Post Office & Guns

[MaverickNH]

Done to death, but for a recent case I couldn't find mentioned here yet:

http://www.examiner.com/x-6013-Hous...-buyers-and-postal-workers-Right-to-Bear-Arms
With regard to case number 2:08-cr-00042 in the U. S. District Court for the Eastern District of Louisiana, the indictment charged that Clarence Paul Dorosan, who was a letter carrier, violated a federal regulation, 39 C.F.R. § 232.1(l), when he left a handgun in the glove compartment of his car in an enclosed parking lot that belonged to the United States Postal Service (USPS) in Gretna, Louisiana. Mr. Dorosan contended that the regulation violated the Second Amendment to the Constitution of the United States, but the District Court denied a motion to dismiss the criminal case.

On appeal, a three-judge panel of the Fifth Circuit concluded that 39 C.F.R. § 232.1(l) ["Weapons and explosives. No person while on postal property may carry firearms, other dangerous or deadly weapons, or explosives, either
openly or concealed, or store the same on postal property, except for official purposes."] was not unconstitutional because Mr. Dorosan had failed to show that the regulation placed any significant burden on the exercise of his Second Amendment rights. The panel reasoned that, if Mr. Dorosan wanted to keep a gun in his car, he should have found a parking place that was not on USPS property.

This may not be the final word, as the case involved an USPS employee wanting to carry on USPS grounds, rather that John Q Public with a CCW in a Post Office, but as it quotes the famous 39 C.F.R. § 232.1(l), it isn't a plus.

More at Volokh's site

 

[Pilgrim]

was not unconstitutional because Mr. Dorosan had failed to show that the regulation placed any significant burden on the exercise of his Second Amendment rights.

not significant, eh?

 

[lord1234]

I'm confused, so what about leaving the gun in an OPEN parking lot in a locked container in your car? while you run in to buy some (overpriced) stamps?

 

[MaverickNH]

not significant, eh?

Yeah - it's like saying that, if you want to get an LTC for CCW in Boston, move to NH and get a Non-Resident permit...

 

[jdubois]

not significant, eh?

What? I'm not seeing any problem...

 

[Baystatesuks]

I wonder if the glove compartment was locked? Then the gun would be secure and potentially would not be "openly or concealed, or stored" on postal property. After all, when you leave your car on postal property to go in you aren't storing it there are you? One would think all property in the car would take on the same status as the car.

I think this one is going to hinge on interpretation of that USPS rule. Because there is no statute involved, I would surmise that FOPA (or other federal statute) trumps the CFR per usual statute/regulation interference issues. The question is would FOPA apply in this instance or not?

I bet if this case were in Texas instead, the case would have gone the other way.

 

[MaverickNH]

I wonder if the glove compartment was locked? Then the gun would be secure and potentially would not be "openly or concealed, or stored" on postal property. After all, when you leave your car on postal property to go in you aren't storing it there are you? One would think all property in the car would take on the same status as the car.

I think this one is going to hinge on interpretation of that USPS rule. Because there is no statute involved, I would surmise that FOPA (or other federal statute) trumps the CFR per usual statute/regulation interference issues. The question is would FOPA apply in this instance or not?

I bet if this case were in Texas instead, the case would have gone the other way.

Short of gunpowder-sniffing dogs (which they employ at some schools, along with drug-sniffing dogs), it would be an unfortunate event that exposed a USPS patron's gun, locked in a glove-box or other locked container in their car.

If someone stole your car from a USPS lot, I believe you are bound, in MA, to report theft of a firearm. So you might be confessing to a federal crime.

If some fool rams your car and the gun drops from the damaged glove box, you might be SOL if the PD or others see it before you can manage the situation.

How would CCW of that gun into the PO building be any more risk one might ask...

Or park on the public street.

I'm not seeing how FOPA gets you past this one, as it doesn't get you past other federal bans (federal courts, etc.)

...and in even in Texas, I think they ask you to hang your gunbelt on the hook by the door when you go in.

 

[Baystatesuks]

Short of gunpowder-sniffing dogs (which they employ at some schools, along with drug-sniffing dogs), it would be an unfortunate event that exposed a USPS patron's gun, locked in a glove-box or other locked container in their car.

If someone stole your car from a USPS lot, I believe you are bound, in MA, to report theft of a firearm. So you might be confessing to a federal crime.

If some fool rams your car and the gun drops from the damaged glove box, you might be SOL if the PD or others see it before you can manage the situation.

How would CCW of that gun into the PO building be any more risk one might ask...

Or park on the public street.

I'm not seeing how FOPA gets you past this one, as it doesn't get you past other federal bans (federal courts, etc.)

...and in even in Texas, I think they ask you to hang your gunbelt on the hook by the door when you go in.

I am not sure FOPA helps this guy either, but if a federal regulation is inconsistent with a federal statute or US constitution, then it is no good.

So, he needs to find something else (as his second amendment argument failed) that will trump the CFR.

I thought in TX, they searched you at the door and if you didn't have a gun, they loaned you one for the duration you were at the USPS. Never know what can happen in a post office.

 

[jdubois]

I am not sure FOPA helps this guy either

926A doesn't apply at all in this case. The guy in this case wasn't engaged in interstate travel.

So, he needs to find something else (as his second amendment argument failed) that will trump the CFR.

CFRs derive their authority from the USC they are written to elaborate upon. So you cannot just find any old USC that you think can trump the CFR, you have to show that the USC the CFR is derived from is invalid or cannot grant the authority the CFR attempts to obtain from it.

 

[Baystatesuks]

926A doesn't apply at all in this case. The guy in this case wasn't engaged in interstate travel.

Like I said, I don't think FOPA helps him either, but he needs to find something to latch on to.

CFRs derive their authority from the USC they are written to elaborate upon. So you cannot just find any old USC that you think can trump the CFR, you have to show that the USC the CFR is derived from is invalid or cannot grant the authority the CFR attempts to obtain from it.

As stated above, young paduan, if a CFR is inconsistent with a statute, then that CFR is no good. Ask the US Patent Office. Many of theer rules have been shot down as being inconsistent with 35 USC OR other federal statutes. A statute always trumps a rule even if the rule was derived from a different statute. Courts defer highly to statutes as they were supposedly passsed by Congress after much thought and debate, whereas some yahoo intern comes up with a lot of rules (not really, but I like to think of it that way).

While it seems a backward exercise, if he can show the rule is not consistent with some federal statute, then he at least has some argument.

Perhaps more importantly though, if he has not proferred these arguments prior to appeal, he may not be able to add them now. Sucks to be him.

 

[jdubois]

As stated above, young paduan, if a CFR is inconsistent with a statute, then that CFR is no good.

This is true only if the USC the CFR is supposedly deriving it's authority from has overstepped it's authority. If the more specific USC from which the CFR derived conflicts with another more general USC, the more specific USC will win out. This is specifically an issue with the case we are discussing because the CFR we are talking about is derived from 39 USC, which seems to conflict with 18 USC 930. But 39 USC, the title dealing with the Post Office, would likely win out because it is more specific than the part of 18 USC dealing with federal facilities.

 

[Baystatesuks]

This is true only if the USC the CFR is supposedly deriving it's authority from has overstepped it's authority. If the more specific USC from which the CFR derived conflicts with another more general USC, the more specific USC will win out.

I don't want to get into a debate on statute interpretation, but this is not true. When statutes conflict with each other, the more specific one does not per se win. The courts look to congresisonal intent, timing that each were passed, potentially constitutional power for each and other factors as to which one supposedly is controlling over the other.

Similarly, a rule promulgated by a body under the Executive branch cannot be contradictory to any congressional statute. All executive bodies (FCC, SEC, etc.) constantly try and push rules that conflict with other statutes outside of the statute that supposedely gave them authority to adopt the rule. If they were to try and operate solely within the USC governing them, they wouldn't get too far. Thus, they push the envelope to try and expand their power by promulgating rules that either (1) they had no power to promulgate; or (2) conflict with other existing statutes.

Usually, Congress passes some broad statute that doesn't say much to permit the executive bodies to adopt more specific rules. But, nonetheless, if that executive rule is contradictory to any federal statute, it will not stand muster.

Yes, someone is likely to have to sue or be sued for it to matter. So, in the end, my point is academic and I will shut up now.

 

[Asaltweapon]

If the idiots at the post office had better people skills there would not be a reason to bring a gun onto the property.

BTW It's never John Q Public doing the shootings at these ass wipes anyway. They cull their own.

 

[strangenh]

This case is NOT about Joe Shmoe walking in to buy stamps at the USPS. [STRIKE]It was over termination of the person's employee status. [/STRIKE]

ETA: No, I am wrong - he was indicted. I still think the case turned on the employer-employee relationship.

 

[Rob Boudrie]

None of the carry on postal facility cases that have been cited have used the defense that is the subject of debate on this and other shooting forums - the definition of "incidental to lawful purposes".

 

[strangenh]

None of the carry on postal facility cases that have been cited have used the defense that is the subject of debate on this and other shooting forums - the definition of "incidental to lawful purposes".

Agree 100%. Reading it over, now, it's a rather loosely-reasoned opinion at that; never intended for publication, nor as precedent.

 

[gerrycaruso]

I read that if you are legally carrying a gun, you can carry it in the Post Office. There was a sign in the Post Office here that forbid the carrying of fireaarms but I haven't seen it lately. I'm not gonna be the test case.

 

[06LemansC6]

How the hell did they even find out he had a gun in his car in the first place?

Concealed means concealed and if done correctly there should be no reason for anyone to suspect you're carrying.

 

[NHAtHeart]

How the hell did they even find out he had a gun in his car in the first place?

Concealed means concealed and if done correctly there should be no reason for anyone to suspect you're carrying.

That was what I was thinking, they said it was in the glove box, did he walk in and state "yeah joe I'm in a rush I left my gun in the glove box" or what?

 

[pupchow]

Here in Springfield, a USPS maintenance employee discovered a loaded handgun in a desk drawer while looking for a pen/pencil in an office area. The employee who's gun it was held an HR position, specifically "employee relations." He was subsequently transferred. No muss, no fuss!