Reader Rebecca writes:
My husband and I have been following TTAG for awhile, and I was wondering if anyone could answer a question I’ve had about firearms clauses in residential lease agreements. Our previous residence contained the following clause in our lease, under the heading “Drug Use, Illegal Acts”: “Resident shall not discharge a firearm on the premises or make any other unlawful use of a deadly weapon”. Would a clause such as this give the property owner the right to evict the resident in the case of a DGU, if that use of the firearm involved a discharge, regardless of whether or not the proper authorities determined that the use was lawful? . . .
This was a cause of some concern to us, as the apartment was located in kind of a rough neighborhood, and we had two unsuccessful break-in attempts in the span of a few months, and the management of the office was reticent to provide more information on the implications of such a clause.
The wording of the clause seems to imply that ANY discharge, regardless of legality, reason or cause, constituted a breach of the lease agreement, but it could have been clumsily worded. I was just wondering if anyone at TTAG has encountered such a clause before, and knew precisely what the rights of the property owner – and the resident – were in case of a DGU.
Good question! We referred it to a distinguished member of our stable of gun-loving attorneys, Joe Grine. As is always the case when dealing with anyone in the legal profession, Joe cautions that this is not legal advice, just his educated opinion:
Firing a firearm on a privately-owned property is only “unlawful” if a local government ordinance makes it so. The clause set forth in the contract below is intended to recognize that a tenant should not set up a target shooting range in his or her basement, or use their GAT to protect their illegal ganja grow op. It does not apply in the case of a legitimate DGU.
Heller and McDonald did not say much, but what they did make clear is that a person has a constitutionally protected right to keep a firearm in their house, and, implicitly, to use that firearm in self-defense in his or her home. Under the Supremacy clauses of both of the U.S. and the various State Constitutions, no city or County ordinance can take away from a constitutional right. A legitimate DGU situation does not, therefore, fall within a local government’s prohibition against discharging firearms because of the Constitution. As a result, it is not an “unlawful use of a deadly weapon” within the meaning of the contract.
Now, it is important to keep in mind that the Second Amendment is only a limitation on the government; it does not apply to contracts between private parties. So it is theoretically possible that a lease COULD be written in a way that prohibits the possession and/or discharge of firearms on the premises. However, the lease in question is not written in that manner.
The clause at issue is entitled “Drug Use, Illegal Acts,” which gives you a big clue about the type of conduct it seems to prohibit. When interpreting contracts, courts will typically use headings to provide the needed “context” to help inform the meaning of a contract provision.
The heading of the clause at issue indicates that the clause is aimed at “unlawful acts.” The clause itself reinforces this understanding, because it states that “Resident shall not discharge a firearm on the premises * * * ” and then goes on to prohibit “any other unlawful use of a deadly weapon.” The word “other” reveals that the author of the clause is operating under the premise that the “discharge a firearm on the premises” is a type of “unlawful” use of a firearm. But, as discussed above, a legitimate DGU cannot be made “unlawful” by any governmental entity because of the Second and 14th Amendments.
Thus, a DGU does not fall within the meaning of the “Drug Use, Illegal Acts” clause. On the other hand, if a tenant were to fire a firearm on the premise in celebration of a wedding or the Fourth of July, etc., that would be an “unlawful” discharge of a firearm under most city ordinances. It is only the legitimate self-defense aspect of the shooting that would take the shooter’s actions out of the realm of “unlawful” activity.
As an aside, it is probably worth noting that most city ordinances regulating the discharge of firearms recognize a DGU situation as an exception to the rule related to unlawful discharge of a firearm.
Here is an example of a typical city ordinance regulating the crime of unlawful discharge of a firearm: In order to secure a conviction for Unlawful Discharge of a Firearm in Washington, D.C., the government must prove that: (1) the defendant discharged a firearm without a permit issued by the D.C. Chief of Police, (2) the defendant did so voluntarily and on purpose, not by mistake or accident, and (3) the defendant was not acting in self-defense. In this example, the local ordinance recognizes the constitutional right of self-defense as an exception to the rule.