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Guns in the Work Place

© 2005 Chuck Klein

Published in GunWeek Magazine, 20 Dec 2005

Since the proliferation of states establishing licenses/permits for its citizens to carry concealed firearms, many businesses have been posting their premises as off-limits to those who legally carry. Some interesting effects have now surfaced in regard to firearms in the work place, for employees, employers as well as patrons.

When an employer restricts the carrying of legal firearms upon his premiss by legally licensed persons, he does NOT create a Gun Free Zone. What he establishes, sans other protective measures, is a Self-Defense Free Zone. Though some states have created laws to protect employers from liability for posting their property . . . it is not a guarantee.

STATUTORY TRENDS:

The trend has been for private businesses to post their property as off-limits to anyone carrying a legal firearm. The reason is NOT necessarily the business owner's concern for the safety of his patrons and employees, but his worry about being sued by someone who is injured by a firearm while on the company property (in a related and recent Oklahoma civil case, the claims by paper making giant, Weyerhaeuser, were mostly about civil liability). To remedy this, state legislatures have granted liability immunity to businesses that allow their employees and patrons, who are not otherwise prohibited from carrying firearms, to carry their legal firearms onto the business property. Some states, such as Ohio, allow for business to post their property as off limits to gun carriers and then grant the company relief from liability.

QUESTIONS: If a state permits/licenses a person to CCF in public and a business - open to the public - bars that person, isn't that business violating the licensee/permit holder's rights? What would be the difference is a business discriminated against a state licensed preacher by refusing entry sans his or her bible?

Immunity from liability is not a panacea nor is it a guarantee, witness the situation in Ohio (which is similar to other states). The Ohio Revised Code [2923.126 (2)(a)] states: "A private employer shall be immune from liability in a civil action for any injury, death or loss to person or property that allegedly was caused by or related to a licensee bringing a handgun onto the premise or property...". It is clear that the employer is immune from liability only as to incidents cause by persons licensed to carry concealed firearms. In other words, if an UNLICENSED person (criminal or otherwise) enters the premiss and injures/kills a patron or employee the employer has no immunity from civil liability. This section ALSO exempts an employer from liability should a licensee kill or injure a person on property that is NOT posted. Therefore, it is clear that whether the property is posted, or not, the employer is not liable for actions of LICENSED persons, but could be liable to the acts of UNlicensed persons.

The following sentence in this section reads: "A private employer is immune from liability in a civil action for any injury, death or loss to person or property that allegedly was caused by or related to the private employer's decision to permit a licensee to bring, or prohibit a licensee from bringing, a handgun...." Here the legislature intends for the employer to be exempt from liability if his decision to post - or not post - the premiss should anyone be injured or killed.

However, and in reality, the "deep pockets" and the "inherent duty" of an employer to use his best efforts to protect his employees and patrons has always ruled in a court of law. Most courts will take a dim view of exempting a for-profit employer from liability who relies exclusively on this statute for protection. When a business posts its premiss "off-limits" to firearms, what they are saying, in effect, they (the company) are guaranteeing the safety of its employees and/or patrons.

REASONABLENESS: I can understand a business wishing to bar a person who is not licensed to carry a concealed firearm, but what's the rationality in banning a law-abiding citizen who has proven that he or she is not a felon, or wanted by the police, has passed a use-of-lethal-force course and is proficient with a handgun?. I would think that if a business placed a sign welcoming CCF licensed patrons and/or employees, that would send a very strong message to criminals.

This is especially true in a state such as Ohio that mandates that its citizens receive training before being licensed to carry a concealed firearm. It would be more in line for a court to raise the question: "How can they (the company) escape liability when they prevent a licensed/trained citizen from protecting him/herself?" This reasoning would be further enhanced if the employer doesn't offer any special means of protection such as armed guards, metal detectors, etc.? Clearly a court would find repugnant a law that allows a for-profit company to be free of liability when they intentionally restrict the right of licensed and trained, law-abiding citizens (employees as well as patrons) the means with which to protect themselves while on the company's property without providing alternative protective measures.

EXPOSED CARRY:

The Ohio Supreme Court (Klein v. Leis) declared that citizens, who don't fall under any of the disabilities, have a constitutional right to carry UNconcealed firearms. The effect of this, could be where an employer posts his property and a person licensed to carry a concealed firearm simply removes the cover (jacket/shirt) covering his firearm and enters the employer's premiss (now he would be exercising his constitutional right, under Klein v. Leis, and is not acting as a licensee). This practice could result in injury to innocent persons should a criminal try to wrest the gun from the legal carrier. Since the injury would be a result of an UNlicensed person's action, the employer would be liable. (Though the statutes relates to the carrying of firearms without regard to concealed or unconcealed, the effect is unclear since the right to carry unconcealed has been declared a constitutional right by the Supreme Court of Ohio).

REAL LIFE SCENARIO:

Suppose a robber (unlicensed) enters a posted premiss, then robs and shoots employees and patrons. The unarmed victims (or their families) should be successful in a civil suit against the employer if the only defense the employer offered was the wording of the statute, i.e., they did not have staffed metal detectors, armed guards or other preventive measures (surveillance cameras are not preventive measures - only reactive tools of investigation).

ESTABLISHED CASE LAW:

It is well established in law that the Police do not have a duty to protect the individual citizen. If you call the cops and they fail to respond or fail to protect you, you have no recourse if you are injured of killed as a result of the police failure protect you. Businesses, contrary to legislative edicts, on the other hand, have no such CASE HISTORY from protection from civil suit.

INSURANCE:

Most insurers will not cover INTENTIONAL acts. In other words, in an enclosure that is not de facto secure, and where the employer intentionally denies his customers and/or employees the right to defend themselves, the employer would most likely be denied insurance coverage should someone be injured as a result of the creation of a self-defense free zone.

SUMMARY:

a) The decision to allow patrons to carry or not carry in most private business places should be left up to the individual. Businesses might consider having a policy that those who wish to possess a firearm on company property must have a valid CCW permit and the firearm must remain concealed at all times. In the case of employees, the firearm must be concealed on his/her person or locked in the employee's work space or automobile. Some major companies have a "no-formal policy" policy where they have verbally told or e-mailed employees not to bring firearms into the workplace, but this policy is not made part of the official written directives of the company. One would think that any employer who utilized such a quasi-restraint would be most troublesome to defend in a court of law.

b) Persons licensed to carry concealed firearms who have submitted to a background check, training and fingerprinting, obviously, are decent, law-abiding citizens and, historically (nationwide), have not proven to be a threat to anyone.

c) With a multitude of excellent training facilities available prudent employers should encourage their managers/supervisors be trained and at all times while on the job be armed. In addition, businesses, open to the public, should, for the sake of liability and the safety of their customers, never restrict person legally permitted to carry from their right to protect themselves.

d) In the aftermath of a work place shooting, and once in court, the burden of proving posted property was prudent is the employer's. In other words, the employer/business owner must prove what was gained by restricting qualified persons from the ability to protect themselves.

e) To escape liability any property owner, wishing his property to be a gun-free zone by forbidding qualified persons from carrying firearms therein, should incorporate staffed metal detectors and/or armed guards for the protection of patrons and employees.

f) Businesses should be aware that there are a host of licensed, law-abiding citizens and pro-gun groups just waiting for the opportunity to bring suit against a business whose anti -self-defense policies result in damage (loss of job, criminal arrest and/or monetary damages) to a legally licensed person.

g) Even if one has a statutory limit of liability, that doesn't mean an injured person can't bring civil a suit. Insurance coverage (including the cost of defending the suit) is most likely not available for injury caused by the INTENTIONAL ACT of restricting law-abiding customers and/or employees from protecting themselves.