Here’s a legal question that combines some of the favorite topics at the VC. David Nelson is the head of Stonewall Shooting Sports, the pro-gun gay rights group in Utah. At the upcoming Utah Pride Festival, Nelson wishes to carry a firearm lawfully, as Utah law authorizes him to do. However, the festival operators (a private organization) have a rule against carrying firearms at the festival. The festival takes place on public property, which is leased by the festival operators. The Salt Lake City police provide security for the Utah Pride event, and enforce the organization’s rules, including the gun ban.
Utah’s firearms preemption law states:
63-98-102. Uniform firearm laws.
(1) The individual right to keep and bear arms being a constitutionally protected right under Article I, Section 6 of the Utah Constitution, the Legislature finds the need to provide uniform civil and criminal firearm laws throughout the state.
(2) Except as specifically provided by state law, a local authority or state entity may not:
(a) prohibit an individual from owning, possessing, purchasing, selling, transferring, transporting, or keeping a firearm at the individual’s place of residence, property, business, or in any vehicle lawfully in the individual’s possession or lawfully under the individual’s control; or
(b) require an individual to have a permit or license to purchase, own, possess, transport, or keep a firearm.
(3) In conjunction with Title 76, Chapter 10, Part 5, Weapons, this section is uniformly applicable throughout this state and in all its political subdivisions and municipalities.
(4) All authority to regulate firearms is reserved to the state except where the Legislature specifically delegates responsibility to local authorities or state entities.
(5) Unless specifically authorized by the Legislature by statute, a local authority or state entity may not enact, establish, or enforce any ordinance, regulation, rule, or policy pertaining to firearms that in any way inhibits or restricts the possession or use of firearms on either public or private property.
(6) As used in this section:
(a) “firearm” has the same meaning as defined in Subsection 76-10-501(9); and
(b) “local authority or state entity” includes public school districts, public schools, and state institutions of higher education.
(7) Nothing in this section restricts or expands private property rights.
Utal has another preemption law. It says:
76-10-500. Uniform law.
(1) The individual right to keep and bear arms being a constitutionally protected right, the Legislature finds the need to provide uniform laws throughout the state. Except as specifically provided by state law, a citizen of the United States or a lawfully admitted alien shall not be:
(a) prohibited from owning, possessing, purchasing, selling, transferring, transporting, or keeping any firearm at his place of residence, property, business, or in any vehicle lawfully in his possession or lawfully under his control; or
(b) required to have a permit or license to purchase, own, possess, transport, or keep a firearm.
(2) This part is uniformly applicable throughout this state and in all its political subdivisions and municipalities. All authority to regulate firearms shall be reserved to the state except where the Legislature specifically delegates responsibility to local authorities or state entities. Unless specifically authorized by the Legislature by statute, a local authority or state entity may not enact or enforce any ordinance, regulation, or rule pertaining to firearms.
Nelson argues, inter alia, that subsections (4) and (5) of the first statute leave Salt Lake City without any authority to restrict the carrying of firearms, yet Salt Lake City, by leasing public property to a private organization which bans guns, and by using local police to enforce that ban, is doing so.
Does Nelson have a valid legal argument? Does (7) save the Utah Pride’s ban? Answers which supply specific legal authority will receive the highest grades.
Kazinski says:
If the public is welcome, then the armed public must be welcome too. And (5) would specifically bar the Salt Lake Police from enforcing any such ban.
May 13, 2009, 2:27 amLior says:
Kazinski: (7) expressly distinguishes the right of private property owners to invite the general public but exclude the armed public (I’m assuming this right is authorized elsewhere). Moreover, there is a good argument to be made that the “ordinance, regulation, rule, or policy” in (5) must be one made by the “local authority or state entity”, not one made by a private party.
Nelson’s argument is better: he asserts that the event is in fact a government function organized by a private party, not a private function run on government property. IANAL so I can’t provide citations either way, but this seems to me to be the main question.
May 13, 2009, 2:43 amSoronel Haetir says:
I would think that a government entity could not enforce any private party rule on public land that the government entity would not itself be able to enforce.
No citation to that, just gut feeling for what should be.
May 13, 2009, 3:24 amDan M. says:
If leased property is treated as private property, the police should simply be able to ask people to leave for violating rules and to charge them with trespassing if they do not.
I would either carry concealed anyway, or I’d tell the event organizers to go to hell.
May 13, 2009, 3:34 amvinnie says:
It works in Virginia
May 13, 2009, 5:30 amShelbyC says:
@Lior: Funny, your dictionary defines “expressly” differently than mine. But whatever rights 7 preserves, 4 expressly prevents the police from enforcing them.
May 13, 2009, 6:44 amcboldt says:
I think the operative rule is (5). The organizers are using local authority to enforce their private rule on public property. Sue to enjoin the Salt Lake City Police from enforcing the rule. This is a reverse image of the Nordyke decision.
May 13, 2009, 6:58 am.
If the festival operators want to conduct a festival where they can impose the rule they can either lobby the legislature for a statute, or they can seek a private property location.
ShelbyC says:
Whoops, 5, not 4. And I agree with Lior about Nelson’s arguement
May 13, 2009, 7:03 amcboldt says:
As for the possibility of the property being found to be in the nature of “private” due to being leased, section (5) prohibits the use of local authority for enforcement there too. So if the site is “private” (due to being leased public land), then the organizers may be free to hire guards to enforce a gun-free zone.
May 13, 2009, 7:08 am.
AFAIK, an entity in possession of private property rights in Utah has the power to exclude non-authorized (e.g., LEO) guns.
cboldt says:
IOW, a private entity is free to erect a no-guns rule or policy. But they are not entitled to use state or local authority to enforce their private rule. THis goes to Lior’s contention that local authority may be used to enforce. I think the expressions of “all” and “rule or policy” is meant to sweep in all rulemakers, public AND private, and all sorts of rules no matter what label is attached to them. “Er have a rule” is the same as “there is a law” for purposes of this section.
May 13, 2009, 7:16 amflyerhawk says:
If the festival had a ban on alcoholic beverages would the police be equally restricted in enforcing that ban? How bout children?
Aren’t the police, in this situation, acting as private security rather than public officials?
If the police simply act as local security and tell people to leave the festival if they are carrying a firearm, then how does that violate Utah law?
May 13, 2009, 7:36 amFrog Leg says:
Landlord-tenant law is relevant here. There is a presumption towards a lease of an unrestricted fee simple. If the lease is silent to the question, it should be presumed that the fairgrounds are private property for the duration of the lease. Therefore, it is within the property rights of the organization to enforce the ban.
The presence of the cops is interesting, but the facts are incomplete. At many private festivals, cops provide security, but are off-duty and paid by the festival, and thus take direction from the festival operators. Who is employing the cops?
(4) and (5) deal with rule-making. That’s not what the cops are doing.
May 13, 2009, 7:40 amPersonFromPorlock says:
That seems to flatly forbid using police to enforce private rules (“any…rule“) regarding firearms. I’m not even sure a property owner could use a private security firm to enforce a prohibition on carrying arms through trespass laws.
May 13, 2009, 8:19 amkeith_talent says:
(5) bars the police from enforcing any “ordinance, regulation, rule, or policy pertaining to firearms.” We shouldn’t get carried away here, though. The police can presumably enforce park curfews, even if a curfew “inhibits … the … use of firearms” to the extent it interferes with my late-night shooting. I would suggest that neutral policies, whose impact on firearms is incidental, don’t “pertain[] to firearms,” and therefore aren’t affected by (5).
Similarly, nothing here prevents the police from generally enforcing private property owners’ decisions to exclude unwanted guests from their property. The policy adopted by the police — enforcing private property rights — doesn’t “pertain to firearms,” any more than a speeding ordinance “pertains to firearms” if the police enforce it against a guy who’s speeding to the gun store to buy more guns.
May 13, 2009, 8:38 amkeith_talent says:
Interestingly, in Hansen v. Am. Online, Inc., 2004 UT 62, the Utah Supreme Court held that this statute did not represent a public policy in favor of gun rights overriding employers’ right to control employees’ conduct on employer property (workers had been dismissed for having guns in their cars, claimed this provision of at-will employment contract was contrary to public policy).
May 13, 2009, 8:57 amPatHMV says:
cboldt…. so a private person can’t use the police to arrest a trespasser, if the private person wishes to do so because he disagrees with the trespasses First Amendment-protected political views?
As another commenter noted, this is basic trespass law. If the private entity has the legal right to exclude somebody from that function, then they can condition attendance on just about anything they desire (except for race or another factor prohibited by the Civil Rights Act). Assuming the organizers are not a “local authority or state entity,” this is perfectly ok. The police are NOT enforcing any regulation against firearms. They are enforcing the regulation/law against trespass. If somebody brought a dog to the event in violation of the rules of the organizer, the cops could enforce that rule as well.
May 13, 2009, 9:02 amPatHMV says:
Keith, thanks for the cite. That result is consistent with the general argument that the supporters of private property rights are making here. It would be odd indeed if the court were to rule that the private employer could fire the employee for gun possession on their property, but that the private employer had no recourse to the police if the fired employee refused to leave the premises.
Hey, under the “castle” doctrine, could the private employer just shoot the employee who refuses to leave?
Let’s take a more real-world scenario. Guy walks into a convenience store. Owner sees the guy is carrying a gun, points to his “no guns in my store” sign, and asks the man to leave. Guy says no, I’m not finished shopping, and refuses to leave. Owner calls cops. Can the cops enforce the owner’s property rights by arresting the man for trespass? If not, is the only recourse the owner has to protect his property rights to actually shoot the man with the gun? Assume in all of the above that the man never threatens the owner with the gun, never makes any attempt to rob the place, never gives any reason at all to suspect that he’s there to rob the place.
Now replace that scenario with me in my own house. I have a dinner party, invite some guests. I discover that one of my guests is carrying a gun. I have small children and would rather not have the gun in my house (perhaps I know that the gun-carrying guy can’t handle his liquor real well, and he’s downed a couple). I ask him to leave. He decides to stand on his right to carry a gun wherever he wants and refuses to leave. I eventually resort to calling the police. Can they arrest him for trespass? Or must I shoot him to protect my property rights?
Why don’t gun rights owners have greater respect for property rights?
May 13, 2009, 9:09 amGreg says:
Whether a private owner could use trespass law to evict someone carrying a gun asks the question of whether the court is ready to expand Shelley v. Kramer to the non-civil rights arena. Probably not. Whether this constitutes enough entanglement to be government action (so banned under (5)) probably comes down to a comparison between Lugar v. Edmonson Oil Co., 457 US 922 (1982) and Flagg Brothers v. Brooks, 436 US 149 (1978). In Lugar there was state action in a creditor obtaining prejudgment attachment, but in Flagg there was no state action for a self-help repossession. Both involved resort to the courts, the difference is that in Lugar they used a sheriff to carry out the attachment.
May 13, 2009, 9:10 amPatHMV says:
Oops. The last sentence should read: “Why don’t gun rights zealots have greater respect for property rights?”
May 13, 2009, 9:10 ampaul lukasiak says:
It seems to me that police cannot be used to enforce the gun ban per se, but can be used if the individual acts in a disorderly fashion by ignoring the rules of the Festival organizers. (For instance, its not illegal to walk around with a six pack of beer in a bag — but it is against festival rules to bring that six pack into the grounds. The police would not be charged with enforcing the “no outside alcohol” rule of the festival, but should an individual create a disturbance by insisting upon bringing in the alcohol, they cops could arrest the person for disturbing the peace.)
Speaking of alcohol, it will be served on festival grounds. Are there any specific provisions in Utah law regarding carrying gun in places where alcohol is being served?
May 13, 2009, 9:11 amAnon #319 says:
As unfortunate as it is, my gut also tells me that trespass law is what is going to win the day for the organizers.
May 13, 2009, 9:12 amHappyshooter says:
Can the City of Salt Lake 1) lease all its streets, parks, and government buildings to the local DDA, 2)contract back for law enforcement, upkeep, and use, and 3) use its police to enforce a DDA rule against carrying CCW on that property?
Same fact pattern, only excluding those not of the Mormon faith?
May 13, 2009, 9:13 amruuffles says:
A slight extension: instead of invites, anyone can come in (for example a party at an off-campus house). Does the fact that it was open to the public make a difference?
May 13, 2009, 9:13 amruuffles says:
* open to the public but still on private property
May 13, 2009, 9:15 amruuffles says:
Ack. Still not precise enough. Private property but a home, not a retail store or business.
May 13, 2009, 9:16 amJustin says:
Unless there is some evidence to the contrary, I think you are all reading the word “rule” way too broadly. The basic rule of interpretation here is things should be interpreted based on the context of the other things in the list. All of the things in the list there refer to government provided rules or laws.
Here, the officers aren’t going to be asked to arrest someone for illegally carrying a gun. Presumably, they’ll be asked to arrest someone for trespassing after being asked to leave. To the degree there was any doubt, Rule 7 confirms this (pretty obvious) interpretation of Rule 5.
May 13, 2009, 9:17 amJustin says:
PS – this of course assumes that the Cops are doing “security” in the way a security company would – by asking people who violate the rules to leave – rather than just an on the spot arrest. If not, if the cops are actually incorporating the rules and regulations into the judicial code, then the Utah rule would apply. But the festival’s use of police security would run into significantly more difficult problems than just the preemption statute here.
May 13, 2009, 9:22 amanomdebus says:
ruuffles,
May 13, 2009, 9:37 amTo refine futher, you would have posted a list of rules at the entrance of the property, creating a “walk through license”.
Gabriel McCall says:
If I possess an easement on someone else’s property, then I retain that easement even if the owner lets the property to someone else. For example, if I own the mineral rights on a chunk of land, I can keep pumping oil regardless of whether the owner leases out the farmhouse.
Similarly, if the public has the right to carry guns on the Salt Lake City fairgrounds, then they retain that right regardless of what temporary arrangements the city makes for use of that property. The city cannot lease out a right (to exclude firearms from the property) which they do not already have themselves.
May 13, 2009, 10:05 amM. Gross says:
I’m not sure where PatHMV is going with his analogies… there’s no private property involved in this case, only public property.
May 13, 2009, 10:10 amcboldt says:
– so a private person can’t use the police to arrest a trespasser –
May 13, 2009, 10:15 am.
That is not what the statute says. The statute says “a local authority … may not enforce … rule, or policy pertaining to firearms.”
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– The police are NOT enforcing any regulation against firearms. –
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What is the no firearms rule, if it isn’t a no firearms rule?
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– They are enforcing the regulation/law against trespass. –
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There’s a “No Trespassing” rule? That’ll do wonders for attendance.
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– If somebody brought a dog to the event in violation of the rules of the organizer, the cops could enforce that rule as well. –
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There’s no Utah statute that forbids using the police to enforce a “no dogs” rule or policy.
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We won’t know what a court will decide. I think the only suit admitted by the statute is one that enjoins the police from enforcing the no guns rule on their own volition or under a blanket order from the event organizers. The event organizer can, at the same time, hire their own bouncers and call on the police if a person does not comply with the bouncer’s orders. That might still be a violation in light of the “local authority may not enforce a no firearms rule on private property” statute.
PubliusFL says:
M. Gross: I’m not sure where PatHMV is going with his analogies… there’s no private property involved in this case, only public property.
If property is leased, the right to quiet enjoyment and to exclude others from the property belongs to the tenant. In PatHMV’s dinner party scenario, does his right to eject the gun-carrying guy who can’t handle his liquor depend on whether his home is privately owned or leased from a public entity (a public housing project)?
May 13, 2009, 10:17 amLarryA says:
I think the interesting point is that gays are much more welcome at gun rights meetings than gun owners are at gay rights meetings. The NRA 2009 convention is next door in Arizona. The Pink Pistols got an invitation and a table.
You can only protect your right to live the way you want to by protecting other folks’ rights to live the way they want to.
May 13, 2009, 10:21 amPubliusFL says:
cboldt: The event organizer can, at the same time, hire their own bouncers and call on the police if a person does not comply with the bouncer’s orders. That might still be a violation in light of the “local authority may not enforce a no firearms rule on private property” statute.
If that’s the meaning of (4), doesn’t that make (4) something “in this section [that] restricts . . . private property rights”? I think you’re interpreting (4) in a way that gives (7) no meaning.
May 13, 2009, 10:22 amcboldt says:
– I think you are all reading the word “rule” way too broadly. The basic rule of interpretation here is things should be interpreted based on the context of the other things in the list. All of the things in the list there refer to government provided rules or laws.–
May 13, 2009, 10:23 am.
In context, the statute appears to encompass rules and policies, regardless of the entity that establishes them. The fact that enforcement cannot be obtained using local authorities in private places, for example, implicates the possibility of a private rule prohibiting the possession of firearms.
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Dilan Esper says:
Isn’t there a big time first amendment interest here if the pride parade organizers claim to be anti-gun? That is what the hurley case would imply.
Now, I think hurley was wrongly decided. But it certainly seems to indicate that parade organizers have a strong right to exclude off-message folks from their event.
May 13, 2009, 10:25 amJustin says:
Justin
Regardless of whether you bold the word any, your position is at best a stretch. It’s not an impossible reading of the statute, but without some legislative history supporting it, it sure is an unreasonable one.
May 13, 2009, 10:27 amKevin P. says:
If citizens carry firearms concealed at the festival, how will the police or anyone else know that they are carrying firearms?
Unless they plan to frisk everyone entering the festival, there is no way to enforce this rule.
May 13, 2009, 10:34 amruuffles says:
Same way they would enforce a no outside beverages rule. Or a no videocam rule.
May 13, 2009, 10:36 amcboldt says:
– I think you’re interpreting (4) in a way that gives (7) no meaning. –
May 13, 2009, 10:37 am.
I resolve that by reading (4) as limiting “regulatory” action imposed by a government or quasi-government actor. I think equating an event that is open to the public as implicating the full panoply of “right to exclude as a trespasser” to be inapt.
.
I wonder how sports events, concerts, etc., handle this statute. My guess would be “this is open to the public, but if you want to attend, you must comply with such and so conditions,” where those conditions could be anything.
.
Anyway, I agree there is a direct collision between the statute and the general private property right to exclude entrance; and that the police can be used to eject trespassers on private property. I think this case presents a unique fact pattern, and that it should be presented to a Utah Court in the form I suggested.
Justin says:
Ooops,
I wrote Justin as who my post was directed. I meant cboldt.
May 13, 2009, 10:48 amJustin says:
“I think this case presents a unique fact pattern, and that it should be presented to a Utah Court in the form I suggested.”
A hypothetical? :)
May 13, 2009, 10:48 amcboldt says:
Hansen v. America Online – Utah Supreme Court decision pertaining to the conflict between firearms statute and private property rights, as against “employment at will.”
May 13, 2009, 10:51 am.
The case notes legislative debate about the Delta Center, the Salt Lake City arena which is home to the Utah Jazz, as well as amusement parks that are open the public. Two factors that make the instant case different are the fleeting transient duration of “private property control” associated with this lease, and that but for the lease, the space would be a public space.
Soronel Haetir says:
Gabriel McCal came up with a decent rationale to what I was thinking. I don’t think the and can temporarily become totally private in the way the organizers would need it to become. The alcohol examples don’t seem like they would apply, unless of course there is a similar sweeping state-wide pre-emption. I seriously doubt any such preemption exists with regard to alcohol.
May 13, 2009, 10:52 amcboldt says:
– A hypothetical? –
May 13, 2009, 10:56 am.
The case isn’t hypothetical. The event is scheduled and the rules are the rules. But the only statutory villation that I see is the one that prohibits tax-payer funded enforcers from enforcing a blanket no-firearms rule. There is NOT a similar prohibition on enforcing a “no coolers” or “no dogs” rule; and certainly LEO has a right to enforce lawbreaking, e.g., smoking pot, disturbing the peace, public intoxication, lewd conduct, etc.
Justin says:
Unless and until someone is actually arrested for possessing a gun (or for trespass due to possessing a gun) at the Utah Pride Festival, this is all a hypothetical. I know nothing of Utah standing requirements, but there would be no Article III standing under federal law based solely on David Nelson’s interest in violating the Pride Festival’s rule.
May 13, 2009, 11:05 amOren says:
Or trespassing, irrespective of the motivations of the private property holder in wanting to exclude someone.
May 13, 2009, 11:06 amcboldt says:
This (link) seems to be a legislative reaction to the Hanson case:
My guess is that the Utah legislature would support the right of THIS private organizer to prohibit firearms in general, but not allow prohibiting those who have CCW.
May 13, 2009, 11:07 amJustin says:
LarryA,
Nothing makes me believe that the Pride Festival has a ban on gun owners. I assume the NRA doesn’t allow gay sex to occur at its meetings or gun shows.
May 13, 2009, 11:07 amnothing but flowers says:
I have no problem with a private organization deciding it doesn’t want guns there, although it’s rather silly…maybe they’re worried about liability? I mean if I want to go march at an anti-war protest surely the organizers can say no pro-war speech in our area? If you can limit free speech why not second amendment, in these contexts.
May 13, 2009, 11:09 amcboldt says:
– Unless and until someone is actually arrested for possessing a gun (or for trespass due to possessing a gun) at the Utah Pride Festival, this is all a hypothetical. –
May 13, 2009, 11:32 am.
As you note, the plaintiff may lack standing. But there is nothing to stop filing a suit seeking to enjoin tax-payer funded enforcement of a private anti-gun rule. Winning may be a hollow gesture in that it might confirm the general private right to exclude.
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While pondering the case, I also came to wonder about the lack of power on the part of parade organizers, to prohibit firearms from the public watching the parade.
cboldt says:
– but without some legislative history supporting it, it sure is an unreasonable one. –
May 13, 2009, 11:36 amIn general, the legislative history was to not permit a college administration from prohibiting firearms. The intention was to include private colleges, so reading the statute as limiting only government-promulgated rules seems incorrect.
cboldt says:
Oops – I think my above about “private colleges” is wrong. I’ll look at Brigham Young. IT appears the Utah State legislature’s intent was to narrowly set policy at state-operated colleges.
May 13, 2009, 11:42 ammcbain says:
fail. nra does not prohibit gays from their meetings.
next time equate action to action, not person to action.
May 13, 2009, 11:52 amJustin says:
mcbain.
Try reading my post again. Thanks.
May 13, 2009, 11:55 amJustin says:
Justin,
PS mcbain.
My post was a response to LarryA, who said that the NRA was tolerant for allowing gay members at its event, whereas Gay Pride was not. I was making somewhat the same point you were, which is why I was confused by your criticism. On further thought, you may have thought I was making the same point LarryA was making but from the opposite side, rather than simply pointing out that LarryA’s post was wrong.
May 13, 2009, 11:57 amcboldt says:
No guns allowed at BYU.
May 13, 2009, 11:59 am.
That set of legislative provisions sure is sloppy!
Owen Hutchins says:
It is disheartening to see the number of self-proclaimed “law abiding gun owners” whose first response to a rule they don’t like is to intend to violate it.
May 13, 2009, 12:04 pmDilan Esper says:
By the way, I was trying to be a bit provocative in mentioning Hurley. But seriously, this should demonstrate to conservatives why creating a First Amendment right of Irish Parade organizers to discriminate against gays and lesbians when it really had nothing to do with the organization’s message (or creating the same right in the Boy Scouts) is such a bad idea. I don’t doubt that an organization that truly has at the core of its being a discriminatory principle should have a First Amendment right to exclude people who disagree with it– a Christian Church should be able to bar people from its services who don’t believe in Jesus’ divinity, the KKK should be able to bar minorities, pro-Israel parade organizers should be able to bar participants who want to criticize Israel and promote the Palestinian cause, etc.
But where the discriminatory principle is not at the core of the organization’s being, public accommodation laws should apply.
Applied to handguns, this means that the Pride Parade shouldn’t be able to bar gay gun owners from their parade; however, if Handgun Control, Inc. decided to have a parade, they should be able to do it.
In any event, I do believe that under Hurley, any statute that stands in the way of the parade organizers’ right to declare that their message does not include gun ownership and to exclude people from the event who think differently would be held to violate their First Amendment rights.
May 13, 2009, 12:05 pmPatHMV says:
Dilan, who gets to judge what is at the “core of the organization’s being”? Why do you want to bring so much discretion into the First Amendment? “You have the right to speak, or to prevent others from speaking on your property and at your events, but only if we judges decide that you really, really, really care about what they have to say. If you only care a little bit, then tough titty.”
May 13, 2009, 12:13 pmDilan Esper says:
Pat, before Hurley, courts made these decisions all the time. It’s why Hooters could discriminate in hiring waitresses but TWA couldn’t discriminate in hiring flight attendants. It’s related to bona fide occupational qualification doctrine, which has existed in sex discrimination law for decades and has caused few problems.
May 13, 2009, 12:28 pmPatHMV says:
That’s in the commercial context. Commercial speech has long had less protection than non-commercial speech. You are advocating extending that doctrine to non-commercial speech and non-commercial operations.
May 13, 2009, 12:39 pmgreen-grizzly says:
Hansen is an interesting paralell, but the cops there didn’t arrest anyone for carrying a gun. No law enforcement was involved at all. The issue was whether the private employer could fire the employees who had guns in their cars in the private employer’s parking lot.
I have always understood the law works as follows: if I am caught carrying a gun on private property that prohibits guns, the property owner can ask me to leave. It I don’t, I can be arrested for trespassing. I can’t be arrested for carrying a gun though, because that is not illegal. Likewise, if I carry a gun to work the emmployer can fire me but I have not broken any laws.
So the question is more whether the parade organizers can prohibit people from marching with them who they don’t want to. It is really a freedom of associate issue. Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston issue is probably more relevant than Hansen.
May 13, 2009, 12:39 pmmcbain says:
Justin, you are right. sorry for the confusion
May 13, 2009, 12:43 pmDennisN says:
LarryA:
Yes, I have a pistol in my pocket, and I am happy to see you.
May 13, 2009, 12:44 pmmcbain says:
hutchins:
“law abiding” and “rule abiding” is not the same thing. especially when the “rule” is against the “law”
May 13, 2009, 12:45 pmOren says:
Indeed. They might even empower the executive to attach conditions when leasing public property to private organizations.
As both a guns-rights supporter and a gay-rights supporter, this causes me no end of grief.
May 13, 2009, 12:49 pmAndrewTM says:
IANAL, but given that the property is considered private for the duration of the lease, then I agree with green grizzly. A basic parallel: as a lifeguard we called the cops a number of times to escort people off city property (the pool) for breaking our rules (even if they didn’t break the law). Now, the only firearms issue we had was outside the pool (and it was in a threatening manner, so 2A protections weren’t too relevant), but running, dunking, and chain-diving aren’t against the law, but do it enough and you’ll get kicked out, and the cops had the authority to arrest for trespassing after we’d kicked them out. We never did arrest anyone, usually the cops showed up and the little snots booked it out of there, but that was the threat we held over them.
Whether the preemptions listed preclude the cops from arresting here, I wouldn’t think so, as PatHMV @ 9:09 mentioned. The arrest is being made for trespassing, not for possession of a gun (even if that’s what caused the trespassing infraction in the first place).
May 13, 2009, 12:55 pmHow_about says:
How about the government should not lease public space to anyone who then imposes restrictions on entry to that space that infringes on any rights in any way that the government leasing the space out could not have imposed?
Otherwise you have huge end-around that any anti-[fill-in-the-blank] government can do, by leasing it’s property to someone else who then imposes restrictions that the government could not have imposed.
May 13, 2009, 12:57 pmDilan Esper says:
That’s in the commercial context. Commercial speech has long had less protection than non-commercial speech. You are advocating extending that doctrine to non-commercial speech and non-commercial operations.
That’s a different argument than saying it would be unworkable, though, which is what you said before.
As I said, you can either think of these events as subject to whatever petty rules the organizers want to put in (which is how Hurley and Dale view them) or you can think of them as public events that are only subject to discrimination when such discrimination is necessary to avoid diluting the message. I think the latter rule is more sound and better accommodates First Amendment and anti-discrimination concerns. And under such a rule, the gay gun owners should be able to attend the Pride Parade with their weapons.
But that is not now the rule, and under the rule as it stands now, if the parade organizers wanted to make a First Amendment issue out of it, they probably get to exclude the pistol-packing gays.
May 13, 2009, 1:01 pmSoronel Haetir says:
I would also think the organizers would be on much firmer ground if they were to exclude the plaintiff’s group as such for advocating something while not actually trying to enforce a no guns policy. The first does have freedom of association issues that courts have reckognized, the second not so much.
Of course this would fail under the test given in Nordike anyway because the whole thing would be considered a sensitive area because there will be lots of people.
May 13, 2009, 1:05 pmBama 1L says:
cboldt, I am glad you caught your error. In Utah, there can be no gun prohibitions on state university campuses but that doesn’t extend to private campuses. Similarly, the LDS Church was very keen on it being made explicit that it could exclude firearms from its property. A big issue was made of this, it was all over the papers, and the legislature made assurances that the anti-gun-control laws under contemplation would not extend to churches, church property, the BYU campus, etc.
I think this eviscerates your reading of “rule” to include private rules, because surely Westminster College or the LDS Church can call the police to remove a person who has violated their no-gun policies, as can Trolley Square Mall’s operators.
Nelson needs to make the state action argument work if he’s going to win.
May 13, 2009, 1:11 pmOren says:
That’s both absurd and contrary to Hurley.
Under that rule, basically no lease could ever take place.
May 13, 2009, 1:20 pmOren says:
Thank you for making the is/ought distinction. So often that distinction is glossed-over or just not made.
May 13, 2009, 1:28 pmDavid Schwartz says:
They can certainly control who can speak publicly at their own event and direct police to eject those who disrupt their message. But do you think they should be able to direct police to eject anyone who they overhear privately expressing pro-war views?
This argument might sustain a ban on displays of firearms, if the organizers argue that they are anti-gun and firearms displays muddy their message. But they only get to suppress my second amendment right because it’s an exercise of their first amendment right.
Banning concealed carry at their event steps on my second amendment right and furthers no comparably critical interest of theirs, even if this was an anti-gun rally.
May 13, 2009, 1:31 pmOren says:
You have no second amendment right (or comparable State constitutional right) to carry concealed on private property without the consent of the owner.
May 13, 2009, 1:44 pmCrunchy Frog says:
Agreed. And I think the thing that will decide the state action question is whether the Utah State Police is being reimbursed for the officers’ time by the organizers of the event. If so, then it can be agued succesfully that they are simply providing security for hire, and not engaged in typical “police” function. Otherwise, state sponsorship becomes an issue, and Nelson’s argument carries more weight.
May 13, 2009, 1:49 pmCrunchy Frog says:
Ack – change “Utah State Police” to “Salt Lake City Police” and “state sponsorship” to “city sponsorship”.
PIMF
May 13, 2009, 1:51 pmDilan Esper says:
Banning concealed carry at their event steps on my second amendment right and furthers no comparably critical interest of theirs, even if this was an anti-gun rally.
This is quite wrong– where the issue is actually central to the protest, protest organizers have a very strong interest in banning firearms from a parade. Presumably such protesters would be making arguments such as that guns are inherently dangerous, that their presence in such great numbers in American society makes us less safe, that people can’t be trusted to responsibly carry and use firearms, that it puts a horrible chill on our society when you don’t know whether the guy you are dealing with is packing heat, etc.
The presence of people at their protest carrying handguns certainly would interfere with the dissemination of this type of message, and it seems to me that this would present the strongest case for keeping them out. It would be the equivalent of requiring the Nazis in Skokie to allow Jews to participate in the march. If you believe in the First Amendment, you have to believe in the right of people to put out messages even if you think they are profoundly wrong.
I think the Court’s mistake in Hurley was extending this to situations where it really wasn’t the central message of the group. But I suspect that if there were ever a Supreme Court case on the issue of Handgun Control, Inc. excluding firearms from one of their marches, the decision in Handgun Control’s favor would be 9-0.
May 13, 2009, 1:52 pmOren says:
I believe the Boston Police were providing security for the Irish Pride parade at issue in Hurley. Does that mean that the parade was State sponsored and thus cannot engage in a whole raft of things like viewpoint discrimination (have to include the anti-Irish) or sexual orientation discrimination (as was the case)?
May 13, 2009, 1:54 pmcboldt says:
– I think this eviscerates your reading of “rule” to include private rules … –
May 13, 2009, 2:01 pm.
I wasn’t careful with my words. The statute doesn’t prevent a private entity from making the rule, but it seems to prevent a government authority from directly enforcing a private rule. If I ever said that a private party couldn’t MAKE a rule, it was sloppy on my part.
.
Oren says:
On my reading, it doesn’t prevent the gov’t authority from indirectly enforcing the rule by expelling an attendee that has been trespassed for violating it.
May 13, 2009, 2:07 pmBolie Williams IV says:
Any “right” to carry a gun under the 2nd Amendment isn’t very much of a right if it is subject to numerous limitations. If I get a CHL that says I have the right to carry a concealed weapon but I am forbidden to exercise this right at work, school, restaurants, stores, parks, etc… it’s not really a right it’s more of a hope or a right to think about carrying a gun.
It’s one thing to say that a homeowner has the right to strictly control who he allows into his home and what they may do there but it’s another to give the same control to owners of public places like stores, restaurants, and venues. These places can not ban Democrats or Republicans nor can they ban blacks, hispanics, or jews. They generally can’t ban men or women. But they can ban someone who is legally exercising his 2nd amendment right?
This is obviously not a legal argument but is a more of a moral argument.
May 13, 2009, 3:35 pmSoronel Haetir says:
Bolie Williams,
I would actually go in the opposite direction and allow discrimination by private parties on any of the basis you just listed. Government however is a different matter and should be unable to convey rights that it could not itself exercise.
May 13, 2009, 4:01 pmeinhverfr says:
Some of this came up during discussions on other threads. Unfortunately I can’t find any authorities to cite. However….
Traditionally a lease provides a subset of property rights to the one who obtains the property for a time and for a fee. Traditionally this includes the right to prosecute trespassers within reasonable limits. For example, if one has a parking space reserved for customers of your business, you can prosecute non-customers for parking there as an act of trespass, even if you lease your property.
Now, in this case, we have an event which happens on public property but which a private organization has leased that property for the duration of the event. From a trespassing perspective, I would expect that the fairgrounds would be considered private property for the duration of the event. Therefore folks who attend the fair are expected to obey the rules, leave when asked, or be charged with trespassing. Since the officers at that time are not simply enforcing a no-handgun-rule but rather enforcing the private property rights of the organizers, this should be allowed.
So, I think that #7 trumps Nelson’s argument. Also Nelson suggests that my answer is close to the answer the city’s lawyers have provided him, so I have reasonable confidence in it.
May 13, 2009, 4:16 pmOren says:
No, it’s exactly the same thing. Private property is private property, irrespective of its use.
Not as a matter of basic principle, but as a matter of controlling statute. You can petition the legislature to remove the public accommodations clauses for Jews or add one for gun owners, but it is what it is.
Why you would want to dilute private property rights even more, however, is something I don’t understand.
May 13, 2009, 4:17 pmPatHMV says:
Bolie, we’re talking about rights in the sense of the rights protected by the Bill of Rights, which limits the actions of government, not private citizens.
And even in the moral sense, you’re wrong, because you would grant one right, gun possession, greater precedence than one of the most fundamental of natural rights, the right to private property. Your “right” to carry a gun stops the moment you enter my property. If it doesn’t, then I don’t actually have the right to control what happens on my property.
Generally speaking, places of public accommodation CAN control who enters their property, including whether they are Democrats or Republicans. If I open a store and choose to say that only Democrats can shop there, that’s within my rights, generally speaking. I can’t ban folks on the basis of race or national origin or gender because of specific federal laws preventing such discrimination. I support such laws, but only because of the historically-demonstrated need, based on the deep harm which invidious racial discrimination wreaked on the country. But that’s the only reason I support the infringement on the store owner’s private property rights.
May 13, 2009, 4:19 pmeinhverfr says:
I meant that even if you operate in your business location by means of a lease, you can still prosecute trespassers.
May 13, 2009, 4:20 pmOren says:
Indeed.
I think the right thing is for the State of Utah to add a clause to the lease specifying that the leaseholder will not enact such rules. They are well within their rights to do so (or not to lease the land at all).
May 13, 2009, 4:23 pmeinhverfr says:
Oren:
This is close to my view (expressed in the Sewing Machine War threads) that a patent is essentially a lease to the inventor of a public good rather than a title to that good (since the lease and the patent both expire but grant a subset of property rights for their duration).
May 13, 2009, 4:29 pmDilan Esper says:
And even in the moral sense, you’re wrong, because you would grant one right, gun possession, greater precedence than one of the most fundamental of natural rights, the right to private property.
Actually, as a liberal, not a conservative, it’s strange of me to make this point (or perhaps not so strange), but the right to bear arms in self-defense seems a lot closer to a natural and inalienable right than the right to private property does. I can think of all sorts of reasons, from traditional eminent domain all the way to nationalization when a previous property rights regime was unjust and aristocratic, why it can be justified and proper to impinge on private property rights. Whereas it seems to me that if you need a gun to protect yourself, that’s pretty compelling over a wide variety of circumstances.
That said, it IS true that where there isn’t any policy argument for overriding private property rights, one thing that a property owner might want to do is exclude guns from his or her property if he or she feels threatened by them.
Note that none of this has anything to do with how the American legal system would, or should, approach this sort of question. It’s just the theory.
May 13, 2009, 4:40 pmDavid Nelson says:
I thank Dave Kopel for bringing this matter to the attention of this forum.
Some facts which have been overlooked in the examination include:
1. The gay Utah Pride Festival event hosts more than 20,000 ticketed participants on three consecutive days. The event will be the 26th annual such event in Utah. Most of the events have been produced at Washington Square, a square-block public park which is also home to the Salt Lake City seat of government known as the City &County Building, and surrounding easements and streets. The event celebrates the 1969 gay riots in New York; and firearm rights aren’t central to the event’s core principles.
2. While the event producers employ paid and unpaid-volunteer private security workers, city Police Department law-enforcement officers are also assigned to patrol the leased area. It was a city LEO that detained, questioned and removed me in 2007 from the event because of my openly carried legal firearm. The LEO never mentioned a trespass complaint to me or in his written report.
3. The city requires the event lessee to fulfill several certain obligations which state and federal laws require of the city including disabled-accessibility, health- and animal-control, and alcoholic beverage-control, among others; things which the city couldn’t require if its public property was indeed privately leased property, not merely privately used. The city requires the event lessee to include, as attachments and parts to its lease, all relevant event rules, insurance policies and maps.
Because of these facts, I believe that the state firearm preemption-law requirements endure in city leases because there is no state law which allows the city specifically to avoid or transfer its obligations under the requirements, including the obligation of not agreeing to a lease (state action) which includes a rule (“No firearms”) which violates the requirements (“not enact, establish, or enforce any ordinance, regulation, rule, or policy pertaining to firearms that in any way inhibits or restricts”) facially. The city can no sooner change the legal condition of its public properties with regard to other state and federal requirements which endure as it does with regard to state preemption.
I’ve chosen to pursue an executive or legislative resolution of this matter by the city mayor and council members instead of a litigative one by a court. So far, they’re uncooperative.
–
May 13, 2009, 4:51 pmDavid Nelson
Salt Lake City
Soronel Haetir says:
PatHMV,
I’m not even happy going that far. Remove the government support for discrimination and boycotts and other measures will reduce discrimination to whatever level society will actually tolerate. I believe it would be stupid for a business to refuse customers on such basis but I support the right of all people to be stupid.
I certainly would have liked to see the middle ground tried first but as far as I can tell it wasn’t. And I certainly believe that if those elements of the law were now removed there would be little backsliding.
May 13, 2009, 5:08 pmOwen Hutchins says:
This seems quite simple to me- if you violate the rules for entry, you are trespassing. You don’t have a right to trespass, and there is no bar to the police removing you for trespassing.
May 13, 2009, 5:34 pmPutting Two and Two... says:
Un… I’ve seen the Pink Pistols at several Pride festivals, even in the belly of the beast, San Francisco!
May 13, 2009, 5:42 pmPatHMV says:
Soronel, not to go off-topic, but it was. Much segregation in economic activity existed in areas where it was not required by law. The Jim Crow laws themselves violated property rights by requiring private property owners to segregate their customers, whether they wanted to or not. But the law was not always responsible.
As my co-blogger discussed a couple of years ago at Stubborn Facts, sometimes the market did indeed result in improvements. I feel certain that, over a long enough period of time, racial discrimination in private facilities would have disappeared.
But how long? The evil of racial discrimination was too great to be allowed to fester for yet another 100 years. And there were legitimate interstate commerce impacts posed by the almost complete lack of hotels and restaurants available to black people in the South. Black people could not, in reality, freely travel in interstate commerce throughout the country because of the wide-spread and nearly uniform discrimination they faced.
And I care little for what level of discrimination on the basis of skin color which society will tolerate. It is wrong, morally. Throughout our existence as a country, racial discrimination has been an evil cancer. It is appropriate to legislate against evil. Where the evil is great enough, that legislation can even infringe (as minimally as necessary, of course) on property rights.
May 13, 2009, 6:35 pmeinhverfr says:
Dave Nelson:
Ok, let’s grant that the lease might not be perfectly able to enforce trespassing rights against all in the square during the duration of the festival. Easement rights, etc. would apply, but these might be limited to folks trying to enter/leave the city buildings not under lease.
Were you making use of an easement or attending the festival? What was listed on the complaint to you and the written report?
So if the pre-emption rules are public policy statements and if the city is therefore required to add such terms to their leases, do you think Hanson v. America Online doesn’t apply then to interpreting this as a broad public policy mandate then?
May 13, 2009, 6:42 pmReaderY says:
The very same First Amendment principle that organizers that lets organizers of a Boston St. Patrick’s Day Parade exclude a gay group as inconsistent with their message also permits organizers of a Gay Pride parade to exlcude groups whose message they don’t support either. What’s sauce for the goose is sauce for the gander.
A key purpose of the constitution is to provide fair, neutral rules by which advocates of different sides of a question can attempt to persuade each other through a political process. This often requires not taking sides on the questions themselves.
May 13, 2009, 11:56 pmReaderY says:
Clearly, permitting a private group to conduct First Amendment activity on public land and providing security for them does not turn the activity into state action. The First Amendment would be turned on its head otherwise. The claim seems downright frivolous to me.
May 13, 2009, 11:59 pmReaderY says:
The “specific legal authority” is Hurley v. Irish-American Gay, Lesbian &Bisexual Group of Boston, 515 U.S. 557 (1995)
The facts are remarkably similar, and of course the fact that the organizers of the two events are on opposite sides of a political debate is completely irrelevent to the legal analysis.
May 14, 2009, 12:06 amDavid Schwartz says:
How can you have a right to bear arms if you have no right to property? A respect for private property is a pre-condition to the exercise of any right, except perhaps in some socialist country where the government provides people with printing presses, guns, computers, and the various other bits of private property necessary to exercise rights.
If you need a gun to protect yourself, then you also need the right to earn money to pay for a gun, to use that money to buy a gun, to have some secure place to keep that gun when you’re not carrying it, and so on.
It is essentially impossible to exercise any of the other rights without a right to acquire and retain property.
May 14, 2009, 6:56 amOwen Hutchins says:
I disagree, ReaderY; the facts are not similar at all. Aside from the differences between an open event like a parade and a closed festival, the Boston case involved a very specific anti-discrimination law which applies to non-state actors. Otherwise, you’re back to arguing that even a private homeowner cannot disallow firearms within their own home.
May 14, 2009, 7:14 amPublic_Defender says:
If you are on my property (including property that I lease or own), and you refuse my order to leave (for pretty much any reason), you are trespassing. Why can’t the police enforce trespassing?
When conservative groups get parade permits, courts have allowed them to exclude people from the parade based on the views those people wanted to express. If an uninvited person tried to join the parade, the police could remove that person.
If private groups with permits to use public space can exclude people based on the intruders’ First Amendment rights, why can’t private groups exclude people based on the intruders’ exercise of Second Amendment rights?
May 14, 2009, 7:43 amDilan Esper says:
It is essentially impossible to exercise any of the other rights without a right to acquire and retain property.
I agree with this (except for free speech and criminal procedure rights– you could imagine those existing in a society without property rights). However, that wasn’t what I was referring to.
Obviously, societies have to have some property rights. But they aren’t “natural” in the sense that there can be many, many situations where property rights should be vitiated. As I said, the easiest examples are eminent domain and justified land reform (which is what you need to do when all the property is tied up in a couple of aristocrats whose families had connections with a ruling regime generations before).
In other words, your right to prevent government expropriation of your property isn’t “natural”; it is very much dependent on circumstances in a way your right to bear arms or to free speech is not.
May 14, 2009, 2:23 pmeinhverfr says:
David Schwartz wrote:
This is true within civilized (i.e. city-based) society. However, just to be pedantic, it isn’t a universal requirement. A tribe of foragers living in the desert might not recognize private property as such, but might still recognize a de facto right to go armed. The tribe might not even recognize a collective property right as such.
May 14, 2009, 2:35 pmeinhverfr says:
Dilan Esper wrote:
Pedantic historian in me coming out here, so be warned….
Actually this is not the case historically, though it is arguably the case today in most cases (exceptions still exist). For the vast majority of human existance, property rights per se were neither protected on a private or collective basis. There is a reason why Theodoric was the King of the Goths, not the King of Gothland. In this view, one had a society of people owing loyalty to their leader and not tied to any land, collectively or otherwise. In short, the king ruled the people, not the land.
One doesn’t really see the idea of fixed borders per se appearing in Europe outside the Roman Empire and Alexander’s brief empire until the adoption of Christianity. The king ruled the tribe, not the land.
I suspect that a lot of this development was due to the influence of the church in record-keeping. Without record keeping and without a scarcity of land, fixed borders were more trouble than they were worth.
With no collective or individual property rights (outside of the possible exception of livestock and mobile belongings), the idea that a right to bear arms is tied to property rights doesn’t hold up to a basic historical survey, unless one limits it to areas after the Conversion, and a few exceptions prior.
May 14, 2009, 2:47 pmDavid Schwartz says:
Of course, but here was aren’t talking about real private property. We’re talking about public property that is “sort of private”.
The question is where on the continuum this particular case falls. If I don’t want a female roommate, I’m allowed to exclude them. If I don’t want black friends, I don’t have to have them. But if I don’t want black employees, I’m not allowed to enforce that. If I want to open a homosexuals-only restaurant, I’m not allowed.
This is an even that is open to the public on public property. If you want to use public property, you lose the right to impose unconstitutional restrictions. Don’t like it — don’t use public property.
Yes, your constitutional rights generally trump those of the guests, so you can eject people who actually disrupt your message. But your personal wishes to discriminate don’t trump the rights of your guests. This isn’t your house. This isn’t even your business.
May 14, 2009, 10:11 pmLarrya says:
My point was that the NRA welcomed Pink Pistol members who openly represented themselves as gay, but Utah Pride prohibited Stonewall members from openly representing themselves as gun owners.
Note that this is not an isolated example. Gay groups routinely frown on gun rights gays, gun rights organizations don’t.
May 15, 2009, 1:42 amBolie Williams IV says:
The problem with the collision between private property rights and the right to bear arms is that if, during a given day, ANY single place I need to go forbids me to carry a weapon, I can’t carry a weapon to any of them. And, if many places choose to ban weapons, then my right essentially doesn’t exist. I can wander around public streets but I can’t actually go anywhere. And the school gun-free zones make even wandering the streets difficult…
And there is a difference between a home and a store. There are many legal differences between true private spaces, such as your home, and private property that allows for open entry, such as a store or restaurant or movie theater.
It’s true that the 2nd amendment constrains the government so maybe it’s just one of those things that having a right doesn’t necessarily mean getting to exercise it…
Interestingly, the 2nd amendment says “shall not be infringed” unlike other amendments that say things like “Congress shall make no law”…
Again, I’m making more of a pragmatic argument. If I get a CHL, I still won’t be able to carry a gun most places I go. So it’s a good thing that I don’t know of a need for me to carry one.
May 15, 2009, 10:50 amDilan Esper says:
The problem with the collision between private property rights and the right to bear arms is that if, during a given day, ANY single place I need to go forbids me to carry a weapon, I can’t carry a weapon to any of them. And, if many places choose to ban weapons, then my right essentially doesn’t exist.
It’s a valid point that I made way back when in my state action law review article. But, of course, it’s also a valid point when it comes to anti-discrimination laws applied to private clubs, parades, and youth organizations, as well as to free speech applied to union protests at shopping centers.
Conservatives and libertarians have, in the past, supported a tough state action doctrine to ensure that private property owners have the right to discriminate and to keep free speech out. If this issue converts them into believers, that’s great, but bear in mind that relaxing state action docrine on these grounds is going to have effects in other areas of the law that you might not like so much.
May 15, 2009, 12:22 pm