Ban on guns in places that sell alcohol — including supermarkets and service stations, and their parking lots — struck down on Second Amendment grounds

August 25, 2014

Baton Rouge Code of Ordinances § 13:95.3 provides,

(a) It shall be unlawful for any person to have in his possession a firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, in any premises where alcoholic beverages are sold and/or consumed on the premises except the owner or lessee of the premises, or their employees [or law enforcement officials]….

(b) … Any person who enters a place where alcoholic beverages are sold and/or consumed on the premises does, by the mere fact of entering, consent to a search of his person for any firearm or other instrumentality customarily used or intended for probable use as a dangerous weapon while on said premises, by any [law enforcement official], without a warrant.

(c) The phrase, “… premises where alcoholic beverages are sold and/or consumed on the premises” shall include all of the licensed premises, including the parking lot.

Monday’s Taylor v. City of Baton Rouge (M.D. La. Aug. 25, 2014) grants plaintiffs a declaratory judgment that “§ 13:95.3 unlawfully infringes upon the right of Plaintiff and other citizens to keep and bear firearms, in violation of the Second Amendment.”

Oddly, the defendants apparently failed to properly answer the complaint, so the court entered default judgment against them. In the process, though, it did have to “review the pleadings to determine whether Taylor has established a viable claim for relief,” and concluded that Taylor was indeed entitled to prevail:

As written, the clear language of § 13:95.3 prohibits the possession of firearms in any parking lot of an establishment that sells alcohol. Thus, any law abiding citizen who exercises his or her right to keep or bear arms within the confines of his or her personal vehicle will violate § 13:95.3 anytime he or she, for example, stops to refuel a vehicle at a service station that sells alcohol, or stops to purchase groceries at a grocery store that sells alcohol.

Indeed, Defendants concede in their memorandum that § 13:95.3 “could be unconstitutional ‘as applied’ to a person within the parking lot of a grocery store.” Similarly, the ordinance prohibits law-abiding citizens from purchasing and possessing firearms at any establishment that sells alcohol, thereby rendering the sale of firearms at establishments like Wal-Mart a criminal act. Indeed, even Defendants concede that § 13:95.3 impinges upon a right protected by the Second Amendment.

The viability of Taylor’s Second Amendment claim is further underscored by undisputed evidence that members of the East Baton Rouge Parish Attorney’s Office, including Defendant Roper, appeared before the Baton Rouge Metropolitan Council on June 25, 2014, and requested the Council repeal § 13:95.3 because the ordinance is a “… mistake, and it should be corrected.” It is also undisputed that on June 24, 2014, counsel with the East Baton Rouge Parish Attorney’s Office drafted (and forwarded to counsel for Taylor) an email to Baton Rouge Chief of Police, Carl Dabadie, Jr., suggesting Dabadie “no longer enforce Section 13:95:3” because “[t]he ordinance may have some constitutional problems.”

In sum, the Court finds that Taylor’s allegations, which the Court accepts as true based on Defendants’ default, are sufficient to establish a viable claim for relief under the Second Amendment. Consequently, the Court concludes that Plaintiff has established a sufficient basis for judgment in his favor.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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