739.
• Citation: 788 F.3d 1318
• Parties: GEORGIACARRY.ORG, INC., David James, Plaintiffs–Appellants, v. The U.S. ARMY CORPS OF ENGINEERS, Jon Chytka, in his official Capacity as Commander, Mobile District of the U.S. Army Corps of Engineers, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

788 F.3d 1318

GEORGIACARRY.ORG, INC., David James, Plaintiffs–Appellants

v.The U.S. ARMY CORPS OF ENGINEERS, Jon Chytka, in his official Capacity as Commander, Mobile District of the U.S. Army Corps of Engineers, Defendants–Appellees.

No. 14–13739.

United States Court of Appeals, Eleventh Circuit.

June 9, 2015.

John R. Monroe, Law Office of John R. Monroe, Roswell, GA, for Plaintiffs–Appellants.

Abby Christine Wright, Michael Raab, Daniel M. Riess, U.S. Department of Justice, Washington, DC, Lori Beranek, Lawrence R. Sommerfeld, Sally Yates, U.S. Attorney's Office, Atlanta, GA, for Defendants–Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before MARCUS, ROSENBAUM, and GINSBURG,^* Circuit Judges.

Opinion

MARCUS, Circuit Judge:

This case involves a Second Amendment challenge to a federal regulation that bans loaded firearms and ammunition on property managed by the U.S. Army Corps of Engineers. The district court denied the plaintiffs' motion for a preliminary injunction in a thorough and thoughtful order. Before this Court, the plaintiffs hang their hats on a single, sweeping argument: that the regulation completely destroys their Second Amendment rights, thereby obviating the need for a traditional scrutiny analysis. We disagree. The regulation does not completely destroy the plaintiffs' right to bear arms because its effect is cabined to a limited geographic area designed for recreation. Whatever else the regulation does, it does not destroy the plaintiffs' Second Amendment right to keep and bear arms altogether. Thus, we affirm the district court's order and remand for further proceedings consistent with this opinion.

I.

The U.S. Army Corps of Engineers owns and manages various water resource development projects, such as dams and reservoirs, throughout the United States. These projects sometimes include recreational sites, such as parks and campgrounds, offered for public use. See 16 U.S.C. § 460d. The Corps prohibits the possession of loaded firearms or ammunition at any of these projects (except in designated hunting areas and shooting ranges) without the written permission of a district commander. The applicable federal regulation reads this way:

(a) The possession of loaded firearms, ammunition, loaded projectile firing devices, bows and arrows, crossbows, or other weapons is prohibited unless:

(1) In the possession of a Federal, state or local law enforcement officer;

(2) Being used for hunting or fishing as permitted under § 327.8, with devices being unloaded when transported to, from or between hunting and fishing sites;

(3) Being used at authorized shooting ranges; or

(4) Written permission has been received from the District Commander.

(b) Possession of explosives or explosive devices of any kind, including fireworks or other pyrotechnics, is prohibited unless written permission has been received from the District Commander.

36 C.F.R. § 327.13. A violation of this ban is punishable by a $5,000 fine, six months' imprisonment, or both. Id. § 327.25(a).

The plaintiffs, GeorgiaCarry.Org (“GCO”) and David James, seek a preliminary injunction enjoining the enforcement of this regulation on the ground that it violates their Second Amendment rights. GCO is a Georgia-based nonprofit organization whose mission is to “foster the rights of its members to keep and bear arms.” James is a Georgia resident (and GCO member) who possesses a Georgia weapons carry license¹ and regularly carries a handgun with him, where permitted, in case of confrontation.

James frequently visits and camps at Allatoona Lake, a recreational site managed by the Corps around the Allatoona Dam in northwest Georgia. James (and other members of the GCO) would like to carry their handguns with them while they visit and camp at Allatoona and other Corps property. In May 2014, James requested written permission from defendant Jon Chytka, Commander of the Mobile District of the Corps (which includes Allatoona), to carry a firearm at Allatoona, pursuant to 36 C.F.R. § 327.13(a)(4). On June 9, Commander Chytka denied the request.

Three days later, the plaintiffs commenced this action in the United States District Court for the Northern District of Georgia. The plaintiffs maintain that the application of the Corps' firearm prohibition against them violated the Second Amendment, and seek a declaratory judgment as well as both preliminary and permanent injunctions. On August 18, the district court denied the plaintiffs' motion for a preliminary injunction. In determining whether the plaintiffs had demonstrated a substantial likelihood of success on the merits, the court first held that the restricted activity was not protected by the Second Amendment. It surveyed the history of the Corps and concluded that it was “[un]fathom[able] that the framers of the Constitution would have recognized a civilian's right to carry firearms on property owned and operated by the United States military, especially when such property contained infrastructure projects central to our national security and well being.” GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng'rs (GeorgiaCarry.Org II), 38 F.Supp.3d 1365, 1373 (N.D.Ga.2014). The court noted that no appellate caselaw supported the plaintiffs. It reasoned that the regulation at issue fit within the Supreme Court's explicit carve-out in District of Columbia v. Heller, 554 U.S. 570, 626–27, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), for “laws forbidding the carrying of firearms in sensitive places,” and observed that the Eleventh Circuit's post-Heller decision GeorgiaCarry.Org v. Georgia (GeorgiaCarry.Org I), 687 F.3d 1244 (11th Cir.2012), supported the defendants insofar as it recognized the right of property owners (in this case, the federal government) to exclude firearms from their property. It then determined that the regulation at issue did not burden the plaintiffs' Second Amendment right to self-defense, as it did not regulate firearm possession within the home and did not effectively eliminate the ability to bear arms outside the home.

The finding that the regulated conduct fell outside the scope of the Second Amendment was fatal to the plaintiffs' motion. Nevertheless, “out of an abundance of caution” the district court went on to consider whether the regulation would withstand constitutional scrutiny if the Second Amendment were implicated. GeorgiaCarry.Org II, 38 F.Supp.3d at 1376. First, the court determined that the regulation would be evaluated under intermediate—not strict—scrutiny, because the Corps' regulation was merely “managerial action affecting only government owned lands,” it affected only “a finite amount of property ... that plaintiffs arguably [did not] need to use on a regular basis,” and because the plaintiffs' presence on the land was voluntary. Id. at 1376–77. The court then determined that the regulation withstood intermediate scrutiny. It reasoned that the Corps had a substantial interest in providing safe recreational sites while protecting its resources. Relying on record evidence indicating that potentially violent conflicts on Corps campgrounds were inevitable, it found that the firearm regulation was a reasonable fit to the Corps' interests by contributing to visitor safety and protecting infrastructure projects—particularly in light of the Corps' limited ability to police its own property.² Thus, whether the conduct implicated the Second Amendment or not, the court found no substantial likelihood of success for the plaintiffs.

The court also determined that the plaintiffs failed the remaining prongs of the preliminary injunction standard. It found no irreparable injury because the plaintiffs had not shown a substantial likelihood of constitutional deprivation, and it found that the balance of harms and the public interest did not favor the plaintiffs since an injunction could force the Corps to “remold the entire regulatory framework governing recreation” at its facilities. Id. at 1379.

The plaintiffs timely appealed.

II.

We review the district court's denial of a preliminary injunction for abuse of discretion. Scott v. Roberts, 612 F.3d 1279, 1289 (11th Cir.2010). Findings of fact are reviewed for clear error and legal conclusions are reviewed de novo. Id. “A party seeking a preliminary injunction bears the burden of establishing its entitlement to relief.” Id. To obtain such relief, the moving party must show: (1) a substantial likelihood of success on the merits; (2) that it will suffer irreparable injury unless the injunction is issued; (3) that the threatened injury outweighs possible harm that the injunction may cause the opposing party; and (4) that the injunction would not disserve the public interest. Burk v. Augusta–Richmond Cnty., 365 F.3d 1247, 1262–63 (11th Cir.2004). “[A] preliminary injunction is an extraordinary and drastic remedy that should not be granted unless the movant clearly carries its burden of persuasion on each of these prerequisites.” Suntrust Bank v. Houghton Mifflin Co., 252 F.3d 1165, 1166 (11th Cir.2001) (per curiam).

In analyzing a Second Amendment claim, this Court has followed a two-step analysis: “first, we ask if the restricted activity is protected by the Second Amendment in the first place; and then, if necessary, we ... apply the appropriate level of scrutiny.” GeorgiaCarry.Org I, 687 F.3d at 1260 n. 34 ; accord Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1252 (D.C.Cir.2011) ; Ezell v. City of Chicago, 651 F.3d 684, 701–04 (7th Cir.2011) ; United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010) ; United States v. Reese, 627 F.3d 792, 800–01 (10th Cir.2010) ; United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010).

III.

A.

We begin by asking whether the plaintiffs have established a substantial likelihood of success on their claim that the application³ of the Corps firearms regulation violated their Second Amendment rights. The Second Amendment provides, “A well regulated Militia, being necessary to...