Are private businesses and firearms bans liability free?

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Are private businesses and firearms bans liability free?

Postby Havik » Mon 04 Mar 2013 8:09 pm

So if Hansen v AOL establishes that private property rights are a significant enough constitutional right that they cannot be, at least under current legislation, diminished by the equally important constitutional right to keep and bare arms, then the following question stands to reason (at least in my non-attorney mind)...If a private business decides to exercise their private property rights and impose a "gun free zone" in their business, then do they take on any responsability to provide a reasonable amount of security to make up for the individual security they are restricting an employee/patron from providing for themselves (limitation of the employee's constitutional right to keep and bare arms)? Court houses, airports, the DMV, etc all provide this security presence, and they limit a persons rights.
The Aurora, Colorado theater shooting comes to mind where individuals (employees and patrons) are restricted from excercising their constitutional right to protect themselves, and yet the employer does almost nothing...no, nothing, to provide for their security (no security presence, no access control on back of house doors to ensure they are secured, etc.). Do they have any liability in your mind?
And yes I realize that we as employees and patrons can simply choose to work or not work, or patronize or not patronize businesses that limit our freedoms, but I still wonder if companies don't assume some liability nonetheless when they limit our ability to exercise our own personal constitutional rights.
I'm interested in your thoughts...
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Re: Are private businesses and firearms bans liability free?

Postby Cinhil » Mon 04 Mar 2013 8:53 pm

From personal conversations with our former AG, Mark Shurtleff, they would be responsible and your family could sue on your behalf if you are killed and you could sue if you lived through the nightmare. This does not mean you'd win, it could be a real battle. I for one believe you could even claim workers compensation if you are injured or killed on the job because your employer has taken the responsibility of protecting you while you are working and failed to do so. IANAL but if I were on any jury I would find for the person or family of a deceased family member if they died from violence at work. I might even request that the requested amount for damages and suffering be quadrupled just to teach the business a lesson. That's me, it may not be the way others may look at it. I do believe employers who restrict your ability to self defense have taken the onus of protecting you and that they are ultimately responsible for you while employed upon their premises, this includes door to door until you have gotten home and can arm yourself and care for your own protection.
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Re: Are private businesses and firearms bans liability free?

Postby Car Knocker » Mon 04 Mar 2013 9:02 pm

DMV, as a state entity, does not have the authority to limit firerarms in its facilities.

As for private businesses assuming liablity for crimes of violence against a person who is disarmed because of their policies, I believe the law holds that a business owner or employer has very little, if any, liability in the event of violence initiated by an unknown party, that is, they are not responsible and liable for the actions of someone over whom they have no control. This changes, however, if the business or employer is aware of a known, specific danger and fails to warn of that danger, be it a general danger or danger directed at a specific victim.

Business law 101 was many years ago for me but I believe in the case of third-party violence that injures an employee, tort law, for the most part, limits an employer's exposure to that which may be recovered by the employee from the state's worker's compensation system and something called the worker's compensation bar comes into play.

The reality is, however, that each case is different and the law may be applied differently in each case as circumstances dictate.

I'm unaware of any plaintiff prevailing in an instance where the plaintiff was injured by an act of violence by a third-party in a business that prohibited the carry of weapons and sued the employer/business on the basis of being disarmed by company policy and thus being unable to protect himself with the weapon he otherwise would have carried.

On a side note, those security personnel at the airport and courthouse are not there to protect you---they have no duty under the law to do so. In fact, protecting random people may well conflict with their duty and their orders.
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Re: Are private businesses and firearms bans liability free?

Postby gravedancer » Mon 04 Mar 2013 9:15 pm

Havik wrote:So if Hansen v AOL establishes that private property rights are a significant enough constitutional right that they cannot be, at least under current legislation, diminished by the equally important constitutional right to keep and bare arms, then the following question stands to reason (at least in my non-attorney mind)...If a private business decides to exercise their private property rights and impose a "gun free zone" in their business, then do they take on any responsability to provide a reasonable amount of security to make up for the individual security they are restricting an employee/patron from providing for themselves (limitation of the employee's constitutional right to keep and bare arms)? Court houses, airports, the DMV, etc all provide this security presence, and they limit a persons rights.
The Aurora, Colorado theater shooting comes to mind where individuals (employees and patrons) are restricted from excercising their constitutional right to protect themselves, and yet the employer does almost nothing...no, nothing, to provide for their security (no security presence, no access control on back of house doors to ensure they are secured, etc.). Do they have any liability in your mind?
And yes I realize that we as employees and patrons can simply choose to work or not work, or patronize or not patronize businesses that limit our freedoms, but I still wonder if companies don't assume some liability nonetheless when they limit our ability to exercise our own personal constitutional rights.
I'm interested in your thoughts...



You are making the very common mistake of assuming that your "constitutional rights" are even relevant when talking about private property. They arent. The constitution is set up to prevent government from denying you those rights. The constitution doesnt in any way protect you from having those rights violated by non government entities... ie business or even other citizens.

As a private property owner, if I want to, I can deny you the right to have a gun there. I can restrict your free speech. I can tell you what religions you can or cant practice there. I can even post a sign that says no blacks or gays allowed, and theres nothing you could legally do about it. That is precisely why up until recently, Augusta national country club had never had a female member and theres nothing anyone could do about it other than try to picket their golf tournaments from across the street.
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Re: Are private businesses and firearms bans liability free?

Postby bagpiper » Mon 04 Mar 2013 10:06 pm

Someone with more legal expertise than I have could correct me, but my best understanding....

For employees, Workers' Comp covers and limits liability in most workplace injury cases. I don't believe gun bans are recognized as being a hazard.

For non-employees, you'd be looking at a civil trial and trying to make the case that a gun ban was somehow negligent or reckless on the part of the owner. Of course, around here we'd say that not only have you left a man defenseless, but you've also created a constructive nuisance that tends to attract criminals looking for unarmed victims. I'd be shocked if anything in current law spells that out. Whether you get a jury to buy that argument would be the key to the case...after you persuaded a judge that the jury should be allowed to consider it.

If such a case were to be heard, and the jury decide with the plaintiff, we'd see some radical shifts in gun policies at private establishments and probably calls for legislation on both sides.

The case would be precedence setting as far as I know.

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Re: Are private businesses and firearms bans liability free?

Postby Snaggle » Tue 05 Mar 2013 7:48 am

As it has already been pointed out, the constitution, bill of rights and our state constitution do not apply to private entities.

Likewise, anyone bringing action against a private party will have to show a fundamental responsibility of a private property owner to be responsible for anyone's safety. As outlined in Warren v. D.C. Columbia, even law enforcement do not even have that responsibility.

It would be a stretch to bring suit against, say that Colorado theatre unless you could show gross negligence or intentional indifference on the part of the theatre.

Doesn't mean you can not try, but it would be an uphill battle to win.


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Re: Are private businesses and firearms bans liability free?

Postby gravedancer » Tue 05 Mar 2013 10:04 am

Snaggle wrote:As it has already been pointed out, the constitution, bill of rights and our state constitution do not apply to private entities.

Likewise, anyone bringing action against a private party will have to show a fundamental responsibility of a private property owner to be responsible for anyone's safety. As outlined in Warren v. D.C. Columbia, even law enforcement do not even have that responsibility.

It would be a stretch to bring suit against, say that Colorado theatre unless you could show gross negligence or intentional indifference on the part of the theatre.

Doesn't mean you can not try, but it would be an uphill battle to win.


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The better course of action might be to argue that by not allowing firearms and by advertising that fact (via no weapons signs), the business was negligent and in fact attracted criminals to the establishment, thereby putting their customers at undue risk. I still dont think youd win, but that is precisely what ive told my family to do if I am ever killed in a workplace violence incident due to my companies anti-weapons policy depriving me of my ability to protect myself.
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Re: Are private businesses and firearms bans liability free?

Postby divegeek » Tue 05 Mar 2013 10:29 am

gravedancer wrote:I can even post a sign that says no blacks or gays allowed, and there's nothing you could legally do about it.

Note that this depends on the nature of the private property. If your establishment is generally open to the public, then federal law does not allow discrimination against protected classes, e.g. race or religion. There are also limits to how much you can restrict speech.

If Target, for example, tried to exclude blacks from shopping there, there definitely would be legal recourse. Likewise if you advertise a room for rent, etc.
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Re: Are private businesses and firearms bans liability free?

Postby Havik » Tue 05 Mar 2013 9:29 pm

Thanks guys for the dialogue...your points make sense to me. Where I was drawing a connection (right or wrong) was in the need for private property owners to carry insurance to protect against suits due to injury that takes place on their property (i.e. neighborhood grandmother slips on an icy walk that was never shoveled by the homeowner to avoid letting the ice build up because the homeowner took a stance against snow shovels, and therefore refused to allow snow shovels on their property...a snow shovel free zone if you will :ROFL: ...I know a stretch, but it makes my point, so indulge me :lol2: ).
In this scenario, as I understand it, since they made no good faith effort to keep their walk cleared of snow/ice, they are liable for the injury. In my mind if a private property owner is liable for this injury due to their negligence, then would it not also stand that if that same property owner created a magnet for criminals by creating a gun free zone, and then did nothing at all to try to avoid the inevitable influx of criminal activity, that any injury that occurred because of that decision could be laid at their feet?
I hope this perspective makes sense...I realize that I'm not an attorney, and I'm possibly blurring the lines of very different scenarios, but it makes sense to me.
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Re: Are private businesses and firearms bans liability free?

Postby Car Knocker » Tue 05 Mar 2013 10:30 pm

Most municipalities have an ordinance requiring property owners to clear the sidewalks adjacent to their property of snow and ice within a certain number of hours after it stops snowing. Ignoring that law would certainly boost Granny's chances of success in a negligence suit against the property owner. In my mind, there's a great deal of difference between violating an ordinance and causing an injury through negligence, and being held responsible for the violent actions of a third party over which the property owner has no control and in which the property owner broke no laws.

Does a "No Guns" policy really result in an "inevitable influx of criminal activity"? Is Frank's Small Engine Repair & Pedicure Parlor more likely to experience criminal activity if Frank hangs a "No Guns" sign next to the roll-up door? I'd be interested in seeing a study supporting that contention.
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