Defending (My) Our Castle: A Look at Gun Regulation by Community Associations

by Joseph E. Adams, Jay Roberts

Please click here for the entire article

On September 6, 2012, David Merritt, president of the Spring Creek Homeowners Association, called a homeowners association meeting to order. Approximately 30 minutes later, Merritt, and former president of Spring Creek Marvin Fisher, would be fatally shot by their neighbor, Mahmood Hindi. The dispute between Hindi and Spring Creek involved an unapproved driveway and fence installed by Hindi. Hindi was charged with murder, but committed suicide in jail prior to his trial. The Hindi case may not be familiar to many Floridians, but the case of George Zimmerman certainly is. Zimmerman was allegedly acting as an unofficial neighborhood watch participant within Retreat at Twin Lakes, a Sanford townhouse development, when he had an altercation leading to the shooting death of Trayvon Martin. Zimmerman was found not guilty of criminal wrongdoing in the death of Martin. Martin’s family later sued the homeowners association. The homeowners association and the Martins reached an undisclosed settlement in that case, however, there were reports that the association paid Martin’s family upward of $1 million to settle the dispute.

The issue of gun control is everpresent in America, and engenders strong emotions and arguments on all sides. This article does not seek to advocate a position for or against gun control, or assume that gun regulation by community associations will prevent or cause additional harm to the residents governed by such regulations. Rather, the article analyzes the legal basis upon which gun restrictions by Florida community associations would be examined by a court.

Both the United States and Florida constitutions state that the right of the people to keep and bear arms shall not be infringed. In general, the federal and state constitutions limit the powers of government, not private citizens or private corporations. In certain circumstances, courts have imposed constitutional restraints on private actors. These circumstances include state action through judicial enforcement, the performance of public functions, and state involvement.

The seminal case concerning state action involves a central component to all community associations in Florida, namely, restrictive covenants. Shelley v. Kraemer, 334 U.S. 1 (1948), concerned two sets of private restrictive covenants (one in Missouri and one in Michigan). Both sets of restrictive covenants prohibited non-Caucasian persons from occupying the real property encumbered by the restrictive covenants. Preceding Shelley, the U.S. Supreme Court had invalidated restrictive state laws and local ordinance that prohibited residential occupancy based on race. The Buchanan v. Warley, 245 U.S. 60 (1917), and Harmon v. Tyler, 273 U.S. 668 (1927), cases were based upon the 14th Amendment to the U.S. Constitution being the conduit, which makes the U.S. Constitution’s fundamental rights apply to actions by state government.

Please click here for the entire article