Okay, need some help with a festival.

[skidmark]

imported post

jmelvin wrote:

Well we see what kind of luck GFA (Georgia Firearms Ass'n.) had playing the game in Fed courts using the US Constitution in a pre-McDonald world, rather than state constitution when they challenged the Atlanta airport's ban on firearms carry. I suppose a look at precedents set at the state level rather than US might be useful. The unnecessary limitation of the practice of state recognized civil rights (not a "sensitive" area) on property owned by a local government (that operates at the pleasure of the state) seems to be non-sensical. What good are protections of civil rights against government infringement if they can just abrogated at whim of the government by turning over government owned property to a hostile 3rd party?

We have seen how the City of Norfolk lost the case about Waterside. There are rumbligs about the Richmond Coliseum. But both were/are (should be?) slam-dunk cases.

The Red Cross case is different for at least two reasons: 1) the AG Opinion says the locality is not doing anything as a State Actor (under color of law) when the renter/permittee sets the policy; and 2) the AG Opinion did not address whether or not a locality can allow a renter/permittee to act unlawfully while using public property. (In other words, was the rental contract/permit valid if the renter/permittee is not required to eschew discriminatory acts. (Heck, if they want to be discriminatory they can go rent some private property and be as discriminatory as they want to be. Even SCOTUS says that is OK.)

stay safe.

skidmark

 

[John Pierce]

imported post

I see nothing wrong with his opinion. If a private organization leases municipal property for a specific event (vs long term operation of a public-nature facility ... see below), they inherit all possessory rights.

To quote from Property 101, "Possession by a lessee involves not only the exercise of acts of ownership over the land, but also the exclusion of the exercise of such acts by others."

It is important to note the last full paragraph in his opinion where he comments that this would not be the case in an agency relationship such as leasing a venue which has a public nature to a private actor as a means to circumvent preemption or constitutional protections.

As the Supreme Court stated in Evans v. Newton, 282 U.S. 296 (1966) (addressing private trustees discriminating against African Americans in a park), if the State (read government at any level) is implicated in the supervision, control, maintenance or management of the property, then the private actor is presumptively acting as an agent of the State and is therefore subject to all of the limitations imposed upon the State.

As Mike has noted, the proper response to this is NOT to attack a staunch ally for doing his job. Rather, we need to have legislation introduced to require that short-term leases by state and local authorities to private entities include clauses requiring the private entity not to discriminate against lawful carry.

Just my .02, but I strongly believe that any off-the-cuff attacks would be very detrimental to our cause.


John

 

[jmelvin]

imported post

Thanks John. I suppose if the AG has nothing to hang his hat on like the suggested legislation then his is an acceptable analysis, even if we don't like it.

 

[TFred]

imported post

skidmark wrote:

jmelvin wrote:

Well we see what kind of luck GFA (Georgia Firearms Ass'n.) had playing the game in Fed courts using the US Constitution in a pre-McDonald world, rather than state constitution when they challenged the Atlanta airport's ban on firearms carry. I suppose a look at precedents set at the state level rather than US might be useful. The unnecessary limitation of the practice of state recognized civil rights (not a "sensitive" area) on property owned by a local government (that operates at the pleasure of the state) seems to be non-sensical. What good are protections of civil rights against government infringement if they can just abrogated at whim of the government by turning over government owned property to a hostile 3rd party?

We have seen how the City of Norfolk lost the case about Waterside. There are rumbligs about the Richmond Coliseum. But both were/are (should be?) slam-dunk cases.

The Red Cross case is different for at least two reasons: 1) the AG Opinion says the locality is not doing anything as a State Actor (under color of law) when the renter/permittee sets the policy; and 2) the AG Opinion did not address whether or not a locality can allow a renter/permittee to act unlawfully while using public property. (In other words, was the rental contract/permit valid if the renter/permittee is not required to eschew discriminatory acts. (Heck, if they want to be discriminatory they can go rent some private property and be as discriminatory as they want to be. Even SCOTUS says that is OK.)

stay safe.

skidmark

As John noted earlier, that last paragraph of the opinion was pretty important. I think he was warning the Norfolks and the Richmonds not to view this opinion as a way to get around preemption by using lease agreements or contractors for managing public property.

I also wonder if your point #2 might be a bit of circular reasoning. The ARC is not breaking the law by restricting the carry of firearms per se, but only because they are restricting the carry of firearms on public property. What you describe as unlawful is only that because of where they are doing it. They can't be "acting unlawfully while using public property" if what they are doing would not be unlawful were it not on public property.

Unfortunately, the carry of firearms is not a protected class, so I don't think it meets any legal criteria for discrimination, no matter how much we see it that way.

Just more thoughts...

TFred