Opinion
No. 137P24
08-21-2024
STATE of North Carolina v. Joseph John RADOMSKI, III
Heidi E. Reiner, Assistant Appellate Defender, For Joseph John Radomski (III). Glenn Gerding, Appellate Defender. Ryan Y. Park, Solicitor General, For State of North Carolina. Lindsay V. Smith, Deputy Solicitor General, For State of North Carolina. Mary Elizabeth D. Reed, Solicitor General Fellow, For State of North Carolina. South A. Moore, Deputy General Counsel, For State of North Carolina.
From N.C. Court of Appeals 23-340; From Orange 21CRS51423
Heidi E. Reiner, Assistant Appellate Defender, For Joseph John Radomski (III).
Glenn Gerding, Appellate Defender.
Ryan Y. Park, Solicitor General, For State of North Carolina.
Lindsay V. Smith, Deputy Solicitor General, For State of North Carolina.
Mary Elizabeth D. Reed, Solicitor General Fellow, For State of North Carolina.
South A. Moore, Deputy General Counsel, For State of North Carolina.
ORDER
Upon consideration of the petition filed on the 25th of June 2024 by the State in this matter for discretionary review of the decision of the North Carolina Court of Appeals pursuant to G.S. 7A-31, the following order was entered and is hereby certified to the North Carolina Court of Appeals:
Denied by order of the Court in conference, this the 21st of August 2024.
Justice RIGGS dissenting.
This case raises an important question about the reach of the Second Amendment: Whether the parking lot of a public university is a "sensitive place" in which the government may restrict the use and possession of firearms. See State v. Radomski, 901 S.E.2d 908, 914 (N.C. Ct. App. 2024) (opining that a parking lot serving a university healthcare building and adjacent to undergraduate dormitories and a college football stadium is not "educational in nature" and, thus, not a "sensitive place"). The Court of Appeals ruled a state law unconstitutional as applied to Mr. Radomski, but the breadth of the opinion below implicates so many more than just him. See id. Rather than provide much needed clarity on a law that reflects the legislature’s intent to keep children safe from gun violence on educational grounds, and thereby provide clarity to law enforcement and school administrators on how to reconcile the duly enacted legislation with the Court of Appeals’ ruling, this Court leaves an ambiguous, bare-bones lower court opinion standing. This inaction allows a cloud of uncertainty to potentially endanger our students and most certainly make much more difficult the work of law enforcement officers and school administrators. For the reasons below, I dissent.
I. Sensitive Places Doctrine
The Second Amendment of the United States Constitution protects "the right of the people to keep and bear Arms." U.S. Const. amend. II. The Amendment’s applicability to state firearm regulations was largely unexamined until the United States Supreme Court’s decision in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). See id. at 625, 128 S.Ct. 2783 ("It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens."); see also State v. Kerner, 181 N.C. 574, 575, 107 S.E. 222 (1921) ("The [S]econd [A]mendment … does not apply, for it has been repeatedly held by the Unites States Supreme Court … that the first ten amendments to the United States Constitution are restrictions upon the Federal authority and not upon the states."). In Heller, the Court focused heavily on the Second Amendment’s meaning and, most important here, concluded that arms-bearing rights have bounds. See Heller, 554 U.S. at 626, 128 S.Ct. 2783 ("Like most rights, the right secured by the Second Amendment is not unlimited.").
In particular, the Heller Court recognized the soundness of "longstanding … laws forbidding the carrying of firearms in sensitive places such as schools and government buildings." Id.; see also McDonald v. City of Chicago, 561 U.S. 742, 786, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (same); United States v. Rahimi, — U.S. —, 144 S. Ct. 1889, 1902, — L.Ed.2d — (2024) (reiterating Heller’s limits on gun rights). Such prohibitions were deemed "presumptively lawful," Heller, 554 U.S. at 627 n.26, 128 S.Ct. 2783, which is telling coming from a staunchly originalist opinion, see Julia Hesse & Kevin Schascheck II, The Expansive ‘Sensitive Places’ Doctrine: The Limited Right to ‘Keep and Bear’ Arms Outside the Home, 108 Cornell L. Rev. Online 218, 246 (2024) [hereinafter Hesse, Expansive ‘Sensitive Places’ Doctrine] ("The sensitive places doctrine does not call for an originalist inquiry because the doctrine is not the product of an originalist analysis. This is because such a view of the sensitive places doctrine, or any other presumptively lawful category under Heller, would fail to make structural sense when reading Heller as a whole. Heller is a deeply originalist opinion.").
Two years ago, in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022), the United States Supreme Court elaborated on what is now coined the "sensitive places" doctrine:
[W]e are … aware of no disputes regarding the lawfulness of [sensitive place] prohibitions. We therefore can assume it settled that these locations were "sensitive places" where arms carrying could be prohibited consistent with the Second Amendment. And courts 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.
Id. at 30, 142 S.Ct. 2111 (second alteration in original) (emphasis in original) (citations omitted). Applying that framework, Bruen held that the New York firearm law at issue did not permissibly regulate a "sensitive place" because it covered areas "where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available." Id. at 30–31, 142 S.Ct. 2111. To the Court, such an application of the "sensitive place" exception was "far too broad[ ]" and lacked a historical analog. Id. at 31, 142 S.Ct. 2111; see also id. ("Respondents’ argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense …. ").
II. Discussion
In the case at bar, Mr. Radomski was convicted of possessing a firearm on educational property for having in his vehicle— parked on Crescent Parking Lot, which is central to the UNC-Chapel Hill campus—a number of unsecured, long guns. Radomski, 901 S.E.2d at 911–12. Using Bruen as guidance, the Court of Appeals, in an oddly designated as-applied challenge that was not preserved at trial, considered whether a university parking lot is a "sensitive place." Id. at 913-14. More specifically, the Court of Appeals focused on the constitutionality of North Carolina’s statutory gun restrictions. Id. at 913–15.
Mr. Radomski was specifically located at Crescent Parking Lot, Radomski, 901 S.E.2d at 911, which neighbors Kenan Stadium, UNC School of Medicine, Taylor Campus Health, and UNC Hospital, see Crescent Visitor Parking Lot, Univ. N.C. Chapel Hill, https://maps.unc.edu/parking/ crescent-visitor-parking-lot/ (last visited Aug. 22, 2024).
In 1971, our General Assembly carefully crafted N.C.G.S. § 14-269.2(b) to limit firearm possession on educational campuses while providing a significant list of exceptions for citizens with permits or the need to carry weapons (so long as the weapons are properly secured). See An Act to Protect Persons on the Property of Any Public or Private Educational Institution from Persons Carrying Firearms or Other Weapons, ch. 241, § 1, 1971 N.C. Sess. Laws 176–77 (codified as amended at N.C.G.S. § 14-269.2 (2023)). Unlike the sweeping regulation in Bruen, section 14-269.2(b) narrowly prohibits firearms specifically on "educational property," barring the carrying or possession of guns on:
Any school building or bus, school campus, grounds, recreational area, athletic field, or other property owned, used, or operated by any board of education or school board
of trustees, or directors for the administration of any school.
N.C.G.S. § 14-269.2(a)(1) (2023).
Yet the Court of Appeals, with alarming brevity, truncated the statute's scope, holding:
However, [Mr. Radomski] argues, and we agree, that the purpose of the "open-air parking lot situated between the emergency room entrance, a football arena, and another healthcare building[ ]" is not educational in nature; rather, its function is to provide "parking access to the health care facilities in the area, including the hospital where [Mr. Radomski] was trying to be seen for significant kidney health concerns."
Radomski, 901 S.E.2d at 914 (second alteration in original). According to that court, section 14-269.2(b) was not a presumptively lawful "sensitive place" restriction in Mr. Radomski’s case because Crescent Parking Lot was not "educational in nature." Id. at 914. That court then continued with Bruen’s analogical test, which required the State to provide a sufficient historical analog to section 14-269.2(b) to pass Second Amendment muster. Id. at 914-15 ("The State argues that, ‘even applying Bruen’s analogical test, N.C.G.S. § 14-269.2(b) easily passes constitutional review.’ " (alteration accepted)). Because the Court of Appeals was unconvinced that the State met this burden, it concluded that section 14-269.2(b) unconstitutionally restricted Mr. Radomski’s Second Amendment rights. Id. at 915.
On appeal, the State raises grave concerns about the legal soundness and practical consequences of the Court of Appeals distillation of Second Amendment jurisprudence. It notes that Heller specifically carved out the "sensitive place" doctrine to allow firearm regulations in "schools and government buildings." Heller, 554 U.S. at 626, 128 S.Ct. 2783. The State argues that doctrine applies here because UNC-Chapel Hill (1) is an educational campus and includes Crescent Parking Lot within its property grounds and (2) is a public research institution, entirely owned and operated by the State of North Carolina. According to the State, had the Court of Appeals properly applied the "sensitive places" analysis, it would have upheld the statute's constitutionality. Other courts have reached that conclusion in similar cases. See United States v. Class, 930 F.3d 460, 464 (D.C. Cir. 2019) (ruling that a parking lot roughly 1,000 feet from the entrance of the United States Capitol Building was "sufficiently integrated with the Capitol for Heller[ ]’s sensitive places exception to apply"); Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1125 (10th Cir. 2015), cert. denied, 577 U.S. 1216, 136 S.Ct. 1486, 194 L.Ed.2d 550 (2016) (concluding that a parking lot was a sensitive place because it should be "considered as a single unit with the postal building," which was attached to and exclusively served by the lot); United. States v. Dorosan, 350 F. App’x 874, 875 (5th Cir. 2009), cert. denied, 559 U.S. 983, 130 S.Ct. 1714, 176 L.Ed.2d 198 (2010) (applying the sensitive places doctrine to a government-owned parking lot after considering the government’s ownership of the lot and the lot’s government purpose); State v. Schofield, No. 1608024954, 2023 WL 7276650, at *3 (Del. Super. Ct. Nov. 3, 2023) (extending the sensitive places doctrine to a public sidewalk in a school zone because Bruen broadly categorizes schools as sensitive places), affd, 314 A.3d 1077 (Del. 2024); Wade v. Univ. of Mich., No. 330555, slip op. at 13, — N.W.3d —, —, 2023 WL 4670440 (Mich. Ct. App. July 20, 2023) (rejecting the argument that "the entire campus is not a ‘sensitive area’ " as "untenable because it would require that certain ‘areas’ of the University be partitioned off from other areas of the University"), on remand from 981 N.W.2d 56 (Mich. 2022); cf. Hesse, Expansive ‘Sensitive Places’ Doctrine at 251 ("Whatever courts may eventually decide constitutes a sensitive place, that sensitive place will have a buffer zone around it. Conceptually, the buffer zone includes places that are sensitive by virtue of their proximity to the core sensitive place.").
The Court of Appeals invoked Rule 2 to address the unpreserved constitutional issue because of the "newly percolating and widely occurring issue" of Second Amendment jurisprudence. Radomski, 901 S.E.2d at 913. Yet by not taking this case, this Court allows an intermediate appellate court to invalidate a duly enacted state law and provides no clarity on the limits of the "as applied" nature of its invalidation. See id. at 919 (concluding vaguely that "[t]he application of N.C.G.S. § 14-269.2(b) to [Mr. Radomski’s] conduct under these facts unconstitutionally restricts [his] Second Amendment protections."). Put another way, where is the limit to the Court of Appeals’ ruling? Is a library parking lot not "educational" in nature? Is a dormitory parking lot not "educational" in nature? What about a classroom parking lot? And it is far from clear that the Court of Appeals’ ruling is limited to parking lots. Universities offer gymnasiums, food halls, and recreational facilities, among many other amenities, to their students—places outside the classroom that address student well-being. It may very well be a fair reading that the Court of Appeals’ decision calls into question whether the State can regulate the possession of unsecured firearms in school gyms. In our inaction, we do a great disservice today to the safety of this state’s children, and we undermine the important work of school administrators and law enforcement who are reconciling compliance with our state’s laws and our judiciary’s rulings.
III. Conclusion
Instead of evaluating the Court of Appeals’ application of Bruen, this Court stays quiet. That silence is destabilizing and unwarranted. By enacting section 14-269.2(b), the General Assembly aimed to balance public-safety needs with our citizens’ Second Amendment rights. See State v. Conley, 374 N.C. 209, 219, 839 S.E.2d 805 (2020) (Morgan, J. dissenting, with Newby, J. joining) ("[I]t is clear that the legislature intended that the presence of any gun or other firearm on educational property generate a heightened degree of concern …. The obvious legislative intent of this focused statutory enactment is to prevent violence in the schools located in North Carolina."). Whether the legislature struck the right balance is a crucial question, one particularly suited for and worthy of judicial evaluation. See Rahimi, 144 S. Ct. at 1898 ("As we explained in Bruen, the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition. A court must ascertain whether the new law is relevantly similar to laws that our tradition is understood to permit, applying faithfully the balance struck by the founding generation to modern circumstances." (cleaned up)).
By declining to examine the decision below, this Court dodges important questions about the constitutionality of North Carolina’s gun regulations—on school property in particular and in "sensitive spaces" more generally. In other matters, this Court has taken the position that any time the Court of Appeals invalidates an act of the General Assembly, it is a matter of public importance and jurisprudence warranting merits review. See State v. Grady, 372 N.C. 509, 521-22, 831 S.E.2d 542 (2019) ("[W]e presume that laws enacted by the General Assembly are constitutional …. " (quoting Cooper v. Berger, 370 N.C. 392, 413, 809 S.E.2d 98 (2018))); Hart v. State, 368 N.C. 122, 126, 774 S.E.2d 281 (2015) ("[W]e begin with a presumption that the laws duly enacted by the General Assembly are valid." (citing State ex rel. Martin v. Preston, 325 N.C. 438, 449, 385 S.E.2d 473 (1989))). Because I believe we should say something, I respectfully dissent.
Justice EARLS joins in this dissenting opinion.