December 12, 2018

Archives for August 28, 2015

Tenth Circuit: USPS Regulations Prohibiting Firearms in Post Office Building and Adjacent Parking Lot Constitutional

The Tenth Circuit Court of Appeals issued its opinion in Bonidy v. United States Postal Service on Friday, June 26, 2015.

Tab Bonidy is a resident of Avon, Colorado, who has a permit to carry concealed firearms. Avon does not have residential postal delivery services; instead, residents must pick up their mail at the Avon post office, which is open to the public at all times. Because the United States Postal Service (USPS) does not allow firearms on its property, Bonidy sends an assistant to pick up his mail. Bonidy, through his attorney, sent a letter to the USPS general counsel, asking if he would be prosecuted for carrying a concealed weapon into the post office or storing it in his truck in the parking lot while he got his mail, and the general counsel said he would. Bonidy sued for declaratory and injunctive relief, claiming the prohibition violated his Second Amendment right to bear arms for self-defense. Bonidy and the government filed cross-motions for summary judgment. The district court held the regulation constitutional as applied to concealed firearms, and the regulation regarding open carry was constitutional as applied to the post office building itself, but not as to the parking lot. The government appealed and Bonidy cross-appealed.

The Tenth Circuit analyzed its own and U.S. Supreme Court case law and affirmed the district court’s holding that the regulation was constitutional as applied to concealed firearms. With regard to open carry, a divided panel of the Tenth Circuit affirmed the district court’s ruling as to the post office building but reversed as to the parking lot, finding it constitutional to prohibit firearms both within the building and in the parking lot.

Citing District of Columbia v. Heller, 554 U.S. 570 (2008), the Tenth Circuit affirmed the prohibition on carrying firearms in “sensitive places such as schools and government buildings.” Although Bonidy argued the language was dicta, the Tenth Circuit noted the Supreme Court repeated its holding in a 2010 case, and the Circuit itself had followed the language in its own holdings, which made it binding precedent. The Tenth Circuit applied an intermediate scrutiny test to determine that the ban on firearms in the post office parking lot was constitutional, since the government is empowered to regulate its own business. The Tenth Circuit further found that, as a national government-owned business, the USPS may create a single national rule regarding firearms carry and need not tailor its rules to each individual customer or building.

The district court’s holding that the concealed carry ban was constitutional as applied to both the USPS building and parking lot was affirmed. The district court’s holding that the prohibition on open carry was constitutional as to the post office building was affirmed. The district court’s holding that the prohibition on open carry was unconstitutional as to the parking lot was reversed. Judge Tymkovich wrote a thoughtful dissent; he would have affirmed the district court in all aspects.

Tenth Circuit: Witness Tampering Charges Affirmed Where Potential Witness Told to Lie About the Important Stuff

The Tenth Circuit Court of Appeals issued its opinion in United States v. Sparks on Friday, June 26, 2015.

Gary Sparks’ daughter, Stacy Ashley, was imprisoned pending trial on charges of distribution of a controlled substance with death resulting. H.L., Ms. Ashley’s daughter, was supposed to testify at trial that she saw her mother and the deceased exchange pills on the night the man overdosed. Three weeks before trial, Sparks took his granddaughter, H.L., to visit her mother in jail, and after seeing Ms. Ashley they went to dinner. H.L. reported that at dinner, Sparks told her “I heard you should only lie about the important stuff,” but Sparks said he only told her that everything would be okay and reassured her to have faith. H.L. never testified at her mother’s trial, but prosecutors eventually learned about the exchange with her grandfather and charged Sparks with two counts of witness tampering. Sparks was convicted and sentenced to 36 months’ imprisonment followed by two years of supervised release. Sparks appealed, arguing the evidence was insufficient to support his conviction and the jury was not properly instructed on an affirmative defense.

The Tenth Circuit first evaluated Sparks’ sufficiency claim. Sparks argued the evidence was insufficient to support his conviction because the phrase “you should only lie about the important stuff” was insufficient to qualify as an attempt to corruptly persuade. Sparks said that because he did not direct his granddaughter to lie he could not have “persuaded” her to do so. The Tenth Circuit disagreed. Analyzing the meaning of the word “persuade” in context of its prior precedent, the Tenth Circuit found no need for “an act, a threat, an emotional appeal, or persistent pleading” in order for a statement to be viewed as persuading. The Tenth Circuit found ample evidence to support the jury’s conviction based on the familial relationship, the proximity of the trial, and the timing of the statement right after seeing H.L.’s mother in jail.

Turning to Sparks’ contention that the jury was not properly instructed on the affirmative defense that his conduct consisted solely of lawful conduct encouraging the witness to testify truthfully, the Tenth Circuit again affirmed the district court. The Tenth Circuit found Sparks’ argument failed at the first prong of plain error review, because even viewing the evidence in the light most favorable to Sparks he did not encourage H.L. to testify truthfully.

The Tenth Circuit affirmed Sparks’ convictions.