instaguy

Glenn Harlan Reynolds, of Instapundit fame, was the specal lunch speaker at the National Firearms Law Seminar yesterday at the NRA Annual Meeting. Professor Reynolds gave an interesting talk derived from an article he wrote for the Tennessee Law Review last year, “The Second Amendment as Ordinary Constitutional Law.” He covered a variety of topics, but said one thing I thought really interesting (which I hastily scrawled on my napkin, so apologies if the wording is not exact): “If a premises owner bars me from possessing a gun on those premises, he should be liable if I suffer as a result of it, as if he had done it himself.” . . .

I have actually been thinking about this idea for a while, too, and the more I think about it, the more I like it. Although I understand the motive behind them, I am reluctant to support laws that dictate what owners can or cannot do with their private property where civil rights are concerned. Prof. Halbrook observed earlier in the seminar that there are at least 40,000 possible offenses in the federal code, each one a legal land mine that the ordinary citizen has to be careful to avoid. After all, what shall it profit us to protect the right to keep and bear arms at the expense of other rights?

The idea proffered by Prof. Reynolds, however, may be an elegant solution to the issue. If the problem is one of personal security, then banning the citizenry from going about armed for their own protection on your property is your right as the premises owner. But I think it’s axiomatic that by doing so, you are thereby implicitly taking responsibility for the security of the people who you are welcoming.

On balance, I like the fact that this idea forces the party that bans its invitees from possessing firearms to take responsibility for the consequences of that decision. And while the plaintiffs’ bar tends to skew to the left, there are, no doubt, plenty of plaintiffs attorneys that would be willing to jump into the fray on that score.

Nothing’s without cost, though. As in all things, there may be unintended conseequences. If their hand is forced, I could easily see boards of directors uncomfortable with the idea of the unwashed masses walking around with firearms in their establishments pouring money to research (for instance) ways to passively detect firearms. There may be long-range implications for privacy here. And there may be other consequences I am not seeing.

But at least initially, I’m on board. You?

64 Responses to Glenn Reynolds: Hold Property Owners Liable When They Ban Guns

  1. I rather like this idea. If you want to ban firearms, you need to take responsibility for that ban.

    • Exactly. Businesses have every right to ban weapons on their property. HOWEVER, if they choose to prevent you from having the means to defend yourself in an emergency, then they must bear the responsibility of providing security. If they don’t provide adequate security and something goes wrong (like in Aurora), then the business needs to be shelling out a lot of money to the patrons / their families.

      • How is that working out in Aurora? Anybody know? To really hit the jackpot, an injured person needs to at least be able to produce a licensed person who was in the theater, preferably to BE that person. First time that happens, I think the injured person will wind up owning the establishment in question, and proprietors will start weighing the costs of metal detectors and armed guards against the costs of allowing freedom.

      • Property owners are already liable if someone gets hurt on their property due to a condition they are responsible for: pools, wet deck, etc. Creating a condition conducive to psychos mowing down your customers by putting up a big “disarmed victims here!” sign should be no different.

        • Umm, not quite. A property owner is liable for negligently maintaining his property, but not liable simply because someone got hurt. And property owners are generally NOT liable for the independent intentional misconduct of third persons. There have been any number of “negligent failure to provide security” cases, and the vast majority fail in the absence of evidence that the owner had actual knowledge of a series of violent acts but took no steps to prevent them. A general duty to provide security guards has NOT been recognized. And courts will look with great skepticism on claims that “I would have been a hero if I’d only had a gun.” Any such claim is the product of utter speculation.

        • As per Mark N: “A general duty to provide security guards has NOT been recognized. And courts will look with great skepticism . . . ” the OP’s proposal may be a “bridge too far”. What does it profit us to pursue a noble goal if we can’t achieve it?
          An incrementalist approach could be to relieve a property owner of responsibility if a non-employee on his property assaults another person.
          I take it from Mark N that if Thug T assaults Victim V on Owner O’s property that O is not responsible for T’s actions. It ought to follow that if V defends himself from T’s action on O’s property then O ought not be responsible for V’s actions. Perhaps O accidentally injures Bystander B. If O is not responsible for T’s assault on V then O shouldn’t be vulnerable to litigation from B that V accidentally injured B.
          This alternative proposal is but a small logical increment from O’s lack of responsibility for T’s injury to V. As such, it’s apt to be pushed through some legislatures.
          Once O is secure from B, then O shouldn’t feel compelled to erect signs baring V from carrying on O’s property. This is the objective we want to reach; correct? If O is profit-maximizing he will have to decide whether he looses more business from Hoplophobe B by allowing guns; or, looses more business from V by banning guns. He is free to call the shot anyway he sees fit; it’s just like “No shirt, no shoes, no service”.
          Only when the nation gets used to the idea that O is responsible to neither V nor B will the nation be willing to consider compelling O to permit carry on his property. At that point they might be willing to recognize that carry is a civil right.
          We shouldn’t be optimistic. Free speech is a civil right. Nevertheless, an owner is at liberty to ban a customer whose speech is offensive to his other customers. The speaker’s speech is not beyond his control; it is always within his control. The speaker may be a devout pagan or Presbyterian; he can not be bared for his beliefs. He can, however, be bared for preaching those beliefs. Likewise, we may all be devout bearers of arms; nevertheless, the public mood is unlikely to compel an owner to suffer our patronage while practicing bearing on the owner’s premises.

    • All of you are referring to business owners. What if this liability is imposed on private homeowners? The rules of civil liability are the same for both.

      • Some business owners invite the public onto their properties and have thereby decided to become public accommodations. Noncommercial property owners and those not open to the public have not chosen to do so. Have you seen the YouTube video where Judge Napolitano gives a short explanation about the implications of public accommodation versus Mrs. Murphy’s Saint Patrick’s Day celebration at her home?

      • And this is a greater responsibility than government which has no liability for people getting attacked/injured in places the government controls and insists folks are disarmed.

    • Movie theatres ban outside food, yet don’t sell salads or fresh fruit. Is it now their responsibility when you load up on Whoppers and get diabetes?

      You buy a ticket, you agree to the terms. Don’t like it, don’t go!

  2. Personally I’d like to see more lawsuits against state and federal government for denying carry rights to responsible citizens. This looks like something pretty close to that in ideology.

    • THIS. I have often thought to myself that if I were in a state or federal area that does not allow guns I would sue if something happened to me or my family. I don’t know what good it would do, but I would try.

    • Based on the premise of a natural right, NO government should have the authority to infringe on your right to keep and bear arms.

      Private property owners, on the other hand…if they ostentatiously post their premises as a strict gun free zone so that there can be no mistake about it by anyone who approaches that business or property, then if you enter of your own free will you have in essence absolved them of any blame or liability. Entering any place that is posted as or should be known to be hazardous by any reasonable person puts the onus of responsibility on you, not the owner of the property. IMO

  3. This is already in effect in Wisconsin. Places that are 2A friendly and allow you to carry are protected by law, and those that ban weapons are liable for the safety of anyone entering their store.

  4. What I want to see more than this is ensuring employee safety if carry by employees is banned. As is stands right now, most workplaces ban carry under threat of termination, but have zero liability to protect their employees. The next time there is a workplace shooting, hold the employer responsible for not providing adequate security AND banning the people killed from exercising their rights.

    • Simply not true. The employer is liable for workers’ compensation benefits, including death benefits, and this liability bars any other civil liability.

      • Not every state even requires worker’s compensation insurance to be carried. California does, while Texas does not. Many smaller businesses, the kind most likely to be retail shops, to operate late at night, to have lower employment standards, most likely to have family members as employees (and be exempt from WC coverage, even in CA), and to operate in shadier parts of town, are also apt to be so small that they’re essentially judgment proof. Go ahead and sue: there’s no insurance and no serious assets to recover, anyway.

        And that’s IF you win. Such liability cases are not at all uniform in outcome, partly because the underlying legal terms are not well defined and partly because local customs/views will hold sway with the jury more than ambiguities in the law will.

        Moreover, there are exceptions to worker’s compensation coverage. For example, the employee cannot be committing a serious crime. Some of these workplace shootings are matters between individuals engaged in a criminal enterprise, like drugs. A half decent insurance lawyer could argue it goes that way when you play the game, but the employer isn’t liable. Likewise, claims get denied if the employee violated company policy. For example, if a c-store clerk routine fails to makes drops into the safe and keeps excess cash in the register, that’s a violation of company policy. Robbers often case such stores looking for exactly that. If you get hurt in an ensuing robbery, you may not get WC benefits. There are other exclusions, as well.

        To Vhyrus’ point, regardless of how paid, the issue of whether a liability exists depends here upon whether the employer had a duty to protect and whether the employer satisfied that duty. Despite reasonable efforts, bad things still happen, but that doesn’t make it the employer’s fault.

  5. You’d think that if a business made you disarm and then did nothing (other than to hang a sign) to disarm a criminal and you were injured because they just let a criminal in with a gun, that it would be a slam dunk lawsuit in any state. Unfortunately hoplophobia often replaces common sense.

  6. Even with laws making liability claims possible, the worst offenders are not likely to change their ways until enough large awards are made in court. Once the insurance underwriters start seeing losses from wrongfully disarming people, they might change what they require of policy holders.

  7. I think the idea is good in theory. Defining liability, especially with firearms though is going to be a fraught process, ESPECIALLY in anti-gun states.

    1. If an owner lets employees carry and an employee shoots someone accidentally, has a ND, or something similar, the owner will be sued as well as anyone that agreed with the decision. What if someone sues for loss of hearing for a good shoot inside a small store? If you put a “good faith, concealed means concealed” law up AS WELL, this may not be such a problem. Otherwise, business owners will feel damned if they do and damned if they don’t.

    2. How much liability, and for what kinds of occasions? Active shooter seems obvious, but natural disaster? Gas leak?

    3. What counts as providing “proper security”? This is the REAL fight. How many guards for a shop size/number of customers/number of employees/events? Would passive security measures like banks be enough? If so, when?

    Anyway, there’s a lot more concerns, but these need to be fleshed out so the anti-gun Law lobby doesn’t shoot it down from stupidity before it can pass, or if it does, destroy it in all meaningful ways.

    • what about in the employer/employee context? If they fail to provide adequate security, then what? Currently, under most states’ law, the employer only owes workers’ comp limited amounts. if that liability were uncapped, they would still ban guns, but they would spend $$ on real security and not rent a cops or silly signs.

      • They can get a job somewhere else. Still a choice. At the end of the day you are making the voluntary choice to be on someone elses property. And you have no right to tell someone else what to do with their property.

        • “you have no right to tell someone else what to do with their property”

          The federal, state, and local governments do that ALL THE TIME.

          Just sayin’…

        • You do realize that you can justify literally any abuse of civil rights with this argument, right?

          “We don’t serve black people, but you can eat somewhere else.”
          “We don’t employ gays, but you can find a different place to work.”
          “We don’t allow our employees to vote. If you don’t like it, find a different job.”

        • @Vhyrus:

          Your voting example is nonsense; it occurs off the premises.

          The others are perfectly valid and I am in full favor of letting bigots show their bigotry so I can decide to not patronize them. Bigotry would have disappeared a lot faster if government had not mandated non-bigotry and reverse bigotry. I want the bigots to show themselves so I can avoid them.

        • I see the statists are bleating about this. It should be a business owner’s right to refuse service for race, religion, sexual orientation, or the color shoes a person is wearing. Anything less is slavery.

        • @Chris Mallory: I agree with you. Unfortunately, the courts have gone down that road of prohibiting business from discrimination. As such, then there ought to be consistency. If a public accommodation cannot discriminate based upon the other criteria then they ought not be able to discriminate based upon if a person is armed or not. I would, however, like to see government completely out of private businesses’ discrimination policies. Until such time, an armed individual shouldn’t be discriminated against.

    • Grindstone has it right. I don’t like anyone forcing their views or beliefs on me by coercion of law, and I don’t think it’s appropriate to do it to anyone else. If a business prohibits guns, I take my money elsewhere. The employee/employer relationship is a bit more convoluted, as employers have an obligation to ensure a safe workplace for employees. I won’t work anywhere (anymore) that won’t allow me to carry, but that’s not an option for many, many people based on their career or skills. I think the employee/employer issue has further merit, but if we want the keep the moral high ground, the business/patron issue should be a non-starter.

    • I have to agree with Grindstone.

      A business owner has every right to ban firearms.

      A customer has every right to boycott that business.

    • I’m with you on this; if a store bans guns, my entry is at my own risk with my own knowledge.

      Now if law requires me to be some place, such as a government office, then this is proper. For instance, as long as there is a government monopoly on the post office, then they have no business banning guns unless they also put in tough screening. If the DMV wants to bans guns, ditto. If a city grants a monopoly to Comcast or ConEd or a water company or any other utility, then ditto.

      But any other store or business without government monopoly, no, it’s their property, they can ban guns and I can take my business elsewhere.

      • This is more in line with my thinking. If it’s a private business, and I am free to choose whether or not to do business with them, then there’s no liability on the part of the business. If they ban guns, and I know that and willingly go in disarmed, that’s on me. But if it’s a government facility, or some other place that I have no alternative option, then they should accept the liability for my security or allow me to provide my own.

    • That’s why he’s talking about liability, not rights. The argument is by exercising his right to ban guns, the property owner is reducing his patrons’ ability to defend themselves, thereby increasing their risks in a foreseeable way. Doing nothing to address this is negligent. Therefore civil liability is definitely possible.

  8. I wholeheartedly agree and have advocated that for years now. Any property owner or government entity who denies Second Amendment rights to a law-abiding citizen should be responsible for any damage suffered by that citizen during the time he/she is on that property.

      • No one makes a lockable firearm storage system for motorcycles?

        Underseat? Side-saddle? Rear rack? nothing?

  9. I was just wondering, what if there was more than civil liability involved? Something like the various felony murder statutes for accomplices in cases where someone is injured or killed who would have otherwise provided their own defense? Too far?

  10. I’ve been saying this for a very long time… When you disarm someone then you become responsible for their reasonable safety. Really, I can’t see how rational people don’t think this way.

    Also, if a private business that invites the public in (a public accommodation) cannot discriminate on the basis of age, race, religion, disability, gender, or sexual preference then it cannot discriminate based upon the person being armed or not. Wasn’t the 2A incorporated against the states in McDonald v. Chicago, 2010?

  11. The police (or any government representative) are only required to protect society as a whole, not the individual. Therefore, they cannot be held accountable when they fail to prevent a crime or save a life under many circumstances. If we don’t hold government to a higher standard, then we should not hold individuals or companies to them either. But there should be exceptions when other individuals are adversely impacted. For example, if I go into a burger joint armed, and the manager or owner becomes aware of it, he can order me to leave or face arrest. I am inconvenienced, but I can take my business elsewhere. The same cannot be said of our nation’s highways or post offices. I have no reasonable alternative, yet I’m supposed to be unarmed and unprotected. This is where we should draw the line.

  12. How about the state (any/all of them) standing up to say “permitted concealed carry is lawful in this state, allow it or you will not be allowed to continue operations here”. Throw it under the other antidiscrimination laws

    • The privilege of licensed or permitted carry are weaker than the right of carry, often open carry in some states. Currently in Ohio, open carry is exercising the right and licensed carry is exercising the privilege. There are situations where we can open carry because it is recognized as the right but not conceal carry as it is recognized as a privilege. Any such situation as you describe would have to protect the right first and foremost.

  13. We have an unalienable right to life, agreed? And our right to life — being unalienable — stays in tact even when we are a guest on another person’s property, right? Thus a property owner cannot violate a guest’s right to life under any circumstances, correct?

    Now for the “meat and potatoes” … we have an unalienable right to life and by extension a right to defend our life. If we cannot defend our life than we have no right to life. Well, if a property owner cannot violate a guest’s unalienable right to life, and self-defense is an extension of our right to life — necessary to secure our right to life — how can a property owner ban self-defense?

    The obvious answer is that a property owner cannot ban life nor self-defense, ever, period. There are no situations and no conditions where a property owner can ban a guest from defending their life. And since banning firearms bans self-defense, a property owner cannot ban firearms.

    Think about it. All of our rights are about supporting the inherent dignity and value of human life. Property can be repaired or replaced. Human life cannot be replaced. A person who bans firearms on their property is banning self-defense and life which is vulgar and sick. They are nothing more than a mini-tyrant demonstrating their contempt for others.

    With this in mind, a property owner who bans self-defense is an accomplice to any criminals who attack any guests. Thus such a property owner is both criminally and civilly liable for the consequences of such an attack.

  14. I’ve been saying this for as long as CCW gas interested me. Gun friendly states need to have laws protecting business owners from civil suits arrising from allowing people to exercise their rights. Responsibility for NDs, violence, etc., should fall on the person committing the act only. At the same time, no protection should be offered if the business requires you to check your rights at the door because the responsibility for self protection transfers from the individual to the property owner. Insurance companies will switch sides and pressure business to allow carry instead of vice versa as it is now. Businesses in non-gun friendly states will pressure politicians for similar protections. This is all very common sense.

  15. Opposed. Holding a premises owner liable for the action of a criminal is as insane as holding a gun manufacturer liable for the actions of a criminal or holding an auto dealership liable for the actions of a drunk driver. There’s no cause-in-fact, and to call it proximate cause would be to stretch the meaning of the term beyond all recognition.

    We don’t want this, and if we get it we’ll pay for it dearly.

  16. What evidence do you have of local, state or Federal government giving a flying Fu*K about citizens? The premise that citizens give up RTKA something in return for what? Almost definite possible maybe will get around to protecting John Q. Government cannot protect themselves, must less security of the citizens.

  17. Completely disagree. You’re saying that if someone comes into a store that bans guns and murders me while I don’t have my gun, then its the shop owners fault. Wrong. By that logic, if I sold a gun to someone, and then they used it to commit a murder, I’d be responsible for that murder. Also wrong. Fault lies with the person who commits the crime, and nobody else.

  18. If I was the only one with a firearm, we would not have this problem. I know I am a responsible individual, not sure about the rest of you. Laws, rules, regulations, etc, are made by people that do not have to live in the real world, even if they did, those same laws, rules, regulations, etc. would not apply to them. I firmly believe everybody has the “God given right” not to own a firearm. So, what is their problem with my having a right to own a firearm? When it comes to where I can carry it legally is another matter. The idea a business is responsible for me not being able to defend myself is a double edged sword. If an individual murdered someone on the premises, would the business be liable for murder? Liable for both, denying right to defend and responsible for murder? Do the math.

  19. I’m not sure they should be held liable, but it certainly should be illegal to ban legal activity, no matter if it’s patrons or employees.

  20. A slightly different point of view:

    o- Corporations (in all their various forms, including LLCs, etc.) are creatures of the government, in that they have protection from liability. As such, they aren’t really private citizens, they are public and government entities. Thus, I would posit that they should not be able to deny constitutional rights under any circumstance.

    o- Non-incorporated businesses are truly privately owned, and their owners, who don’t have the protection of limited liability, have every right to discriminate (peacefully), by banning firearms on their premises, or refusing to sell to folks they don’t like, etc.

    That’s the short version. I won’t go into other benefits that making this distinction might provide, such as making income taxes only apply to corporations, etc., but I’m sure that others can come up with interesting thoughts along those lines.

    Kurt

  21. Kansas has (sort of) done this with its most recent 2nd Amendment law. Colleges across the state will not be allowed to ban firearms on campus unless they have manned security at every building entrance by 2018. It’ll be interesting to see how that all plays out in a few years!

    I like the idea, but I’m not entirely sure if it’s a good one. I think it’s bordering on too favorable for gun owners, in the same way that right-to-work legislation is dangerous to property/business owners.

  22. If business owners are to be held accountable or responsible – shouldn’t POLITICIANS? Shall we look at the Governors of California, Illinois, NY… ?

  23. The way I see it, there’s a big difference between “private property rights” (your house) and businesses open to the public. If you want me to come in and support your business…

  24. I have been saying this for the last 8 yrs. I used to work in a foundry that was considered an International Port and we couldn’t even leave the weapon in the parking lot. I often wondered why they weren’t responsible as they “enabled” more crime to be committed because of advertising the lack of self protection by their laws. I know that if something would of happened to me that’s the first stone I would of used in a suit.

  25. What about the other side of the coin? If businesses of public accommodation are prohibited from discriminating based on sex, creed, color, etc. isn’t this just another form of we don’t want your kind here discrimination?

    • There are some who would argue that one cannot change one’s color, race, sex, or even sexual orientation. While that’s true, I feel that’s a red herring, but I’ve not yet come up with a sufficient (to me) retort, other than “so what?”.

  26. In general, I’m against the idea. Unless it’s a government controlled entity or a business with a monopoly on services due to government mandates (like USPS), than just don’t go there, period. My money not being spent there should be sufficient enough. I do not believe that just because you open a business to the public automatically mean it ceases to remain private and forfeits all personal decision making on who they want to cater to.

    • Except, currently, that’s exactly what happens under current law. Try being a Christian and standing firm in your Christian beliefs when you make a personal decision on whom your business wishes to cater to, for one example. (Note: this isn’t just an academic, theoretical exercise.)

      And since the Constitution, including its amendments, is supposed to be the supreme law of the land…

  27. I have two problems with this.

    1. It presumes a righteous outcome due to the presence of a concealed carrier(s). That is hardly a forgone conclusion. If concealed carriers are so adamant about this then how about any concealed carrier(s) present being held legally responsible for everyone’s safety? If you’re present during a robbery and carrying a concealed weapon and someone else gets shot, it’s on you since you failed to prevent it. Uh, yeah, I bet that doesn’t get much support.

    2. Making the business responsible for actions beyond it’s control is a slippery slope. They should then also be responsible if a concealed carrier has a negligent discharge and someone gets hurt. Their weapon policy allowed the concealed carrier in. The same logic applies. Why would they be responsible for one but not the other?

    When you put a business in a no-win situation for exercising their property rights the effectively have no rights. I believe these types of laws are going to get tossed in Federal Court on the first go-round. We shall find out.

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