I love the artful, clever idioms used to express some legal concepts. “Fruit of the poisonous tree,” for instance. But I never cared for”bundle of sticks.”
It doesn’t even make any sense. Who has a bundle of sticks? A pile, maybe, but not a bundle. There is surely something cleverer and catchier to explain that when you own property, you have a variety of rights (each one a stick in the bundle) regarding that property.*
One of the best ‘sticks’ is the right to exclude. “Get off my land,” as they say around here.
Or, if you’re a coffee shop or church in Texas, “get off my land…with your gun.”
Texas law provides criminal sanctions for trespassers, if they come onto land having notice that entry was forbidden. That notice can come in several forms, including a sign “reasonably likely to come to the attention of intruders.”
But, if a property owner wants to exclude someone who is armed, the law prescribes specific details for the signage, otherwise the armed person has a defense to the trespass.
A Texas church and a coffee shop (two places; not a house of worshipping baristas) want to exclude firearms from their property. The proverbial bundle permits that.
But they object to the specificity of the sign requirement (e.g., letters of a certain size, contrasting colors, etc.). A simple picture of a gun in a red circle with a line through it won’t do. Oh sure, it may signify that they don’t want guns on their property, but it won’t support prosecution of a person who didn’t respect the sign.
So they sued the local prosecutor, sheriff, and police chief. The basis of their complaint was the First Amendment. That they were compelled by the law to ‘speak’ in a certain way (i.e., a large, gaudy sign) to exercise their stick.
The lower court dismissed their complaint but this week the Fifth Circuit Court of Appeals revived it. It did not resolve the matter on its merits but rather said there was standing for the plaintiffs to proceed (over a dissent, which thought dismissal was appropriate because there were other avenues for providing notice, such as through oral communication, and because police still come when called even if prosecution is hampered).
The Court noted that the threat of criminal prosecution has important deterrent value in the exercise of the exclusionary stick. It also mentioned that relying on oral communication was impractical and risked confrontation. (On one occasion, someone who was told they could not carry a gun in the coffee shop left…and returned with a sword.)
Will be an interesting case to watch.
You can read the opinion here.
*Apparently it comes from an Aesop fable, and I appreciate that historical significance, but I still don’t love it. It certainly isn’t”sour grapes” good.
If you have a favorite legal saying, please let me know.