Defending my (strikethrough) our castle: a look at gun regulation by community associations.

• Author: Adams, Joseph E.

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. (1) 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. (2)

The issue of gun control is ever-present 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. (3) 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. (4) 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.

Interestingly, Shelley expressly states that private restrictions that are to be voluntarily abided by cannot form a basis for challenge under the 14th Amendment. (5) The operative distinction in Shelley is that property owners sought enforcement of the racially motivated restrictions through a state court. (6) This additional step of state judicial enforcement caused the Missouri and Michigan courts to be state actors enforcing racially motivated restrictive covenants, thus, subjecting enforcement of the restrictive covenants to the constitutional scrutiny. The Shelley Court concluded that judicial enforcement of those covenants denied the petitioners equal protection under the law, an action violative of the 14th Amendment to the U.S. Constitution. (7)

Florida state courts and federal courts located in Florida have addressed the issue of state action through judicial enforcement of private restrictive covenants. In Harris v. Sunset Islands Property Owners, Inc., 116 So. 2d 622 (Fla. 1959), the Florida Supreme Court reviewed the validity of restrictive covenants for a planned community in Dade County. The restrictive covenants stated that in order to own a lot within the Sunset Islands development, one had to be a member in good standing of Sunset Islands Property Owners, Inc. At the time, Mr. and Mrs. Harris purchased their lot, the association's bylaws stated "the only ground upon which an owner or lessee of property on said [i]slands may be denied membership in this corporation shall be that the applicant is not a Gentile or is not of the Caucasian race or has been convicted of a felony." (8)

Mr. and Mrs. Harris were of the Jewish faith. Following their purchase of the parcel, the association filed suit to compel the Harrises to vacate the property alleging that they were not members of the corporation in good standing. Relying on Shelley, the Florida Supreme Court held that the restriction for the Sunset Islands development was invalid.

Following Harris, other Florida state and federal courts have addressed implication of the state action doctrine through judicial enforcement of covenants. In Quail Creek Property Owners Association, Inc. v. Hunter, 538 So. 2d 1288 (Fla. 2d DCA 1989), a homeowner challenged a restriction that limited signs that could be placed on parcels in the community, claiming that the restriction violated the First and 14th amendments to the U.S. Constitution. Although the Hunter opinion never discussed Shelley, the court's holding is exactly in-line with Shelley by holding "that neither the recording of the protective covenant in the public records, nor the possible enforcement of the covenant in the courts of the state, constitutes sufficient 'state action' to render the parties' purely private contracts relating to the ownership of real property unconstitutional." (9) As discussed, the Shelley Court stated that private restrictions (abhorrent as some may be) alone were not enough...