Apartment Complex Owners Ban "Firearms and Weapons"

Not according to the report to which I linked.
The board of directors of the county agency that owns the complex apparently didn't know that the management company had instituted that policy and once advised shut it down.
 
steve4102 said:
Wouldn't "Quiet Enjoyment and Possession" come into play here as owning a firearm will neither make the property unfit for re-letting or cause demise or deterioration to the structure?
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The short answer is "no."

Have a look at a standard quiet possession clause as shown at your link:
Provided Tenant has performed all of the terms and conditions of this Lease, Tenant will, subject to the terms of this Lease, at all times during the Term, have peaceful and quiet enjoyment of the Premises against any person claiming by, through or under Landlord.
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The tenant's quiet possession is subject to the terms of the lease and his entitlement to quiet possession requires that he perform all terms of the lease.

If one term is that he can't have a gun on the premises, he must comply in order to be entitled to quiet possession. And unless prohibited by statute (which it is in a few States), a "no guns" clause in a residential lease is valid and enforceable.

In this particular case, there is a question in my mind whether the "no guns" rule was properly implemented. It doesn't appear to have been implemented by properly amending the lease or rental agreement, but rather simply adopted as a policy. Ordinarily that might not be sufficient, but we really don't have enough information to know for sure. But since the "no guns" policy had been withdrawn, the question is moot.
 
Interesting to note, info from Colorado posted here yesterday (via link to Ch9 News) reporting the ban is cancelled by the property owners (not the managing company). As of 9am PST today, this information had not made it to MSN's web site.

They are still running the story about the ban, and every story they link to about guns dates from Dec 2012 or Jan 2013, all about the results of actions following the Newtown shootings. Well, there was one about Danny Glover saying the 2nd Amendment was created to protect slave owners, (also more than 6mo old), but perhaps that was an...oversight?

Bottom line (at the moment), since the housing complex turns out to have been bought with tax money, then apparently, our constitutional rights do apply. And the Board that owns the property knows it, something the company managing the property apparently did not. Bet they do now!

The devil is in the details, but when you rent property from a private individual or corporation, within the framework of local, state and Federal law, you are signing a contract. What ever is in that contract, that you voluntarily agree to (by signing) are the rules. IF gun ownership is prohibited, in the contract, and you agree to it, you cannot claim your rights are being violated. If it was fuzzy bunny slippers that were prohibited, and you signed the lease agreeing to that, you cannot sue when you get evicted because they found 2 pair of fuzzy bunny slippers in your apt.

I rented a apt about a decade ago (had not rented one since the 1970s), and was surprised to note that written into the rental contract was a clause where I agreed not to cook meth, or deal illegal drugs on the premises.

This came as a surprise to me, not having ever seen this kind of thing in a lease before, but after an explanation, it made sense, as it gave the apt manager a valid reason to evict those tenants who did such things. (and apparently there were enough who had or did in the area so it was put into the rental contract)

If its in the contract when you sign, its the deal you agree to. If they try to change it (outside of a framework in the agreed upon contract) then THEY are the ones violating the agreement.
 
Frank,

I realize a case under the 14th Amendment would be an uphill struggle. However, some of the differences you cite about Shelley are meaningless.

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.
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You've missed the whole point about Shelley. It wasn't who was trying to enforce the restrictive covenant or even whether the Shelleys agreed to it (there is at least implied consent since it was a restriction on public record running with the land). The key point was that a state process was employed. It would not matter if a seller, another landowner, or a lessor brought a suit. Again, the discrimination by private parties is not a violation of the 14th itself. It is the action by the state that is unlawful. This is different than some other civil rights actions.

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.
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As noted above, there is implied consent because the restrictive covenant is on record and the buyers had at least constructive knowledge of it. More importantly, privity is absolutely irrelevant here because it is the state action that is at issue, not the validity of the contract.

Just imagine that a lease provided that the lessee, a white person, could have a guest stay for up to 7 days provided the guest was not Hispanic. Today, a number of statutory provisions provide sharper instruments to attack this provision. If those did not exist, however, then Shelley would still prevent the landlord from going to court to evict the tenant who agreed to the provision. It just would not give the tenant the right to affirmatively seek some sort of relief or damages unless and until the lessor employed the state's coercive authority.
 
KyJim said:
You've missed the whole point about Shelley. It wasn't who was trying to enforce the restrictive covenant or even whether the Shelleys agreed to it (there is at least implied consent since it was a restriction on public record running with the land). The key point was that a state process was employed. It would not matter if a seller, another landowner, or a lessor brought a suit. Again, the discrimination by private parties is not a violation of the 14th itself. It is the action by the state that is unlawful....
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I understand the point of Shelley and that the Court used the action of the state court as the basis upon which to get the favorable result for the Shelleys. And that's why I brought up the "hard cases make bad law" thing.

So I'd still be interested to know if a court in other cases used the fact of an enforcement action by a state (or federal) court to "bootstrap" what is essentially a private discrimination into state action. And given the statutory anti-discrimination laws of today, I doubt that we will in the future.

And I think also that some of the unique features of Shelley I mentioned would be bases upon which to distinguish Shelley if the issue was pursued in a different context sometime in the future.
 
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And I think also that some of the unique features of Shelley I mentioned would be bases upon which to distinguish Shelley if the issue was pursued in a different context sometime in the future.
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Especially in a Court desperate to find any basis to rule the other way. Very few judges will want to rule Pro Guns AND Pro Government Interference at the same time.
 
If I lived there I would pay no attention to their new policy. They are not going to search my apartment. It would not break any law and it would take them a lot of money and a lot of bad publicity to get me thrown out. This would not be a big deal to me because I would ignore it and keep my mouth shut.
 
They are not constrained by the fourth amendment. The landlord can claim to be fixing something, which gives him/her the right to enter. S/he can brush up against you when you leave and discover your concealed carry. If they already know you own, it wouldn't be hard to "discover" you still own.
 
I made reference to the NRA because they fought the same BS in Chicago years ago and won.
With 32 years in multi family property management, some class A and some subsidized I can say without fear that if a landlord proceeds to violate ANY constitutional right of a resident they are on thin ice and it's cracking.
A management company cannot make any "policy" change without the prior consent of the owner. It sounds like the mgmt. company was attempting to enforce some policy that they had and it was unknown to the owner but it seems to have been corrected??
 
Frank --

A quick search revealed a couple of cases. In Lynch v. Household Fin. Corp., 405 U.S. 538 (1972) the Supreme Court upheld the jurisdiction of federal courts to hear a complaint alleging a pre-judicial garnishment violated the 14th Amendment's Equal Protection and Due Process clauses. As allowed by state law, the creditor had the sheriff to seize a bank account of a debtor before a suit was ever filed.The plaintiff brought a class action against the Connecticut sheriffs and some creditors.

The Lynch opinion quoted this sentence from Shelley, " ‘It cannot be doubted that among the civil rights intended to be protected from discriminatory state action by the Fourteenth Amendment are the rights to acquire, enjoy, own and dispose of property. Equality in the enjoyment of property rights was regarded by the framers of that Amendment as an essential pre-condition to the realization of other basic civil rights and liberties which the Amendment was intended to guarantee.’" Lynch at 544.

The Eighth Circuit, citing Shelley and Lynch, has held that a properly pled complaint alleging that a mayor used his office to harass his neighbor by denying permits for land use because the mayor wanted the land, stated a claim for relief under 42 U.S.C. sct. 1983.

Note that race was not mentioned in either case.
 
I don't know what the laws look like where this guy lives, but in my state there is no way they could prohibit him from having firearms, but our rental agreement laws really favor tenants.
 
In order to bring a constitutional claim you generally have to have state action. The central holding of Shelley is that judicial action constitutes state action and therefore you can bring a constitutional claim. But as Frank pointed out this is essentially bootstrapping what amounts to a private claim into a constitutional claim. Further as Frank points out the many statutory provisions surrounding discrimination make the need to bring constitutional claims in most situations unnecessary.

I believe that there may be a legislative solution to this issue but it would require some work.
 
KyJim,

In both the cases you cite you have a state actor, Mayor and Sherriff, that acted in their official capacity which gives you state action to bring a constitutional claim.

The Sheriff can't seize property without a warrant, judicial order, or an exception to the warrant requirement.

The Mayor can't use his office to deny a permit to someone for his own gain. That is a blatant violation of due process.
 
Jim,

Thank for the cite on Lynch, and I've read the case. The primary focus of the case was to challenge application of a state statute authorizing pre-ajudication, non-judicial garnishment and the acts of the Sheriff under color of that statute.

The mayor acting under color of authority seems to be a pretty straightforward 14th Amendment issue.

In neither was state action found, as it was in Shelley solely because a court acted in a lawsuit on an entirely private contract matter.
 
Regarding Lynch, there was a state actor but private parties brought the pre-judicial garnishment and were sued because they employed a state action. In the scenario I have posited, the landlord institutes eviction proceedings against the lessee, thus invoking state actors, the judge, etc.

In a famous criminal case, the U.S. Supreme Court held that prosecutors could not exercise a peremptory strike for discriminatory reasons. Batson v. Kentucky, 476 U.S. 79 (1986). The Court based part of its reasoning on protecting the equal rights of prospective jurors, not simply protecting the criminal defendant. Okay, there's a state actor there but Batson has been extended to prevent a criminal defendant from exercising peremptory strikes in a discriminatory manner. Also, it does not matter what race the defendant is because the Supreme Court is preventing the application of a state process which might deny prospective jurors of their rights.

Most directly relevant, Batson has been extended to civil actions so that private parties may not exercise peremptory challenges which may be discriminatory. They cannot invoke a state process and then apply it in a discriminatory manner. Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991). There is no state actor here except the court system itself.

Copy of Batson at http://supreme.justia.com/cases/federal/us/476/79/case.html

Copy of Edmonson at: http://supreme.justia.com/cases/federal/us/500/614/case.html
 
KyJim said:
Regarding Lynch, there was a state actor but private parties brought the pre-judicial garnishment and were sued because they employed a state action....
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See Lynch v. Household Finance Corporation, 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), 539 - 540 (emphasis added, footnotes omitted):
..The appellant then brought this class action in a federal district court against Connecticut sheriffs who levy on bank accounts and against creditors who invoke the garnishment statute. Mrs. Lynch alleged that she had no prior notice of the garnishment and no opportunity to be heard. She claimed that the state statutes were invalid under the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and sought declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3). A district court of three judges was convened to hear the claim under 28 U.S.C. §§ 2281 and 2284...
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With regard to the jury cases, we have state action in that it is the role of the court to supervise and control the conduct of the litigation and the standards that apply to the manner in which it exercises its responsibilities. Query: would this be applicable in the case of a private arbitration pursuant to a contract in which a party applies an otherwise impermissible, discriminatory criterion in rejecting someone as an arbitrator?

All of the cases you brought up are a very long way from finding state action just be cause a private landlord sues on a lawful and freely entered into lease.
 
Agreed that this is a reach but there is a good faith argument that can be made. The problem is that it is mostly defensive and, therefore, unlikely to be litigated to any extent. Not many folks in the lessee's position could afford to fight it and, without a possible award of attorney fees or big damages, not many attorneys who would litigate it.
 
HUD is running ads saying it is illegal to deny people from renting a property because they have kids, and it is also illegal to say "couples only". How can it be illegal to deny a family the privilege of renting a property owner's house or apartment, but it is legal to deny that family the right to the tools needed to defend themselves from harm?

Unless it was overturned, I'm pretty sure the Tennessee Attorney General has opined that it is legal for property owners to ban weapons in their leases and to use that as cause for eviction. :(
 
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