Gonzaga University students could face expulsion for gun

[KyJim]

I went back to the original story to clarify a couple of points:

1. This was not "off-campus" housing as commonly understood. The story identified it as "a school owned apartment."

2. Campus police came back and opened the door with a master key. This is certainly not burglary because they entered without intent to commit a crime. It is likely not a criminal trespass as the lease surely allows entry. It is probably not be a violation of the Fourth Amendment's prohibition against unreasonable searches since the lease would give the university permission to enter.

 

[SSA]

The kids knowingly broke the rules. If somebody had simply seen them taking a cased firearm into the apartment, they could have been expelled. They snuck it in.
The school decided to cut them a fair amount of slack and put them on probation.
Now these two students are loving their new celebrity, simpering in front of every camera they see in an exceedingly unattractive manner, and talking about appealing the lenient decision.

 

[62coltnavy]

KyJim I think you are way off base. This was off-campus university owned housing, not on campus housing, and that makes a difference. Further, the guns were seized not by campus police, but by campus security--i.e., not cops. Second, while I certainly can make no representation as to what the laws are in all fifty states, the general rule is that the landlord after renting a unit does NOT have unfettered access. Although he is the nominal owner, the landlord has given up the right of entry and of possession during the term of the lease, with the exception of emergencies, illegal activities, and maintenance with reasonable notice given. The tenant has a reasonable expectation of privacy and a right to exclude intrusion by the landlord. [This rule is quite different in a dorm, but this was not a dorm.] There was no emergency and certainly no illegal activity--both students are over 21, and the handgun owner has a CCW. Nor was notice given--the security "officers" showed up in the middle of the night demanding entry, then entered, searched, and seized the weapons WITHOUT ANY LAWFUL AUTHORITY. A landlord cannot seize your personal property--even if the presence of that property is a breach of the lese. The remedy is by way of summary eviction (unlawful detainer). In short, the evidence establishes that the university security committed an unlawful seizure (conversion) of private property--and arguably a criminal theft of private property.

At the current time, we do not know what the lease says. But the Volock (sp?) conspiracy quotes the university policy on firearms--and it is specific to the campus, and not facially applicable to off-campus housing.

Then there is the whole public perception issue. This housing is apparently located in a bad neighborhood, and campus security does not provide security for these units. What the boys "did" was perfectly legal--so they are punished for engaging in constitutionally protected activity. Not only punished, but had their personal property illegally seized and converted. Hmmm. What do you think a jury would think about that?

Oh by the way SSA--you refer to "kids." Maybe you are old enough to call anyone under thirty "kids," but in fact one of these guys was 21 and the other 23. Legally, they are full adults, no ifs ands or buts. Do you think that it is acceptable for the university to treat adults as children for their off-campus activities and exercise of constitutional rights?

 

[JimmyR]

The SCOTUS decision allowing a mere contract to override a right needs to go away.

This is not "overriding" their rights. They chose to waive their rights by signing a lease and enrolling at Gonzaga U. We all have the right to waive our rights. They consented to the terms of the contract- regardless of whether or not they read it or knew the terms.

KyJim I think you are way off base. This was off-campus university owned housing, not on campus housing, and that makes a difference. Further, the guns were seized not by campus police, but by campus security--i.e., not cops.

And this is why he is correct.

If the property is owned by the university &

If the Campus Security are agents of the university &

If the lease agreement/terms of residency stipulate that firearms may not be kept on campus owned property at risk of seizure by campus security

Then everything is legal, based on terms agreed upon by the students.

When I worked as an RA at a small liberal arts college, one of the campus rules stipulated that the campus banned the possession/consumption of alcohol. While doing room checks at the end of the semester, when students moved out for Christmas break, we found a resident with multiple bottles of alchol. Our campus security seized it, as it was stipulated within college policies. They aren't LEOs, but are acting as agents of the property owners, the college.

 

[Cnon]

Here's an update on this case from another source:


http://abcnews.go.com/US/wireStory/gonzaga-students-face-expulsion-gun-20846915


The sentence is probation.



Cnon

 

[Armed_Chicagoan]

I went back to the original story to clarify a couple of points:

1. This was not "off-campus" housing as commonly understood. The story identified it as "a school owned apartment."

2. Campus police came back and opened the door with a master key. This is certainly not burglary because they entered without intent to commit a crime. It is likely not a criminal trespass as the lease surely allows entry. It is probably not be a violation of the Fourth Amendment's prohibition against unreasonable searches since the lease would give the university permission to enter.

The University in this case is acting as a landlord. I'm not familiar with the laws in Washington, but as a landlord here in Chicago I cannot enter my tenant's apartment without giving advance notice, and then only to either show the apartment to new prospective tenants or to make repairs. I don't have to give notice if there is an emergency, such as a broken water pipe or some such. And that's per state law, nothing I put in the lease can override that, such a clause in the lease would be illegal and unenforceable.

Most state laws are similar, I really doubt that seizing a legally owned firearm is a proper reason for entry by agents of the landlord.

 

[NWPilgrim]

The University in this case is acting as a landlord. I'm not familiar with the laws in Washington, but as a landlord here in Chicago I cannot enter my tenant's apartment without giving advance notice, and then only to either show the apartment to new prospective tenants or to make repairs. I don't have to give notice if there is an emergency, such as a broken water pipe or some such. And that's per state law, nothing I put in the lease can override that, such a clause in the lease would be illegal and unenforceable.

Most state laws are similar, I really doubt that seizing a legally owned firearm is a proper reason for entry by agents of the landlord.

That was my understanding when I rented out our house in Washington. State law allowed me to enter the house while rented only for maintenance (with notice) or emergency, not to search and seize items I didn't like. If for instance the renter had a pet and the contract said no pets, then I could terminate the lease and if necessary evict the renters. But I could under no circumstance enter the (our) house and seize the pet. Even under eviction I could not enter the house and throw their property onto the lawn or curb. I would have to get a police officer to enforce the eviction if it came to that.

Rental contracts do not include such terms as they would be invalid per state law. I am not an attorney, but just reading up and briefly talking with a real estate attorney that was my understanding of my limits as a Washington state landlord.

 

[vranasaurus]

Posted by KYJim

Campus police came back and opened the door with a master key.

It doesn't matter that they entered with a key. Just because you have a key doesn't give you authority to enter.

Posted by KYJim

This is certainly not burglary because they entered without intent to commit a crime.

The crime they intended to committ was stealing the gun.

Posted by KYJim

It is probably not be a violation of the Fourth Amendment's prohibition against unreasonable searches since the lease would give the university permission to enter.

The university as a private actor can't violate 4th amendment rights.

 

[KyJim]

The university as a private actor can't violate 4th amendment rights.

I read "campus security" to mean "campus police." In my state, private colleges can employ "special police" much like railroad police, etc. If that is the case, then they are exercising police powers granted to them by the state and subject to the Fourth Amendment.

The crime they intended to committ was stealing the gun.

Not if the lease and rules adopted under it allow entry and confiscation of contraband.

As far as whether state law allows them to enter without permission or advance notice, we don't really know. University housing is likely governed by different laws that typical landlord-tenant laws.

 

[62coltnavy]

NWPilgrim has told us that, according to his understanding, what the university did violated state law. I think he is probably right. It would certainly violate the law in California and Oregon, and I believe that it would violate the law in most if not all states. This is stuff they teach in first year law school property classes--the landlord may own, but has given up most of his rights along with possession of the property, and further owes the tenant a duty to protect his "quiet enjoyment." A landlord cannot simply come waltzing into the tenant's apartment at any hour of the day or night. Nor is the landlord a police entity--he does not have the right to seize ANY of the tenant's property. He cannot shut of the gas, electricity or water. he cannot seize the tenant's property as security for unpaid rent. His sole remedy is eviction. If there is contraband (and legally owned firearms are in no way shape or from "contraband") he can call the police.

Campus police vary tremendously, and no assumptions should be made. My campus had private security, but my sons had off-duty police officers.

One other thing. It also seems that Gonzaga did not even own the apartment--it leased it from the owners so that it would be available to students, and then (apparently) sublet the premises.

 

[RX-79G]

I really don't think that this discussion of rented apartments law necessarily applies. Can any apartment make a rule about gun ownership in the first place?

The college seems to view this dwelling as a type of dorm. Dorms have all sorts of restrictions that wouldn't be legal to impose on someone leasing an apartment. If it is legal for a college to say I can't have a girl in my room after 10pm, it is probably legal for them to remove forbidden items, like booze or guns.


So are we arguing that dorm rules are unConstitutional, or whether the college has a right to define an apartment as a dorm, or what?

This is completely aside from the question of whether it is right to restrict access to arms in any living situation. But the talk about campus cops "stealing" is a little much if this is considered an extension of the campus.

 

[Cnon]

Fox and Friends on TV just reported that, the students got their guns back; but they must keep them in non-university housing and are still on probation.



Cnon

 

[Al Norris]

I really don't think that this discussion of rented apartments law necessarily applies.

Oh, but it does. Because that's exactly what this housing is. Apartments, not on University campus property. Campus Security does not patrol these off-site dwellings. There are no secure entrances. Anyone can, and in this case did, enter the premises at will.

Gonzaga officials said the students violated school policy by having a firearm on Gonzaga property, even though the building was leased... Father of student in Gonzaga gun controversy wants record cleared | KREM.com Spokane

To further add to all of this, it now appears that the University does not actually own the property. It merely leases the property and sublets to students. That muddies things, quite a bit. Because if true, then the University can not claim that this is their private property and hence some sort of off-campus campus.

The college seems to view this dwelling as a type of dorm.

Again, whether or not the University views this as a dorm, it is not. Can the University treat this property as if it is part of the campus? If this is not University property, then while they (Gonzaga) make the claim that because it is leased property, they can make the rules, the reverse is also true: That by sub-leasing to the students, the students become the controlling party in the property and can make their own rules.

The long and short of it is that the University is acting as a landlord and is bound by State landlord/tenant law. What the University might do on campus is not the question.

 

[zxcvbob]

The kids knowingly broke the rules. If somebody had simply seen them taking a cased firearm into the apartment, they could have been expelled. They snuck it in. The school decided to cut them a fair amount of slack and put them on probation.

The school knowingly broke the law -- at least one felony. It appears the DA cut them a *lot* of slack. (because laws are for little people, but I'm getting off-track)

This is a Jesuit university, perhaps they should reread Matthew 18:23-34. (the parable of the unforgiving debtor) Or perhaps they did and only partially took it to heart but it explains the probation.

 

[44 AMP]

According to a friend who is a little closer to the situation, the guns have been returned, and the kids have given them to their lawyer to hold on to for now.

While Gonzaga security acted outside of the normal landlord/tenant laws, this is not a normal landlord/tenant situation. Part of the agreement for living in university housing (which this is, even though it is not on campus) includes agreeing to the authority of the university to seize prohibited property. So, arguments about what landlords can, and cannot do in other situations do not apply to this one.

From what I hear, Gonzaga is receiving a snitstorm of messages about this matter, primarily from people who attend, attended, or donate funds to them, and it is nearly all complaints about how the university has, and is handling this matter. THAT is why they are "reviewing" their policy.

The kids lawyer is still fighting to get the probation removed as well.

 

[Al Norris]

While Gonzaga security acted outside of the normal landlord/tenant laws, this is not a normal landlord/tenant situation. Part of the agreement for living in university housing (which this is, even though it is not on campus) includes agreeing to the authority of the university to seize prohibited property. So, arguments about what landlords can, and cannot do in other situations do not apply to this one.

Any part or parts of a contractual agreement, which is what a lease or rental agreement is, that is in conflict of, or otherwise violates State law with its terms, is void.

 

[RX-79G]

So really, the argument is just about whether this is a dorm or apartment, and who gets to make that distinction.

Unless the argument that a dorm is also a private abode and barring guns from a dorm is also illegal.

 

[sigcurious]

Any part or parts of a contractual agreement, which is what a lease or rental agreement is, that is in conflict of, or otherwise violates State law with its terms, is void.

I think the appropriate question here is, is there law governing what policies a school may set on its property(with the subquestion how is school property defined by the laws) and if so, which law takes precedent, the laws governing school policies or traditional real estate law? It would seem that if it were clearly real estate law the issue raised by rx would apply, any dorm would fall under traditional real estate law and schools would have a great deal of trouble legally enforcing their rules.

 

[Chaz88]

A lot of gray aria can come up when it comes to colleges. In my state there are laws on the books that cover firearms at public colleges. But when it comes to the private college I attend it is a little harder. For example, it is private property and is not posted so I could CC by state law. But college rules, that I am expected to know and follow, prohibit it. If I did it and got caught they could only ask me to leave the property, by state law. But then they could expel me under college policy.