From the Heartland

This is my soap box, on these pages I publish my opinions on firearms and any other subject I feel like writing about.

Monday, October 29, 2007

Financial Liability for No Guns Allowed signs? GRPC Notes #3

Background

Chunk Klein, along with a few others successfully challenged the status quo on the Right to Keep and Bear Arms in Ohio several years ago. This challenge led to the passage of a concealed carry law in Ohio. Until that time there were no provisions for concealed carry in the Buckeye State and those that openly carried a sidearm were often charged with something akin to "disturbing the peace" or "inciting a panic". There was nearly no way a citizen in Ohio could legally exercise the Right to Keep and Bear Arms without running afoul of the law.

Ultimately the state Supreme Court ruled that those in power could not have it both ways;

No statutory allowance for concealed carry and punishment for open carry.

It had to be one or the other

Since there were no provisions in statute that recognized concealed carry without penalty, the only way for citizens to "legally" exercise their Right to bear arms was to openly carry them on their person and NOT be subject to arrest, punishment intimidation and harassment.

This decision amounted to a cease and desist order on Ohio law enforcement charging those who openly carried a sidearm for personal protection with a crime.

From that decision large numbers of Ohioans held "Open Carry Walks".

Right to Keep and Bear Arms supporters across the state held very peaceful walks, in major population centers, while openly carrying sidearms. These walks were informative and brought national attention to the issue. They were also heavily monitored by the many law enforcement agencies.

They Still didn't get it

While there were no overt acts by Peace Officers to prevent or intimidate the exercise of a pre-existing Right recognized in both the Ohio State and Federal Constitution there were several reports that citizens leaving the walks were singled out and covertly set upon by Peace Officers engaging in tactics of intimidation.

I do not believe that there were any arrests, but several citizens reported that after leaving the march they were singly accosted, detained and investigated for exercising a Right that the Supreme Court of the State of Ohio had recently affirmed.

Even someone that barely eked out a passing grade in a High School Government class should realize the implications of that action and be appalled by it.

What part of;

The Supreme Court of the State of Ohio mandated that the open carry of a firearm in the state of Ohio is a legal activity affirmed by the Ohio State Constitution.

did they not understand?

What those few officers did is the same as stopping a person for, "driving the speed limit", "properly using turn signal devices" or "making a complete stop at a stop sign/light".

As noted above the Supreme Court decision and the open Carry walks ultimately led to the passage of Concealed Carry in Ohio. A provision in the law, and in many other states as well, allows those responsible for private property to post signs that deny employees and consumers the ability to legally carry a firearm on their premises.

Although the Politically Correct term for these areas is "Gun-Free Zones", legally armed law-abiding citizens refer to them as "Victim-Disarmament Zones". The rightful conclusion is that since armed criminals by virtue of their job description do not obey the law the only people who comply are "defenseless law-abiding victims".

A Book on the Subject

Since that time Chuck Klein has written a book entitled "Guns in the Workplace", A Manual for Private Sector Employers and Employees.

It is not an understatement that this book should be read by everyone one that owns their own business. Additionally business owners should make it required ready for their entire Human Relations Departments if their business is large enough to require one.

As I have oft stated in the past, should I encounter a "No Firearms allowed sign" in my travels I, as a law abiding citizen, will respect the wishes of that management and not patronize their establishment.

It is not a protest or boycott on my part;

It is simply an expression of respect for the Rights of that property owner/manager and my own ethical standards on obeying the law.

Klein's book, edited by William M. Gustavson Esq., is an excellent "how to" manual for those that are struggling with the idea of employees and consumers legally carrying firearms on their property. The book carefully examines both sides of the decision to allow it or not.

The most interesting aspect that I gleaned from the book concerns the financial liability that a business may incur if they decide to prohibit the legal carry of firearms on their property.

Klein indicates that should harm occur that could have been prevented had that person been in possession of their legally carried firearm, the business could be financially liable in a civil action brought by that person or person/s survivors for failure to provide or allow for adequate protection.

In essence by denying a person, that is legally able to carry a firearm, from possession of a firearm on that property that business is acknowledging that they have assumed responsibility for the safety and protection of, not just the firearm owner but, all persons that either work or patronize the premises.

Klein writes that in some states statutes have been written "exempting" businesses from such liability when they declare their property a "Gun-FreeZone". He points out however that courts generally do not favorably view a for profit business being free from liability for intentionally restricting the ability of law abiding citizens to provide for their own safety and protection.

Klein goes on to reference the Federal Liability Statute (USC Title 42 , Chapter 21, Sub chapter 1) that;

...... causes to be subjected, any citizen or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proceedings for redress ...

In other words the federal law will trump the state law and businesses that post their properties relying solely on the state statute to protect them could still be liable for financial losses.

Intentional Acts are not covered by most Policies

This has led many to believe that we are covered by the "well that is what I have insurance for" axiom.

Again Klein cautions those responsible for making the "Gun-free Zone" decision to consider;

Most insurance policies have an exclusionary for "intentional acts" committed by those covered by the policy.

Preventing the exercise of a Right by a property owner/manager is an INTENTIONAL ACT.

If faced with a large monetary suit it would be reasonable to expect that any insurance company would divest themselves of any financial obligation by asserting that the covered party "intentionally" violated the terms of the policy. In this event, not only would the owner/manager be financing two law suits (one against themselves for deprivation of a right and the one they would need to bring against their insurance carrier for non-coverage/payment) any and all monetary cost/award would fall squarely on the assets of the policy holder.

Should the business, that the insurance company successfully bails on, be a corporation, limited liability or otherwise the business might be financially challenged or even ruined, but personal possessions of the owners might remain un-effected.

Conversely if the entity in question is a "Sole Proprietorship" or other "unprotected entity" any of the personal property assets of the owner, such as vehicles, jewelry, homes and other personal property would be subject to forfeiture and/or liens.

As evidenced by Chucks book there is important serious consideration that must be done by any property owner/manager when making the decision to post a property as a "Gun-Free Zone" or not.

As far as this issue is concerned I, and every law abiding firearms owner that I know, respect the decision whether it is to allow or deny. That is their Right.

I would suggest that anyone faced with the enormous responsibility of deciding this issue to not take it lightly, read Mr. Klein's book, consult jointly with legal counsel and insurance provider/s for advice and make the most responsible decision possible based on that information.

If that decision is to post "No Guns Allowed" signs and it is grounded in the best legal advice and a WRITTEN GUARANTEE OF COVERAGE conformation letter from an insurance provider then I will respect that.

Should the decision be to not post any signs at all or even post "Citizens legally carrying firearms welcome" signs (as some businesses do), I will respect that as well and show my appreciation for the recognition of a Right by patronizing the establishment.

As a final note I followed the progress of Klein's lawsuit and the resulting open carry walks when all of that took place. It was not until this years Gun Rights Policy Conference when Chuck was one of the featured speakers that I finally got to meet him.

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