Liability for "Gun-Free" Zones

[ELB]

When the parking lot bills (i.e. preventing employers from banning guns in cars in the parking log) came up in Texas and Oklahoma, I was/am all in favor. I don't see a private property right issue here -- business spaces like Weyerhauser, Walmart, Joe's Hair Emporium, that employ others and/or invite the public in, are not private property in the exclusive sense that your home is. You can deny people entry to your home based on any reason, and it doesn't have to be a good reason. You can, for example, exclude based solely on their race, however morally repugnant this is. As a society, we've pretty much settled that issue for businesses and such - you may legally do no such thing. When you invite the public onto your property, you also agree to abide by certain societal norms in how you treat the public.

I would very much like to see unfettered CHL carry wherever. However, one compromise in the parking lot (and other similar "gun free" situations) I could grudgingly live with, is to allow the banning of CHL firearms, but to do so would incur a strict liability for criminal acts, particularly violent ones, on the property owner. In otherwords, ACME Lumber Company wants to ban firearms on their property, fine, but if anyone is hurt or killed while on ACME's property, there is no question that ACME is financially responsible for it. You can sue ACME under current law now, of course, but a good part of your lawyer's time is going to be convincing the jury that ACME was responsible for it in the first place. Strict liability (as I understand the term) would mean your lawyer would merely have to show that you (or your late relative) was injured or killed on ACME's land, and then proceed directly to how much ACME is going to pay for this.

I have no burning desire to expand the tort industry in this country, but as long as it is there, might as well use it as a big stick to press for wider legal CHL carry. I am pretty sure that the number of people hurt/killed at work by an unlicensed nut who ignored all the rules far exceeds the number of people injured/killed by a CHL holder who suddenly decided to blast someone or who somehow let his gun get into the wrong hands. I think ACME's lawyers would realize this too, and would see the threat of getting hammered with a big payout under the strict liability rule would far exceed any problems with allowing CHL holders on their turf.

I have thought is for a long time, but what prompted me to chirp up now (besides the mall and church shootings) is that I found out someone has been pursuing laws along this line. Instapundit.com gave a pointer to a Gunlaws.com write-up of two different state law efforts that would attach liability to "gun-free" zones. I haven't read it in full yet, but seems similar to what I was thinking. Great minds and all that, I'm sure.

Have a look and see what you think. I would be interested to hear from Mr. Cotton, if he is so inclined, as to whether this has ever been discussed in the Texas Legislature. As with any creation of the human mind, I am sure there are some unpleasant side effects, but I do think gun-free zones are assaults on common-sense and individual rights and safety, and would like to see them disappear.

For your reading enjoyment:

http://www.gunlaws.com/GFZ/GFZ-BillReview.htm

elb

[Charles L. Cotton]

I put forth a similar proposal in either 1997 or 1999, but it went nowhere. The business lobby in Austin is far too strong to allow any form of statutory cause of action (liability) based upon the criminal acts of a third party. I had political reasons for the proposal, knowing full well that 1) it wouldn't pass; and 2) if it did, it probably wouldn't withstand a constitutional challenge. My motive to make a counterproposal appear much more appealing. That counterproposal provided immunity to property owners for any injury, death or property damage caused by a CHL holder, if the business did not post "no gun" signs. (As I stated, I can't recall if this was in 1997 when 30.06 came into being, or if it was in 1999.)

There is another problem with this proposal; it wouldn't help the CHL if they were injured or killed while driving to or from the business' location. This is our best argument on the parking lot bills, i.e. that company policy doesn't merely disarm employees while in on company property, but on the entire trip to and from work.

While the idea of statutorily making businesses pull out their checkbooks to pay for injured or killed CHLs has a certain appeal, it's not realistic in Texas.

Chas.

[Keith B]

I put forth a similar proposal in either 1997 or 1999, but it went nowhere. The business lobby in Austin is far too strong to allow any form of statutory cause of action (liability) based upon the criminal acts of a third party. I had political reasons for the proposal, knowing full well that 1) it wouldn't pass; and 2) if it did, it probably wouldn't withstand a constitutional challenge. My motive to make a counterproposal appear much more appealing. That counterproposal provided immunity to property owners for any injury, death or property damage caused by a CHL holder, if the business did not post "no gun" signs. (As I stated, I can't recall if this was in 1997 when 30.06 came into being, or if it was in 1999.)

There is another problem with this proposal; it wouldn't help the CHL if they were injured or killed while driving to or from the business' location. This is our best argument on the parking lot bills, i.e. that company policy doesn't merely disarm employees while in on company property, but on the entire trip to and from work.

While the idea of statutorily making businesses pull out their checkbooks to pay for injured or killed CHLs has a certain appeal, it's not realistic in Texas.

Chas.

I'm with you on this one Charles. No way are we going to get the business owners to accept liability for things truly beyond their control in an open environment.

I would like to see the parking lot exemption in Texas. Kentucky has it in their law and the wording is plain and simple. The other revision I would like to see is to be similar to Missouri and have places listed as 'no carry', but if you violate those, it is not a crime unless you refuse to leave. That way if you inadvertantly walked into a bar while carrying, then you just had to leave if asked or you could be charged with trespassing.

[Photoman]

The other revision I would like to see is to be similar to Missouri and have places listed as 'no carry', but if you violate those, it is not a crime unless you refuse to leave. That way if you inadvertantly walked into a bar while carrying, then you just had to leave if asked or you could be charged with trespassing.

I like the sound of that one. If it ever were to become law in Texas, I predict my memory would become quite intermittent.

[ELB]

Thank you Mr. Cotton for the background info, and kudos for your efforts in 97 or 99, whichever it was. I am not surprised at the outcome.

I am sure part of the problem hinges the perception that argument as Keith B described it is true:

No way are we going to get the business owners to accept liability for things truly beyond their control in an open environment.

Of course the real situation is not that the business owner is being held responsible for someone else's action, but that the business owner is being held responsible for eliminating or removing a proven, effective method of self-defense. Business owners are not responsible for arsonists who start fires, but if they do not provide fire alarms and exits (or chain them shut), they ARE responsible for those failures.

Perhaps a few more real-life lessons along the lines of the Omaha mall shootings vs the Colorado Springs Church armed parishioner will have to occur in a relatively short period of time before the public perception of where liability lies will change. When I was taking some aviation safety courses, it was said that FAA rules are written in blood; i.e. people had to die in airplane crashes before many safety rules were adopted. Something similar could be said for CHL laws, with Susanna Gratia-Hupp at Luby's for example.

elb

p.s. I recently saw another perverse example of the irrational liability situation that has some parallels to this.

In the last session, the legislature passed a law that requires water companies to paint black any non-functioning hydrant (doesn't work, or does not meet NFPA standard of pumping a minimum of 250 gpm) so firefighters will not waste time trying to hook up to useless hydrant.

Several water companies have painted ALL of their hydrants black, apparently because they believe they could suffer liability if they provided a hydrant and someone's house burned down anyway (perhaps because a hydrant went bad but hadn't been painted yet?). There is no requirement in Texas law for water companies to provide hydrants for firefighting at all, so they see no liability in not providing hydrants for firefighting, even if the hydrants are useful.

Obviously this is the very opposite of a sound public policy. I see painting all the hydrants black as being the same as banning CHLs from carrying. The companies see greater risk in doing something right (hydrants, armed CHLs) than in doing something preposterous (providing NO hydrants at all, banning CHLs from carrying). That needs to be changed.

http://www.sffma.org/pdfdocs/miscpdfs/S ... elease.pdf

Sigh.

elb

[Reloader]

Back in 1995,Attorney general Dan Morales (before he went to jail), stated the Business could post no handguns signs;however they were then liable for the safety of the customers and employees, as well as anyone else on the premises. The sign did not relieve them of the liability to protect. this was the a major reason large corporations decided NOT to post prohibitions against CHL carriers. It was the Texas BOMA members, but the opinion was so long ago it is no longer accessible.

[Charles L. Cotton]

Back in 1995,Attorney general Dan Morales (before he went to jail), stated the Business could post no handguns signs;however they were then liable for the safety of the customers and employees, as well as anyone else on the premises. The sign did not relieve them of the liability to protect. this was the a major reason large corporations decided NOT to post prohibitions against CHL carriers. It was the Texas BOMA members, but the opinion was so long ago it is no longer accessible.

All AG Opinions are still available. Here is the website: http://www.oag.state.tx.us/opinopen/opindex.shtml I don't remember this one; do you have the DM number? I can assure you, an AG Opinion on this topic would be worthless, as the AG cannot create what amounts to a strict liability cause of action.

Also, I spoke at the 1995 BOMA convention in Houston when the hottest topic was whether or not building owners should post "no gun" signs. An attorney from Fulbright said "yes, by all means post your building," while I obviously took the opposite position. It was this convention that prompted the issuance of the 1995 BOMA letter recommending members take no action on CHLs and their guns.

Chas.

Edited to add: Here is a link to all AG Opinions dealing with firearms. http://www.oag.state.tx.us/opinopen/opi ... adingID=49 The subject index is only for the period 1990 to the present, while AG Opinion website goes back to 1939.

[Charles L. Cotton]

Reloader:
I think you may be remembering DM 363 that was published on Aug. 30, 1995. I just re-read it to be sure I hadn't forgotten anything. I remembered this one by number, because Dan Morales quoted me (but misspelled my last name) on the issue of the definition of "premises."

DM-363 did address the question as to whether business owners could bar armed CHLs who were not their employees. (Sen. Rodney Ellis, rabid anti-gunner had requested this Opinion.) The Opinion also address potential liability to a business, if they forcably removed an armed CHL. (Pg. 11) Since trespass is neither a felony or a breach of the peace, DM 363 noted that a business owner could be liable to a CHL, if they tried to make a citizen's arrest. (Pg. 11).

DM-363 addressed the issue of a business owner's potential liability to third parties injured by a CHL, if the business owner did not take steps to enforce a "no guns" policy. (Pg. 11) However, Morales did not opine on the issue. He did attempt to anticipate what he thought a jury would do (which is inappropriate in an AG Opinion), but no official position was taken. If I remember correctly, this Opinion came out after my presentation at BOMA in 1995 and after the BOMA letter was published. Morales didn't like my analysis as to how businesses would be sued, if they posted a "no guns" sign, but took no steps to enforce it.

At no point did the Opinion deal with a business owner's potential liability to a CHL who may be injured by a third-party, after having disarmed to comply with a "no guns" policy or sign.

Since this AG Opinion deals with businesses banning armed CHLs and potential liability, this may be the Opinion you were talking about. I hadn't read it in a long time either, so I had to go over it again to make sure it didn't deal with potential liability to a disarmed CHL.

Chas.