Oregon State Agency Alleges Walmart’s Age Restriction on Gun Sales Violates State Law

An Oregon state agency is suggesting that Walmart's decision to restrict arms sales to bar people under 21, but over 18, from being able to purchase firearms violates state law.

In the wake of the shooting this past February at Majorie Stoneman Douglas High School in Florida, there were a number of calls made for changes in the law. The most prominent of those changes was a change in the law that allowed people between the ages of 18 and 20 to purchase rifles and other long guns, which differs from current Federal law that prevents anyone under 21 from purchasing a handgun. In some cases, such as the new laws that were adopted in Florida in the wake of the shooting, the changes were made in the law. Beyond those changes, though, a number of national retailers, such as Dick’s Sporting GoodsWalmart, Kroger, and L.L. Bean announced that they will no longer sell any type of weapon to anyone under 21 years of age regardless of what the applicable law might be.

While it seemed apparent under the 2nd Amendment and applicable Federal law that these decisions by private retailers would be legal, there are a handful of states that have laws barring age discrimination that would appear to make the age restrictions illegal. As a result, we saw lawsuits filed against Dick’s Sporting Goods by people under 21 in Oregon and Michigan who allege that the policy violates the state laws barring age discrimination. Joining those lawsuits is an allegation by the Oregon state agency charged with enforcing its anti-discrimination laws that the policy violates state law:

The Oregon Bureau of Labor and Industries issued a memo this week suggesting that it is illegal for retailers to restrict gun and ammunition sales based on the buyers age.

Hannah Brumbles, an 18-year-old from Deer Island in unincorporated Columbia County, filed a complaint with the state after a Walmart store in St. Helen’s refused to sell her a rifle or ammunition last February because she was younger than 21.

Oregon law allows individuals 18 and older to purchase firearms, but a variety of regional and national retailers, including Walmart, adopted more restrictive policies following the mass shooting in Parkland, Florida. Former student Nikolas Cruz, 19, is accused of killing 17 people, including 14 students and three staff members, at Marjory Stoneman Douglas High School on Feb. 14.

Brumbles’ complaint alleged that the policy was discriminatory and violated the Oregon constitution. BOLI found that Brumbles did have grounds for the discrimination complaint, and has scheduled a hearing in November where it will hear Walmart’s response and formally rule on the matter.

Brumbles is seeking damages for physical, mental and emotional distress, which could be as high as $5,000.

Walmart will defend its policy. “In February of this year, we reviewed our policy on firearm and ammunition sales and as a result, we raised the age restriction for the purchase of those items to 21,” said Randy Hargrove, a company spokesman. “We stand behind our decision and plan to defend it. We are preparing for the November hearing before the administrative law judge.”

As Eugene Volokh makes clear, Oregon law on the issue of discrimination based on age in retail sales seems to be clear, and there does not appear to be an exemption when it comes to firearms:

659A.403 Discrimination in place of public accommodation prohibited. (1) Except as provided in subsection (2) of this section, all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is of age, as described in this section, or older.

(2) Subsection (1) of this section does not prohibit:

(a) The enforcement of laws governing the consumption of alcoholic beverages by minors and the frequenting by minors of places of public accommodation where alcoholic beverages are served;

(b) The enforcement of laws governing the use of marijuana items … by persons under 21 years of age and the frequenting by persons under 21 years of age of places of public accommodation where marijuana items are sold; or

(c) The offering of special rates or services to persons 50 years of age or older.

(3) It is an unlawful practice for any person to deny full and equal accommodations, advantages, facilities and privileges of any place of public accommodation in violation of this section….

659A.406 Aiding or abetting certain discrimination prohibited. Except as otherwise authorized by ORS 659A.403, it is an unlawful practice for any person to aid or abet any place of public accommodation, as defined in ORS 659A.400, or any employee or person acting on behalf of the place of public accommodation to make any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older.

659A.409 Notice that discrimination will be made in place of public accommodation prohibited; age exceptions. Except as provided by laws governing the consumption of alcoholic beverages by minors, the use of marijuana items … by persons under 21 years of age, the frequenting by minors of places of public accommodation where alcoholic beverages are served and the frequenting by persons under 21 years of age of places of public accommodation where marijuana items are sold, and except for special rates or services offered to persons 50 years of age or older, it is an unlawful practice for any person acting on behalf of any place of public accommodation as defined in ORS 659A.400 to publish, circulate, issue or display, or cause to be published, circulated, issued or displayed, any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of the place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is of age, as described in this section, or older.

As I noted in my post on age restrictions on gun sales, it’s clear that. at least under Federal law, there is no legal basis for a claim against a retailer for age discrimination. The Second Amendment obviously doesn’t apply here since that Amendment applies only to government action, not the private action of retailers. Therefore, we must look to the statutes to determine if these policies are valid. In the case of Federal law, though, the principal Federal anti-discrimination law, the Civil Rights Act of 1964, does not cover retail sales and also does not bar discrimination based on age. As I noted at the time, though, there are laws on the books in roughly one-third of the states that do bar age discrimination and which do not appear to have exemptions for retail sales in general or gun sales in particular, meaning that the decisions by Dick’s, Walmart, or other retailers to bar gun sales based on age could be subject to legal challenge. At the time, I expressed doubt that such a lawsuit would be successful and that the retailers could make an at least credible argument that their policies are well-founded and should not subject them to liability under the stated law. All of these cases will need to be fully litigated, of course, so it will be interesting to see what the Judges at the state level have to say on the matter. As it stands, though, the language of the laws in both states appear to strongly favor the Plaintiffs in both cases.

These lawsuits would largely be moot, of course, if there is legislation drafted at either the state or Federal level that would restrict gun sales based on age as a matter of law. On the Federal level, while it does appear that there is at least some verbal support for this kind of legislation from President Trump and from both Republican and Democratic Senators and Members of Congress However,  it’s unclear that Congress will be strongly motivated on that or any other issue related to gun control at any point this year. At the same time, though, Governors on both sides of the aisle have voiced support for the idea of changing state law on the issue and it seems likely that many of those states will actually follow through on action regardless of what happens at the Federal level. This is easier said than done in many states, of course, and it seems more likely to happen in states controlled by Democrats than in those where the legislature and/or the Governor’s Mansions are controlled by Republicans. With respect to the two states where lawsuits have been filed, Michigan currently has a Republican-controlled legislature and a Republican Governor, so it’s unclear whether any kind of state-based age restriction bill would even be considered. Oregon, on the other hand, has both a Democratic Governor and a state legislature under Democratic control, so that state may be more ripe for reform. In that regard, though, it’s worth noting that both states have a strong hunting tradition that could make any move to further restrict gun sales difficult even for Democrats. If such state laws are passed, though, then any legal claims of age discrimination would appear to be moot, and lawsuits against the laws restricting gun sales based on age are unlikely to be well-received by courts.

In the instant case, the Complaint that has been filed against Walmart will be heard by the relevant state agency in a proceeding set to begin in November. How long after that it will take for a decision to be reached is not at all clear and, of course, the losing side would have the right to appeal that decision to an Oregon state court or whatever other forum is charged with hearing appeals in this type of case. Eventually, it could end up being reviewed by the Oregon Supreme Court, but it’s not likely to reach the U.S. Supreme Court due to the fact any such case would be raising solely issues of state law. In the meantime, as I said above, this issue could easily be resolved via Federal or state law. But that’s unlikely to happen any time soon.

 

FILED UNDER: Guns and Gun Control, Law and the Courts, Second Amendment, U.S. Constitution, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Bob@Youngstown says:

    seeking damages for physical, mental and emotional distress, which could be as high as $5,000.

    I’m sure that she was devastated by not shopping at Walmart. Probably had to seek psychological care .

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  2. MarkedMan says:

    Given Doug’s pretty thorough explanation, it looks like the only solution in Oregon is a change in the law. I suspect this would be a pretty potent issue for Democrats there. The campaign ads almost write themselves if you have the NRA campaigning for high school kids to be able to buy AK-47s.

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  3. @MarkedMan:

    It could be a change in Oregon law, or Federal law. Either one would be sufficient.

    The odds of such a change at the Federal level are, of course, low and from what I’ve been able to gather the hunting culture in Oregon would make it difficult for such a measure to pass even a Democratic-controlled legislature.

  4. Kit says:

    While I’m ask for (severely) restricting access to guns, and appreciate creative solutions (e.g. a tax on bullets), I dislike this approach. To my mind, to hang one’s shingle in the public square means to serve all comers, be they blacks trying to eat in a restaurant, or gays trying to buy a wedding cake.

    Still, we are not going to win this battle by trickery when so many crazies want their assault rifles, and big money is free to buy off politicians.

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  5. MarkedMan says:

    @Doug Mataconis: I hear you, and have nothing to offer other than a gut instinct that even in a state redder than Oregon, it would be a winning issue for Dems. I’ve got an 18 year old and he and his senior year classmates in his magnet school program were more mature and level headed than the majority of the seniors, but they were not at all ready to be able to march into a store and buy a handgun or AK-47. I think an awful lot of parents and grandparents will agree in the privacy of the voting booth. People feel the danger is no longer theoretical. I do some work with a local investment community guiding entrepreneurs, and no fewer than three of those in the past year have products based around securing classroom doors in the event of an armed attack. And about a quarter of the college business school ideas generated for one particular program revolves around campus safety.

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  6. Gustopher says:

    Perhaps Wal-Mart could get around this law by not selling guns, but by selling sets of a gun and a bottle of liquor.

    I can think of no possible flaws in this plan.

    Maybe add a pack of cigarettes, so the ATF makes sense.

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  7. Just nutha ignint cracker says:

    @MarkedMan: I live in Washington about 15 miles down river from St. Helens and Deer Island. Knowing both states and this particular region, no, the ads won’t write themselves. It’s a area where schools are “no weapons” zones and kids still bring their rifles to school so they can go hunting in the woods behind the high school before they go home.

    After all, everybody knows that “rifles are not weapons.”

  8. Just nutha ignint cracker says:

    @Gustopher: No go on the tobacco. The age for tobacco in Washington is 18; Oregon, too, I think. Tobacco will only muddy the waters. But I do like the creativity!

    ETA: I can’t remember, but I’m not sure that Walmarts sell liquor in Oregon. I have Walmarts in Washington, so I don’t need to buy liquor in Oregon any more.

  9. Gustopher says:

    @Just nutha ignint cracker: The pack of cigarettes isn’t there to increase the buying age, it’s just to give us a set of three things all regulated by the ATF.

    So, a gun, some whiskey, and a pack of smokes, in one gift box. The box should probably be wrapped with warning labels.

    Whiskey may have to be replaced by beer, or wine, as local laws dictate.

  10. Boyd says:

    One minor clarification to your citation of federal law, which prohibits a federally licensed dealer from selling a handgun to anyone under the age of 21. Person-to-person sales and other transfers to 18- to 20-year-olds not involving a federal firearm licensee remain legal under federal law.

  11. RGardner says:

    In Oregon, hard liquor is only sold at OR State Liquor Stores, or at contract stores in rural areas, never at Walmart (nor Costco). St Helen is roughly 25 miles from Portland, but not a suburb, rural/timber.