Can You Be Evicted from Your Apartment for a Legitimate DGU?

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.

comments

  1. avatar ST says:

    Interesting.

    As a note , us gun owners need to read our contracts somewhat more thoroughly than the unarmed layperson.I’ve seen more than a few apartment leases which prohibited the storage of firearms on the premises. That may be a cultural dynamic, since the last time I did any dedicated apartment hunting was in Chicago.

    1. avatar CarlosT says:

      Thankfully, my wife is an attorney, although not a specialist in real estate. Even so, each time our lease gets a fairly comprehensive review. Fortunately, we haven’t seen any such provisions out here in Seattle.

    2. avatar nonnamous says:

      I’ve seen some too (in Cleveland). Although I did some researching of Ohio state law and from what I was able to understand the state prohibited apartment complexes from forbidding people from keeping guns in their apartments as it was technically their home.

      1. avatar Totenglocke says:

        I live in Cincinnati and (before I was a gun owner) briefly had an apartment in Dayton. When signing the lease they talked about no guns allowed and everything. And I said “But I’m allowed to have bleach and ammonia, right?” They said “Sure, why not?” I told them “Because that’s how you make mustard gas…..”

  2. avatar orangeblue says:

    That’s pretty basic contract interpretation. The use of the word “other” indicates that the action in the first phrase is illegal.

  3. avatar Average_Casey says:

    I really think that if you are living in a place where you believe that there is a fairly high probability that will have to perform a DGU, you probably should not be worried about getting evicted and move soon. I mean really, just because you have a gun to protect yourself doesn’t mean that you should increase the likelihood of having to use it.

    1. avatar anonymous says:

      Because the people who live in such neighborhoods do so by choice, rather than economic necessity?

  4. avatar anonymous says:

    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.

    Four years ago, law professor Evan McKenzie warned his readers about “repressive libertarianism“,

    where certain people who call themselves libertarians invariably side with property owners who want to limit other people’s liberties through the use of contract law. Property rights (usually held by somebody with a whole lot of economic clout) trump every other liberty. … As private corporations take over more functions of government, this position could lead to gradual elimination of constitutional liberties.

    Since there is very little, if any, protection-of-rights for parties in a contract, I don’t see any reason why employers can’t discriminate against gun owners, even if the gun owners do not bring their guns to work or talk about guns at work. I’m pretty sure I was denied at least one job I interviewed for because I published pro-gun articles using my real name when I was younger.

    1. avatar Ralph says:

      I don’t see any reason why employers can’t discriminate against gun owners

      Absent state law to the contrary, there certainly is no prohibition on employers discriminating against gun owners. Or smokers. Or people whose ring fingers are longer than their pointers. Or a host of things. Discrimination is illegal only when there’s a law that says so. Otherwise, discrimination is legal and something that people do every day. Given a choice, wouldn’t you rather sit next to a supermodel instead of the homeless dude on the train? Well, that’s discrimination, and it’s just fine.

    2. avatar Joe Grine says:

      “I’m pretty sure I was denied at least one job I interviewed for because I published pro-gun articles using my real name when I was younger.”

      That’s exactly why I don’t use my real name. “Joe Grine” is Jamacian slang. Ja Mon, Rastafari!

  5. avatar Bryan says:

    The language in your contract is to protect the property owner. So they can be held harmless (if you screw up) because you were warned and contractually agreed. Really if your paying your rent on time they won’t care if you have an arsenal in your unit as long as your not doing something illegal. If you have a DGU and your found in the right, I for one wouldn’t care. The bottom line for a property owner is just keep paying your rent on time and don’t screw up (damage) my property.

    As a note to gun grabbers out there, if you could take away all the guns in the world, bad people will always find a way. Once in one of my units I had a good paying renter who was evicted by way of the local prison system. He got in an argument with a neighbor across the street, and stabbed him to death with a fork to the eye. So it doesn’t matter what tool is used, and unless your going to have all of us (including yourselves) live all our lives suffocating in bubble wrap, get off my 2A gun-toting ass!

  6. avatar Aharon says:

    Interesting and informative reply, thanks Joe.

  7. avatar Cameron S. says:

    My landlord has several animal mounts in his home, and has been CC’ing longer than I’ve been alive.

    I don’t think this is a problem I have to worry about. Phew!

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