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

Filing 67

MEMORANDUM DECISION. 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
v.
U.S. ARMY CORPS OF
ENGINEERS, et al.,
Defendants.

INTRODUCTION
The Court has before it cross-motions for summary judgment. The Court heard
oral argument on August 27, 2014, and took the motions under advisement. After further
review, the Court has decided, for reasons set forth below, to grant the plaintiffs’ motion
and deny the Corps’ motion.
LITIGATION BACKGROUND
Plaintiffs challenge regulations promulgated by the Army Corp of Engineers that
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
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:
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(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.
Both sides seek summary judgment. To resolve this dispute, the Court will first
identify the legal standards governing the Second Amendment and then evaluate the
Corps’ regulation under those standards.
LEGAL STANDARDS
The Second Amendment provides: “A well regulated Militia, being necessary to
the security of a free State, the right of the people to keep and bear Arms, shall not be
infringed.” U.S. Const. amend. II. To determine if the Corps’ regulation violates the
Second Amendment, the Court must examine first “whether the challenged law burdens
conduct protected by the Second Amendment.” U.S. v. Chovan, 735 F.3d 1127, 1136
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(9th Cir. 2013). 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. Fyock v. City of Sunnyvale, 2014 WL 984162 (N.D.Cal. Mar. 5,
2014).
However, this sliding scale analysis is not used when instead of merely burdening
the right to bear arms, the law “destroys the right.” Peruta v. County of San Diego, 742
F.3d 1144, 1168 (9th Cir. 2014). In that case, the law is unconstitutional “under any
light.” Id. “It is a rare law that ‘destroys the right’ requiring Heller-style per se
invalidation.” Id. at 1170. That type of “rare law” was at issue in Peruta. There, a
firearm registration scheme in San Diego County effectively banned the open and
concealed carry of handguns for law-abiding citizens. Id. at 1175. The Circuit held that
while a State may be able to ban the open or concealed carry of firearms, it may not ban
both. Id. at 1172 (holding that “the Second Amendment does require that the states
permit some form of carry for self-defense outside the home”). Because the San Diego
County law effectively “destroyed” a law-abiding citizen’s Second Amendment right to
carry a handgun for self-defense, the Circuit did not apply any level of scrutiny but
simply declared the law unconstitutional. Id. at 1175.
ANALYSIS
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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”). That right
extends outside the home. Peruta, 742 F.3d at 1166 (holding that “the right to bear arms
includes the right to carry an operable firearm outside the home for the lawful purpose of
self-defense”).
The Corps’ regulation bans carrying a loaded firearm for the purpose of selfdefense. 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.
Under Peruta, this complete ban goes beyond merely burdening Second
Amendment rights but “destroys” those rights for law-abiding citizens carrying operable
firearms for the lawful purpose of self-defense. Accordingly, the Corps’ regulation is
unconstitutional “under any light” – that is, it is invalid no matter what degree of scrutiny
is used in its evaluation. Id. at 1168-70.
The Corps certainly retains the right to regulate handguns on its property; the
Second Amendment right is “not unlimited.” Heller, 554 U.S. at 595. It is “not a right to
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keep and carry any weapon whatsoever in any manner whatsoever and for whatever
purpose.” Id. at 626. The Ninth Circuit confirms this in Peruta:
We conclude by emphasizing, as nearly every authority on the Second
Amendment has recognized, regulation of the right to bear arms is not only
legitimate but quite appropriate. We repeat Heller’s admonition that
“nothing in our opinion should be taken to cast doubt on longstanding
prohibitions on the possession”—or carriage—“of firearms by felons and
the mentally ill, or laws forbidding the carrying of firearms in sensitive
places such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of arms.” Heller, 554
U.S. at 626–27. Nor should anything in this opinion be taken to cast doubt
on the validity of measures designed to make the carrying of firearms for
self-defense as safe as possible, both to the carrier and the community. We
are well aware that, in the judgment of many governments, the safest sort of
firearm-carrying regime is one which restricts the privilege to law
enforcement with only narrow exceptions. Nonetheless, “the enshrinement
of constitutional rights necessarily takes certain policy choices off the table
. . . . Undoubtedly some think that the Second Amendment is outmoded in a
society where our standing army is the pride of our Nation, where welltrained police forces provide personal security, and where gun violence is a
serious problem. That is perhaps debatable, but what is not debatable is that
it is not the role of this Court [or ours] to pronounce the Second
Amendment extinct.” Id. at 636. Nor may we relegate the bearing of arms
to a “second-class right, subject to an entirely different body of rules than
the other Bill of Rights guarantees that we have held to be incorporated into
the Due Process Clause.” McDonald, 130 S.Ct. at 3044.
Peruta, 742 F.3d at 1178. This language confirms the right of the Corps to regulate
handguns on its property. But here the Corps is attempting to ban handguns, not regulate
them. The Corps justifies the ban by arguing that its parks are a “sensitive place,” a
phrase used by Peruta, quoting Heller, in the excerpt above. But those cases limited the
“sensitive place” analysis to facilities like “schools and government buildings.” In
contrast, the ban imposed by the Corps applies to outdoor parks.

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The Corps argues that it is entitled to be more restrictive because it is a
governmental entity acting as a proprietor managing its own property. In support, the
Corps cites Nordyke v King, 681 F.3d 1041 (9th Cir. 2012) (en banc), a case upholding a
firearms ban on the ground that the governmental entity was acting as a proprietor to
manage its property. In Nordyke, the plaintiffs challenged an Alameda County law
making it a misdemeanor to possess a firearm on County property. The ban in that case
was just as broad as that faced two years later in Peruta – neither law allows a lawabiding citizen to carry a gun for self-defense purposes – but Nordyke comes to the
opposite result and upholds the ban.
How can the two cases be reconciled? Quite easily, as it turns out. The plaintiffs
in Nordyke only challenged the Alameda County law as an effective ban on gun shows on
County property because no seller could display firearms without running the risk of
committing a misdemeanor. Importantly, the plaintiffs did not allege that they wanted to
carry guns on county property for the purpose of defending themselves.1 Having to
confront only that aspect of the law that burdened gun shows rather than the core Second
Amendment right of self-defense, the Circuit held that the law passed muster because
Alameda County was entitled to impose restrictions on gun shows on County property in

1

The allegations of the parties in Nordyke were made clear in the three-judge panel opinion that
was withdrawn when the case was taken en banc. Nordyke v. King, 644 F.3d 776, 786 (noting that
plaintiffs “complain that they cannot display and sell guns on county property; they do not allege that they
wish to carry guns on county property for the purpose of defending themselves while on that property”),
withdrawn by, 664 F.3d 774 (9th Cir. 2011). The Court is not citing the three-judge panel opinion for its
precedential value but merely reciting its factual account of the pleadings.

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its role as proprietor of its property. Moreover, despite the strict language of the law, the
County had interpreted the law to loosen its restriction and allow the display of firearms.
In contrast, the plaintiffs in the present case do allege that their core right of selfdefense is infringed, and the Corps has not interpreted its regulation to impose something
less than its language conveys. Thus, Nordyke offers little guidance here.
The Court recognizes that a District Court in the Eleventh Circuit has evaluated
the same Corps’ regulation and concluded, in resolving a motion for preliminary
injunction, that it is unlikely the plaintiffs’ challenge will succeed. GeorgiaCarry.Org,
Inc. v. U.S. Army Corps of Engineers, 2014 WL 4059375 (N.D.Ga. Aug. 18, 2014). That
decision relied on Nordyke in applying an intermediate level of scrutiny and finding that
the regulation passed muster. This Court, however, is bound by Peruta, as discussed
above, and finds Nordyke distinguishable. Thus, the Court declines to follow the analysis
of GeorgiaCarry.Org.
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 manages 422 projects in 42 states, including 702 dams and over 14,000
miles of levees. See Statement of Facts (Dkt. No. 52-2) at ¶¶ 1, 9. These dams and
related structures have been deemed as “critical infrastructure” by the U.S. Department of
Homeland Security’s Office of Inspector General on that ground that a catastrophic

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failure could affect populations exceeding 100,000 and have economic consequences
surpassing $10 billion. Id. at ¶ 10.
The Corps undoubtedly has a substantial interest in “providing the public with safe
and healthful recreational opportunities while protecting and enhancing [its] resources.”
36 C.F.R. § 327.1. About 90% of the lakes that support Corps’ projects are located near
metropolitan areas. Id. at ¶ 2. It follows that most of these facilities have a “high density
of use.” Id. at ¶ 4. This density leads to conflicts caused by alcohol consumption,
overcrowded facilities, visitors’ preference for different types of music played at different
sound levels, and the relative loudness of visitors’ conversations. Id. at ¶ 18. Based on
surveys conducted some twenty years ago, Corps Park Rangers often found themselves in
dangerous situations, and were assaulted by visitors once every six days. Id. at ¶¶ 21-26.
The Corps has concluded that “the presence of a loaded firearm could far more quickly
escalate such tension between visitors from a minor disagreement to a significant threat
to public safety involving the potential use of deadly force by a visitor against another
visitor or unarmed Corps Park Ranger.” See Austin Declaration (Dkt. No. 18-1) at ¶ 5c.
The danger to Corps Park Rangers is especially acute because Congress has not
authorized them to carry firearms. Id. at ¶ 28.
The Corps cites these considerations to support the ban imposed by its regulation.
But Peruta and Heller rejected that line of argument: “We are well aware that, in the
judgment of many governments, the safest sort of firearm-carrying regime is one which
restricts the privilege to law enforcement with only narrow exceptions. Nonetheless, the

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enshrinement of constitutional rights necessarily takes certain policy choices off the table
. . . .” Peruta, 742 F.3d at 1178.
Conclusion
The regulation banning the use of handguns on Corps’ property by law-abiding
citizens for self-defense purposes violates the Second Amendment. While the Corps
retains the right to regulate the possession and carrying of handguns on Corps property,
this regulation imposes an outright ban, and is therefore unconstitutional under any level
of scrutiny, as set forth in Heller and Peruta. The Court recognizes that this result
conflicts with GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Engineers, 2014 WL
4059375 (N.D.Ga. Aug. 18, 2014), but the Court’s decision is dictated by the law of the
Ninth Circuit, namely Peruta.
For all of the reasons cited above, the Court will grant plaintiffs’ motion for
summary judgment and deny the Corps’ motion. The plaintiffs are therefore entitled to a
declaratory judgment that 36 C.F.R. § 327.13 violates the Second Amendment, and an
injunction enjoining its enforcement in Idaho. The injunction is limited to Idaho because
its scope is dictated by the allegations of the two named plaintiffs – Elizabeth Morris and
Alan Baker. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1140 (9th Cir. 2009) (holding
that “[t]he district court abused its discretion in enjoining the rules themselves as opposed
to enjoining their enforcement as to the plaintiffs before him”). Morris and Baker allege
that they use Corps’ campgrounds in Idaho, see Declarations of Morris and Baker (Dkt.
Nos. 9 & 10), and so the Court’s injunction will be limited to enjoining enforcement on
Corps’ property in Idaho. See Meinhold v. U.S. Dept. of Defense, 34 F.3d 1469 (9th Cir.
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1994) (holding that court could not impose nationwide injunction against application of
unconstitutional federal regulation where plaintiffs had not been certified as a class).
The Court will enter a separate Judgment setting forth these rulings as required by
Rule 58(a).

DATED: October 13, 2014

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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