Apartment Complex Owners Ban "Firearms and Weapons"

JimDandy said:
I also checked out their website Spats, and was just coming to pick your brain-
First, for a stretch, but some interesting brain-aerobics, I was going to bring up Heart of Atlanta Motel, Inc. v. United States 379 U.S. 241

Looking at the Oakwood Rental Guidelines They appear to also operate as a short-term rental facility in some sort of quasi-hotel/motel relationship.

I don't have the handy dandy search tools you professionals have, but doing a bit of poking around myself, I see Seattle also has "political ideology" as a protected class. I do not find reference to these in a cursory search of Colorado or Federal law, but I imagine the same laws and regulations that prohibit discrimination based on political party or other activism would be some level of adaptable to this. If anyone is looking for some more brain-aerobics of their own.
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A quick look at the syllabus for Heart of Atlanta Motel immediately brings this to my attention:
Appellant, the owner of a large motel in Atlanta, Georgia, which restricts its clientele to white persons, three-fourths of whom are transient interstate travelers, sued for declaratory relief and to enjoin enforcement of the Civil Rights Act of 1964, contending that the prohibition of racial discrimination in places of public accommodation . . . .
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For legal analysis purposes, we can stop right there. Members of minority racial groups are protected classes. Gun owners are not. We don't have to like it, and I'm sure many of us do not, but Congress has not seen fit to add gun owners to the list of protected classes. The Civil Rights Act of 1964 would have to be amended to add us.

As far as "political ideology," a couple of things come to mind. First of all, Seattle or Washington (state) law are only applicable to those properties owned by Castle Rock in Seattle or Washington, respectively. So they're irrelevant to a discussion of what CR does in Colorado. Second, a restriction on owning or possessing a firearm does not necessarily equate to a restriction on political ideology. For example, I could (as part of my political ideology) believe that every man, woman and child over the age of 5 should own and possess explosives. However, if my apartment complex (a privately-owned company, for the sake of argument) prohibits possessing them, they haven't really restricted my belief in that ideology. Only the possession.
 
While I feel for the guy, and applaud all efforts to help him out, all that can really be done is try to get the owners to change their minds or allow specific exceptions (grandfathered).

The bottom line is that its not a personal rights issue. Unless there is some level or govt involvement in the situation. Anytime you live on someone else's property, by choice, they have a huge amount of say in what you can have, and do there. Legally.

And that authority need not take into account what level of hardship it would be on you, either to stay, or to go. Landlords routinely evict for breach of contract, and allowing a change of the contract by the landlord (within a specified framework) is virtual boilerplate these days.

Don't get me wrong, I'm not on the side of the landlord, they shouldn't do that. But they have the "right" to do it, IF the rental contract allows for it.
 
As far as "political ideology," a couple of things come to mind. First of all, Seattle or Washington (state) law are only applicable to those properties owned by Castle Rock in Seattle or Washington, respectively. So they're irrelevant to a discussion of what CR does in Colorado. Second, a restriction on owning or possessing a firearm does not necessarily equate to a restriction on political ideology. For example, I could (as part of my political ideology) believe that every man, woman and child over the age of 5 should own and possess explosives. However, if my apartment complex (a privately-owned company, for the sake of argument) prohibits possessing them, they haven't really restricted my belief in that ideology. Only the possession.
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I realize Seattle law doesn't extend to nearby Kirkland, let alone other states, just using it as an example that may or may not have parallels in other State and Federal Laws I'm not educated enough to be aware of, in the hopes someone who is aware of those laws that may or may not exist would be able to fill in blanks.


Speech is more than just words. When people have that Open Carry Demonstration outside of City Hall would that be most accurately described as first amendment or second amendment rights?

Further your reductio ad absurdum drifts too far to maintain the same premise. Explosives are a controlled substance not protected by an (admittedly very tenuous) connection from a layman to other civil rights protections in the Fair Housing Act. It IS reasonable for a landlord to prohibit illegal personalty. I imagine it's much less so to do so to personalty protected by an amendment. How would prohibiting tenants with an ACLU card go over?
 
JimDandy said:
. . . .Speech is more than just words. When people have that Open Carry Demonstration outside of City Hall would that be most accurately described as first amendment or second amendment rights?
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Yes, speech is more than words. But we're talking about a restriction on possession. Not ownership, and not belief.

As to the OC demonstration, that's for the judge to decide.

JimDandy said:
Further your reductio ad absurdum drifts too far to maintain the same premise. Explosives are a controlled substance not protected by an (admittedly very tenuous) connection from a layman to other civil rights protections in the Fair Housing Act. It IS reasonable for a landlord to prohibit illegal personalty. I imagine it's much less so to do so to personalty protected by an amendment. How would prohibiting tenants with an ACLU card go over?
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I wasn't actually trying to reduce it to the absurd. I just couldn't come up with a better comparison at the moment. However, consider a clause that prohibits the storage of flammables, such as gasoline, in a rental unit. It is legal. It is not controlled (in the same way as traditional explosives). If I believe that gasoline is The Great Mahoombah, and that I must stockpile it every chance I get, does that mean that my landlord must allow me to store as much of it as I want in my apartment? No.
 
What about my example? Do you think a court would uphold a prohibition on tenants who join the ACLU? Prohibit Republican Party Literature on the premises? Any and all religious paraphernalia? (By prohibiting it all, they are not discriminating against a religion.) In many states your Primary ballot is party based. Could they prohibit a ballot of a specific party on the premises, i.e. Tenants agree not to enter, cause to enter, or permit the entry of the premises any person with a Democratic ballot?

Those are all rights, protected by the Constitution, but not part and parcel of discrimination against a protected class. (Assuming I'm accurate in describing a prohibition of all religious iconography and paraphernalia as non-discriminatory- If I am incorrect, feel free to treat that particular example as severable.)
 
Unfortunately, I do not have time to go through each of your examples to lay out the nuances. Witout knowing more about the corporation inolved in your ACLU question, I really can't answer it. A lot of what you're asking will depend on the particular make-up of the apartment complex in question. Within some boundaries, the corporate charter and character of the organization may allow some of those. For example, women are a protected class. Nonetheless, if I formed a company whose sole purpose was to help homeless fathers get back on their feet, and bought a small apartment complex, could I rent only to men (in particular, homeless fathers), despite the fact that women are a protected class? Yes, I probably could.
 
Is there anything preventing an HOA community from prohibiting possession of firearms within the community?
 
JimDandy said:
...Those are all rights, protected by the Constitution, but not part and parcel of discrimination against a protected class....
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Rights protected by the Constitution are essentially irrelevant when dealing with a non-governmental actor. It takes being a member of a statutorily protected class to reach private conduct.

In general, discrimination is not illegal. You do it all the time. Every time you decide to shop in this store rather than that, you have discriminated. Every time you decide to buy this rather than that, you have discriminated.

Businesses discriminate all the time too, and legally. Apple stores discriminate against people who want to buy a PC by only selling Apple computers. Many restaurant discriminate against Orthodox Jews or Muslims by not strictly following the dietary laws of those religions. Many restaurants also discriminate against persons not wearing shirts and/or shoes by not admitting them. Tiffany discriminates against poor people in the prices they charge. Businesses also discriminate whenever they hire one person instead of another who has applied for the job.

Discrimination is merely choosing one thing over another or rejecting a possible choice. Discrimination is the very essence of freedom and private property. It is the right to choose. It is the right to exclude. It is the right to decide how you want to use your property.

Discrimination is perfectly legal, unless some law makes it illegal. There are laws that make discrimination illegal on various, specifically identified and defined bases, illegal -- at least if you're a business open to the public or an employer or in some other specified category.
 
So Donald Trump could buy up every low income apartment complex in a given electoral district, and prohibit Democratic primary ballots on the premises from the mailboxes to the apartments? (Assuming he has the funds, they're for sale, etc.)

I get, and support the fact that a place of business has the right to prohibit firearms on their customers, as those customers do not especially have a property interest in the store. And it's certainly understandable if those store owners rights of prohibition extended to other things like this ballot.

But when the landlord cedes various property rights and interests to the tenant- i.e. 4th Amendment decisions- to the tenant, and Congress has extended protected class protections to this same landlord tenant relationship, that implies, and there must be a strong argument somewhere for- support of the idea that the Landlord also cedes control over the property for various normal activities... candles on a birthday cake, personal choice in books, movies, and so on...
 
It looks like things have really changed in Castle Rock! And Colorado in general what with the new magazine limits. I never thought I'd see the day when Illinois has more liberal gun laws than Colorado. Liberal as in lax, not the political spectrum.
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Castle Rock is still the county seat of one of the most conservative counties in the state. My last firearm purchase was in Castle Rock - it took 10 minutes. In April 2012, I turned in my CHP application in Castle Rock - I had the permit 14 days later.

It's unlikely that Illinois has "more liberal gun laws than Colorado". Open carry*, NFA items, no "FOID card", actual shall-issue, state preemption*, etc. Yes, we have the political effects of Denver and Boulder, but we sure don't have Chicago.



(* Offer void in city and county of Denver)
 
JimDandy said:
...But when the landlord cedes various property rights and interests to the tenant- i.e. 4th Amendment decisions- to the tenant, and Congress has extended protected class protections to this same landlord tenant relationship, that implies, and there must be a strong argument somewhere for- support of the idea that the Landlord also cedes control over the property for various normal activities...
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Why?

The reality is that the nature of a leasehold interest is an interest in property. The lessee has a property interest under whatever the lease terms may be.

Also, the terms of residential leases are in most States heavily regulated by statute. But this still doesn't bring in the Constitution or federal anti-discrimination law, expect to the extent within the terms of that federal law.

These general issues have been extensively discussed here and here. But this particular case presents some unique issue:

  1. The OP writes:
    ...He just received an updated policy statement from the property owners. Among the provisions is one banning tenants from possessing "Firearms or Weapons" in their apartments....
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    • What is this "policy statement"?

    • If it's an amendment to a lease or rental agreement, has the landlord complied with the terms of the lease or rental agreement regarding procedures of amendment?

    • If it's a new rule, does the lease or rental agreement allow the landlord to make changes in the terms of the rental in that way?

  2. There seems to be some possibility that the landlord might not be considered a private actor (as outlined by Spats McGee in post 15). This would need to be further explored and might provide a basis upon which to challenge the landlord's action.
 
Just out of curiosity. What if the housing was public housing? Could the govt housing authority prohibit firearms?
 
Doesn't the concept that a man's home is his castle apply to renters as well as owners? I see comments all over the map in this thread, but how can a renter be prevented from owning whatever is legal, and can fit in the apartment?
 
cjwils said:
Doesn't the concept that a man's home is his castle apply to renters as well as owners? I see comments all over the map in this thread, but how can a renter be prevented from owning whatever is legal, and can fit in the apartment?
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This and similar questions were fully discussed in the threads I linked to. Let's stay focused on the unique issues raised by this case.
 
Jim dandy raises some interesting questions. Is there no limit to what an apartment complex management company can do because they are a private enterprise?

Don't certain rights accompany a person's dwelling that can't be overwritten by a lease?

For example, could a lease that says 'all fourth amendment rights to search are relinquished' be enforceable? "We the management company reserve the right to grant any public officer permission to enter your private, rented dwelling without notice."
 
In 1948 the U.S. Supreme Court held there was a violation of the 14th Amendment where private citizens used a state's "coercive" powers, such as filing a lawsuit, to enforce restrictive racial covenants. Shelley v. Kraemer, 334 U.S. 1 (1948). Copy at http://supreme.justia.com/cases/federal/us/334/1/case.html. Racial covenants, made part of the deed and binding on successive purchasers, were used to prevent African-Americans from buying land. The Court said there was no violation of the 14th Amendment where only private parties were involved but there was a violation when they used the states' authority to enforce the covenant; i.e., there was state action.

As we know, the Supreme Court has held in McDonald and Heller that the right to (at least) own a handgun inside one's home is a fundamental constitutional right which the states must respect. Attempting to enforce a lease provision prohibiting a fundamental constitutional right through eviction or other legal proceedings would also arguably violate the 14th Amendment directly, without regard to the Civil Rights Act of 1964. The landlord could send nasty letters and such but he could not enforce the lease provision through state court.

It's true that gun owners are not a "suspect class" but that designation is not necessary to enjoy equal protection of the law. An African-American can discriminate against a Caucasian and a state can likewise discriminate against a white person and deny him or her equal protection of the laws. It is more difficult to do so but it can be done.

IMO, there may grounds to argue that state courts could not enforce the lease provision at issue but that argument would face an uphill struggle.
 
KyJim said:
In 1948 the U.S. Supreme Court held there was a violation of the 14th Amendment where private citizens used a state's "coercive" powers, such as filing a lawsuit, to enforce restrictive racial covenants. Shelley v. Kraemer, 334 U.S. 1 (1948). Copy at http://supreme.justia.com/cases/federal/us/334/1/case.html. Racial covenants, made part of the deed and binding on successive purchasers, were used to prevent African-Americans from buying land. The Court said there was no violation of the 14th Amendment where only private parties were involved but there was a violation when they used the states' authority to enforce the covenant; i.e., there was state action....
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Jim, I'm afraid I have to disagree with you on Shelley. It really seems to be a dead case. This was not a case of a court dealing with an ordinary contract having a racially restrictive covenant.

Some things to note about Shelley that would make it inapplicable to a case involving the enforcement of a usual bilateral contract:

  1. The Shelleys were an African-American family who, in 1945, had bought a home in a particular subdivision. The subdivision dated back to 1911, at which time the owners of the individual parcels all agreed that no parcel within the subdivision would be occupied by non-Whites. This agreement was recorded. This is an example of a "restrictive covenant running with the land."

  2. The seller of the property was not a party to the suit. He had sold the property to the Shelleys, and was, as far as we know, completely happy with the deal.

  3. A lawsuit was brought in state court by other, neighboring, property owners to keep the Shelleys from moving into the neighborhood. The state court issued the requested injunction, and the Shelleys sued in federal court to block enforcement of the injunction.

  4. Note that the Shelleys were not being sued in state court on the basis of anything they agreed to. The underlying agreement being relied upon by the state court plaintiffs was entered into among past owners of the property. We don't know if any the Shelley state court plaintiffs were even signatories to that underlying agreement, nor do we know if the person selling the property to the Shelleys was a signatory.

  5. But in any case, the underlying lawsuit against the Shelleys was not based on any contract the Shelleys had entered into or any promises made by the Shelleys to any of the state court plaintiffs. There was, as we say, no privity of contract.
I've not seen anything like the core theory of Shelley being applied in any case not involving a restrictive covenant running with the land.

Further, Shelley may well be an example of the adage that hard cases make bad law. The Shelleys being dispossessed of their home was apparently unacceptable to the Court, yet at the time there were limited tools available to deal with such a repugnant result. In any case, Shelley is probably moot at this time because the various state and federal civil rights and anti-discrimination laws now available would provide ample statutory grounds to avoid a Shelley situation.

In contrast, the Supreme Court has ruled specifically that the Constitution does not regulate private conduct. As explained by the United States Supreme Court (Edmonson v. Leesville Concrete Company, Inc, 500 U.S. 614 (U. S. Supreme Court, 1991), emphasis added):
....The Constitution structures the National Government, confines its actions, and, in regard to certain individual liberties and other specified matters, confines the actions of the States. With a few exceptions, such as the provisions of the Thirteenth Amendment, constitutional guarantees of individual liberty and equal protection do not apply to the actions of private entities. Tarkanian, supra, 488 U.S., at 191, 109 S.Ct., at 461; Flagg Bros, Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). This fundamental limitation on the scope of constitutional guarantees "preserves an area of individual freedom by limiting the reach of federal law" and "avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed." Lugar v. Edmondson Oil Co., 457 U.S. 922, 936-937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982). One great object of the Constitution is to permit citizens to structure their private relations as they choose subject only to the constraints of statutory or decisional law. ....
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maestro pistolero said:
Jim dandy raises some interesting questions. Is there no limit to what an apartment complex management company can do because they are a private enterprise?

Don't certain rights accompany a person's dwelling that can't be overwritten by a lease?

For example, could a lease that says 'all fourth amendment rights to search are relinquished' be enforceable? "We the management company reserve the right to grant any public officer permission to enter your private, rented dwelling without notice."
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Yes and no. There are various limitations on what private landlords can do even though in general they are not constrained by the Constitution.

  1. There are various statutory restrictions on the conduct of private landlords with regard to residential leases.

    • The rental of property for residential use is generally regulated under state law. Statutes often specify minimum requirements for leases and prohibit certain terms.

    • State and federal anti-discrimination statutes will also apply.

  2. Landlords will also be constrained by market pressure.
 
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