Litigation Highlight: District Judge Issues Temporary Restraining Order of Certain Portions of New Jersey’s Sensitive-Places List

  • Date:
  • January 27, 2023

On January 9, District Judge Renee Bumb issued a decision in Koons v. Reynolds granting a temporary restraining order of certain sensitive-places prohibitions in New Jersey’s newly-enacted gun law.  That law was enacted in late December in response to Bruen, and among other things it designated a lengthy list of sensitive places where guns are banned, switched the default rule for carrying guns on private property, instituted training and other application requirements to obtain a concealed carry permit, and required that those who carry handguns in public obtain liability insurance.  The law is similar in many respects to the one passed by New York shortly after Bruen was decided; many portions of New York’s law (including a number of the sensitive-places provisions) have been enjoined by lower federal courts, although those rulings are currently stayed pending appeal.  New Jersey’s regulation became effective when signed into law on December 22, the plaintiffs in Koons filed their complaint that same day, and Judge Bumb held a virtual hearing on the TRO motion on January 5.

The plaintiffs in Koons challenge five provisions of the new law (other plaintiffs have challenged additional provisions as well, in separate cases that are currently ongoing).  Three of these provisions are sensitive-places bans, which prohibit guns in (1) libraries and museums, (2) bars and restaurants where alcohol is served, and any other facility where alcohol is sold for consumption, and (3) entertainment facilities, including theaters, arenas, and performance venues.  The plaintiffs also challenge (4) New Jersey’s default rule that guns are prohibited on private property unless the owner consents, and (5) the state’s ban on functional firearms in vehicles (firearms must be unloaded and secured).

Judge Bumb first assessed two preliminary issues: the state’s argument that it should be given more time to justify the legislation in court, and the plaintiffs’ standing to challenge the relevant portions of the law.  The judge rejected New Jersey’s argument for additional time, noting that—in her opinion—New Jersey “[c]ertainly . . . anticipated challenges to the legislation and should have been better prepared to defend the legislation’s constitutionality.”  The judge also noted that six months have passed since Bruen was decided and that “there is no bona fide basis for this Court to withhold its ruling because the State says it needs more time to come forward with historical evidence that the Legislature represented it had at the time of the law’s passage.” 

As to standing, Judge Bumb found it sufficient that the plaintiffs were permit holders and had a general intention to carry when moving about in public—regardless of any “concrete plans to imminently visit the places for which they challenge [the law]’s provisions.”  The judge further observed that the provisions ban guns in “places that are generally open to the public and where ordinary persons like Plaintiffs would be expected to frequent upon occasion,” and that state officials “would not agree that they would not prosecute Plaintiffs for violations of the newly enacted legislation.” 

The opinion next turned to the plaintiffs’ likelihood of success on the merits of their Second Amendment claims.  In general, Judge Bumb read Bruen to “indicate a skepticism as to expanding the definition of ‘sensitive places’ based on the historical record.”  She further found that the relevant provisions implicate the Second Amendment’s plain text because they regulate the ability to carry a handgun for self-defense in public.  For museums and libraries, the judge rejected the government’s theory that these are “locations for government and constitutionally-protected activity” as “a stretch to say the least.”  Because she found that museums and libraries were in existence at the Founding, the state’s inability to point to historical bans in those specific locations was fatal.  Although Texas did prohibit guns in 1870 in “places where persons are assembled for educational, literary, or scientific purposes,” Judge Bumb deemed that law an outlier.

For bars and facilities serving alcohol, the judge rejected historical laws restricting gun possession by intoxicated individuals as “ha[ving] no relevance” to New Jersey’s law; another historical law put forward by the state applied only to military personnel.  New Jersey’s prohibition on guns in entertainment venues, the judge said, was likely unconstitutional because—while the state pointed to a historical tradition of banning guns in places “where crowds gather”—those laws included a malicious intent requirement, excluded certain individuals from their scope, or applied to locations (such as ballrooms) substantively distinct from modern-day entertainment venues. 

The judge found that, by enacting a private-property rule presuming no right to carry, “the State is, in essence, criminalizing the conduct that the Bruen Court articulated as a core civil right.”  Moreover, the judge determined that one historical law offered as support was limited to “address[ing] the problem of poaching and trespass,” and another (a Louisiana law that prohibited “carry[ing] fire-arms on the premises or plantations of any citizen, without the consent of the owner or proprietor”) was “historically inconsistent and unconstitutional.”  The judge drew a comparison to criminal trespass law, which normally presumes a right to enter private property unless a sign is posted, and found that laws in other states only created a non-carry presumption for private residences or dwellings (not all private property).  The opinion also registered concern that gunowners will be unable to determine where they are permitted to carry and that the law may therefore criminalize innocent conduct. 

The judge found the state’s vehicle restrictions similarly inconsistent with historical tradition because historical laws often exempted travelers or those “on a journey.”  Finally, Judge Bumb observed that “[t]he Court knows of no constitutional right that requires this much guesswork by individuals wanting to exercise such right.”  Because, in the judge’s view, the plaintiffs are unable to determine prospectively where they can and cannot take their guns, the law improperly deters protected conduct.  Judge Bumb enjoined the challenged provisions of New Jersey’s law.

First, the standing analysis in Koons is noteworthy because the decision seems to apply a different standard from both the Antonyuk litigation and the ongoing litigation challenging D.C.’s ban on guns in the Metro (Angelo v. District of Columbia, which we previously covered here).  In Antonyuk, Judge Suddaby held that “‘someday’ intentions—without any description of concrete plans, or indeed even any specification of when the ‘someday’ will be— do not support a finding of the ‘actual or imminent’ injury that our cases require.”  Therefore, he found that the plaintiffs in that case lacked standing to challenge restrictions in places such as Times Square.  In Angelo, the district court recently denied the plaintiffs’ motion for a preliminary injunction due to lack of standing.  The judge examined D.C. Circuit precedent and concluded that it was insufficient for plaintiffs to merely allege the intention to carry guns on the Metro but for the District’s ban—rather, without more (such as evidence that others had actually been arrested for bringing guns onto the Metro), the judge found the allegations too speculative.  While the approach to standing can vary significantly by circuit, Angelo’s position seems likely too strict, while the analysis in Koons appears too dismissive.  It’s not clear what the Angelo plaintiffs would need to do to obtain standing, short of actually exposing themselves to arrest and prosecution.  On the other hand, it’s hard to accept that an imminent, legally-cognizable injury results from the inability to carry a gun in a place where you may never set foot.  Do the Koons plaintiffs actually go to museums and libraries?  Surely some examination of that question is warranted, rather than relying merely on the fact that these locations are open to and frequented by members of the general public.

Second, the judge’s comparison to the law of criminal trespass points to the important issue of what notice is required to alert gunowners to whether they are committing a criminal offense when carrying on private property.  Judge Bumb observes that “the burden under the criminal trespass statute is not on the unsuspecting actor, but on the landowner to indicate to others not to trespass.”  The opinion also quotes an exchange from oral argument on the notice issue:

THE COURT: But I think you’re ignoring one salient fact, is that you’re now making it criminal for a person who has a license to conceal carry to not know in advance what that right is.

[New Jersey’s attorney]: So that’s right, Your Honor.

The practical problem here is that, under New Jersey’s new law, permit holders are not only barred from carrying in any location without explicit permission—they’re also required to determine in advance what the policy is for each location they intend to visit.  It isn’t immediately clear to me that the trespass comparison works, because there’s no suggestion that it would be unconstitutional for New Jersey to change its criminal trespass law in the same way it has changed its private-property gun law (to place the burden on those entering private property to determine whether or not they are permitted to do so).  That New Jersey, and other states, may have a different default rule in the criminal trespass context doesn’t speak to whether this rule is analogous to historical gun regulations.  But the opinion is correct to identify notice as a real problem lurking within the practical operation of such default switches.  One way to address this issue may be to remove “word of mouth” permission in both directions—business owners would then have to post a particular sign to permit guns, and gun owners would merely need to locate that signage (or the lack thereof) to obtain notice of each location’s policy.  As Jake Charles has described, states like Texas have legislated detailed instructions for signage indicating that guns are banned on private property; states switching to a “no carry” default rule could similarly ameliorate the notice issue, to some extent, by standardizing signage for allowing guns.

Third, it’s interesting that Koons seems to imbue the legislation’s reference to historical gun regulations with legal significance.  Judge Bumb rejected the state’s request for additional time to gather “historical evidence that the Legislature represented it had at the time of the law’s passage.”  But why should the fact that the legislature noted certain historical statutes in the law itself necessarily restrict the scope of the state’s defense of the law in court?  This holding seems to punish the state for having engaged in a survey of historical laws in the drafting process—therefore, according to the judge, state attorneys won’t be given time to collect any additional historical evidence during litigation.  That’s a somewhat odd result, especially given Bruen’s emphasis on resolving historical disputes by the “adversarial system of adjudication.” 

Finally, the Koons opinion is notably lacking in any analysis of whether historical and modern laws were comparably justified.  For example, it’s tough to imagine that historical laws restricting gun possession by intoxicated individuals were not justified on comparable grounds to modern laws restricting guns in bars and restaurants serving alcohol (alcohol and guns is, generally speaking, not a safe combination).  And historical laws restricting guns “where crowds gather” were likely similarly justified as laws restricting guns in entertainment venues and stadiums today (dense crowding and guns is, generally speaking, not a safe combination).  Yet discussion of how these laws were justified is nowhere to be found.  One way to read Koons is that it determines the result at the outset by reading into Bruen a profound skepticism of any sensitive-place restriction other than those regulating government buildings and schools (Judge Bumb references “a skepticism as to expanding the definition of ‘sensitive places’ based on the historical record”).  That’s an odd conclusion to draw from Bruen, though, because the majority explains that:

[C]ourts can use analogies to those historical regulations of “sensitive places” to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.

If the Court was skeptical about any expansion beyond the specific locations it identified, it would presumably have said as much rather than gesture to a non-existent set of “new” sensitive places.