5th Circuit: Heller does not apply to weapons on US Post Office property

[TriumphRat675]

This opinion was just released by the 5th Circuit, which covers Texas and several other, lesser states. It's an unpublished opinion, so it has no formal precedential value but can be used as persuasive authority in other circuits.

Link to the opinion (http://www.ca5.uscourts.gov/opinions%5Cunpub%5C08/08-31197.0.wpd.pdf)

In this case the defendant Dorosan - who may be a post office employee - was convicted under 39 C.F.R. § 232.1(l) of bringing a handgun onto post office property - specifically, he had his handgun in his car in the post office's parking lot. There is no discussion about how they found he had the weapon on him or where it was in the car.

Link to 39 C.F.R. § 232.1(l) (http://www.access.gpo.gov/nara/cfr/waisidx_09/39cfr232_09.html)

39 C.F.R. § 232.1 is a federal regulation forbidding bringing weapons onto post office property. Doing so is punishable by a $50 fine and up to 30 days in jail. I have not done any in-depth research on this regulation and don't really plan on it.

The Court held that the post office was, as a property owner, entitled to restrict weapons from its property. Apparently post office parking lots are now also "sensitive areas" under Heller.

It's worth taking the time to read this - it's very short - especially if you plan on going to post office while packing. I myself am going to a bar for an UT/OU kickoff party.

[LOKNLOD]

The part about an employer being able to restrict on it's property is interesting, as we've got a law specifically about that here in OK that was being fought by some companies.

The PO is pretty clearly spelled out as a prohibited place, but the "in the car" thing is interesting. That would make it illegal to stop by the post office, degun and leave it in the car, and then go in, if you parked on their property.

[BrianS]

The PO is pretty clearly spelled out as a prohibited place, but the "in the car" thing is interesting. That would make it illegal to stop by the post office, degun and leave it in the car, and then go in, if you parked on their property.

Can we expect to see a challenge to higher court for this reason?

[JStor]

I thought the interior of your vehicle is YOUR property! Isn't permission or a search warrant required for a search, unless there is a reason to believe that a crime has been committed?

[Spiffums]

I think for the public using the post office your car is YOUR property, but most people say if your working for someone that they have a right to search your car. But I don't agree with that idea.

Odds are he told the wrong person at work that he had a gun in his car.

[CarlosDJackal]

Interesting. My Post Office is located in a strip mall. It's right next to a Hair Salon. I wonder if this opinion applies then? :rolleyes:

[DragonDoc]

I wonder how this ruling will effect the Castle Doctrine. If your car is your sovereign territory, what happens when you park on someone else's property?

[kmrtnsn]

"I thought the interior of your vehicle is YOUR property! Isn't permission or a search warrant required for a search, unless there is a reason to believe that a crime has been committed?"

Have you ever heard of the Motor Vehicle exception to the Fourth Amendment Requirement for a warrant?

You need to read Carroll v. United States.

BTW, there are other exceptions you might want to get up to speed on too. I love it when someone says you "can't do that, I have rights" or "you need a warrant". Not always, and not when it is convenient for you.

[TriumphRat675]

Interesting. My Post Office is located in a strip mall. It's right next to a Hair Salon. I wonder if this opinion applies then?

The regulation applies to

"all real property under the charge and control of the Postal Service, to all tenant agencies, and to all persons entering in or on such property...

This section shall not apply to--
(i) Any portions of real property, owned or leased by the Postal Service, that are leased or subleased by the Postal Service to private tenants for their exclusive use;
(ii) With respect to sections 232.1(h)(1) and 232.1(o), sidewalks along the street frontage of postal property falling within the property lines of the Postal Service that are not physically distinguishable from adjacent municipal or other public sidewalks, and any paved areas adjacent to such sidewalks that are not physically distinguishable from such sidewalks."

Unless the post office owns the strip mall, you're probably fine as long as you don't enter the post office itself.

Note that this regulation is not the same as 18 U.S.C. s. 930 which makes it a crime punishable by a year in prison to carry a gun onto post office and other federal property. 18 U.S.C. s. 1930 has an exception in it for carrying weapons in federal facilities incident to "other lawful purposes." This may include concealed carry, although I don't know if this issue has been litigated.

The regulation has no exception for other lawful purposes. I would not carry a firearm onto post office property, including leaving it in my car in a post office controlled parking lot.

The regulation does give government agents authorization to search your vehicle if you are entering or leaving "restricted nonpublic areas." By entering those areas, you give implied consent to the government to search your vehicle. This may be what happened to the defendant in this case.

Those areas would not include the post office parking lot, which by definition is a public area. The regulation also permits government agents to inspect any containers, including purses, you bring onto post office property. As far as pat-downs or searches of your person go, it does not appear the officer can randomly stop and frisk you any more than they could in any other area.

As far as vehicles go, the motor vehicle exception applies if the officer has probable cause to search the vehicle for contraband and is not a blanket exception to the 4th amendment. It's more complicated than that and I haven't dealt with search and seizure law in a while, but they still can't search your car without a reason to do so. Being seen degunning and putting your weapon in the glove box by the officer or a concerned citizen would be probable cause for a search, and if the gun is found, grounds for an on-sight arrest and conviction under this regulation.

Ultimately I don't think this decision is a surprise or even wrong. It's interesting to me because of the "gun in the car" aspect, which I was previously unaware of.

[JackOSU]

Screw the post office. I don't give them a dime if I don't have to. I'd rather send Fed Ex or the likes. Maybe someday they will take over the post office and it will be a private entity. Until then....

[Reddevil]

Years ago my CCW instructor told us it was legal to carry concealed in a post office. They are no longer govt and also how would you mail a rifle if they were not allowed in there?

[TriumphRat675]

Years ago my CCW instructor told us it was legal to carry concealed in a post office. They are no longer govt and also how would you mail a rifle if they were not allowed in there?

He was probably right, years ago. Like anything you hear from anyone else, trust but verify. In this case I believe the text of this regulation was recently changed, making it more expansive than it used to be. Laws and (especially) regulations change routinely; I try to re-familiarize myself with CCW laws and laws regarding deadly force at least once a year.

Since the regulation prohibits "carrying" firearms openly or concealed, I would think that means having it on or about your person - this is aimed at people packing guns, not mailing them. Taking your rifle to be mailed in proper packaging is probably still ok. I'd call a PO inspector before taking it in out of an abundance of caution.

[Chameleox]

Not a fan of this.
The automobile issue is tricky. As I have understood it, while cars are a person's private property, there is a diminished expectation of privacy due to four conditions.
1. Cars are for the most part, somewhat transparent, with all the windows.
2. Cars are driven on public roadways.
3. The nature of driving in this country is heavily regulated by the state and federal govt.
4. Cars parked on private/govt. property probably lose some expectation of privacy ("all vehicles subject to search" type thing). The state's response is usually, if you don't like it, then don't drive there. Not necessarily sure if I agree with that.
These also form part of the rationale for the Carroll Doctrine. Then again earlier this year, AZ vs. Gant took away my automatic search (of vehicles) incident to arrest (of occupant).
Essentially, since driving is not a right, and not a necessary act(?), a diminished expectation of privacy is kinda the "cost of admission" for going onto private property or driving on public roads.
For these reasons, the courts usually place your level of privacy in a vehicle noticeably lower that your privacy at home on on your person. I think the argument that the car's not in the road and that its in the parking lot has some validity, and I'd expect to see this fought over in higher courts. however, the USPS, as the owner of the property has some rights to restrict what comes onto the property, so long as the post office owns the parking lot too. If we're talking about employee cars I'd suspect that right gets even stronger.
Again, I bet this will be fought over, or at least clarified, in higher courts.

[ST911]

Short: Concealed means concealed. Keep it hidden. Shut your mouth.

[Belmont31R]

He was probably right, years ago. Like anything you hear from anyone else, trust but verify. In this case I believe the text of this regulation was recently changed, making it more expansive than it used to be. Laws and (especially) regulations change routinely; I try to re-familiarize myself with CCW laws and laws regarding deadly force at least once a year.

Since the regulation prohibits "carrying" firearms openly or concealed, I would think that means having it on or about your person - this is aimed at people packing guns, not mailing them. Taking your rifle to be mailed in proper packaging is probably still ok. I'd call a PO inspector before taking it in out of an abundance of caution.


I believe the PO falls under the same category as Amtrak. Its a federally owned company....not a direct part of the actual government (in the sense the FBI is) but owned by the government.


Coincidentally both operate at a loss of millions a year but thats a topic for another thread.

[kmrtnsn]

"I bet this will be fought over, or at least clarified, in higher courts."

Oh, it has, many times; don't expect big changes anytime in the near future.

[EzGoingKev]

Regarding the automobile search thing -

The last few places I have worked have had an anti weapons policy that had a list of items that were prohibited from the work place including but not limited to firearms, edged weapons, chemical sprays, etc. The workplace area included the parking lot.

These policies were spelled out in the employee handbook and also included you giving management permission to search your person, work space, and your vehicle. I know that one of my employers had some type of wording to the effect that this would extend this permission to the police.

I think this is BS, but I wanted the job so I signed.

Right now there is legislation being pushed through in many states to make these anti-gun policies illegal so there is hope for some of us.

I live in MA so I have no illusions that anything like that will ever pass in my state.

[LockenLoad]

Interesting. My Post Office is located in a strip mall. It's right next to a Hair Salon. I wonder if this opinion applies then? :rolleyes:

same case here was wondering the same thing:confused:

[Mark/MO]

Interesting.

We discussed this at our office at one time. What I understood from the HR guy was that firearms in an employee's vehicle while on company property was forbidden but one in a visitor's car was OK. My truck, No ... my wife's car while brinigng me lunch, OK. Weird. No firearms are allowed in the office itself.

I didn't understand it, still don't.

[Reddevil]

He was probably right, years ago. Like anything you hear from anyone else, trust but verify. In this case I believe the text of this regulation was recently changed, making it more expansive than it used to be. Laws and (especially) regulations change routinely; I try to re-familiarize myself with CCW laws and laws regarding deadly force at least once a year.

Since the regulation prohibits "carrying" firearms openly or concealed, I would think that means having it on or about your person - this is aimed at people packing guns, not mailing them. Taking your rifle to be mailed in proper packaging is probably still ok. I'd call a PO inspector before taking it in out of an abundance of caution.

Well, I haven't been concerned with it in quite some time since I become a LEO.

[Submariner]

Well, I haven't been concerned with it in quite some time since I become a LEO.

Hopefully you will retire someday. Then it will be an issue since you are no longer excluded. Carrying under the “Law Enforcement Officers Safety Act” (HR-218) is not in the regulation.


Again, I bet this will be fought over, or at least clarified, in higher courts.

I'll take that bet. The next court above the Fifth Circuit Court of Appeals is the US Supreme Court.

[Redmanfms]

Regarding the automobile search thing -

The last few places I have worked have had an anti weapons policy that had a list of items that were prohibited from the work place including but not limited to firearms, edged weapons, chemical sprays, etc. The workplace area included the parking lot.

These policies were spelled out in the employee handbook and also included you giving management permission to search your person, work space, and your vehicle. I know that one of my employers had some type of wording to the effect that this would extend this permission to the police.

I think this is BS, but I wanted the job so I signed.



It is.

Your employer doesn't have search powers. Period. They can make you sign that paper and then terminate you the instant you say "no" to a search, but they DO NOT in any capacity whatsoever have the authority to grant police permission to search anything that is not company property.

That would be like me inviting you to my house, park in my driveway, only to have me call the police and grant them permission to search your vehicle. Employers have no such right, regardless what kind of waiver you signed. They can make your employment dependant on compliance and choose to terminate you for non-compliance. That paper they made you sign likely said something to that effect. It most likely said, "I understand that granting permission to search my persons, effects, and vehicles is contigent on my employment and that refusal to grant permission at any point can/will result in immediate termination." They still have to ask, permission doesn't magically become implied. If you refuse, you're fired.




ETA: I've had to work for clients that had similiar policies (I'm a security officer). Such policies can be very dangerous from a civil liability standpoint if the managers in charge of such search authorizations aren't thoroughly educated as to the extent to which that "power" can be employed. I did have a client order me to search a vehicle without the owner being present. I refused. I was temporarily "banned" from working that site, until upper managment at the client got wind of what happened and fired the woman who gave me the order. My area manager quietly informed me a little while later that I was no longer banned from working that site.

[BrianS]

Pro-gun orgs should start a movement to have this regulation overturned through an act of Congress, kinda like the way they did for carry in National Parks.

It's total bullcrap that they basically create a Federal misdemeanor with no exceptions other than for "official purposes" through Federal regulations when the Federal law states that possession for lawful purposes is OK.

In the PDF version the regulation where they state their "authority" for the regulation none of the sections of the USC they list would seem to give them any such authority to create a special crime for having a gun in their parking lot.

[DrMark]

Note that this regulation is not the same as 18 U.S.C. s. 930 which makes it a crime punishable by a year in prison to carry a gun onto post office and other federal property.

Note that 18USC s930 addresses Federal facilities, not Federal property in general.

If there's a general prohibition against weapons possession on Federal property, I'd love to be informed what it is.

[DrMark]

Years ago my CCW instructor told us it was legal to carry concealed in a post office. They are no longer govt and also how would you mail a rifle if they were not allowed in there?

So USPS employees are no longer Civil Service (i.e. Gov't employees)?

[ST911]

Note that 18USC s930 addresses Federal facilities, not Federal property in general. If there's a general prohibition against weapons possession on Federal property, I'd love to be informed what it is.

The full text, for those who haven't read it. Words matter.



§ 930. Possession of firearms and dangerous weapons in Federal facilities

(a) Except as provided in subsection (d), whoever knowingly possesses or causes to be present a firearm or other dangerous weapon in a Federal facility (other than a Federal court facility), or attempts to do so, shall be fined under this title or imprisoned not more than 1 year, or both.

(b) Whoever, with intent that a firearm or other dangerous weapon be used in the commission of a crime, knowingly possesses or causes to be present such firearm or dangerous weapon in a Federal facility, or attempts to do so, shall be fined under this title or imprisoned not more than 5 years, or both.

(c) A person who kills any person in the course of a violation of subsection (a) or (b), or in the course of an attack on a Federal facility involving the use of a firearm or other dangerous weapon, or attempts or conspires to do such an act, shall be punished as provided in sections 1111, 1112, 1113, and 1117.

(d) Subsection (a) shall not apply to—

(1) the lawful performance of official duties by an officer, agent, or employee of the United States, a State, or a political subdivision thereof, who is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of any violation of law;

(2) the possession of a firearm or other dangerous weapon by a Federal official or a member of the Armed Forces if such possession is authorized by law; or

(3) the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes.

(e)

(1) Except as provided in paragraph (2), whoever knowingly possesses or causes to be present a firearm or other dangerous weapon in a Federal court facility, or attempts to do so, shall be fined under this title, imprisoned not more than 2 years, or both.

(2) Paragraph (1) shall not apply to conduct which is described in paragraph (1) or (2) of subsection (d).

(f) Nothing in this section limits the power of a court of the United States to punish for contempt or to promulgate rules or orders regulating, restricting, or prohibiting the possession of weapons within any building housing such court or any of its proceedings, or upon any grounds appurtenant to such building.

(g) As used in this section:

(1) The term “Federal facility” means a building or part thereof owned or leased by the Federal Government, where Federal employees are regularly present for the purpose of performing their official duties.

(2) The term “dangerous weapon” means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 21/2 inches in length.

(3) The term “Federal court facility” means the courtroom, judges’ chambers, witness rooms, jury deliberation rooms, attorney conference rooms, prisoner holding cells, offices of the court clerks, the United States attorney, and the United States marshal, probation and parole offices, and adjoining corridors of any court of the United States.

(h) Notice of the provisions of subsections (a) and (b) shall be posted conspicuously at each public entrance to each Federal facility, and notice of subsection (e) shall be posted conspicuously at each public entrance to each Federal court facility, and no person shall be convicted of an offense under subsection (a) or (e) with respect to a Federal facility if such notice is not so posted at such facility, unless such person had actual notice of subsection (a) or (e), as the case may be.

[TriumphRat675]

Note that 18USC s930 addresses Federal facilities, not Federal property in general.

If there's a general prohibition against weapons possession on Federal property, I'd love to be informed what it is.

Poor choice of words on my part, and I should have clarified what I meant. You are right; while the regulation applies to "real property," the statute applies to "facilities" as defined above.