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 HEARING TRANSCRIPT 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 Foundation 2596 South Lewis Way Lakewood, Colorado 80227 Lesley Rebecca Farby, Esq. US Department of Justice-DC #883 20 Massachusetts Avenue, N.W. Washington, D.C. 20044

For the Defendants:

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

2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 P R O C E E D I N G S (At 1:59 p.m. on November 18, 2011, in the United States District Court at Denver, Colorado, before the HONORABLE RICHARD P. MATSCH, U.S. District Judge, with counsel for the parties present, the following proceedings were had:) THE COURT: Please be seated. Were here in Civil

10-CV-2408, Debbie Bondy and Tab--Bonidy, I think it is, and Tab Bonidy, National Association for Gun Rights against the United States Postal Service, John Potter and Steve Ruehle in their roles as Postmaster General and Postmaster at Avon, on the defendants motion to dismiss the second amended complaint. So, Mr. Manley, for the plaintiffs, and Ms. Farby for the defendants, good afternoon. Well, on the allegations

of the plaintiffs here, they live in the mountains, outside of Avon, Colorado. They dont receive postal service at

their home; therefore, to get their mail they drive to Avon and to the post office there. As I understand it, the post

office there has adjacent to it a public parking lot, but its under the ownership and control of the Postal Service, and the regulation that is involved in the case prohibits a firearm, carrying or having possession of a firearm, anywhere on this property, which includes the parking lot. And the

plaintiffs say that this impinges on their rights protected by the Second Amendment.

3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And in addressing the issue on motion to dismiss, there are two claims here; one is the parking lot, one is the building, and they may be different, but the defendants position, as I understand it, is that we should, as the Tenth Circuit has done in connection with a different statute, the criminal statute, 922, has stated that the Supreme Court-their understanding of the Supreme Court view is that there should be a two-step analysis. One is whether the regulation

is affecting conducting as protected by the Second Amendment, and then the second is under whatever standard of review, there is justification for that effect on the affected conduct. So, Ms. Farby, Ill hear from you in support of your motion, and, you know, I recognize, as you do, that the specific conduct involved in Heller was having a firearm in their home for self-defense, but I dont understand you to be arguing here, and maybe Im mistaken, that youre limiting the Second Amendment protection to the home, are you? MS. FARBY: Well, Your Honor, the Court need not address

how far--whether the Second Amendment right extends outside the home, and if so, how far it extends, because the Supreme Court has made clear that however far that right extends, it does not extend to sensitive places. THE COURT: Well, I know, but the question of whether

this is a sensitive area or not is a question.

4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. FARBY: Yes, Your Honor, and the plaintiffs claims

that the United States Postal Service regulation violates their Second Amendment right, fails for a number of reasons. Theres at least four reasons which I can briefly list, and then I can explain each one in slightly more detail. First, the plaintiffs claims are foreclosed by the Supreme Court decision in Heller. that-THE COURT: Well, I dont agree with that. Thats what The Court stated there

I was just talking about. MS. FARBY: Well, Your Honor, what the Court there said

is that its opinion should not be taken to cast doubt on laws forbidding firearms in sensitive places. THE COURT: MS. FARBY: THE COURT: Right. So-I understand that. What is sensitive about

this parking lot? isnt it? MS. FARBY: issue. THE COURT: MS. FARBY:

Thats going to be the issue in the case,

Absolutely, Your Honor.

I will jump to that

Yeah, okay. The Court made clear that the specific

sensitive places that it listed in the Heller decision, which was schools and government buildings-THE COURT: Sure.

5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. FARBY: --were not the only kinds of sensitive

places, and the Court was specific that the places and the kinds of regulations were not an exhaustive list. Many

Courts have upheld restrictions on firearms in sensitive places beyond the inside of schools and government buildings. But the Court need not decide the full scope of what might constitute a sensitive place in order to conclude that Postal property is a sensitive. THE COURT: MS. FARBY: Well-Thats the approach that the Fifth Circuit The Fifth

took in United States versus Dorrison (phonetic).

Circuit there found that the Postal parking lot at issue there was a sensitive place under Heller and it upheld the exact regulation-THE COURT: MS. FARBY: parking lot-THE COURT: MS. FARBY: Right. --but the decision said that the parking lot Well, thats an employee parking lot. In that case, Your Honor, it was an employee

there was used as a place of regular government business. THE COURT: Sure. Thats where the employees come to

park, and, you know, you can take judicial notice that theres been employee, co-employee violence in Postal Service places. MS. FARBY: Thats true, Your Honor.

6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MS. FARBY: Thats not this case. That is not this case, but the parking lot,

the public parking lot thats used by Postal patrons in this case, is also a sensitive place. THE COURT: MS. FARBY: THE COURT: MS. FARBY: sure-THE COURT: It isnt limited to Postal employees or This isnt limited to Postal patrons, is it? The parking lot? Yeah. Well, employees may park there. Im not

Postal patrons, is it? MS. FARBY: THE COURT: MS. FARBY: No, Your Honor. Okay, so its a public parking lot. It is a public parking lot but it is on

property thats under the charge and control of the Postal Service. THE COURT: MS. FARBY: THE COURT: MS. FARBY: I understand that. It is-Thats not disputed. It--the parking lot itself facilitates the

Postal function that Postal--to which Postal property is dedicated. THE COURT: But Im understanding you could--a person

can park in this Postal-owned parking lot and do anything and not just go to the post office, right?

7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. FARBY: THE COURT: Im not sure about that, Your Honor. Well, thats what the allegation is, and When it says public, to me

were stuck with the allegation.

that means not restricted to Postal patrons. MS. FARBY: The parking lot is certainly dedicated for

the use of Postal patrons. THE COURT: That isnt the issue, though, Counsel, its

who can park there. MS. FARBY: Postal function. THE COURT: MS. FARBY: Honor. THE COURT: MS. FARBY: this motion. THE COURT: complaint. MS. FARBY: Yes, Your Honor. The Postal parking lot, Right, we have to, because thats the Okay. At least well assume that for purposes of Who can park there? Anybody. Anybody can-The parking lot is designed to serve a

Anybody can park there, Your

like the Postal building itself, and all other property under the charge and control of the Postal Service, is sensitive for a number of different reasons. It is government property

that is used for a government purpose, just like the parking lot that was at issue in Dorrison, and it is pursuant to the Postal Services constitutional and statutory authority to

8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 provide Postal services and administer Postal property. THE COURT: services? All right, what is providing Postal

Its providing them to the public-Yes. --right? Okay.

MS. FARBY: THE COURT: MS. FARBY:

Because it is a government property used to

facilitate a government function, the government should be able to able to assess the security needs of that property, just as it should for courthouses, like this one, military bases, Social Security offices, and the various other kinds of government property that exists. As Your Honor

referenced, unfortunately, there is a history of violence on Postal property-THE COURT: MS. FARBY: Right. --and that makes Postal property Postal property is also a particular

particularly sensitive.

category of government property where large numbers of people congregate on a daily basis. I think its instructive to

look at what the District Court said in The United States versus Matzi Andaro case (phonetic), out of the Eastern District of Virginia, which was subsequently affirmed by the Fourth Circuit, and that case dealt with motor vehicles on national parkland. But what the Court said, analyzing

Heller, was that the schools and government buildings are sensitive places because, unlike homes, they are public

9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 properties where large numbers of people, often strangers, and including children, congregate, and, therefore, the Second Amendment leaves the judgment of whether and how to regulate firearms and other weapons to policy makers, not to the judiciary. The same is true of the Postal property thats at issue here. But, unlike national parks, for example, Postal

property is location where monetary transactions routinely take place. Those monetary transactions also make Postal And its the mail itself, the Postal The Postal

property sensitive.

function, that makes Postal property sensitive. Service is responsible for the-THE COURT:

Well, arent all these things justifications I mean, this is a threshold

that Im being asked to assume? motion.

This is a motion that says theres no claim for Youre giving me a lot of support for the

relief stated.

regulation, but that isnt before me. MS. FARBY: THE COURT: Well, Your Honor-Youre asking me to accept that, you know, Well,

on its face, this absolute prohibition is justified. its hard for me to do that under 12(b)(6). MS. FARBY:

Your Honor, the Supreme Court has made clear

that when the government is acting in its role as a proprietor of property, not in its role as the regulator or the licensor, which is often the case in some of these Second

10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Amendment decisions. But here the government is acting in

its role as proprietor of its own property, and in those circumstances the Courts have made clear that the government regulation is valid unless it is unreasonable-THE COURT: MS. FARBY: therefore-THE COURT: --if this were a case in which the Well---arbitrary or capricious, and so,

government was--Postal Service was restricting what could be on a bumper sticker, for example, parked in this public parking lot, would that be justified, because its proprietary? MS. FARBY: standard-THE COURT: MS. FARBY: No, of course not. --but the standard would be whether it was a Not necessarily, Your Honor, but the

reasonable regulation, and so here too, because the Postal--the Postal Service is acting in its proprietary capacity, its actions-THE COURT: But Im--thats what Im challenging, your

position that, because its proprietary you cant look at whether it affects any constitutionally protected activity. You would agree, wouldnt you, that if somebody comes in there with a bumper sticker that says, I hate the Postal Service, the Postal Service cant keep them out.

11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. FARBY: Yes, Your Honor, because that would likely

be an unreasonable regulation, but here-THE COURT: MS. FARBY: Well---the Postal Service decision to prohibit

firearms on its property to further the interest in public safety-THE COURT: Well, isnt that the very question, whether

that is reasonable, whether theres no way in which, by a permitting process or in any other fashion, like trigger locks--you know, there are a lot of ways in which a firearm, on this--at least the public parking lot, can be considered inaccessible while its on the public parking area. MS. FARBY: THE COURT: Right. You could have a requirement that there be a And Right?

trigger lock, that it be in a glove compartment, locked. what would be wrong with that? MS. FARBY: when-THE COURT: Dont talk about the Supreme Court, Im

Well, the Supreme Court has made clear that

talking about this case. MS. FARBY: Okay. The Postal Service is not required to

enact the most reasonable, or the only reasonable, regulation, so just because the Postal Service could have imposed a standard that was less stringent than the one it has imposed, does not mean that the standard it did impose is

12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 unreasonable when its acting in its proprietary capacity. Thats established case law. As long as the Postal Service

regulation is reasonable then it passes muster, and here the Postal Service-THE COURT: Well, how do I know whether its reasonable?

Thats the problem with this being considered on a motion to dismiss. The reasonableness of it depends upon whether there

are any other alternatives. MS. FARBY: Well, again, Your Honor, the Court has made

clear that the Postal Service is not limited to the least restrictive means available to it to further its purpose. THE COURT: MS. FARBY: THE COURT: MS. FARBY: (Pause.) The case Im referring to, and I believe that language is found in many different cases, but the specific language Im referring to is in Board of Trustees of State University of New York versus Fox, which is a 1989 Supreme Court-THE COURT: Service. MS. FARBY: Service-No, it doesnt deal with the Postal Yeah, which doesnt deal with the Postal What Court said that? The Supreme Court, Your Honor. In what? Ill provide the cite, Your Honor.

13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MS. FARBY: No. --but what it does deal with is the standard

for addressing the reasonableness of a government regulation-THE COURT: MS. FARBY: THE COURT: MS. FARBY: Yeah, and what---and that-In what context did that come up? Well, that was in the context of

intermediate scrutiny, Your Honor, and-THE COURT: right? MS. FARBY: THE COURT: MS. FARBY: Im not sure of the-Yeah. --posture of that case, Your Honor, but After what--not on a motion to dismiss,

numerous Courts have granted motions to dismiss, challenging--where cases have challenged firearms regulations. THE COURT: I know, but there are a lot of cases before

Heller, and there are a lot of cases that were interpreting the Second Amendment as not protecting any individual liberty, right? MS. FARBY: THE COURT: Thats true. I mean, thats the way the law was before

Heller, and, of course, thats why these cases before Heller are difficult to apply, because they were all in the context

14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of what we used to think the law was as to the scope of the Second Amendment, that it was a collective right, not an individual right. Now that the Supreme Court has changed

course on that, were all struggling with trying to define what that right is. And, you know, weve got a lot of

post-Heller cases, and you and opposing counsel have cited them, and there have been some since the briefing here, at the District Court level. But the problem comes back to what

are the dimensions of this individually protected liberty interest, thats--were struggling with that. MS. FARBY: I understand, Your Honor. I think its

instructive to look at what the Supreme Court did say in Heller, and what it said was that its decision should not be taken to cast doubt on laws forbidding firearms in sensitive places. THE COURT: MS. FARBY: I understand that, but-By requiring the government to submit

evidence at trial in order to justify its restrictions on firearms in every single sensitive place, that inherently would cast doubt on many of the regulations that the Supreme Court-THE COURT: MS. FARBY: THE COURT: Well, and---found shouldnt be cast into doubt. --and to just accept your position that you

cant challenge this regulation casts doubt on whether there

15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is a Second Amendment. MS. FARBY: THE COURT: MS. FARBY: No, Your Honor, thats not true. Well, doesnt it? The Second--the Postal Service regulation

here doesnt affect Second Amendment rights at all outside of Postal property. Its a narrow regulation. All it does is

says you cant bring firearms onto Postal property, and the regulation, of course, says nothing about any other place in which the Bonidys or any other person might exercise their Second Amendment right. THE COURT: Its a very narrow regulation.

Not when it comes to a public parking lot it

doesnt seem narrow to me. MS. FARBY: Its narrow in the sense that it only

prohibits firearms on Postal property, which is a very discrete place. THE COURT: You cant touch. MS. FARBY: Well, its a matter of common sense that the Okay. I think thats your argument, right?

regulation here is reasonably related to the Postal Services compelling interest in preventing violence on its property. And the Supreme Court has upheld restrictions on constitutionally protected rights based on common sense, even in a strict--even under a strict scrutiny standard. So the

Supreme Court has said that the level of evidence thats needed to justify a regulation varies up or down depending on

16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the novelty or plausibility of the justification. THE COURT: Exactly right, and that is why, it seems to

me, in this case we have to consider the special circumstances alleged in this second amended complaint, being that these are folks who dont have postal service at home, they live in a remote area, they have--and I dont know that this changes the scope of the Second Amendment, but they have a concealed carry permit, which, under Colorado law, permits them to carry a firearm in public places, and they only can access this Postal building when its under the snow ordinance in Avon through this parking lot, unless they park somewhere remotely from this building. facts of the case, as alleged. MS. FARBY: Those are the facts of the case as alleged, Now those are the

and as alleged, the plaintiffs have not established--or, have not even alleged that--have not alleged facts sufficient to show that the Postal Service regulation imposes a substantial burden on their constitutionally protected right. THE COURT: Yeah, and, you know, this is not a facial

attack, this is an as-applied challenge-MS. FARBY: THE COURT: Yes. --and thats why these facts that I have

just referred to, that are alleged in the Second Amendment complaint, seem to me to be significant for consideration here.

17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. FARBY: Your Honor, even the facts as alleged in the

Second Amendment--in the second amended complaint, do not allege--do not establish that the Postal Service regulation substantially burdens the right--there may be an incident burden on the Bonidys purported constitutional right, but incident burdens are not sufficient, Your Honor. There is no

substantial burden on their right, and thats what the-THE COURT: MS. FARBY: Is there a right to receive mail? Theres not necessarily a constitutional

right to receive mail, but-THE COURT: to serve, right? MS. FARBY: THE COURT: MS. FARBY: THE COURT: MS. FARBY: THE COURT: Yes. Its supposed to serve the public. Yes. Supposed to deliver mail to the public. Yes. In cases where theres no home delivery, What is the--the Postal Service is supposed

there has to be access to the Postal Service office to get the mail. MS. FARBY: Honor. THE COURT: MS. FARBY: THE COURT: How? At-If the access is unavailable to the Yes, and there is that access here, Your

18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 plaintiffs, if they claim that they cant get there without having their guns in the car, here we are. MS. FARBY: As alleged in the complaint, Your Honor,

they can park on the public street thats directly in front of the post office-THE COURT: MS. FARBY: Not on snow days. On days--well, note, Your Honor, the

complaint does not allege anywhere that the Bonidys have ever been precluded from parking on the public street. may--they alleged-THE COURT: Theres an ordinance that says you cant It had two inches of They

park on this street when its snowing. snow. There it is.

MS. FARBY:

What the ordinance says is that street

parking may be limited when theres an accumulation of greater than two inches of snow. THE COURT: MS. FARBY: Right. The complaint does not allege that they have

ever been precluded from parking on the public street. THE COURT: MS. FARBY: THE COURT: MS. FARBY: Have you ever been to Avon, Colorado? I have not, Your Honor. It snows a lot in Avon, Colorado. I understand, Your Honor, and actually, in

our reply brief, we submitted statistics about the average number of days with more than two inches of snow, but the

19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 complaint is silent as to whether--or, whether the plaintiffs have ever been precluded from parking on that public street. THE COURT: Why does it have to allege a date when the

ordinance says you cant park here? MS. FARBY: Because they have not been able--they have

not alleged that there has ever been a substantial-THE COURT: Why would it make a difference whether Common

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

sense is that when theres an ordinance that says you cant park here when theres two inches of snow, and youre in Avon, Colorado, theyve had days when they cant park there. Thats common sense, agreed? MS. FARBY: I agree with that, Your Honor, but in order

for the Court to even look at whether this regulation infringes a constitutional right, there must be a substantial infringement, and they have not alleged a substantial infringement. Thats-What constitutes a substantial infringement, Does it have to be more than ten days?

THE COURT:

more than one day?

What are you talking about? MS. FARBY: THE COURT: MS. FARBY: I dont know, Your Honor. Exactly. Its not necessary to decide what the outer

limits of a substantial burden would be because they have not alleged it here. They have not alleged that they have ever

20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 been precluded from parking on the public street with their firearm because of these--the snow ordinance. And in any

event, Your Honor, the snow would--the restrictions on parking on the public street is likely just an incidental burden. Its not attributable to the Postal Service I mean, the Postal Services doesnt have There are plenty

regulation itself.

to provide parking to its patrons at all. of Postal--post offices in urban areas-THE COURT:

Were talking about Avon, Colorado, not This case is factually specific. Under the facts as alleged

plenty of other areas. MS. FARBY:

Yes, Your Honor.

by the plaintiffs, they have never been precluded from parking on the public street in front of the Avon Post Office. THE COURT: MS. FARBY: THE COURT: object that. MS. FARBY: THE COURT: And-Let me hear from the plaintiff. Mr. Manley. Well, this-Its not--its---you know, youre going round and round. I

Ive been talking about the parking lot because it seems to me to be qualitatively different from the building, and youve got two claims. The first one is the building, so

it seems to me that the burden, as defendants counsel wishes to call it, on the protected interest under the Second

21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Amendment, is slight, if they can park in the public parking lot immediately adjacent to the building and go into the building without their firearms. Now, are you contending in

the first claim for relief that they must have the firearms with them when they go in the building? MR. MANLEY: In the first claim for relief? No, Your

Honor, the--its-THE COURT: MR. MANLEY: Well, what are you claiming? In the first claim for relief were simply

contending that the Bonidys have a constitutional right to possess a firearm in their car in the parking lot. THE COURT: MR. MANLEY: THE COURT: the building. Well-Thats the first claim for relief. --I thought the first claim for relief was Youve got a

Maybe Ive got them reversed.

claim that they can go into the building. MR. MANLEY: Your Honor. THE COURT: MR. MANLEY: Okay, Ive got them reversed. And, yes, the Second Amendment protects the And that right Yes, thats the second claim for relief,

right to keep and bear arms for self-defense.

has to be exercised wherever the person happens to be when that--the need for self-defense arises, and so the burden on the Bonidys, if theyre in the post office and need to exercise the right to self-defense, is total, its complete.

22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The right is rendered-THE COURT: their firearms? MR. MANLEY: Well, no, I dont think so, Your Honor, The--this So they could walk into this building with

because this building is qualitatively different. building-THE COURT: difference? MR. MANLEY: Whats the difference? Whats the

Well, this building has security, it has There are metal

screening, and it has restricted access.

detectors at every entrance, and only individuals who have been verified to be unarmed are allowed to enter the building-THE COURT: MR. MANLEY: Okay. --and then when theyre here, theyre under

the--everyone in the building is under the protection of the-THE COURT: MR. MANLEY: THE COURT: Now---Security Service. --the plaintiffs, when, you know, the fact

that theres a concealed carry permit, how does that affect the claim--the case? MR. MANLEY: Well, factually, Your Honor, it shows that

theyre law-abiding individuals. THE COURT: I know, but, you know, the Second Amendment

23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 presumes everybody is law-abiding, unless you come within one of their restrictions on having firearms, like 922 of Title 18. Thats a different thing entirely, if youre a convicted So, but I dont

felon or illegal--all these other things.

see that the concealed carry--it just means that the Eagle County Sheriff has granted them a permit under Colorado law, but I dont think that affects the scope of the Second Amendment, do you? MR. MANLEY: THE COURT: MR. MANLEY: I agree, Your Honor, and-Okay. --and I think all it shows is that the--is

that the Bonidys arent those people-THE COURT: MR. MANLEY: THE COURT: Yeah. --that are identified by 922. So this right of self-defense is not

different for them than it is for any other person who is not restricted from having possession of firearms, true? MR. MANLEY: THE COURT: MR. MANLEY: I think thats correct, Your Honor, yes. Yeah, all right. I think it calls in the level of vetting

that the Bonidys have undergone through the sheriff, through the background checks, indicates that perhaps the defendants interest in security are not connected to denying the Bonidys the right to keep and bear arms. So it calls into the

question the rationale for the Postal ban--

24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MR. MANLEY: THE COURT: You dont---especially as applied to the Bonidys. In Colorado you dont get a concealed carry

permit--do you have to show you have a particularized need for protection? MR. MANLEY: THE COURT: No, Your Honor. Yeah, I didnt think so. You simply have to

show you know how to handle a firearm, that you dont have any of the restrictions on your mental capacity and all those things, and you have a clean record, and then you can get it. So thats why, when we look at this question of the protection of self--well, self-protection, insofar as Heller was based on the need for self-protection as justification for the individual right to have a firearm, you know, I think that we have to look at this case as whether they had a concealed carry permit or not, whether they have special circumstances of being in an area where they may need self-protection from animals, for that matter. But what it seems to me is important here is their access to their mail. Now I questioned Ms. Farby about the, Its to serve and give They dont get mail

you know, what is the Postal Service. you access to mail addressed to you.

service at home, and that may be a special circumstance in this case. their mail. Not everybody has to go to the post office to get

25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Your contention, as I understand it then from what Ive heard you say here, and from what I saw in the papers filed, is that given that the postal facility in Avon, Colorado is not a secured area with--so that anybody inside of it feels protected by the security measures that are in place, that it ought to be, and, therefore, its public access, you ought to be able to have self-protection there. Thats your contention. MR. MANLEY: Yes, Your Honor. The Avon Post Office is

no different from a grocery store or a gas station or a bank in Avon. Theyre all places that are open to the public,

that have no security measures in place, like a courthouse or an airport, or other federal facilities that are similarly protected. THE COURT: that, do we? MR. MANLEY: THE COURT: For that, that rule, Your Honor? Yeah. For that distinction between public Now we dont have any case authority for

buildings that are within a secure zone, so to speak, and those that arent. Thats something that Im not--that I

havent seen in any of the cases that Ive reviewed. MR. MANLEY: law, Your Honor. THE COURT: MR. MANLEY: All right. What Im--what I do know is that the laws I dont--Im not familiar with any case

26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of the states, for instance, Colorado, reflect that distinction. A concealed carry permit in Colorado doesnt

authorize a person to carry into a public building that has a metal detector, or a federal building where federal law prohibits-THE COURT: MR. MANLEY: THE COURT: MR. MANLEY: In that in a state statute, or-It is, Your Honor, yes. Okay. And so the, you know, the laws of the

states reflect that, that distinction, and it seems to be an objective distinction thats based on the character of the building, its based on the how the building is being secured, rather than just an arbitrary whim of some government official saying, This place is sensitive for-- THE COURT: MR. MANLEY: THE COURT: Now that---for no objective reason. The background of this case is that there

was an effort made here by the--is it Ba-needy (phonetic)? MR. MANLEY: THE COURT: I think its Bon-iddy (phonetic). --that the Bonidys attempted to get some

kind of accommodation to permit--and agreed, for example, to a locked glove compartment, is that right? MR. MANLEY: THE COURT: Thats correct. I mean, that isnt in our complaint, but Im

talking about the background.

27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MANLEY: Well, the--we actually do allege in the

complaint that the Bonidys contacted-THE COURT: MR. MANLEY: Yeah, okay. --the post office and requested recognition

of their right to carry on the Postal property, either in the car or, obviously, what they truly desire is to be able to carry, you know, when they go into the building as well, but they requested both of those-THE COURT: MR. MANLEY: THE COURT: Yeah. --accommodations. So, as I understand this case then, if it

were to go forward, we would be looking at whether there are means to, you know, the--the government interest here is public safety, with respect to property thats under the ownership and control of the Postal Service, an--I dont know if the Postal Service is technically an agent, or agency of the government anymore or not, but at any rate, your--as we go forward, you would be looking at--and, of course, opposing counsel says you dont have to have least restrictive. as I understand your case, it is somewhat like a First Amendment case, in terms of balancing, or attempting to balance, the protected interests of the individual plaintiffs versus the governmental interests in public safety, and, therefore, as I--and tell me if Im wrong in understanding this, youre not averse to some reasonable accommodation in But,

28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 balancing these interests. MR. MANLEY: THE COURT: MR. MANLEY: struck-THE COURT: MR. MANLEY: Yeah. --and where that balance lies is something Is that true?

Yes, Your Honor, I think theres-Yeah. --theres a balance that needs to be

that we need to determine-THE COURT: MR. MANLEY: THE COURT: Youre not---based on the evidence. --therefore, claiming an absolute right to

have these handguns in a holster, covered, and walk anywhere you want to on the property. MR. MANLEY: Well, no, certainly, and were not claiming

that the Bonidys have a right to walk into the restricted area of the post office, or the restricted parking lot if there--Im not sure that there is one at Avon, but Id imagine there is, where they stage the mail trucks. Were

not arguing with any of that, simply the public areas where the general public is allowed-THE COURT: MR. MANLEY: THE COURT: Yeah. Now I--

--to come and go freely. --you know, Im assuming that the--Ive

never seen this post office, so Im assuming there are boxes or--is that right? They have a p.o. box and--

29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MANLEY: THE COURT: Thats right, Your Honor. --they go and unlock it and take out--I

dont know if they do that anymore. MR. MANLEY: No, thats right. Yes, the post office

provides the Bonidys with a post office box-THE COURT: MR. MANLEY: THE COURT: MR. MANLEY: Yeah. --and thats how they get their mail. So, and they rent a box? The box is provided free of charge because

the Postal Service-THE COURT: MR. MANLEY: THE COURT: Because theres no---doesnt deliver to their home. --home delivery. And I assume, given the

nature of Eagle County, thats true of a lot of folks up there. Theres limited home delivery. At the very least, the Bonidys neighbors

MR. MANLEY:

fall into the same group. THE COURT: you suggesting? MR. MANLEY: Well, Your Honor, the defendants have the So how would this case go forward? What are

burden to justify their regulation, and then the plaintiffs would have to rebut any evidence that they offer. Thats the

evidentiary procedure in the First Amendment context, and, as you, I think, correctly point out, that this is like a First Amendment case.

30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MR. MANLEY: THE COURT: Okay. Thank you.

Thank you. Well, I think Ive--I think Ive got your You may--

arguments, Ms. Farby, have I? MS. FARBY: THE COURT: MS. FARBY: THE COURT: MS. FARBY:

Your Honor, can I briefly be heard-Yeah, sure. --to address some points raised? Yeah. Thank you. Ill be brief, Your Honor, I

just want to address a couple of points made by opposing counsel. The Courts and Heller have made clear that

categorical restrictions are permitted, and so here the Postal Service should not have to go property by property, patron by patron, to determine whether that person or that property should be restricted. Categorical prohibitions on

possession of firearms in sensitive places are permitted, thats what the Supreme Court said in Heller. THE COURT: sensitive place? MS. FARBY: Right, Your Honor, and, again, the Court I know, but the whole issue is whats a

there made clear that schools and government buildings are not the only kinds of sensitive places. THE COURT: else is. MS. FARBY: Thats right, Your Honor, and counsels I know that, but they dont tell us what

31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 suggestion that only places that electronically screen persons entering the property, thats just directly contrary to Heller because theres many schools and government buildings themselves that dont screen people walking into the building, but under Heller-THE COURT: MS. FARBY: Yeah. --those are sensitive places where firearms

may be prohibited. THE COURT: than it answers. MS. FARBY: and-THE COURT: MS. FARBY: Very little. --the Tenth Circuit has taken the Court at But it does provide guidance, Your Honor, Well, you know, Heller raises more question

its word in finding that restrictions beyond those expressly enumerated in Heller-THE COURT: MS. FARBY: THE COURT: MS. FARBY: Criminal restrictions. Yes, criminal restrictions-Yeah. --but other Courts outside of the Tenth

Circuit have found restrictions in sensitive places to be within Heller, even though theyre not schools or government buildings. THE COURT: MS. FARBY: And not a post office. Well, Dorrison--

32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MS. FARBY: THE COURT: MS. FARBY: Thats a restricted area. It was a restricted area, Your Honor, but-Thats not this case. Its not this case but the Court there

didnt limit its decision to the fact it was a restricted area. What it said was it was used as a place of regular

government business-THE COURT: MS. FARBY: THE COURT: MS. FARBY: THE COURT: Yes. --and the parking lot-By employees of the government. But with the Court theres-And you know the background of Postal

violence has been employee on employees, or ex-employees. MS. FARBY: THE COURT: MS. FARBY: I believe thats true in part, I-Yeah. The public areas of the Postal--of the post

office and the parking lot are also sensitive because of the mail. The mail is carried in the public areas and there is

often sensitive information and valuable material-THE COURT: MS. FARBY: THE COURT: Well, sure---that goes---but theres also the public interest in

getting the mail. MS. FARBY: THE COURT: That--thats-The publics a part of the government

33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 function here. MS. FARBY: This is a public building. The notion that the Postal Service should

have to decide on an individual basis whether a person should be permitted to bring firearms onto property would cast into doubt a whole range of federal restrictions on-THE COURT: Why? Why would that be true? Why cant

they just issue a permit to these people-MS. FARBY: THE COURT: MS. FARBY: Well, nothings---with restrictions? Well, nothing would stop the next person Nothing would stop

from seeking the same restriction.

somebody from challenging the prohibition on firearms in this building, Your Honor, and the government shouldnt have to submit to go through an extensive process and trial where they have to submit evidence to justify each and every restriction-THE COURT: MS. FARBY: THE COURT: MS. FARBY: THE COURT: to go forward. Well---in each every government property. --Im denying-Congress-Im going to deny your motion. Were going

Were going to determine the reasonableness

of this under whatever standard we finally develop, probably the intermediate scrutiny. So youre going to answer, and

were going to have a scheduling conference--

34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. FARBY: THE COURT: Thank you. --to determine what limits there should be

on discovery in the case, and questions of who goes forward with what evidence. me. Those are things that are not clear to

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

regulation, as applied to these people, cannot just be accepted because the government--the Postal Service says so. And thats where we are. the case, I presume. MS. FARBY: THE COURT: Yes, Your Honor. And you have travel obligations--I mean, you Now youre going to continue with

have a burden of travel. MS. FARBY: THE COURT: Yes, Your Honor. So what Id like to do is set a scheduling

conference while youre here. MS. FARBY: THE COURT: Okay. I dont mean today, but, I mean, set a date

for it while youre here-MS. FARBY: THE COURT: January. Okay. --and, you know, itll have to be in

So do you have a calendar with you then? Yes, Your Honor. Okay. Give me a moment, please. Well, lets talk about a date. And I

MS. FARBY: THE COURT: MS. FARBY: THE COURT:

35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 dont--Im presuming that it would be easier for you to do it in the morning? MS. FARBY: THE COURT: Yes, Your Honor. Yeah, instead of--here we are, youre out Well,

here in--you may have to spend a weekend out here. that isnt so bad. Thursday. know-MS. FARBY: THE COURT: MS. FARBY: THE COURT: MS. FARBY: THE COURT: MR. MANLEY: But how about January 12th?

Thats a

Lets say 10:00 oclock, or 11:00 oclock, I dont

Your Honor, give me one moment to-Sure. --check to make sure-Yeah. --I dont have anything-Of course. Your Honor, I do know that Ill be I do intend to be back--

traveling earlier in that week. THE COURT: MR. MANLEY:

This is a Thursday. Yes, I intend to be back on Thursday, but I I

dont know what my travel arrangements are at this point. may be traveling on Thursday, I dont know. THE COURT: Well, we could go--I cant--Id have to go

into the week of the 23rd then. 26th? MS. FARBY: THE COURT:

What about the 26th, January

Your Honor, thats fine for me-What time of day is best for you? Ive got

36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that-MS. FARBY: Thank you, Your Honor. I assume you want

the scheduling conference in person, and not-THE COURT: MS. FARBY: Oh, yes, for sure. Its face to face here. The morning is

Thank you, Your Honor.

preferable, but, of course, Ill--whatever you-THE COURT: MS. FARBY: THE COURT: MR. MANLEY: THE COURT: Well, is 10:00 oclock-Thats fine. --suitable? How about you, Mr. Manley?

I believe that works for me, Your Honor. Okay. Ten oclock, January 26th, for the

scheduling conference, and, of course, well need the answer before then. And I have procedures that are posted with the

form of scheduling order and so forth that, Ms. Farby, you may not yet be familiar with, but you will be. And it

provides that counsel attempt to meet and agree on a proposed scheduling order, but it not be filed electronically, that it be submitted in paper form, and it could come through Mr. Manley then, since hes got better access than you do to the courthouse. case goes. So youll see all that, and well see where this So, any questions then? Well go forward and see

how were going to address these interesting questions. Okay? Courts in recess.

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

37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 s/John Schasny John Schasny Federal Reporting Service, Inc. 17454 East Asbury Place Aurora, Colorado (303) 751-2777 80013 2011. I hereby certify that the foregoing has been transcribed by me to the best of my ability and constitutes a true and accurate transcript of the mechanically recorded proceedings in the above matter. Dated at Aurora, Colorado this 1st day of December, TRANSCRIBER'S CERTIFICATE