Credit Card Company Requirements That Merchants Not Sell Guns to 18-to-20-Year-Olds

The companies likely must make exemptions for those states that ban the merchants from discriminating based on age.

Citigroup announced that it will "require new retail sector clients or partners to adhere to …. restrict the sale of firearms for individuals under 21 years of age." But what if the retailer is in one of the states that generally ban age discrimination in public accommodations, and include 18-to-20-year-olds in that ban? (Some states only ban age discrimination against those 21 and above, or 40 and above; let's set those aside.)

Any credit card companies that have such policies must exempt retailers' actions in those no-age-discrimination states. When a law bans some action, it also usually (explicitly or implicitly) bans others from trying to cause that action. It's a crime for you to kill someone (without adequate justification), so it's a crime for me to try to pressure you into killing him. It's a tort for you to libel someone (assuming you know the factual allegations you're making are false and defamatory), so it's a tort for me to offer you money to do so.

Likewise, generally speaking, for antidiscrimination law. Consider, for instance, Michigan law; the Elliott-Larsen Civil Rights Act (Mich. Comp. Laws. §§ 37.2301-.2304) bans age discrimination in retail sales, and § 37.2701 likewise provides that no person shall "[a]id, abet, incite, compel, or coerce a person to engage in a violation of this act" or "[w]illfully obstruct or prevent a person from complying with this act" or "interfere with a person in the exercise or enjoyment of … any right granted or protected by this act." If a credit card company demands that stores illegally discriminate, then it's inciting, compeling, and coercing violations within the meaning of the law, obstructing the stores' complying with the law, and interfering with 18-to-20-year-olds' enjoyment of rights granted by the law.

If a credit card company required its business partners not to sell wedding cakes to gays and lesbians, that would violate the law in those states that ban sexual orientation discrimination by such businesses -- and the ban would apply not just to the cake shops, but also to the credit card company. The same is true for age discrimination in gun sales; the legal analysis is the same (whatever you might think about the moral issues).

Now this is just a matter of state law. If a state bans rifle and shotgun sales to 18-to-20-year-olds, then of course stores would be required to discriminate against them. (Federal law already bans handgun sales by gun dealers to under-21-year-olds.) Likewise, if a state wanted to exempt gun sales from the age discrimination ban, it could do so (though I know of no states that do). But if a state bans age discrimination in gun sales -- as several states (likely about a dozen) do -- then credit card companies can't insist that their business partners violate the law in those states. And the same applies to the cities and counties that have similar ordinances, which are sometimes broader than state law provides.

Comments

[FiftycalTX2]

Well they lost one customer today. Now my cancelling of my little $10K card won't hurt them much but if they lose a few MILLION customers, maybe the next company that decides to virtue signal WON'T BE A DICK.

[Jeff_Kleppe]

"maybe the next company that decides to virtue signal WON'T BE A DICK."

Or a Dick's, as it were.

[loveconstitution1789]

Another trend is people paying more with cash rather than credit cards.

Add this to the list of reason NOT to use a credit card for gun purchases.

[Chasman1965]

I agree.

[Chasman1965]

I agree.

[KevinP]

Same here. My business and myself were set to spend $80K per year on my new Costco Citi card. I am moving immediately to another business card. I won't cancel my Citi card though. I'll leave it unused and alive with a $0 balance and activity.

[whey_standard]

Would you address the impact of National Banking Act preemption, and how it would apply to such anti-discrimination laws?

[Eugene Volokh]

I don't think it would: That preemption doctrine stems from quite specific provisions of the Act, which provides that national banking associations have the power to hire and fire officers "at pleasure." I don't know of any similar doctrine that lets stores that take credit cards accept or reject customers at pleasure, without regard to state antidiscrimination laws, or that lets credit card companies impose such restrictions at pleasure. But please let me know if there are some specific statutory provisions or precedents that I'm missing here.

[the original jack]

Wish I had a Citibank card so I could have the pleasure of cancelling it.

[Brett Bellmore]

Me, too.

This suggests that Operation Chokepoint didn't involve quite as much coercion on the part of the government as we might have hoped.

[ActualRightWingPatriot]

I have a $40,000 limit on mine, so canceling it would hurt my credit score, so instead I just threw it in my safe, where it will remain unused.

[DJK]

Until someone gets a hold of the number and uses it to buy something you don't want them to. Credit card fraud is a major problem. Good luck getting your multi-billion dollar bank to care if you get hurt. There is no reason to have a high limit credit card that you never use. If you have to, at least freeze it.

[M.L.]

He doesn't have to pay for any fraudulent charges to his credit card. The risk of loss for fraud is generally on the bank and maybe the merchant.

[tkamenick]

"There is no reason to have a high limit credit card that you never use."

Percentage of available credit being used is a factor in your credit score. Lots of high-limit cards that you don't carry any or significant balance on helps your score.

[Eidde]

If this is truly a private decision (not goaded by strong governmental hints) then it shouldn't be a problem in principle, as companies compete on the basis of restricted gun sales versus all legal gun sales.

[ActualRightWingPatriot]

Agree in principle, but the banking system functions more like a common carrier, and less like a free market product.

[Michael Ejercito]

Why does not Citibank forbid dealers from selling gubs to gangbangers, since gangbangers are more likely to criminally use guns than 18-20 year olds?

By the way, which enumerated power allows Congress to prohibit the sale of handguns to persons under 21?

[MatthewSlyfield]

Interstate Commerce.

[ActualRightWingPatriot]

What enumerated power allows it? None.

What enumerated power do they CLAIM allows it? The Commerce Clause.

[DJK]

I'm sure there's some necessary and proper baked in as well.

[Brett Bellmore]

In practice it's more of a "convenient, and eh, whatever" clause.

[Morbo]

It's the unwritten "FYTW" clause.

[JesseAz]

Get mulvaney on it. Show liberals how stupid the CFPB is and how unaccountable.

[ReaderY]

But can these bans be meaningfully enforced against credit card companies? If a credit card company has an arbitration clause requiring arbitration in the credit card company's preferred forum, won't it be very likely the arbitration will have features like taking place in a location far from the credit card holder, prohibiting credit card holders from using lawyers, and having lots of procedural hurdles that can easily result in a claim getting tossed out, effectively making the likelihood of winning on a claim effectively nil? And if they do get through the procedural hurdles and win, what does one get as an award for ones airfare and hotel to go to wherever the multiple strung-out arbitration hearings were? Fifty cents?

[ReaderY]

And of course since proceedings are likely sealed, if one in a thousand is lucky enough to win, if they won't even be able to tell anyone else about it, it will have zero impact on the other 999.

[BadLib]

Having read the Citigroup statement again, I don't _think_ their policy will prevent an 18 year old Citigroup Mastercard holder from using their card to buy a firearm. I _think_ the policy just means that merchants who elect to sell guns to 18 year old customers or 12 round magazines to anyone will have to find another bank to use for their banking and credit card merchant services. Presumably every merchant or chain that sells firearms in, for example, Oregon will just abandon Citigroup and use another bank. It seems like a stupid decision for Citigroup shareholders though...

(If anyone reads the statement differently, please correct me).

[Benitacanova]

That's how I read it as well. But we can cut our cards for good measure. It's important to resist the resistance.

[AmosArch]

18 year old shouldn't be able to buy a gun but a 18 year old who is at the point where they don't know whether they're a man or woman and wants to cut off their junk for tens of thousands of dollars at taxpayer expense should be able to get these same guns and tanks for free to go kill foreigners overseas.

Under 18 year olds and maybe even adults shouldn't be allowed be allowed to go to a camp where people try to talk them out of being gay even if they themselves want to but these same children should be allowed to get surgery and drugs to mutilate themselves permanently as soon as they hit the ripe old mature age of eight or maybe even younger.

#progressivelogic

[ActualRightWingPatriot]

Liberals are dystopian sickos. I'm at the point where I no longer think reason will work with these traitors.

[Sarcastr0]

You've been at this point since you first started posting here, tough guy.

[Careless]

ha!

[Sarcastr0]

Your first paragraph is a fine point about the inconsistency within the Democratic party.

The second paragraph, however, doesn't work IMO.
We don't allow people to sell themselves into slavery, so your appeal to incredulity that we as a society draw a line doesn't wash.

Your characterization of gender reassignment as mutilation is begging the question, of course. And using the most extreme to stand in for all liberals.

[Bored Lawyer]

"We don't allow people to sell themselves into slavery, so your appeal to incredulity that we as a society draw a line doesn't wash."

No one may sell themselves into slavery, regardless of age. That is a consequence of the 13th Amendment.

Question is, though, at 18 one is old enough to vote, serve in the military and drive. So why should one not be trusted to purchase a gun which is otherwise legal?

[Joe_JP]

I would add that for Eighth Amendment cases that 18 is repeatedly cited as a constitutional line and so forth ... 18 in this country has been seen as a special line and making the 2A different to me is a bit dubious. NATIONAL RIFLE ASSOCIATION OF AMERICA INCORPORATED v. BUREAU OF ALCOHOL TOBACCO FIREARMS AND EXPLOSIVES [5CA] uses a historical test to uphold the 21 line though.

[Mike d]

One can't "sell" themselves into slavery because you would need the power of the state to enforce the contract. There lies the problem.

"Oh, hey Dave. Yyyyeeeeaaaahhhh. I decided to change my mind and not be a slave anymore, so I decided to drive away across state lines. Also, I kinda spent all my money on lottery tickets so I can't give you the money back. See ya."

Unless what you're arguing for is: the state has the right to not enforce their kidnapping / injury laws for private citizens if the "owner" (at his/her own expense) decides to hunt down their runaways.

[Marcus Aurelius]

Is signing up for the military not akin to selling yourself into slavery? Asking for a friend.

[Brett Bellmore]

The "the rules are different for government " principle applies here. Military enlistment isn't indentured servitude for the same reason taxation 'isn't' theft: Admitting it was the same would embarrass government.

[gah87]

But we can get married.

[Joe_JP]

The first paragraph is trollish in language but the special power to use a weapon in the context of service in the military is (1) applicable domestically too (2) different in various ways from individual ownership. There is likely some sort of weapon under D.C. v. Heller or elsewhere (a tank does come to mind) where service in the military, especially in the field, is okay but a locality might be able to ban it for home use. Yes, there is a difference.

This is not "progressive logic" alone -- a fairly average conservative gun owner will recognize this too probably though some of them might have different views on trans questions.

[Mike d]

Ideally, I would like to insert a joke here how a typical 18-year-old these days wouldn't know the difference between a riffle and his gun anyway,

... but I got nothing.

[notFrye]

Squire Volokh while you leap to a lesbian argument by analogy, what about cases with decisions about age & law; please distinguish Lazar v. Hertz Corp., 82 Cal. Rptr. 2d 368 (1999) -- "Despite this liberal construction, the California Supreme Court has determined that certain types of discrimination are reasonable and thus not arbitrary under the Unruh Act. [] Businesses retain the right under the Unruh Act to establish reasonable regulations that are rationally related to the services performed and facilities provided.[]" (internal cites omitted)

[AmosArch]

The rules apply except when they don't

[notFrye]

Yes. Its why people go to law school (and why other people don't like those people). Or perhaps a different sort of example, you've perpetrated perjury, I don't think you can hide behind the 1st amendment.

[BadLib]

How is Citigroup's actions in this case "reasonable regulations that are rationally related to the services performed and facilities provided."?

I suppose, for example, if Citigroup could show that the default rate was higher on cards used by 18-21 year old cardholders to purchase firearms than either the default rate for 18-21 year old cardholders who _didn't_ purchase firearms with their cards or than >21 year old cardholders who purchase firearms with their cards, the restriction _could_ be "rationally related to the services" Citigroup provides. However, this seems somewhat unlikely to be the case but, if it is, there are probably other products that have a stronger "signal" with respect to defaults.

(Personally, I think Citigroup should be allowed to disallow purchase of any particular product on their cards by any particular group of their cardholders, but I don't think that's allowed by law. Fortunately, in this particular case, I also have the freedom to cancel my Citigroup credit card in response to Citigroup's ridiculous stance.)

[notFrye]

I'm not sure what Citigroup thinks or what would satisfy a court. If Citigroup is concerned about school shootings, then they may have an argument for something that might be "rationally related". Here is what a force who carried out stop-and-frisk have in their 2016 report on active shooter situations:
"The NYPD's analysis demonstrates that the median age of active shooters in the active shooter data set is 33-34; however, this median conceals a more complicated, yet unsurprising distribution, depicted in Figure [4]. The distribution of ages is bimodal, with a first peak for shootings at schools by 15-19 year-olds and a second peak in non-school facilities by 35-44 year-olds. These findings are essentially unchanged from the earlier editions of this report." https://www1.nyc.gov/assets/nypd/downloads/pdf/ {space} counterterrorism/active-shooter-analysis2016.pdf [there is a 50 character limit, have to remove the {space} to get the link]
More to your point, I don't know to what degree a corporation is allowed to have a concern beyond $$. Are there recent cases related to corporations and religious freedom? And freedom of speech? Donations to candidates? ....

[Naaman Brown]

To enter a link greater than 50 bytes, you may use the HTML tag for links.
In the example below, replace the [ ] brackets with
angled brackets (less-than greater-than) keyed shift , shift .
and substitute the longer than 50 char web address for the example.

[a href="https://www.antidisestablishmentarism.html"] Freaky long web link name [/a]

[Naaman Brown]

To enter a link greater than 50 bytes, you may use the HTML tag for links.
In the example below, replace the [ ] brackets with
angled brackets (less-than greater-than) keyed shift , shift .
and substitute the longer than 50 char web address for the example.

[a href="https://www.antidisestablishmentarism.html"] Freaky long web link name [/a]

[Eugene Volokh]

notFrye: This is why the examples I offer are from states other than California -- California's Unruh Act is written differently, and has been read more flexibly as a result; indeed, it doesn't even expressly mention age. The Michigan statute is written quite rigidly, as are some of the others that I have cited; and those statutes have not been read as having a free-floating "reasonable regulations" exception.

[QuantumBoxCat]

A little bit of searching for cases dealing with age discrimination claims in public accommodation settings, specifically retail settings, resulted in a fairly sparse set of results. California's Unruh Civil Rights Act appears to be one of the most frequently litigated with regards to this specific focus. Cases dealing with age discrimination addressed movie theater ticket discounts, gym membership discounts, bank interest rates, and the pricing for Tinder's premium service. In all but the Tinder case the CA Appellate Courts upheld the business' age distinctions as reasonable and/or in furtherance of desirable social policies.

In Javorsky v. Western Athletic Club (2015) the CA Ct of App stated, "Nonetheless, the [Unruh] Act does not absolutely preclude a business establishment from disparate treatment of patrons in all circumstances. The "fundamental purpose of the Unruh Civil Rights Act is the elimination of antisocial discriminatory practices--not the elimination of socially beneficial ones."

Even in light of this case law you state that "ANY credit card companies that have such policies MUST exempt retailers" in states with age as a protected class. Perhaps firearm sales are distinguishable from these CA cases as they deal with purchasing a product that falls under a fundamental right. But that is not discussed. After an albeit cursory look at case law, it would appear that at least in CA a credit card company may not need to provide an exemption.

[Eugene Volokh]

The Unruh Civil Rights Act doesn't specifically ban age discrimination -- to the extent that it has been read to cover age discrimination, that stems from California courts' inferring into it a broad ban on certain kinds of supposedly unreasonable discrimination. That's why I cite as examples other states' statutes, which do expressly ban age discrimination, and have no exclusion for "reasonable" discrimination. And I take it that's why the list of states that generally ban age discrimination in public accommodations, to which I linked, doesn't include California as one such state.

[Sam Gompers]

It's funny to see how the anti-discriminationists all of a sudden embrace it when it suits their policy desires.

[AmosArch]

kind of like the sacred unquestionable black and white definition of racism is slowly being revised to take into account 'historical and institutional factors' once the left became powerful enough that they're transitioning away from nearly full time fake victim of discrimination into an active dispenser of it. I kid you not I was watching a video the other day apparently made for teens and kids where the hipster hosts were trying to walk their teenybopper audience through this forest social science jargon back from the years of dogma they had drilled in them in the other direction that racism was racism, no two ways about it.

[loveconstitution1789]

That's why using their own "anti-discrimination" laws against them is so funny.

[Sarcastr0]

While I agree you live by the public accommodation you die by the public accommodation, this new trend of 'It's not hypocrisy when it's to own the libs' is not a symptom of a political party becoming more principled...

[Sarcastr0]

To be fair, the movement to stop discrimination based on youth is hardly a mover and shaker in liberal circles.

[Sam Gompers]

Well, in other domains they argue discrimination in and of itself is a moral evil needing to be wiped out.

[Sarcastr0]

Not that I doubt that you've seen such silliness, but I'll need an example of that.

[Joe_JP]

One has to determine that it is wrongful differential treatment to not allow 18 year olds to buy guys -- since federal law for at least some guns says otherwise for fifty years or so, at the very least, it hasn't been that sudden.

[Brett Bellmore]

Yeah, but should precedents dating from when the judiciary was still pretending it wasn't a civil liberty, and based on that pretense, still be binding?

[Joe_JP]

Congress itself didn't assume gun possession wasn't a civil liberty -- one reason the Supreme Court didn't step in probably as compared to congressional inaction in other areas. Congress (and the executive too -- e.g., testimony in the 1930s recognizing the limits of federal power over guns) repeatedly voiced a respect for the civil liberty of gun ownership. The Supreme Court didn't say otherwise either other than a few justices, it not directly taking 2A cases not the same thing.

Congress in the 1968 laws put limits on various categories that would generally be upheld under D.C. v. Heller (mentally ill, felons) & the conservative 5th Cr. post-Heller held that history backs up the line at 21 as well. To the degree the facts on the ground etc. changed in the last 50 years, yes, it might affect how we should treat the legislation. I won't pretend your comment intentionally shows the value of Kennedy-esque so-called "living constitutionalism" though but it kinda does.

[Brett Bellmore]

"Congress in the 1968 laws put limits on various categories that would generally be upheld under D.C. v. Heller "

That's because the Court in Heller didn't have the integrity to strike down all the violations that accumulated during the 68 years they were refusing to take any 2nd amendment cases. But the fact remains that a lot of those regulations were upheld by the lower courts on the basis that gun ownership was a mere privilege, not a right. And thus those precedents should not be considered good now.

[mse326]

I don't understand this argument. Why can't a private company say we have conditions that you must meet to use our product/service? No one is forcing a merchant to do anything. They are free to not contract with Citigroup. If it is illegal in the jurisdiction for the merchant to comply then they would be wise not to use Citigroup's services. But I don't see why Citigroup would have to let them use their services with an exemption from those conditions.

Note I am not arguing the wisdom of this condition either way, only Prof. Volokh's claim that exemptions are required.

[Brett Bellmore]

The bigger problem is actually that they're changing those conditions. If somebody wants to found an anti-gun credit card company, that refuses to process transactions involving firearms, more power to them, it inconveniences nobody, because you know it going in. Maybe there's a market for BusyBody Card, that refuses to let you spend your own money on things they disapprove of.

But when a company providing general services suddenly decides that they're not going to provide those services to existing customers, it gets somewhat more serious. You're messing with people who have existing contractual relations, which were initiated under previous rules. It amounts to a sort of bait and switch.

That's why I stopped using PayPal, because they up and decided one day that they weren't going to process transactions involving products they disapproved of, even though they were legal. That wasn't the basis upon which they'd induced me to become a member!

Then there's the question of the management's fiduciary obligations to stock holders. Not much enforced, but it's still theoretically a legal obligation, and refusing legal paying customers runs contrary to it.

[mse326]

Perhaps I misunderstand the new policy but the article says it "require(s) new retail sector clients or partners"

[Brett Bellmore]

Yeah, that's where they are now. You think that's where they'll be a year from now?

There's this: "We recognize that we don't have all the answers and that existing technology in our industry doesn't allow for a more targeted approach at points of sale. For that reason, we would like to convene those in the financial services industry and other stakeholders to tackle these challenges together and see what we can do."

What am I supposed to interpret that as, except a threat to find a way to prevent individual customers' cards from working for transactions Citibank doesn't like? How would you read it?

[mse326]

That is how I'd read that but that is distinctly different than the policy here respecting merchants. I don't read this current new policy as going to the individual card holder.

And I read what you just posted as saying when the technology is available the merchants can accept Citigroup services in general but they will be invalid for specific individual purchases. That then becomes not a Citi to merchant issue but a Citi to individual card holder issue. And since the anti discrimination laws don't apply to the individual but the merchant they aren't relevant at least in this coercive argument.

[Rev. Arthur L. Kirkland]

Then there's the question of the management's fiduciary obligations to stock holders. Not much enforced, but it's still theoretically a legal obligation, and refusing legal paying customers runs contrary to it.

Who says a right-wing legal blog can't be entertaining?

[Get To Da Chippah]

There's also the fact that requiring a party to engage in illegal activity in order to do business with you is itself an illegal act.

[Eugene Volokh]

mse326: As I mentioned, if a statute makes it illegal for a company to discriminate, then it generally also makes it illegal for other businesses to try to pressure the company into discriminating. That's just what the statute says (as do general legal complicitly principles).

[mse326]

I get that, but I don't read those laws to require a private business to do business with people they don't want to whether it is the other businesses' fault or not. I can't try to pressure a merchant to do something illegal but if I had a business and didn't want to do business with a merchant that will do something I didn't like then those laws don't require me to.

As you said your argument is only about where it is illegal, but then you turn it into a you must do business with this merchant. That isn't what the laws say.

They are pressuring businesses in jurisdictions that allow this discrimination but don't require it to do so, and saying we won't do business with companies that may not discriminate in this fashion. I'm not sure you can say they are pressuring those businesses to do illegal acts.

[Rossami]

re: "I don't read those laws to require a private business to do business with people they don't want to"

Then you need to re-read those laws. Anti-discrimination and public accommodation laws do exactly that - they require private businesses to do business with people they don't want to.

Let me try an analogy to make it clearer. In the early desegregation days, Diner A says they won't serve blacks. The State says that's unfair and passes a public accommodation law. Diner A must now serve blacks. What you seem to be arguing is that Commercial Bank B (who still believes in discrimination and thinks the State is wrong) can tell the Diner that they can't be a bank customer anymore merely because the Diner is now complying with the state law. Assuming they are the only bank in town (or that the policy gets adopted by other banks), it most definitely is pressuring Diner A to break the law in order to stay in business.

Okay, that analogy actually does help me see your point. The commercial bank has no retail customers (in my hypothetical) and thus is not directly subject to the public accommodation law. Nevertheless, I think the bank is in an untenable position. The pressure they are applying would still seem to violate other laws. An aggressive AG might throw conspiracy, unfair trade competition or several other charges on the table. And that's even before you get to all the banking regulations that prohibit them from taking "unfair" positions.

[mse326]

I guess my issue is the framing it as "pressuring" the merchant as opposed to framing it as "we won't do business with." I think it reads the pressuring prohibitions to broadly to say that declining to business with someone because of something is pressuring to do that something.

Now if a state wants to make a law that specifically states you can't decline to do business with someone (non public accommodation here) for reason X, then there is a basis. I just think equating it to pressuring is taking it too far.

I don't know enough about unfair trade laws and banking laws so maybe there is a stronger legal basis there, but I don't see this as pressuring that would violate the laws being argued in this blog post.

[M.L.]

There is a very broad rule that you can't have a contract where you agree to do something illegal. That's what this is.

As for the specific rule, if you are requiring a certain obligation as a condition of doing business with another party, and your business in important to that other party, then yes you are pressuring the party to take on that obligation.

[mse326]

"There is a very broad rule that you can't have a contract where you agree to do something illegal. That's what this is."

No it's not. It is general policy. That means in states where it is legal the merchant must agree. In states where it's not then they won't do business with them.

"and your business in important to that other party, then yes you are pressuring the party to take on that obligation."

I don't think you can read pressure based on how important something may be to someone else. Further again if they aren't telling the merchants where it is illegal to do it, which I don't read it as saying, then there is no issue. Saying we know you can't agree but this is a corporate policy so we won't do business with you is not pressuring them to do it.

[QuantumBoxCat]

Where exactly is the "pressure" that you are just assuming exists? The Citigroup policy is directed at new retails clients who would choose to enter into an agreement with Citigroup. According to the New York Times, "It would apply to clients who offer credit cards backed by Citigroup or borrow money, use banking services or raise capital through the company."

In its media release Citigroup states, "We know our clients also care about these issues and we have begun to engage with them in the hope that they will adopt these best practices over the coming months. If they opt not to, we will respect their decision and work with them to transition their business away from Citi."

Where is the legal analysis on whether this policy constitutes aiding, abetting, compelling, or coercing another to violate a third parties civil rights? If Tom's Outdoor World reads the Citigroup terms of service and disagrees with the firearm provision, how is Tom "pressured" to violate the civil rights of others? Tom can decline to do business with Citigroup and find another bank.

[Eugene Volokh]

QuantumBoxCat: Really? Say a credit card company said, "we'll only let you take our credit card if you refuse to sell to blacks" -- that wouldn't be inciting, compelling, or coercing companies not to sell to blacks, or willfully obstructing stores from complying with state antidiscrimination laws, or interfering with black customers in the enjoyment of their state antidiscrimination rights?

Indeed, the intention of the policy is precisely to get stores not to sell guns to under-21-year-olds -- by threatening the stores with the denial of what to many of them would be an extremely valuable benefit (the ability to deal with customers who want to pay with Citi cards). You may like that intention; in a purely libertarian freedom-of-contract world that might be a perfectly proper practice; but antidiscrimination law, rightly or wrongly, bars such practices as to the forbidden bases for discrimination, which in some states including age.

[QuantumBoxCat]

I actually don't really care either way about Citigroup's policy and whether it wins the day or gets tossed out. Rather, after spending some time looking through Civil Rights case law at the state level, specifically with regards to AGE distinctions in the area of public accommodations, I noticed that cases dealing with age involved broad standards and caveats as opposed to the more rigid rules used in cases dealing with race. That you again analogize using a race-based example, race tending to be the strictest category within civil rights law, leads me to believe you are the one seeing the issue from a preferred outcome perspective.

Why not point to specific cases that address the issue of age distinctions as a means of supporting your argument, instead of analogizing to hypothetical racial classifications? Why are move theaters, fitness clubs, and other public accommodations allowed to treat age groups differently while not being allowed to treat racial groups the same way even when the applicable civil rights law says both classes are protected? Does it have to do with the intent of the Civil Law rights law in question? Issues of public policy? a distinctions among age groups that is not a pretext for arbitrary treatment based solely on a chronological number?

In short, where is the legal analysis and discussion of nuance!?!

[Eugene Volokh]

QuantumBoxCat: There aren't a lot of cases involving age discrimination under the statutes I cite, I suspect because businesses don't often want to discriminate based on age (and because many businesses are aware of their antidiscrimination obligations). Nor am I aware of any such situations where a movie theater or a fitness club was allowed to treat age groups differently in a state where that kind of age discrimination is indeed banned. (As I noted, some states that do ban age discrimination also have different age cutoffs; and some allow discounts for older patrons, something I didn't expressly mention because it wasn't on-point.)

In the absence of such caselaw, I'm happy to rely on the text of the statutes -- again, those statutes that expressly ban age discrimination (unlike the California statute, which doesn't do so). That text is quite categorical. But if you can point me to cases from those states (again, not California, where courts have inferred some nontextual prohibitions on discrimination into the statute, and then treated those prohibitions as having nontextual limitations) that say that the statutes don't mean what they say, please do.

[QuantumBoxCat]

"But if you can point me to cases from those states ... that say that the statutes don't mean what they say, please do."

It would seem that you have already reached your conclusion on this issue as any case that appears to go against your argument is a case in which the court has said the statute doesn't mean what it says. The underlying premise being that you say what the statute means by looking at its text and analogizing with murder, libel, gender, and race. After this interpretation is made, any cases that actually address the issue of age distinctions in public accommodations are either right (in accord with your conclusion) or wrong (contrary to your conclusion), if the latter the court has said the statute means what it doesn't mean.

While you state that examples of a public accommodation charging customers differently based on their age are not "on-point" to the issue of a credit card company making distinctions on the treatment of customers based on age, addressing that point might actually be necessary if you were arguing on behalf of your client. If you were hired in Michigan you would probably want to discuss Cheeseman v. American Multi-Cinema (1981), where the Michigan Court of Appeals opened with, "The six minor plaintiffs, whose ages range from 6 to 15, brought an action against defendant, American Multi-Cinema, Inc., alleging age discrimination under the Michigan Civil Rights Act."

[QuantumBoxCat]

... The court writes towards the end, "In summary, we hold that some discrimination between adults and children is permitted by law." This may in fact be on-point, at least to the extent that you would want to distinguish this case from it if you were representing a plaintiff challenging Citigroup policy.

Furthermore, you may want to discuss Department of Civil Rights v. Beznos (1984), where the Michigan Supreme Court addressed the age classification category in the context of Housing. The Court's discussion of age as a classification is quite broad though, and I would think Citigroup's attorney's will want to show that it is quite on-point. The stated in its conclusion, "[W]e express again our agreement with the trial court's finding that the Legislature intended "to apply a practical rational reasoning" to the interpretation of the age discrimination provisions of article 5 of the Michigan civil rights act." There may be a strong argument in favor of narrowing the case to its ruling in the area of housing, but not mentioning it because you believe it is not on-point may not be prudent.

I am not an expert on Civil Rights law or public accommodations law. But I like to think I can catch an oversimplified argument when I see one, particularly when it deals with law and presents all the issues as falling into a clear binary state.

[QuantumBoxCat]

... With a little digging I was able to find that the issue is actually issueS, that there are caveats used when addressing the issue of differential treatment corresponding with age, and that there may be good arguments for both sides in this specific situation given those caveats and the competing interests. I learned a bit more about the issue not from your post, but from the fact that your post seemed so obviously incomplete that I found myself compelled to look further into the matter. So for that, I thank you.

[David Lawson]

18- to 20-yr olds are adults, so this is not about discrimination between adults and children.

[mse326]

http://www.greenbag.org/v16n1/.....t_kerr.pdf

[Greg F]

Indeed, the intention of the policy is precisely to get stores not to sell guns to under-21-year-olds -- by threatening the stores with the denial of what to many of them would be an extremely valuable benefit (the ability to deal with customers who want to pay with Citi cards).

Citi's policy is directed at the merchants who use Citi as their bank. Due to the way credit card processing works, their ability to deny a charge by a Citi card holder would be limited to denying purchases at individual merchants. For example, they would have to deny all charges from a merchant that sold fishing and hunting supplies since a purchase made with a credit card does not include any information on what was purchased. For a merchant that doesn't use Citi as their bank the policy is irrelevant.

[Brett Bellmore]

The announcement was reasonably explicit that they were planning to get together with other banks to work out a way the policy could be extended to controlling individual transactions by card holders. They only reason they didn't bar the use of their card by individuals for the sales in question was that it wasn't yet technically feasible.

[Greg F]

The announcement was reasonably explicit that they were planning to get together with other banks to work out a way the policy could be extended to controlling individual transactions by card holders.

Well good luck with that. The executives that came up with this brilliant idea either don't understand the logistics of the system (very likely), or do understand and think there is some PR value to it. A purchase made with a credit card does not include any information on what was purchased. The cost to changing that are not trivial and would essentially remove the lowest tier merchants from accepting cards since they don't have POS systems, just the stand alone terminal.

The next problem is how to deal with thousands of different POS and inventory systems with millions of different product codes.

Then there is the merchants CC processor who has to take each transaction and get it approved by the issuing bank.

It isn't "a way the policy could be extended", it would be an almost complete rebuild of the entire system involving significant costs to all involved.

They only reason they didn't bar the use of their card by individuals for the sales in question was that it wasn't yet technically feasible.

It is technically feasible, just not financially feasible. The only reason they came up with this idea was its perceived PR value or they are idiots.

[Naaman Brown]

Keeping records of what people buy with their credit cards would give the banks a gold mine of individual's purchase habits, even bigger, better and more commercially valuable than FaceBook's or Google's tracking data of what we click on. Think of the possibility of abuse.

So far, my debit card only tracks where, when, and how much I spend. Add what I spend it on would only require the merchant to forward the receipt line item data.

[Greg F]

Add what I spend it on would only require the merchant to forward the receipt line item data.

The problem being the line item data is going to vary by merchant for the same item. It would require a hell of a lot more that "line item data". It would require a cross reference of proprietary codes that change on a daily basis.

It wouldn't just be what the customer purchased that could be tracked. They would also be tracking the merchants sales. Do you think for a second that a company like Walmart is going to allow the banks to track what it sells and how much of each item? I am pretty sure that Walmart considers that type of information propitiatory and for good reason.

There are 18 million business in the US. Around 85% have less than 10 employees. Those business mostly process cards on stand alone terminals. They don't have the financial resources to install and run a POS system securely. These small businesses are not going to spend more time entering line items for the benefit of some bank.

[dwb68]

Strictly speaking, Citi does not need to change their policy. But retailers that do not want to be sued, need to move elsewhere. In other words, Citi ends up shrinking its business in those states.

This idea was cooked up in Citi by a Bloomberg lackey (former deputy mayor). Not a very good business manager.

I keep wondering why corporations hate business? We have seen this kind of groupthink in companies before many times, its a sign they are on a downward spiral and out of ideas to grow their business.

[Brett Bellmore]

It's the march through the institutions. Conservatives join organizations to advance the organization's purpose. Liberals join organizations to take them over, and use them (up) advancing the left's purposes, instead.

So you hire on as part of management, and you're a conservative, you concentrate on normal business goals.

But you hire on as part of management, and you're a liberal, you're not there to make the business a success. You're there to turn it into another arm of the left. Liberals in HR make a point of only hiring liberals, for instance.

And, because there's no push back, thanks to the conservatives paying attention to business instead of ideology, eventually you prevail.

Then when the number of liberals in management hits a critical mass, you start making corporate policy based on what advances liberal causes, and never mind if it loses money.

Thus, Conquest's second law of politics: "Any organization not explicitly and constitutionally right-wing will sooner or later become left-wing." Because it's only the explicitly right-wing organizations where there's any push-back against left-wing takeover attempts.

[Rossami]

re: "Liberals join organizations to take them over"

Counter-example - the takeover of the Tea Party movement which, if you'll remember, was originally a strictly anti-tax initiative.

[Rossami]

Co-opting of popular movements is a bi-partisan abuse.

[Brett Bellmore]

At least it was a political movement being taken over for political purposes. Not a non-political institution being diverted to political purposes. Which is what I'm talking about.

You'll be going along, and then suddenly, out of the blue, your local bank is handing money out to lefty causes, or Toys R Us is donating money to Planned Parenthood to spend killing your future customers.

[Al S]

What this post lacks is the contempt for in house legal departments that Prof Volokh's other posts had.

Now, apparently it's not only Dick's that doesn't have a competent legal department, it's Citigroup as well.

[Rev. Arthur L. Kirkland]

Maybe, if top law schools would heed the Conspiracy and hire more movement conservatives to teach, successful American corporations could begin to find competent lawyers for in-house positions?

Great points all around!

[JesseAz]

At least you are consistent in your appeal to authority and no logic. Problem is not everyone agrees with who your authority is.

[DJK]

Don't bother. The good Rev. doesn't respond to facts and arguments.

[Eugene Volokh]

Al S: I said what I did about Dick's in-house legal department only when Dick's was sued for actually violating the law. When there was first talk about the policy, I noted that the chains would just need to have an exemption from the policy in the relevant states, counties, and cities. Likewise here: Credit card companies would need to make clear in their contracts with the relevant businesses that the businesses need not discriminate against under-21-year-olds in those jurisdictions that bar such discrimination. At this point, we just have a public announcement, which doesn't include the full text of the contractual language, so it's possible that the actual contractual language is drafted to avoid the legal problem.

[Al S]

Prof Volokh:

I love your blog; I've been a loyal reader for 15 years. But I seriously doubt that Citi is going to exempt a whole bunch of jurisdictions on the basis you claim is required. I don't think this is going to be any different than Dick's.

[Pat001]

How about credit card companies not allowing merchants to sell bomb making materials?

[Eugene Volokh]

Pat001: How about it, and what does that have to do with age discrimination statutes?

[eno.river.bend]

Forbidding the sale of ... iron pipe? Fertilizer? Gasoline or propane? Pressure cookers?

[Joe_JP]

Slate has an article entitled "Why It's Legal for a Teen to Buy an Assault Rifle but Not a Handgun" that addresses the apparent (to some) anomaly of federal law cited in the piece here.

The article notes the 1968 law in question "likely focused on handguns because they were, and still are, used in the majority of firearm-related crimes" and "rifles like the AR-15 were not popular or widely available to the American public." The change in sales was part of the reason for the 1990s partial ban (much ridiculed in these circles). Numbers suggest the "majority of firearm-related crimes" still would not be used by these weapons; supporters often speak of things like their use in mass shootings or the like. Again, this has been subject of debate by places like these comment threads.

Bottom line, though, the current narrower limit on those under 21 [ACS Blog recently cited one lower court case that upheld the provision using a historical practice test centered on the 2A specifically] seems to be the result of a somewhat out of date law. Also, the limit is for federally licensed dealers in interstate commerce. So, I gather it might not apply to an aunt transferring (for a fee) a gun to her niece in certain cases.

[Joe_JP]

NATIONAL RIFLE ASSOCIATION OF AMERICA INCORPORATED v. BUREAU OF ALCOHOL TOBACCO FIREARMS AND EXPLOSIVES [5CA/2012]

[ragebot]

Some random thoughts.

It would be interesting to see just how many 18-20 year olds have credit cards; not to mention how many of them bought small arms with them. I frequent the local university gym/indoor pool and while many of the students do have credit cards they seem to have many limitations. I suspect only a very small number of peeps in that age cohort are really buying guns.

Speaking of age based restrictions I frequently rent cars when I am traveling and there seem to be massive restrictions on folks under 25 renting cars. These restrictions are probably with good cause based on auto accidents but they do seem quite harsh.

There seems to be real scientific data that the brain is not fully formed till ~25 or so. I wonder where the 18 or 21 age limit first came about. I sorta understand the 18 was directly related to VietNam but given modern science it seems like 21 is really hard to justify.

In any case this seems like a tempest in a teapot. Few people will be affected. The only real purpose seems to be a PR stunt.

[Sisu]

Why is this decision by Citigroup not "tortious interference" ? It is clearly a violation of a buyer's and seller's right to transact.

Who is Citigroup (but the alter ego of its board and executive team) to define the "morality" of a gun purchase versus a "cocktail and lap dance" ?

In the US there is no "established religion" (other than the "government") - does Citigroup's legitimacy flow from their control of the Federal Government through participation in governing the Federal Reserve ?

And, as the country is forced toward a "cashless retail transaction system" will this power that Citigroup claims be undermined or further legitimized ?

[Brett Bellmore]

"Why is this decision by Citigroup not "tortious interference" ?"

You've never heard of the "because guns" doctrine? All sorts of standard legal principles and rules don't get applied in cases related to firearms, "because guns". Sometimes explicitly.

STATE OF N.J. V. JOSEPH PELLETERI

" When dealing with guns, the citizen acts at his peril. "

[Longtobefree]

"(whatever you might think about the moral issues)."

Or whatever you might think of the US constitution?

[Longtobefree]

"(whatever you might think about the moral issues)."

Or whatever you might think of the US constitution?

[Naaman Brown]

[sarcasm]If these 18, 19, 20 year olds are so dangerous they cannot be trusted with legal gun purchase, why is this assumed-to-be-criminal cohort allowed to roam the streets at will?[/sacrasm]

For the record: my father started me target practicing with a rifle at age six; my uncle taught me to shoot a revolver at twelve; I was gifted a .22 hunting rifle at fifteen; from the income of my summer job I bought a rifle at Sears when I was eighteen. (I also grew up hearing all the anti-gun propaganda in the build up to the 1968 Gun Control Act.) As a former teenager, and 18-20 year old, I resent this drive to paint all 18-20 year-olds as the next Nickolas Cruz, too dangerous to have guns as a group.

[Gunstar1]

Im a bit late, but there is another set of laws that citibank may run against and that is the anti-operation choke point laws. Georgia has one passed last year 10.1.439 thru 439.4. Bars banks from dicriminating against a business for selling guns or ammo products.

Age restiction and magazine ban would seem counter to that as well.