MtD Hearing Transcript, Bonidy v. United States Postal Service

8/3/2019 MtD Hearing Transcript, Bonidy v. United States Postal Service

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

DEBBIE BONIDY, TAB BONIDY )AND NATIONAL ASSOCIATION )FOR GUN RIGHTS, )

)Plaintiffs, )

)vs. ) 1:10-cv-02408-RPM

)

UNITED STATES POSTAL )SERVICE, STEVE RUEHLE AND )PATRICK DONOHUE, )

)Defendants. )

____________________________________________________________

MOTION HEARINGTRANSCRIPT OF PROCEEDINGS

____________________________________________________________

Proceedings held before the HONORABLE RICHARD P.

MATSCH, U.S. District Judge for the District of Colorado,

beginning at 1:59 p.m. on the 18th day of November, 2011 in

Courtroom A, United States Courthouse, Denver, Colorado.

APPEARANCES

For the Plaintiffs: James M. Manley, Esq.Mountain States Legal Foundation2596 South Lewis WayLakewood, Colorado 80227

For the Defendants: Lesley Rebecca Farby, Esq.US Department of Justice-DC #88320 Massachusetts Avenue, N.W.Washington, D.C. 20044

Proceedings recorded by electronic sound recording;transcript produced by transcription service.


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P R O C E E D I N G S1

(At 1:59 p.m. on November 18, 2011, in the United States2

District Court at Denver, Colorado, before the HONORABLE3

RICHARD P. MATSCH, U.S. District Judge, with counsel for the4

parties present, the following proceedings were had:)5

THE COURT: Please be seated. Were here in Civil6

10-CV-2408, Debbie Bondy and Tab--Bonidy, I think it is, and7

Tab Bonidy, National Association for Gun Rights against the8

United States Postal Service, John Potter and Steve Ruehle in9

their roles as Postmaster General and Postmaster at Avon, on10

the defendants motion to dismiss the second amended11

complaint.12

So, Mr. Manley, for the plaintiffs, and Ms. Farby13

for the defendants, good afternoon. Well, on the allegations14

of the plaintiffs here, they live in the mountains, outside15

of Avon, Colorado. They dont receive postal service at16

their home; therefore, to get their mail they drive to Avon17

and to the post office there. As I understand it, the post18

office there has adjacent to it a public parking lot, but19

its under the ownership and control of the Postal Service,20

and the regulation that is involved in the case prohibits a21

firearm, carrying or having possession of a firearm, anywhere22

on this property, which includes the parking lot. And the23

plaintiffs say that this impinges on their rights protected24

by the Second Amendment.25


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And in addressing the issue on motion to dismiss,1

there are two claims here; one is the parking lot, one is the2

building, and they may be different, but the defendants3

position, as I understand it, is that we should, as the Tenth4

Circuit has done in connection with a different statute, the5

criminal statute, 922, has stated that the Supreme Court--6

their understanding of the Supreme Court view is that there7

should be a two-step analysis. One is whether the regulation8

is affecting conducting as protected by the Second Amendment,9

and then the second is under whatever standard of review,10

there is justification for that effect on the affected11

conduct.12

So, Ms. Farby, Ill hear from you in support of13

your motion, and, you know, I recognize, as you do, that the14

specific conduct involved in Heller was having a firearm in15

their home for self-defense, but I dont understand you to be16

arguing here, and maybe Im mistaken, that youre limiting17

the Second Amendment protection to the home, are you?18

MS. FARBY: Well, Your Honor, the Court need not address19

how far--whether the Second Amendment right extends outside20

the home, and if so, how far it extends, because the Supreme21

Court has made clear that however far that right extends, it22

does not extend to sensitive places.23

THE COURT: Well, I know, but the question of whether24

this is a sensitive area or not is a question.25


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MS. FARBY: Yes, Your Honor, and the plaintiffs claims1

that the United States Postal Service regulation violates2

their Second Amendment right, fails for a number of reasons.3

Theres at least four reasons which I can briefly list, and4

then I can explain each one in slightly more detail.5

First, the plaintiffs claims are foreclosed by the6

Supreme Court decision in Heller. The Court stated there7

that--8

THE COURT: Well, I dont agree with that. Thats what9

I was just talking about.10

MS. FARBY: Well, Your Honor, what the Court there said11

is that its opinion should not be taken to cast doubt on laws12

forbidding firearms in sensitive places.13

THE COURT: Right.14

MS. FARBY: So--15

THE COURT: I understand that. What is sensitive about16

this parking lot? Thats going to be the issue in the case,17

isnt it?18

MS. FARBY: Absolutely, Your Honor. I will jump to that19

issue.20

THE COURT: Yeah, okay.21

MS. FARBY: The Court made clear that the specific22

sensitive places that it listed in the Heller decision, which23

was schools and government buildings--24

THE COURT: Sure.25


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MS. FARBY: --were not the only kinds of sensitive1

places, and the Court was specific that the places and the2

kinds of regulations were not an exhaustive list. Many3

Courts have upheld restrictions on firearms in sensitive4

places beyond the inside of schools and government buildings.5

But the Court need not decide the full scope of what might6

constitute a sensitive place in order to conclude that Postal7

property is a sensitive.8

THE COURT: Well--9

MS. FARBY: Thats the approach that the Fifth Circuit10

took in United States versus Dorrison (phonetic). The Fifth11

Circuit there found that the Postal parking lot at issue12

there was a sensitive place under Heller and it upheld the13

exact regulation--14

THE COURT: Well, thats an employee parking lot.15

MS. FARBY: In that case, Your Honor, it was an employee16

parking lot--17

THE COURT: Right.18

MS. FARBY: --but the decision said that the parking lot19

there was used as a place of regular government business.20

THE COURT: Sure. Thats where the employees come to21

park, and, you know, you can take judicial notice that22

theres been employee, co-employee violence in Postal Service23

places.24

MS. FARBY: Thats true, Your Honor.25


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THE COURT: Thats not this case.1

MS. FARBY: That is not this case, but the parking lot,2

the public parking lot thats used by Postal patrons in this3

case, is also a sensitive place.4

THE COURT: This isnt limited to Postal patrons, is it?5

MS. FARBY: The parking lot?6

THE COURT: Yeah.7

MS. FARBY: Well, employees may park there. Im not8

sure--9

THE COURT: It isnt limited to Postal employees or10

Postal patrons, is it?11

MS. FARBY: No, Your Honor.12

THE COURT: Okay, so its a public parking lot.13

MS. FARBY: It is a public parking lot but it is on14

property thats under the charge and control of the Postal15

Service.16

THE COURT: I understand that.17

MS. FARBY: It is--18

THE COURT: Thats not disputed.19

MS. FARBY: It--the parking lot itself facilitates the20

Postal function that Postal--to which Postal property is21

dedicated.22

THE COURT: But Im understanding you could--a person23

can park in this Postal-owned parking lot and do anything and24

not just go to the post office, right?25


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MS. FARBY: Im not sure about that, Your Honor.1

THE COURT: Well, thats what the allegation is, and2

were stuck with the allegation. When it says public, to me3

that means not restricted to Postal patrons.4

MS. FARBY: The parking lot is certainly dedicated for5

the use of Postal patrons.6

THE COURT: That isnt the issue, though, Counsel, its7

who can park there.8

MS. FARBY: The parking lot is designed to serve a9

Postal function.10

THE COURT: Who can park there? Anybody can--11

MS. FARBY: Anybody. Anybody can park there, Your12

Honor.13

THE COURT: Okay.14

MS. FARBY: At least well assume that for purposes of15

this motion.16

THE COURT: Right, we have to, because thats the17

complaint.18

MS. FARBY: Yes, Your Honor. The Postal parking lot,19

like the Postal building itself, and all other property under20

the charge and control of the Postal Service, is sensitive21

for a number of different reasons. It is government property22

that is used for a government purpose, just like the parking23

lot that was at issue in Dorrison, and it is pursuant to the24

Postal Services constitutional and statutory authority to25


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provide Postal services and administer Postal property.1

THE COURT: All right, what is providing Postal2

services? Its providing them to the public--3

MS. FARBY: Yes.4

THE COURT: --right? Okay.5

MS. FARBY: Because it is a government property used to6

facilitate a government function, the government should be7

able to able to assess the security needs of that property,8

just as it should for courthouses, like this one, military9

bases, Social Security offices, and the various other kinds10

of government property that exists. As Your Honor11

referenced, unfortunately, there is a history of violence on12

Postal property--13

THE COURT: Right.14

MS. FARBY: --and that makes Postal property15

particularly sensitive. Postal property is also a particular16

category of government property where large numbers of people17

congregate on a daily basis. I think its instructive to18

look at what the District Court said in The United States19

versus Matzi Andaro case (phonetic), out of the Eastern20

District of Virginia, which was subsequently affirmed by the21

Fourth Circuit, and that case dealt with motor vehicles on22

national parkland. But what the Court said, analyzing23

Heller, was that the schools and government buildings are24

sensitive places because, unlike homes, they are public25


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properties where large numbers of people, often strangers,1

and including children, congregate, and, therefore, the2

Second Amendment leaves the judgment of whether and how to3

regulate firearms and other weapons to policy makers, not to4

the judiciary.5

The same is true of the Postal property thats at6

issue here. But, unlike national parks, for example, Postal7

property is location where monetary transactions routinely8

take place. Those monetary transactions also make Postal9

property sensitive. And its the mail itself, the Postal10

function, that makes Postal property sensitive. The Postal11

Service is responsible for the--12

THE COURT: Well, arent all these things justifications13

that Im being asked to assume? I mean, this is a threshold14

motion. This is a motion that says theres no claim for15

relief stated. Youre giving me a lot of support for the16

regulation, but that isnt before me.17

MS. FARBY: Well, Your Honor--18

THE COURT: Youre asking me to accept that, you know,19

on its face, this absolute prohibition is justified. Well,20

its hard for me to do that under 12(b)(6).21

MS. FARBY: Your Honor, the Supreme Court has made clear22

that when the government is acting in its role as a23

proprietor of property, not in its role as the regulator or24

the licensor, which is often the case in some of these Second25


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Amendment decisions. But here the government is acting in1

its role as proprietor of its own property, and in those2

circumstances the Courts have made clear that the government3

regulation is valid unless it is unreasonable--4

THE COURT: Well--5

MS. FARBY: --arbitrary or capricious, and so,6

therefore--7

THE COURT: --if this were a case in which the8

government was--Postal Service was restricting what could be9

on a bumper sticker, for example, parked in this public10

parking lot, would that be justified, because its11

proprietary?12

MS. FARBY: Not necessarily, Your Honor, but the13

standard--14

THE COURT: No, of course not.15

MS. FARBY: --but the standard would be whether it was a16

reasonable regulation, and so here too, because the17

Postal--the Postal Service is acting in its proprietary18

capacity, its actions--19

THE COURT: But Im--thats what Im challenging, your20

position that, because its proprietary you cant look at21

whether it affects any constitutionally protected activity.22

You would agree, wouldnt you, that if somebody comes in23

there with a bumper sticker that says, I hate the Postal24

Service, the Postal Service cant keep them out.25


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MS. FARBY: Yes, Your Honor, because that would likely1

be an unreasonable regulation, but here--2

THE COURT: Well--3

MS. FARBY: --the Postal Service decision to prohibit4

firearms on its property to further the interest in public5

safety--6

THE COURT: Well, isnt that the very question, whether7

that is reasonable, whether theres no way in which, by a8

permitting process or in any other fashion, like trigger9

locks--you know, there are a lot of ways in which a firearm,10

on this--at least the public parking lot, can be considered11

inaccessible while its on the public parking area. Right?12

MS. FARBY: Right.13

THE COURT: You could have a requirement that there be a14

trigger lock, that it be in a glove compartment, locked. And15

what would be wrong with that?16

MS. FARBY: Well, the Supreme Court has made clear that17

when--18

THE COURT: Dont talk about the Supreme Court, Im19

talking about this case.20

MS. FARBY: Okay. The Postal Service is not required to21

enact the most reasonable, or the only reasonable,22

regulation, so just because the Postal Service could have23

imposed a standard that was less stringent than the one it24

has imposed, does not mean that the standard it did impose is25


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unreasonable when its acting in its proprietary capacity.1

Thats established case law. As long as the Postal Service2

regulation is reasonable then it passes muster, and here the3

Postal Service--4

THE COURT: Well, how do I know whether its reasonable?5

Thats the problem with this being considered on a motion to6

dismiss. The reasonableness of it depends upon whether there7

are any other alternatives.8

MS. FARBY: Well, again, Your Honor, the Court has made9

clear that the Postal Service is not limited to the least10

restrictive means available to it to further its purpose.11

THE COURT: What Court said that?12

MS. FARBY: The Supreme Court, Your Honor.13

THE COURT: In what?14

MS. FARBY: Ill provide the cite, Your Honor.15

(Pause.)16

The case Im referring to, and I believe that17

language is found in many different cases, but the specific18

language Im referring to is in Board of Trustees of State19

University of New York versus Fox, which is a 1989 Supreme20

Court--21

THE COURT: Yeah, which doesnt deal with the Postal22

Service.23

MS. FARBY: No, it doesnt deal with the Postal24

Service--25


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THE COURT: No.1

MS. FARBY: --but what it does deal with is the standard2

for addressing the reasonableness of a government3

regulation--4

THE COURT: Yeah, and what--5

MS. FARBY: --and that--6

THE COURT: In what context did that come up?7

MS. FARBY: Well, that was in the context of8

intermediate scrutiny, Your Honor, and--9

THE COURT: After what--not on a motion to dismiss,10

right?11

MS. FARBY: Im not sure of the--12

THE COURT: Yeah.13

MS. FARBY: --posture of that case, Your Honor, but14

numerous Courts have granted motions to dismiss,15

challenging--where cases have challenged firearms16

regulations.17

THE COURT: I know, but there are a lot of cases before18

Heller, and there are a lot of cases that were interpreting19

the Second Amendment as not protecting any individual20

liberty, right?21

MS. FARBY: Thats true.22

THE COURT: I mean, thats the way the law was before23

Heller, and, of course, thats why these cases before Heller24

are difficult to apply, because they were all in the context25


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of what we used to think the law was as to the scope of the1

Second Amendment, that it was a collective right, not an2

individual right. Now that the Supreme Court has changed3

course on that, were all struggling with trying to define4

what that right is. And, you know, weve got a lot of5

post-Heller cases, and you and opposing counsel have cited6

them, and there have been some since the briefing here, at7

the District Court level. But the problem comes back to what8

are the dimensions of this individually protected liberty9

interest, thats--were struggling with that.10

MS. FARBY: I understand, Your Honor. I think its11

instructive to look at what the Supreme Court did say in12

Heller, and what it said was that its decision should not be13

taken to cast doubt on laws forbidding firearms in sensitive14

places.15

THE COURT: I understand that, but--16

MS. FARBY: By requiring the government to submit17

evidence at trial in order to justify its restrictions on18

firearms in every single sensitive place, that inherently19

would cast doubt on many of the regulations that the Supreme20

Court--21

THE COURT: Well, and--22

MS. FARBY: --found shouldnt be cast into doubt.23

THE COURT: --and to just accept your position that you24

cant challenge this regulation casts doubt on whether there25


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is a Second Amendment.1

MS. FARBY: No, Your Honor, thats not true.2

THE COURT: Well, doesnt it?3

MS. FARBY: The Second--the Postal Service regulation4

here doesnt affect Second Amendment rights at all outside of5

Postal property. Its a narrow regulation. All it does is6

says you cant bring firearms onto Postal property, and the7

regulation, of course, says nothing about any other place in8

which the Bonidys or any other person might exercise their9

Second Amendment right. Its a very narrow regulation.10

THE COURT: Not when it comes to a public parking lot it11

doesnt seem narrow to me.12

MS. FARBY: Its narrow in the sense that it only13

prohibits firearms on Postal property, which is a very14

discrete place.15

THE COURT: Okay. I think thats your argument, right?16

You cant touch.17

MS. FARBY: Well, its a matter of common sense that the18

regulation here is reasonably related to the Postal Services19

compelling interest in preventing violence on its property.20

And the Supreme Court has upheld restrictions on21

constitutionally protected rights based on common sense, even22

in a strict--even under a strict scrutiny standard. So the23

Supreme Court has said that the level of evidence thats24

needed to justify a regulation varies up or down depending on25


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the novelty or plausibility of the justification.1

THE COURT: Exactly right, and that is why, it seems to2

me, in this case we have to consider the special3

circumstances alleged in this second amended complaint, being4

that these are folks who dont have postal service at home,5

they live in a remote area, they have--and I dont know that6

this changes the scope of the Second Amendment, but they have7

a concealed carry permit, which, under Colorado law, permits8

them to carry a firearm in public places, and they only can9

access this Postal building when its under the snow10

ordinance in Avon through this parking lot, unless they park11

somewhere remotely from this building. Now those are the12

facts of the case, as alleged.13

MS. FARBY: Those are the facts of the case as alleged,14

and as alleged, the plaintiffs have not established--or, have15

not even alleged that--have not alleged facts sufficient to16

show that the Postal Service regulation imposes a substantial17

burden on their constitutionally protected right.18

THE COURT: Yeah, and, you know, this is not a facial19

attack, this is an as-applied challenge--20

MS. FARBY: Yes.21

THE COURT: --and thats why these facts that I have22

just referred to, that are alleged in the Second Amendment23

complaint, seem to me to be significant for consideration24

here.25


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MS. FARBY: Your Honor, even the facts as alleged in the1

Second Amendment--in the second amended complaint, do not2

allege--do not establish that the Postal Service regulation3

substantially burdens the right--there may be an incident4

burden on the Bonidys purported constitutional right, but5

incident burdens are not sufficient, Your Honor. There is no6

substantial burden on their right, and thats what the--7

THE COURT: Is there a right to receive mail?8

MS. FARBY: Theres not necessarily a constitutional9

right to receive mail, but--10

THE COURT: What is the--the Postal Service is supposed11

to serve, right?12

MS. FARBY: Yes.13

THE COURT: Its supposed to serve the public.14

MS. FARBY: Yes.15

THE COURT: Supposed to deliver mail to the public.16

MS. FARBY: Yes.17

THE COURT: In cases where theres no home delivery,18

there has to be access to the Postal Service office to get19

the mail.20

MS. FARBY: Yes, and there is that access here, Your21

Honor.22

THE COURT: How?23

MS. FARBY: At--24

THE COURT: If the access is unavailable to the25


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plaintiffs, if they claim that they cant get there without1

having their guns in the car, here we are.2

MS. FARBY: As alleged in the complaint, Your Honor,3

they can park on the public street thats directly in front4

of the post office--5

THE COURT: Not on snow days.6

MS. FARBY: On days--well, note, Your Honor, the7

complaint does not allege anywhere that the Bonidys have ever8

been precluded from parking on the public street. They9

may--they alleged--10

THE COURT: Theres an ordinance that says you cant11

park on this street when its snowing. It had two inches of12

snow. There it is.13

MS. FARBY: What the ordinance says is that street14

parking may be limited when theres an accumulation of15

greater than two inches of snow.16

THE COURT: Right.17

MS. FARBY: The complaint does not allege that they have18

ever been precluded from parking on the public street.19

THE COURT: Have you ever been to Avon, Colorado?20

MS. FARBY: I have not, Your Honor.21

THE COURT: It snows a lot in Avon, Colorado.22

MS. FARBY: I understand, Your Honor, and actually, in23

our reply brief, we submitted statistics about the average24

number of days with more than two inches of snow, but the25


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complaint is silent as to whether--or, whether the plaintiffs1

have ever been precluded from parking on that public street.2

THE COURT: Why does it have to allege a date when the3

ordinance says you cant park here?4

MS. FARBY: Because they have not been able--they have5

not alleged that there has ever been a substantial--6

THE COURT: Why would it make a difference whether7

theyve ever--I mean, its--you said common sense. Common8

sense is that when theres an ordinance that says you cant9

park here when theres two inches of snow, and youre in10

Avon, Colorado, theyve had days when they cant park there.11

Thats common sense, agreed?12

MS. FARBY: I agree with that, Your Honor, but in order13

for the Court to even look at whether this regulation14

infringes a constitutional right, there must be a substantial15

infringement, and they have not alleged a substantial16

infringement. Thats--17

THE COURT: What constitutes a substantial infringement,18

more than one day? Does it have to be more than ten days?19

What are you talking about?20

MS. FARBY: I dont know, Your Honor.21

THE COURT: Exactly.22

MS. FARBY: Its not necessary to decide what the outer23

limits of a substantial burden would be because they have not24

alleged it here. They have not alleged that they have ever25


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been precluded from parking on the public street with their1

firearm because of these--the snow ordinance. And in any2

event, Your Honor, the snow would--the restrictions on3

parking on the public street is likely just an incidental4

burden. Its not attributable to the Postal Service5

regulation itself. I mean, the Postal Services doesnt have6

to provide parking to its patrons at all. There are plenty7

of Postal--post offices in urban areas--8

THE COURT: Were talking about Avon, Colorado, not9

plenty of other areas. This case is factually specific.10

MS. FARBY: Yes, Your Honor. Under the facts as alleged11

by the plaintiffs, they have never been precluded from12

parking on the public street in front of the Avon Post13

Office.14

THE COURT: Well, this--15

MS. FARBY: Its not--its--16

THE COURT: --you know, youre going round and round. I17

object that.18

MS. FARBY: And--19

THE COURT: Let me hear from the plaintiff. Mr. Manley.20

Ive been talking about the parking lot because it21

seems to me to be qualitatively different from the building,22

and youve got two claims. The first one is the building, so23

it seems to me that the burden, as defendants counsel wishes24

to call it, on the protected interest under the Second25


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Amendment, is slight, if they can park in the public parking1

lot immediately adjacent to the building and go into the2

building without their firearms. Now, are you contending in3

the first claim for relief that they must have the firearms4

with them when they go in the building?5

MR. MANLEY: In the first claim for relief? No, Your6

Honor, the--its--7

THE COURT: Well, what are you claiming?8

MR. MANLEY: In the first claim for relief were simply9

contending that the Bonidys have a constitutional right to10

possess a firearm in their car in the parking lot.11

THE COURT: Well--12

MR. MANLEY: Thats the first claim for relief.13

THE COURT: --I thought the first claim for relief was14

the building. Maybe Ive got them reversed. Youve got a15

claim that they can go into the building.16

MR. MANLEY: Yes, thats the second claim for relief,17

Your Honor.18

THE COURT: Okay, Ive got them reversed.19

MR. MANLEY: And, yes, the Second Amendment protects the20

right to keep and bear arms for self-defense. And that right21

has to be exercised wherever the person happens to be when22

that--the need for self-defense arises, and so the burden on23

the Bonidys, if theyre in the post office and need to24

exercise the right to self-defense, is total, its complete.25


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The right is rendered--1

THE COURT: So they could walk into this building with2

their firearms?3

MR. MANLEY: Well, no, I dont think so, Your Honor,4

because this building is qualitatively different. The--this5

building--6

THE COURT: Whats the difference? Whats the7

difference?8

MR. MANLEY: Well, this building has security, it has9

screening, and it has restricted access. There are metal10

detectors at every entrance, and only individuals who have11

been verified to be unarmed are allowed to enter the12

building--13

THE COURT: Okay.14

MR. MANLEY: --and then when theyre here, theyre under15

the--everyone in the building is under the protection of16

the--17

THE COURT: Now--18

MR. MANLEY: --Security Service.19

THE COURT: --the plaintiffs, when, you know, the fact20

that theres a concealed carry permit, how does that affect21

the claim--the case?22

MR. MANLEY: Well, factually, Your Honor, it shows that23

theyre law-abiding individuals.24

THE COURT: I know, but, you know, the Second Amendment25


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presumes everybody is law-abiding, unless you come within one1

of their restrictions on having firearms, like 922 of Title2

18. Thats a different thing entirely, if youre a convicted3

felon or illegal--all these other things. So, but I dont4

see that the concealed carry--it just means that the Eagle5

County Sheriff has granted them a permit under Colorado law,6

but I dont think that affects the scope of the Second7

Amendment, do you?8

MR. MANLEY: I agree, Your Honor, and--9

THE COURT: Okay.10

MR. MANLEY: --and I think all it shows is that the--is11

that the Bonidys arent those people--12

THE COURT: Yeah.13

MR. MANLEY: --that are identified by 922.14

THE COURT: So this right of self-defense is not15

different for them than it is for any other person who is not16

restricted from having possession of firearms, true?17

MR. MANLEY: I think thats correct, Your Honor, yes.18

THE COURT: Yeah, all right.19

MR. MANLEY: I think it calls in the level of vetting20

that the Bonidys have undergone through the sheriff, through21

the background checks, indicates that perhaps the defendants22

interest in security are not connected to denying the Bonidys23

the right to keep and bear arms. So it calls into the24

question the rationale for the Postal ban--25


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THE COURT: You dont--1

MR. MANLEY: --especially as applied to the Bonidys.2

THE COURT: In Colorado you dont get a concealed carry3

permit--do you have to show you have a particularized need4

for protection?5

MR. MANLEY: No, Your Honor.6

THE COURT: Yeah, I didnt think so. You simply have to7

show you know how to handle a firearm, that you dont have8

any of the restrictions on your mental capacity and all those9

things, and you have a clean record, and then you can get it.10

So thats why, when we look at this question of the11

protection of self--well, self-protection, insofar as Heller12

was based on the need for self-protection as justification13

for the individual right to have a firearm, you know, I think14

that we have to look at this case as whether they had a15

concealed carry permit or not, whether they have special16

circumstances of being in an area where they may need17

self-protection from animals, for that matter.18

But what it seems to me is important here is their19

access to their mail. Now I questioned Ms. Farby about the,20

you know, what is the Postal Service. Its to serve and give21

you access to mail addressed to you. They dont get mail22

service at home, and that may be a special circumstance in23

this case. Not everybody has to go to the post office to get24

their mail.25


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Your contention, as I understand it then from what1

Ive heard you say here, and from what I saw in the papers2

filed, is that given that the postal facility in Avon,3

Colorado is not a secured area with--so that anybody inside4

of it feels protected by the security measures that are in5

place, that it ought to be, and, therefore, its public6

access, you ought to be able to have self-protection there.7

Thats your contention.8

MR. MANLEY: Yes, Your Honor. The Avon Post Office is9

no different from a grocery store or a gas station or a bank10

in Avon. Theyre all places that are open to the public,11

that have no security measures in place, like a courthouse or12

an airport, or other federal facilities that are similarly13

protected.14

THE COURT: Now we dont have any case authority for15

that, do we?16

MR. MANLEY: For that, that rule, Your Honor?17

THE COURT: Yeah. For that distinction between public18

buildings that are within a secure zone, so to speak, and19

those that arent. Thats something that Im not--that I20

havent seen in any of the cases that Ive reviewed.21

MR. MANLEY: I dont--Im not familiar with any case22

law, Your Honor.23

THE COURT: All right.24

MR. MANLEY: What Im--what I do know is that the laws25


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of the states, for instance, Colorado, reflect that1

distinction. A concealed carry permit in Colorado doesnt2

authorize a person to carry into a public building that has a3

metal detector, or a federal building where federal law4

prohibits--5

THE COURT: In that in a state statute, or--6

MR. MANLEY: It is, Your Honor, yes.7

THE COURT: Okay.8

MR. MANLEY: And so the, you know, the laws of the9

states reflect that, that distinction, and it seems to be an10

objective distinction thats based on the character of the11

building, its based on the how the building is being12

secured, rather than just an arbitrary whim of some13

government official saying, This place is sensitive for--14

THE COURT: Now that--15

MR. MANLEY: --for no objective reason.16

THE COURT: The background of this case is that there17

was an effort made here by the--is it Ba-needy (phonetic)?18

MR. MANLEY: I think its Bon-iddy (phonetic).19

THE COURT: --that the Bonidys attempted to get some20

kind of accommodation to permit--and agreed, for example, to21

a locked glove compartment, is that right?22

MR. MANLEY: Thats correct.23

THE COURT: I mean, that isnt in our complaint, but Im24

talking about the background.25


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MR. MANLEY: Well, the--we actually do allege in the1

complaint that the Bonidys contacted--2

THE COURT: Yeah, okay.3

MR. MANLEY: --the post office and requested recognition4

of their right to carry on the Postal property, either in the5

car or, obviously, what they truly desire is to be able to6

carry, you know, when they go into the building as well, but7

they requested both of those--8

THE COURT: Yeah.9

MR. MANLEY: --accommodations.10

THE COURT: So, as I understand this case then, if it11

were to go forward, we would be looking at whether there are12

means to, you know, the--the government interest here is13

public safety, with respect to property thats under the14

ownership and control of the Postal Service, an--I dont know15

if the Postal Service is technically an agent, or agency of16

the government anymore or not, but at any rate, your--as we17

go forward, you would be looking at--and, of course, opposing18

counsel says you dont have to have least restrictive. But,19

as I understand your case, it is somewhat like a First20

Amendment case, in terms of balancing, or attempting to21

balance, the protected interests of the individual plaintiffs22

versus the governmental interests in public safety, and,23

therefore, as I--and tell me if Im wrong in understanding24

this, youre not averse to some reasonable accommodation in25


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balancing these interests. Is that true?1

MR. MANLEY: Yes, Your Honor, I think theres--2

THE COURT: Yeah.3

MR. MANLEY: --theres a balance that needs to be4

struck--5

THE COURT: Yeah.6

MR. MANLEY: --and where that balance lies is something7

that we need to determine--8

THE COURT: Youre not--9

MR. MANLEY: --based on the evidence.10

THE COURT: --therefore, claiming an absolute right to11

have these handguns in a holster, covered, and walk anywhere12

you want to on the property.13

MR. MANLEY: Well, no, certainly, and were not claiming14

that the Bonidys have a right to walk into the restricted15

area of the post office, or the restricted parking lot if16

there--Im not sure that there is one at Avon, but Id17

imagine there is, where they stage the mail trucks. Were18

not arguing with any of that, simply the public areas where19

the general public is allowed--20

THE COURT: Yeah. Now I--21

MR. MANLEY: --to come and go freely.22

THE COURT: --you know, Im assuming that the--Ive23

never seen this post office, so Im assuming there are boxes24

or--is that right? They have a p.o. box and--25


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MR. MANLEY: Thats right, Your Honor.1

THE COURT: --they go and unlock it and take out--I2

dont know if they do that anymore.3

MR. MANLEY: No, thats right. Yes, the post office4

provides the Bonidys with a post office box--5

THE COURT: Yeah.6

MR. MANLEY: --and thats how they get their mail.7

THE COURT: So, and they rent a box?8

MR. MANLEY: The box is provided free of charge because9

the Postal Service--10

THE COURT: Because theres no--11

MR. MANLEY: --doesnt deliver to their home.12

THE COURT: --home delivery. And I assume, given the13

nature of Eagle County, thats true of a lot of folks up14

there. Theres limited home delivery.15

MR. MANLEY: At the very least, the Bonidys neighbors16

fall into the same group.17

THE COURT: So how would this case go forward? What are18

you suggesting?19

MR. MANLEY: Well, Your Honor, the defendants have the20

burden to justify their regulation, and then the plaintiffs21

would have to rebut any evidence that they offer. Thats the22

evidentiary procedure in the First Amendment context, and, as23

you, I think, correctly point out, that this is like a First24

Amendment case.25


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THE COURT: Okay. Thank you.1

MR. MANLEY: Thank you.2

THE COURT: Well, I think Ive--I think Ive got your3

arguments, Ms. Farby, have I? You may--4

MS. FARBY: Your Honor, can I briefly be heard--5

THE COURT: Yeah, sure.6

MS. FARBY: --to address some points raised?7

THE COURT: Yeah.8

MS. FARBY: Thank you. Ill be brief, Your Honor, I9

just want to address a couple of points made by opposing10

counsel. The Courts and Heller have made clear that11

categorical restrictions are permitted, and so here the12

Postal Service should not have to go property by property,13

patron by patron, to determine whether that person or that14

property should be restricted. Categorical prohibitions on15

possession of firearms in sensitive places are permitted,16

thats what the Supreme Court said in Heller.17

THE COURT: I know, but the whole issue is whats a18

sensitive place?19

MS. FARBY: Right, Your Honor, and, again, the Court20

there made clear that schools and government buildings are21

not the only kinds of sensitive places.22

THE COURT: I know that, but they dont tell us what23

else is.24

MS. FARBY: Thats right, Your Honor, and counsels25


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suggestion that only places that electronically screen1

persons entering the property, thats just directly contrary2

to Heller because theres many schools and government3

buildings themselves that dont screen people walking into4

the building, but under Heller--5

THE COURT: Yeah.6

MS. FARBY: --those are sensitive places where firearms7

may be prohibited.8

THE COURT: Well, you know, Heller raises more question9

than it answers.10

MS. FARBY: But it does provide guidance, Your Honor,11

and--12

THE COURT: Very little.13

MS. FARBY: --the Tenth Circuit has taken the Court at14

its word in finding that restrictions beyond those expressly15

enumerated in Heller--16

THE COURT: Criminal restrictions.17

MS. FARBY: Yes, criminal restrictions--18

THE COURT: Yeah.19

MS. FARBY: --but other Courts outside of the Tenth20

Circuit have found restrictions in sensitive places to be21

within Heller, even though theyre not schools or government22

buildings.23

THE COURT: And not a post office.24

MS. FARBY: Well, Dorrison--25


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THE COURT: Thats a restricted area.1

MS. FARBY: It was a restricted area, Your Honor, but--2

THE COURT: Thats not this case.3

MS. FARBY: Its not this case but the Court there4

didnt limit its decision to the fact it was a restricted5

area. What it said was it was used as a place of regular6

government business--7

THE COURT: Yes.8

MS. FARBY: --and the parking lot--9

THE COURT: By employees of the government.10

MS. FARBY: But with the Court theres--11

THE COURT: And you know the background of Postal12

violence has been employee on employees, or ex-employees.13

MS. FARBY: I believe thats true in part, I--14

THE COURT: Yeah.15

MS. FARBY: The public areas of the Postal--of the post16

office and the parking lot are also sensitive because of the17

mail. The mail is carried in the public areas and there is18

often sensitive information and valuable material--19

THE COURT: Well, sure--20

MS. FARBY: --that goes--21

THE COURT: --but theres also the public interest in22

getting the mail.23

MS. FARBY: That--thats--24

THE COURT: The publics a part of the government25


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function here. This is a public building.1

MS. FARBY: The notion that the Postal Service should2

have to decide on an individual basis whether a person should3

be permitted to bring firearms onto property would cast into4

doubt a whole range of federal restrictions on--5

THE COURT: Why? Why would that be true? Why cant6

they just issue a permit to these people--7

MS. FARBY: Well, nothings--8

THE COURT: --with restrictions?9

MS. FARBY: Well, nothing would stop the next person10

from seeking the same restriction. Nothing would stop11

somebody from challenging the prohibition on firearms in this12

building, Your Honor, and the government shouldnt have to13

submit to go through an extensive process and trial where14

they have to submit evidence to justify each and every15

restriction--16

THE COURT: Well--17

MS. FARBY: --in each every government property.18

THE COURT: --Im denying--19

MS. FARBY: Congress--20

THE COURT: Im going to deny your motion. Were going21

to go forward. Were going to determine the reasonableness22

of this under whatever standard we finally develop, probably23

the intermediate scrutiny. So youre going to answer, and24

were going to have a scheduling conference--25


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MS. FARBY: Thank you.1

THE COURT: --to determine what limits there should be2

on discovery in the case, and questions of who goes forward3

with what evidence. Those are things that are not clear to4

me. But what is clear to me at this time is that this5

regulation, as applied to these people, cannot just be6

accepted because the government--the Postal Service says so.7

And thats where we are. Now youre going to continue with8

the case, I presume.9

MS. FARBY: Yes, Your Honor.10

THE COURT: And you have travel obligations--I mean, you11

have a burden of travel.12


THE COURT: So what Id like to do is set a scheduling14

conference while youre here.15

MS. FARBY: Okay.16

THE COURT: I dont mean today, but, I mean, set a date17

for it while youre here--18

MS. FARBY: Okay.19

THE COURT: --and, you know, itll have to be in20

January. So do you have a calendar with you then?21


THE COURT: Okay.23

MS. FARBY: Give me a moment, please.24

THE COURT: Well, lets talk about a date. And I25


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dont--Im presuming that it would be easier for you to do it1

in the morning?2


THE COURT: Yeah, instead of--here we are, youre out4

here in--you may have to spend a weekend out here. Well,5

that isnt so bad. But how about January 12th? Thats a6

Thursday. Lets say 10:00 oclock, or 11:00 oclock, I dont7

know--8

MS. FARBY: Your Honor, give me one moment to--9

THE COURT: Sure.10

MS. FARBY: --check to make sure--11

THE COURT: Yeah.12

MS. FARBY: --I dont have anything--13

THE COURT: Of course.14

MR. MANLEY: Your Honor, I do know that Ill be15

traveling earlier in that week. I do intend to be back--16

THE COURT: This is a Thursday.17

MR. MANLEY: Yes, I intend to be back on Thursday, but I18

dont know what my travel arrangements are at this point. I19

may be traveling on Thursday, I dont know.20

THE COURT: Well, we could go--I cant--Id have to go21

into the week of the 23rd

then. What about the 26th, January22

26th?23

MS. FARBY: Your Honor, thats fine for me--24

THE COURT: What time of day is best for you? Ive got25


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that--1

MS. FARBY: Thank you, Your Honor. I assume you want2

the scheduling conference in person, and not--3

THE COURT: Oh, yes, for sure. Its face to face here.4

MS. FARBY: Thank you, Your Honor. The morning is5

preferable, but, of course, Ill--whatever you--6

THE COURT: Well, is 10:00 oclock--7

MS. FARBY: Thats fine.8

THE COURT: --suitable? How about you, Mr. Manley?9

MR. MANLEY: I believe that works for me, Your Honor.10

THE COURT: Okay. Ten oclock, January 26th, for the11

scheduling conference, and, of course, well need the answer12

before then. And I have procedures that are posted with the13

form of scheduling order and so forth that, Ms. Farby, you14

may not yet be familiar with, but you will be. And it15

provides that counsel attempt to meet and agree on a proposed16

scheduling order, but it not be filed electronically, that it17

be submitted in paper form, and it could come through Mr.18

Manley then, since hes got better access than you do to the19

courthouse. So youll see all that, and well see where this20

case goes. So, any questions then? Well go forward and see21

how were going to address these interesting questions.22

Okay? Courts in recess.23

(2:45 p.m. - Whereupon, the proceedings were concluded.)24

25


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TRANSCRIBER'S CERTIFICATE1

2

I hereby certify that the foregoing has been3

transcribed by me to the best of my ability and constitutes a4

true and accurate transcript of the mechanically recorded5

proceedings in the above matter.6

Dated at Aurora, Colorado this 1st day of December,7

2011.8

9

10

11

12

13

s/John Schasny14

John Schasny15

Federal Reporting Service, Inc.16

17454 East Asbury Place17

Aurora, Colorado 8001318

(303) 751-277719

20

21

22

23

24

25

Documents

MtD Hearing Transcript, Bonidy v. United States Postal Service