Morris et al v. U.S. Army Corps of Engineers et al

Filing 42

MEMORANDUM DECISION & ORDER The motion to dismiss (docket no. 30 ) is DENIED. The motion for preliminary injunction (docket no. 4 ) is GRANTED. The Corps is enjoined from enforcing 36 C.F.R. § 327.13 as to law-abiding individuals possessing functional firearms on Corps-administered public lands for the purpose of self-defense. This preliminary injunction shall remain in force until further notice of the Court. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ELIZABETH E. MORRIS; and
ALAN C. BAKER,
Case No. 3:13-CV-00336-BLW
Plaintiffs,
MEMORANDUM DECISION AND
ORDER

v.
U.S. ARMY CORPS OF ENGINEERS,
et al.,

Defendants.

INTRODUCTION
The Court has before it a motion for preliminary injunction filed by plaintiffs and
a motion to dismiss filed by the defendants. The Court heard oral argument on January 7,
2014, and took the motions under advisement. After further review, the Court has
decided, for reasons set forth below, to deny the motion to dismiss and grant the motion
for preliminary injunction.
LITIGATION BACKGROUND
Plaintiffs challenge regulations promulgated by the Army Corp of Engineers. The
regulations govern the possession of firearms on property administered by the Corps.
Plaintiffs argue that the regulations violate their Second Amendment right to keep and
bear arms.
The regulations govern over 700 dams – holding back more than 100 trillion
gallons of water – built by the Corps, and the surrounding recreation areas that serve over
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300 million visitors annually. Adopted in 1973, the regulations were intended to provide
for more effective management of the lake and reservoir projects. The regulation at issue
here reads as follows:
(a) The possession of loaded firearms, ammunition, loaded projectile firing
devices, bows and arrows, crossbows, or other weapons is prohibited
unless:
(1) In the possession of a Federal, state or local law enforcement officer;
(2) Being used for hunting or fishing as permitted under § 327.8, with
devices being unloaded when transported to, from or between hunting and
fishing sites;
(3) Being used at authorized shooting ranges; or
(4) Written permission has been received from the District Commander.
(b) Possession of explosives or explosive devices of any kind, including
fireworks or other pyrotechnics, is prohibited unless written permission has
been received from the District Commander.
36 C.F.R. § 327.13. The plaintiffs’ complaint alleges that this regulation violates the
Second Amendment by (1) banning the possession of firearms in a tent, and (2) banning
the carrying of firearms on Corps’ recreation sites. The plaintiffs live in western Idaho,
recreate on Corps-administered public lands where this regulation applies, and would
possess a functional firearm at those recreation sites but for the Corps’ active
enforcement of this regulation.1
The Court will take up first the Corps’ motion to dismiss, and specifically the
Corps’ argument that the plaintiffs have no Second Amendment rights as a matter of law.
ANALYSIS
Corps’ Motion to Dismiss
1

These allegations establish that the plaintiffs have standing and that the case is not moot. The
Court therefore refuses to dismiss the case at this time on standing or mootness grounds.

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The Corps argues that its recreation sites are public venues where large numbers
of people congregate, making it imperative that firearms be tightly regulated. The Corps
also points out that the sites contain dams and power generation facilities that require
heightened protection, especially given homeland security threats. The Corps
distinguishes its sites from those of other agencies like the Forest Service that are
required by law to manage for multiple use, including the use by the public for recreation.
In contrast, there is no law requiring the Corps to operate recreation sites, and that gives
the Corps more leeway to restrict the public under the Second Amendment, the agency
argues. For these reasons, the Corps seeks to dismiss the case on the ground that its
regulation does not violate the Second Amendment as a matter of law.
To evaluate this argument, the Court will employ the two-step analysis set out in
U.S. v. Chovan, 735 F.3d 1127 (9th Cir. 2013). The Court must determine first “whether
the challenged law burdens conduct protected by the Second Amendment.” Id. at 1136.
The second step is to “apply an appropriate level of scrutiny.” Id.
The “appropriate level” depends on (1) “how close the law comes to the core of
the Second Amendment right,” and (2) “the severity of the law’s burden on the right.”
Id. at 1138 (quoting Ezell v. City of Chicago, 651 F.3d 684, 705 (7th Cir.2011)). A
regulation that threatens a core Second Amendment right is subject to strict scrutiny,
while a less severe regulation that does not encroach on a core Second Amendment right
is subject to intermediate scrutiny. Silvester v Harris, 2013 WL 6415670 (E.D.Cal. Dec.
9, 2013).

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The Court must ask first whether the Corps’ regulation burdens conduct protected
by the Second Amendment. It does. The Second Amendment protects the right to carry
a firearm for self-defense purposes. Heller, 554 U.S. at 628 (stating that “the inherent
right of self-defense has been central to the Second Amendment right”). The regulation
bans carrying a loaded firearm for the purpose of self-defense. It also bans carrying an
unloaded firearm along with its ammunition. At most, it would allow a person to carry an
unloaded firearm so long as he was not also carrying its ammunition. An unloaded
firearm is useless for self-defense purposes without its ammunition. While those who use
firearms for hunting are allowed greater latitude, the regulation grants no such exemption
to those carrying firearms solely for purposes of self-defense. Consequently, the
regulation does impose a burden on plaintiffs’ Second Amendment rights.
The second step is to apply the appropriate level of scrutiny. That inquiry turns on
how close the regulation cuts to the core of the Second Amendment and how severe the
burden is on that right.
No court has identified those core rights comprehensively. But one core right was
described by the Supreme Court: The right of a law-abiding individual to possess a
handgun in his home for self-defense. District of Columbia v. Heller, 554 U.S. 570
(2008). In addressing the need for self-defense in the home, the Supreme Court held that
the home is “where the need for defense of self, family, and property is most acute.” Id.
at 628.
The same analysis applies to a tent. While often temporary, a tent is more
importantly a place – just like a home – where a person withdraws from public view, and
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seeks privacy and security for himself and perhaps also for his family and/or his property.
Indeed, a typical home at the time the Second Amendment was passed was cramped and
drafty with a dirt floor – more akin to a large tent than a modern home. Americans in
1791 – the year the Second Amendment was ratified – were probably more apt to see a
tent as a home than we are today. Heller, 554 U.S. at 605 (holding that “public
understanding” at time of ratification is “critical tool of constitutional interpretation”).
Moreover, under Fourth Amendment analysis, “tents are protected . . . like a more
permanent structure,” and are deemed to be “more like a house than a car.” U.S. v.
Gooch, 6 F.3d 673 (9th Cir. 1993). The privacy concerns of the Fourth Amendment carry
over well into the Second Amendment’s security concerns.
The regulation at issue would ban firearms and ammunition in a tent on the Corps’
sites. This ban poses a substantial burden on a core Second Amendment right and is
therefore subject to strict scrutiny.
The plaintiffs also challenge the ban on their right to carry firearms outside their
tents for self-defense purposes. As the Court discussed above, the regulation prohibits
carrying firearms for self-defense purposes despite Heller’s recognition that “the inherent
right of self-defense has been central to the Second Amendment right.” Heller, 554 U.S.
at 628. In interpreting the phrase “bear arms” in the Second Amendment, the Heller
majority held that “[w]hen used with ‘arms,’ . . . the term [“bear”] has a meaning that
refers to carrying for a particular purpose – confrontation.” Heller, 554 U.S. at 584.
“Heller does not simply reaffirm the traditional right to act in self-defense when
threatened. Rather, it recognizes a right to have and carry guns in case the need for such
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an action should arise.” Blocher, The Right Not To Keep or Bear Arms, 64 Stanford L.
Rev. 1, 16 (2012).
The right of self-defense is not, however, unlimited. Heller stated that “nothing in
our opinion should be taken to cast doubt on . . . laws forbidding the carrying of firearms
in sensitive places such as schools and government buildings . . . .” Heller, 554 U.S. at
626-27. “[A]s we move outside the home, firearm rights have always been more limited,
because public safety interests often outweigh individual interests in self-defense.” U.S.
v. Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011).
Still, a solid line of cases decided after Heller examines a regulation’s impact on
self-defense even when the conduct governed is a public venue outside the home. For
example, Masciandaro upheld a regulation that banned loaded firearms in a National
Park because the regulation contained an exception that struck a balance between public
safety and self-defense. Id. at 474 (holding that the regulation “leaves largely intact the
right to possess and carry weapons in case of confrontation”).
The opposite result was reached in Moore v. Madigan, 702 F.3d 933, 936 (7th Cir.
2012) (Posner, J.). The Seventh Circuit examined an Illinois regulation with a reach
similar to the regulation at issue here – it banned carrying even unloaded firearms if
ammunition was accessible. Id. at 934. Judge Posner, writing the majority opinion,
described the Illinois law as “the most restrictive gun law of any of the 50 states,” and
held that it violated the Second Amendment because it “flat[ly] ban[ned] . . . carrying
ready-to-use guns outside the home” with no self-defense exception. Id. at 940–41.

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The ban imposed by the Corps places this case closer to Moore than Masciandaro.
The Corps’ regulation contains a flat ban on carrying a firearm for self-defense purposes.
By completely ignoring the right of self-defense, the regulation cannot be saved by the
line of cases, like Masciandaro, that upheld gun restrictions accommodating the right of
self-defense. See also, U.S. v Parker, 919 F.Supp.2d 1072 (E.D.Cal. Jan 22 2013)
(upholding concealed weapon regulation in Yosemite Park that allowed for self-defense);
Nichols v Brown, 2013 WL 3368922 (C.D.Cal. July 3 2013) (upholding California gun
control laws that allowed for self-defense).
While the ban on carrying firearms for self-defense may impose a burden on this
core right of the Second Amendment severe enough to call for strict scrutiny, it is
unnecessary for the Court to decide that issue because the regulation fails to pass muster
even if intermediate scrutiny is applied. The intermediate scrutiny standard requires: (1)
that the government’s stated objective must be significant, substantial, or important, and
(2) that there is a reasonable fit between the challenged regulation and the government's
asserted objective. Chovan, 735 F.3d at 1138. For there to be a “reasonable fit,” the
regulation must not be substantially broader than necessary to achieve the government's
interest. Id.
Here, the regulation is designed to protect both critical infrastructure and the
public. If the regulation ended there, it would satisfy the “reasonable fit” test. But it
extends to ban firearms entirely from being carried for self-defense. It is simply too
broad. Drafted long before Heller, it violates the Supreme Court’s description of Second
Amendment rights in that case. This regulation needs to be brought up to date.
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The Corps argues that the impact of its regulation is felt only on federal land that it
administers, and that it is entitled to have the regulation evaluated under a rational basis
test. The Corps cites Nordyke v King, 681 F.3d 1041 (9th Cir. 2012) where the Circuit
upheld a county law regulating firearms at commercial gun sales on county property. In
making that ruling, the Circuit cited U.S. v. Kokinda, 497 U.S. 720, 725 (1990) for the
proposition that there is a distinction between governmental exercise of the “power to
regulate or license, as law-maker” and governmental actions taken in its role “as
proprietor, to manage its internal operations.”
But Nordyke never discussed the right of self-defense, and cannot be used to
justify the use of a rational basis test here. The cases cited above where self-defense was
discussed – Masciandaro, Moore, Parker, and Nichols – all applied more than a rational
basis test to evaluate the laws under scrutiny. The Court finds that line of authority
persuasive.
The Corps argues that it should be treated differently than other agencies because
unlike them, the Corps is not statutorily required to open its sites to the public. But the
Corps cites no case exempting the Government from constitutional requirements
whenever it acts voluntarily. The Court can find no reason to adopt such a rule.
For all these reasons, the Court will deny the Corps’ motion to dismiss.
Plaintiffs’ Motion for Preliminary Injunction
Plaintiffs seek to enjoin the Corps from enforcing its ban on law-abiding citizens
possessing functional firearms on Corps-administered public lands for the purpose of
self-defense. The Corps responds that plaintiffs are seeking a mandatory injunction that
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is more difficult to obtain than a standard injunction. “A mandatory injunction orders a
responsible party to take action,” and therefore “goes well beyond simply maintaining the
status quo.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873,
879 (9th Cir.2009). Accordingly, mandatory injunctions are “particularly disfavored.”
Id.
Plaintiffs are not, however, seeking a mandatory injunction – they are not asking
the Corps to take affirmative action but are asking instead that a regulatory ban not be
enforced. While this would require the Corps to change its practices, that type of change
does not convert the injunction into a mandatory injunction. In the leading case of Winter
v. Natural Resources Defense Council, 555 U.S. 7 (2008), the injunction required the
Navy to stop using sonar in its training exercises – in other words, it caused the Navy to
change its practices – but the Supreme Court evaluated the injunction under the standard
test. This case presents the same type of prohibitory injunction, and the Court will
therefore not apply the stricter test applicable to mandatory injunctions.
To be entitled to injunctive relief under that standard test, plaintiffs must show
each of the following: (1) a likelihood of success on the merits; (2) that irreparable harm
is likely, not just possible, if the injunction is not granted; (3) that the balance of equities
tips in its favor; and (4) that an injunction is in the public interest. Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011). If requirements (2) and (4) are
satisfied, and the balance of hardships “tips sharply in the plaintiffs’ favor,” the plaintiff
need only raise “serious questions going to the merits” to be entitled to injunctive relief.

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Id. at 1134-35 (holding that this aspect of the Ninth Circuit’s sliding scale test survived
Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008)).
From the discussion above concerning the motion to dismiss, it is apparent that
plaintiffs have shown a very strong likelihood of success on the merits. Moreover,
irreparable harm is likely because the plaintiffs have made out a colorable claim that their
Second Amendment rights have been threatened. See Sanders County Republican Cent.
Committee v. Bullock, 698 F.3d 741, 744 (9th Cir. 2012) (holding that colorable claim of
constitutional violation satisfies irreparable harm element). This threat tips the balance of
equities in favor of plaintiffs because the harms complained of by the Corps could be
“addressed by a more closely tailored regulatory measure[].” Ezell, 651 F.3d at 710. For
the same reasons, an injunction would be in the public interest.
Accordingly, the Court will grant the injunction requested by plaintiffs enjoining
the Corps from enforcing 36 C.F.R. § 327.13 as to law-abiding individuals possessing
functional firearms on Corps-administered public lands for the purpose of self-defense.2
Conclusion
This is a preliminary injunction, and hence the Court’s decision here is
preliminary in nature. The Corps remains entitled to an evidentiary hearing or trial to
establish a factual record before the Court reaches any final resolution. To move toward

2

The Court waives the bond requirement under Rule 65(c). Barahona-Gomez v. Reno, 167 F.3d
1228, 1237 (9th Cir. 1999).

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that point, counsel are directed to contact the Court’s Clerk to set up a status conference
to determine how the case should proceed from here.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion to dismiss
(docket no. 30) is DENIED.
IT IS FURTHER ORDERED, that the motion for preliminary injunction (docket
no. 4) is GRANTED. The Corps is enjoined from enforcing 36 C.F.R. § 327.13 as to
law-abiding individuals possessing functional firearms on Corps-administered public
lands for the purpose of self-defense. This preliminary injunction shall remain in force
until further notice of the Court.
IT IS FURTHER ORDERED, that counsel shall contact the Court’s Clerk
([e-mail]) to set up a telephone status conference to determine
how this case should proceed.

DATED: January 10, 2014

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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