April 2011 - Parks & Recreation - 36

LAW REVIEW continued from page 33

The court, however, found Warden had cited
under the Fourteenth Amendment, and
the Washington State Constitution.
The federal district court noted that
the " Washington State Supreme Court recently relied on Heller as guidance as to
assess the scope of the rights reserved to
individuals in Article I, § 24 of the Washington State Constitution. " In so doing,
the court found " Heller provides limited
guidance as to how to evaluate the constitutionality of gun regulations under the
Second Amendment, " specifically, the
" sensitive place " limitation in the Second
Amendment. In so doing, consistent with
the Second Amendment, the court adopted the reasoning in Heller that " laws may
fully prohibit the carrying of firearms in
sensitive places such as schools and government buildings " :
As with a government building or
school, a city-owned park where children and youth recreate is a " sensitive "
place where it is permissible to ban
possession of firearms. In this regard,
the Court sees no logical distinction between a school on the one hand and a
community center where educational
and recreational programming for children is also provided on the other. Just
as the Federal Courts do not want civilians entering into courthouses with
weapons, the City does not want those
with firearms entering certain parks
where children and youth are likely
present. The Park Rule is thus a perfectly acceptable prohibition on gun
possession in a sensitive place and it
passes state constitutional scrutiny.

Apr i l 2 0 1 1

right to possess a pistol at a city park. "
and community centers where children
and youth recreate. " Moreover, the court
acknowledged that Warden " may even
bring firearms into those parks that are
not designated by the Park Rule. "
Warden had claimed that the Park
Rule policy was unconstitutional because
it was " incoherent and arbitrary. " The
court, however, found Warden had cited
" no case law showing that he has a fundamental right to possess a pistol at a city
park. " Rather, the court found the ruling
in Heller regarding a Second Amendment
right to possess a hand gun was " limited to the home only. " Further, the federal
district court found the necessary " rational basis " existed for the City's policy to
pass constitutional muster.
Under rational basis analysis, a classification must be upheld against equal
protection challenge if there is any reasonably conceivable state of facts that
could provide a rational basis for the
classification.

Applying this principle to the facts of the
case, the federal district court found " the
Park Rule was created to ensure safe areas
for children and youth to recreate without
the threat of violence caused by or related
to firearm possession on park grounds. "

Accordingly, under both Heller and
Washington law, the federal district court
held the Park Rule was a constitutional
restriction on the possession of firearms
in a " sensitive " place. In so doing, unlike
the plaintiff in Heller, Warden was " not
prohibited from possessing a gun in his
home, " which Heller had characterized as
a location " where the need for defense of
self, family, and property is most acute. "
On the contrary, in the opinion of the federal district court, " [t]he need for selfdefense is not 'most acute' at city parks

34 Parks & Recreation

" no case law showing that he has a fundamental

The Park Rule cites the large number of
children who recreate at designated
parks, and the risk of children finding
unattended firearms and hurting themselves or others, fights escalating
through gun violence, and accidental
discharges of firearms. The Park Rule's
aim, to ensure the safety of children
and youth, satisfies a core value of public safety that is consistently held to be
a legitimate state interest.

Moreover, the court found the City had
" narrowly tailored the Park Rule to include only those public parks and community centers where children and youth
predominantly recreate. "

www.NRPA .ORG

The Park Rule is simply a regulation on
access, with a secondary impact on
firearm possession. The Park Rule
does not apply to every park; it leaves
open parks to those who might wish to
carry weapons if children and youth
are not likely to be present or where
signage barring gun possession has
not been posted.

Accordingly, the federal district court
concluded that the " Park Rule more than
exceeds the requirements to pass rational basis review " and was, therefore,
constitutional under the Second Amendment and state constitution, providing equal protection as well. The court,
therefore, dismissed Warden's federal
and state constitutional challenges to the
Park Rule.

University Gun Regulation
Similarly, in the later case of DiGiacinto v.
Rector and Visitors of George Mason University (Va. 1/13/2011), the Virginia state supreme court applied the same " sensitive
place " reasoning from Heller in determining " whether 8 VAC § 35-60-20, a George
Mason University (GMU) regulation governing the possession of weapons on its
campus, violates the Constitution of Virginia or the United States Constitution. " The
challenged regulation provided as follows:
Possession or carrying of any weapon
by any person, except a police officer,
is prohibited on university property in
academic buildings, administrative office buildings, student residence
buildings, dining facilities, or while attending sporting, entertainment, or
educational events. Entry upon the
aforementioned university property in
violation of this prohibition is expressly
forbidden. (8 VAC § 35-60-20)

Plaintiff DiGiacinto was not a student or
employee of GMU, but he visited and utilized the university's resources, including

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