Tag: Open Carry

The New Wild West: Considerations for Commercial Landlords and Tenants in the Era of Open and Concealed Carry of Firearms

concealed carryIn a retail setting like a grocery store, it might be shocking for the average customer to see an individual openly carrying a rifle slung over his shoulder. While the gun-toting patron might be shopping for cantaloupe and exercising his open-carry rights, other customers might panic and call 911 to report a “man with a gun.”

Gun ownership laws continue to evolve nationwide and many states have expanded legal open carry laws in recent years. Currently, only a handful of states prohibit open carry of a firearm in any form. “Open carry” is generally characterized as carrying a gun in public where others can see it in plain sight. Every state, including the District of Columbia, allows the carry of concealed firearms in some regulated form. “Concealed carry” is usually defined as carrying a firearm where the casual observer cannot see it.

While most proprietors expect a person carrying a gun onto the property to have benign intentions, accidents (including accidental discharges) do happen. Furthermore, mass shootings and other incidents involving firearms continue to be an unfortunate part of reality in today’s society. Landlords and tenants of retail properties should be aware that bodily injury or death caused by a weapon wielded by an employee or invitee on the property can leave a business open to lawsuits under various theories of liability. Consequently, it is important for landlords and tenants to be aware of the implications of allowing or prohibiting firearms on their property, and the resulting liability that might come from gaps in insurance coverage, or firearms policy decisions.

What options do commercial landlords and tenants have to address the risk of liability?

  • Check your state, city, and municipal laws regarding concealed and open carry

    • Some state laws allow private businesses to ban guns from their premises, but not every jurisdiction permits private owners to ban guns from their property.

    • Some state laws may address liability. For example, Wisconsin law states that a property owner or occupier is immune from liability arising from the decision to allow firearms on the property. By inference, banning weapons from the premises may give rise to a standard of care where the owner or occupier has a duty to enforce the ban.

  • Evaluate the business occupying the premises and requirements under state law

    • For example, bar owners or places where alcohol is served will likely have an affirmative duty under state law to ban firearms from their premises.

  • Engage in a dialogue with your landlord/tenant and property manager about firearms policy

    • Consider making this a part of the lease, or amending the lease as to who can decide what is allowed on the premises (especially if seeking to ban concealed weapons.)

    • Discuss how any policy will be enforced.

    • Address insurance provisions for tenants regarding exceptions in coverage for firearms incidents.

  • Review any signage requirements under state, city, and municipal law

    • States may require certain dimensions, language and placement for signs notifying patrons of firearms prohibitions on the property.

      • For example, in Texas the sign text must be in English and Spanish.

  • Talk to your insurance carrier

    • Do not assume that you are currently covered for incidents relating to firearms.

      • Firearms are commonly excluded from commercial general liability policies.

      • Discuss the impact of allowing or prohibiting guns on the premises with your insurance carrier.

      • Consider purchasing additional gun liability coverage.

Regardless of personal position, commercial landlords and tenants must be aware of the state and local firearms laws that apply to their property. The intersection between premises liability and firearms statutes continues to develop, and sound risk management calls for review of current policies and insurance coverage to help mitigate any existing gaps in coverage.

ARTICLE BY Chris A. Jenny, William R. West & Brittany Finlayson of von Briesen & Roper, S.C.

©2016 von Briesen & Roper, s.c

New Texas Open Carry Law Has Significant Implications for Employers

On June 13, 2015, Texas Governor Greg Abbott signed into law HB 910, the Texas Open Carry Bill for Concealed Handgun Holders (“Open Carry Law”). The Open Carry Law becomes effective on January 1, 2016. The Open Carry Law expands the scope of a concealed handgun license and authorizes an individual carrying such a license to carry a handgun in plain view in a public place as long as the handgun is carried in a shoulder or belt holster.

The Open Carry Law also adds Penal Code Section 30.07 to establish a new offense for trespassing with an openly carried handgun if a license holder enters another’s property without effective consent and: (a) had notice that entry was forbidden, or (b) received notice that remaining on the property was forbidden and failed to depart. A license holder receives notice if an owner or someone with apparent authority to act on the owner’s behalf provides notice by verbal or written communication. However, the compliance requirements for a sufficient “written communication” are strict and detailed. The “written communication” may be a card, document or sign posted on the owner’s premises. Such a sign would be required to: (a) include Penal Code Section 30.07 language in English and Spanish, (b) have contrasting colors with block letters at least one inch in height, and (c) be conspicuously displayed and clearly visible at each entrance to the property.

The Open Carry Law additionally permits individuals with concealed handgun licenses to carry handguns in plain view in a motor vehicle or watercraft owned by the person as long as the gun is carried in a shoulder or belt holster.

Implications for Texas Employers

This new legislation raises several implications for Texas employers, as it expands individuals’ rights from parking lots to company property. Currently, employers may not prohibit employees from storing lawfully possessed firearms and ammunition in vehicles parked in the employer’s parking lot (or garage or other lot provided by the employer). Specifically, the 2011 Texas concealed handgun law permits the possessor of a firearm or ammunition to store those items in a locked, privately owned car, as long as the possessor holds a concealed handgun license.

The Open Carry Law, while permitting concealed handgun licensees to openly carry a holstered firearm, also allows public and private employers to prohibit licensees from carrying their firearms onto the “premises” of the business. Under the definition set forth in the Texas Penal Code, “premises” includes “the building or a portion of the building.” The term, however, “does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.”

One significant omission from the Open Carry Law is that it does not grant employers immunity from civil actions resulting from an occurrence involving the employee and his or her openly carried firearm. The 2011 Texas concealed handgun law expressly included a provision providing employers with such immunity, except in cases of gross negligence. That immunity, however, applied only to firearms and ammunition stored or transported in an employee’s vehicle and does not address an occurrence involving an employee who is openly carrying a firearm.

The Open Carry Law, similar to the 2011 legislation, does not create a private cause of action for employees against their employer if the employee contends that his or her right to openly carry has been infringed. Thus, it seems that an employee’s only remedy would be to report the employer’s alleged violation (e.g., a policy banning firearms from being openly carried) to the Attorney General’s office.

In light of this new legislation, employers must decide: (1) whether to allow employees with concealed handgun licenses to openly carry handguns on company premises, and (2) whether to permit visitors, vendors, guests and other third parties to openly carry handguns on company premises. Implementing and enforcing these decisions will require considerable planning, including a determination as to whether any existing company policies need to be updated to comply with the new law.

Article By Micala R. Bernardo & Marc D. Katz of Andrews Kurth

© 2015 Andrews Kurth LLP