Litigation Highlight: When Sensitive Places and the Home Intersect

The North Carolina Supreme Court is currently considering whether to review a state appellate court’s decision invalidating the state’s ban on carrying guns on educational property, under a unique set of facts.  The case illustrates the difficulty of applying Heller’s home-centric view of the Second Amendment to gun possession by unhoused individuals in sensitive locations.

North Carolina prohibits possessing or carrying firearms “on educational property.”  In State v. Radomski, the state successfully prosecuted an individual for possessing firearms in his vehicle on the grounds of an educational institution: in a parking lot on the UNC Chapel Hill campus close to UNC Medical Center.  A unanimous panel of the North Carolina Court of Appeals held in late May that the ban could not be constitutionally applied to the defendant in the case, who “drove [] to  . . . UNC Hospital . . . for treatment related to a temporary kidney shunt [while he] was otherwise homeless and living in his vehicle.”

The defendant argued that the educational-property ban was unconstitutional as applied to him for two main reasons.  First, if construed broadly, the term “educational property” encompasses locations not properly deemed sensitive under Bruen’s historical-analogical inquiry.  The panel agreed, holding that it was unconstitutional to apply the ban to “any area where there are [] signs read[ing] ‘campus,’” even if that area’s purpose is not clearly “educational in nature.”  The panel rejected the state’s argument that banning possession in all educational parking lots (regardless of their location compared to core educational facilities) is consistent with history. 

Second, the defendant urged that a conviction under the ban would improperly penalize him “for exercising his Second Amendment rights while experiencing housing insecurity.”  Having sided with the defendant on his as-applied challenge based on the nature of the parking lot, the panel did not reach the question of whether the fact that the defendant was living out of his car at the time impacted the constitutional analysis.

The panel also identified a separate, independent basis on which to reverse the conviction: “the State failed to present substantial evidence that Defendant knew he was on educational property,” an essential element of the offense.  The simple fact that the defendant had likely driven past campus signs, the panel said, was “not the same as knowingly being on campus.”  In a short concurrence, Chief Judge Dillon agreed that the statute was unconstitutional as applied to the medical center parking lot but parted ways with the majority on the knowledge element.  Rather, he would have found that the state presented sufficient evidence from which the jury could have inferred knowledge of being on educational property. 

On June 6, the state attorney general’s office filed a motion for a temporary stay of the appellate court’s decision and also noted its intent to seek discretionary review by the state supreme court in due course. The state supreme court granted that motion and stayed the ruling the following day.[1]  The state then filed a petition for review on June 25, which the supreme court seems likely to address in its next petition list (set to be released on August 23).

In its petition, the state argues that the supreme court should grant review because the appellate panel’s decision “significantly undermines” the state’s interest in addressing gun violence in schools and “invites second guessing of the General Assembly’s careful decisions about when and where firearms are permitted on educational property more broadly.”  The state invokes Rahimi to argue that the appellate court’s “conclu[sion] that a ban on firearms in a campus parking lot was not sufficiently analogous to founding-era sensitive-place regulations” was unduly narrow.  Finally, the state agues that the appellate panel improperly determined that there was no circumstantial evidence from which the jury could infer that the defendant knew he was on educational property at the time of his arrest.

I’d like to focus here on two major issues that Radomski brings to the fore.  First, the case highlights how blanket bans on campuses or educational property can present difficult questions under a text, history, and tradition test.  For example, in a case challenging the University of Michigan’s campus gun ban, a dissenting state supreme court justice asked rhetorically whether “large modern campuses . . . [are] so dispersed and multifaceted that a total campus ban would now cover areas that historically would not have had any restrictions.”  While the subsequent decision in that case (which we covered here) affirmed the constitutionality of Michigan’s ban—relying primarily on Heller’s reference to schools as sensitive places—similar questions are likely to arise whenever campus gun bans extend beyond “core” educational facilities like classrooms and dorms and implicate individuals who are not students or university staff. 

In Radomski, the appellate court’s concern with stretching the reach of “educational property” too far was palpable—and that concern seemed closely tied to notice.  In other words, if an ordinary person standing in the relevant location would not necessarily be aware that they were on educational property, the appellate judges appeared to say it would be unconstitutional to apply the ban to them.  Outside of the educational context, some states and municipalities have sought to address this concern by posting signage explicitly regarding the firearms prohibition; and, under the appellate court’s analysis here, Radomski’s conviction likely would be valid if there had been such a sign posted in the medical center parking lot.

Second, the court below did not directly address Radomski’s argument that the law impermissibly encroached on his right to keep a gun in his home (in this case, the car out of which he was living at the time).  This is a relatively novel question under the Second Amendment, though courts have addressed the related issue of a ban on weapons possession while camping in a national park or recreation area.  Courts split on that question prior to Bruen and weren’t confronted directly with a situation where an individual was prosecuted for possessing a gun in a car that was also his or her only “residence.”[2]  That’s a question that the North Carolina supreme court might need to tackle, however, if it reverses the appellate court on other issues.  Despite Heller’s emphasis on enabling “law-abiding, responsible citizens to use arms in defense of hearth and home,” the Second Amendment clearly is not limited to homeowners.  That said, the natural consequence of Radomski’s argument appears to be that unhoused individuals enjoy more expansive Second Amendment protection than those with permanent abodes, because those individuals must be free to take their guns wherever they go. 

It is somewhat difficult to imagine history providing a tidy solution to the question, given that early America was exceedingly rural and “homelessness first became a national issue in the 1870s” alongside urbanization.  The Supreme Court’s decision this past term in City of Grants Pass v. Johnson, however, may give at least a few clues.  In Grants Pass, the Court’s six-justice conservative majority held that making violators of unauthorized camping and overnight parking bans in city parks ultimately subject to criminal trespass penalties did not violate the Eighth Amendment’s prohibition of cruel and unusual punishment.  If a city can criminalize the mere act of being present in an unauthorized location overnight, it’s hard to imagine that banning gun possession under the same circumstances (in parking lots attached to city parks, for example) does not also pass constitutional muster.  The Grants Pass majority further gestured in the direction of the “necessity” defense and observed that “[i]t may be that defense extends to charges for illegal camping when it comes to those with nowhere else to go.”  As I’ve written previously, duress or necessity isn’t unique to gun cases.  And the same defense might be raised to the type of criminal prosecution at issue in Radomski—even if the parking lot itself remains a prohibited location.  

[NOTE: The North Carolina Supreme Court denied review in Radomski on August 23, thus leaving in place the appellate court decision paring back North Carolina's educational-property gun ban.  Justice Riggs, joined by Justice Earls, dissented from the denial.]