Appeals court weighs challenge to Texas gun signage laws

(CN) — On Friday morning in New Orleans, the full panel of judges from the Fifth Circuit Court of Appeals wrestled with a deceptively simple question that cuts to the heart of property rights, gun regulation, and constitutional standing: What does it really mean to have the right to exclude, and who gets to enforce it?

The case, Bay Area Unitarian Universalist Church v. City of Houston, and the consolidated appeals returned to the full Fifth Circuit after a divided panel ruling and sharp disagreement in the district court. The dispute centers on whether churches and small businesses can challenge Texas statutes governing how property owners restrict firearms on their premises and whether they have standing to sue local officials over the laws’ enforcement.

Texas law generally allows licensed individuals to carry handguns openly or concealed. Property owners may ban firearms only by posting notices that meet detailed statutory requirements, including specific wording, size and formatting to trigger criminal trespass liabilities.

The plaintiffs argue this “heightened notice” system forces an unconstitutional choice: display state-mandated signs conveying a message they do not endorse, or rely on oral notice alone, which they say is less effective, more confrontational and weakens the deterrent effect of criminal law.

For the plaintiffs, attorney Charlotte Taylor said the injury stems not from the ability to prosecute trespassers, but from the right to exclude without a government-imposed burden on speech. She characterized the law as imposing unconstitutional conditions by forcing property owners to give up expressive freedom to obtain enforceable trespass protections.

On standing and redressability, Taylor said a favorable ruling would free her clients from having to choose between expression and exclusion.

“They will no longer have to choose between exercising the fullest extent of their right to exclude, while posting signage that they have an expressive objection to, or giving up some of their right to exclude,” she said.

Taylor emphasized the injury occurs before any prosecution, pointing to costs for signs, lost customers and fears of confrontation when relying on oral notice. The harm, she said, is “antecedent and independent from the eventual or actual prosecution.”

Several judges questioned her about Linda R.S. v. Richard D., a 1973 Supreme Court case holding that private citizens have no judicially cognizable interest in prosecuting others.

“You simply have no interest in the prosecution of any other individual,” one judge said. “We’re bound by precedent.”

Taylor replied that the case is not about demanding prosecutions, but about tying the deterrent force of trespass law to the surrender of constitutional rights.

Judges remained skeptical, with one asking whether the plaintiffs’ real concern was exclusion itself or criminal enforcement. Taylor said the injury arises earlier, when property owners must accept expressive burdens or diminished exclusion rights.

Another judge appeared more receptive, noting that compliance costs and lost business occur “antecedent and independent from the eventual or actual prosecution.”

Redressability posed the greatest challenge, as judges questioned how police conduct would change if the court invalidated the notice provisions.

“You’re basically trying to rewrite Texas criminal law,” one judge said. “Even if the court entered this injunction, it would be useless.”

Taylor acknowledged severability concerns but argued that courts routinely enjoin unconstitutional statutory provisions without compelling arrests or prosecutions.

Defense counsel countered that the plaintiffs’ theory collapses the standing doctrine. They emphasized that Texas law does not require any signs and that oral notice is sufficient. Police, they said, routinely respond to trespass calls regardless of signage.

“The desire for deterrence is not a legally protected interest,” said Moustapha Gassama, representing Harris County officials. “Any deterrent effect comes from prosecuting third parties.”

Attorney Sean M. Higgins, representing Webster’s police chief, argued that any costs or reputational harms were self-inflicted, stemming from voluntary choices rather than government compulsion. The statutes, he said, are “fundamentally permissive, not coercive.”

Several judges acknowledged the broader tension between gun-carry rights and traditional property rights. One invoked the principle that “the property of every man [is] so sacred” that no one may enter without consent, questioning how that squares with a regime that makes exclusion more burdensome when firearms are involved.

Others cautioned that dissatisfaction with legislative policy does not equal constitutional injury. The Fifth Circuit took the case under advisement.

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