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Have Gun, Will Travel

Dealing with Concealed Firearms in the Hospitality Industry

Tenth Annual 2012 Hospitality Law Conference February 9 12, 2012

David B. Moseley, Jr. Glast, Phillips & Murray, P.C. 14801 Quorum Drive Suite 500 Dallas, Texas 75254 (972) 419-8302 dmoseley@gpm-law.com

Biography
David Moseley practices in the area of corporate and business law representing local and national business entities, serving as general counsel for many of these companies. His clients include a national hotel management company and other hospitality ventures. He represents manufacturers, dealers and suppliers in the automotive industry and a wide range of clients in many different commercial endeavors. Mr. Moseley handles a broad scope of corporate and business transactions and issues including entity structure, dispositions and acquisitions of assets and the companies which own them, real estate transactions and operational legal issues encountered by most businesses. Mr. Moseley has extensive experience with the legal issues facing closely held businesses and their owners in disputes involving the separation of their interests. Mr. Moseley was, for several years, an Adjunct Instructor at Richland College teaching a course in Law and Ethics and is a frequent speaker and panelist on legal topics which have recently included, Management Agreements 2003: When is a deal, a deal? And What is the deal?, The First Annual Hospitality Law Conference (2003); Hotel Management Agreements: Industry Trends and Todays Issues, Third Annual Hospitality Law Conference (2005); On the Ground in New Orleans: A Case Study in Dealing with Disaster Preparation, Management and Recovery, Academy of Hospitality Industry Attorneys Spring Symposium (2006); The State of the Art in Management Contract Negotiations: Key Deal Points for Owners and Managers, The Academy of Hospitality Attorneys Fall Symposium (2006); Avoiding Controversy and Disputes in Hotel Management Agreements: Lessons Learned from Recent Cases and Developments, The Fifth Annual Hospitality Law Conference (2007); Latest Developments in Management Agreements, the Eighth Annual Hospitality Law Conference (2010); and Have Gun, Will Travel: Dealing with Concealed Firearms in the Hospitality Industry, the Tenth Annual Hospitality Law Conference (2012). Mr. Moseley received his bachelors degree from Baylor University in 1969 and his law degree from Southern Methodist University in 1974, where he has been an alumni representative on the Deans Long Range Planning Committee. He is a Charter Member of the Academy of Hospitality Industry Attorneys and the Global Alliance of Hospitality Attorneys. He is also a Charter Member of the Multi-Unit Operators Counsels Committee of the American Hotel and Lodging Association. Mr. Moseley is also a member of the Dallas Bar Association where he is a former section chair, and is a former chair of the Finance Committee of the Board of Trustees of Dallas Baptist University. He has also served as a member of the Board of Trustees of the Baylor Health Care System Foundation as well as the Boards of Directors of Dallas National Bank and VisionForge Venture Development Company. He is the Editor of the Texas Section of the HospitalityLaw.com website. He served as CPT, Infantry, U.S.A.R., 1969-1982. Mr. Moseley has been admitted to practice before the U.S. District Courts for the Northern, Southern, Eastern and Western Districts of Texas; the U.S. Court of Appeals, Fifth Circuit; the U.S. Tax Court and the U.S. Supreme Court. He was admitted to the State Bar of Texas in 1974. Mr. Moseley was born in Dallas, Texas in 1946.

Caveat
The written materials provided and the personal presentation of this subject matter are intended as a general introduction to the legal issues raised. It is not intended to be, and should not be, construed as legal advice to any person about any particular set of circumstances. Receipt of these materials or attendance at any presentation or discussion of this paper does not create an attorney client relationship between David Moseley or his firm, Glast, Phillips & Murray, P.C., and any person or entity. No such relationship should be inferred from reading these materials or any discussion of the contents.

Table of Contents
INTRODUCTION................................................................................................................1 SCOPE ..................................................................................................................................1 HISTORICAL BACKGROUND ........................................................................................1 CURRENT LEGISLATIVE SCHEMES...........................................................................2 Federal........................................................................................................................2 State............................................................................................................................3 Local ..........................................................................................................................3 The Texas Experience ................................................................................................3 Distinctions and Typical Provisions in State CHL Laws...........................................4 May Issue vs Shall Issue States .............................................................4 CHL Laws Generally .....................................................................................5 Typical Provisions .............................................................................5 Alcohol Beverage Vendors ................................................................5 Signage Requirements .......................................................................6 The Castle Doctrine .......................................................................................6 Parking Lot Laws ..........................................................................................6 Publicity .............................................................................................6 Changes to Common Law..................................................................6 Background ........................................................................................7 Constitutional Issues ..........................................................................7 Exceptions ..........................................................................................7 Recent Parking Lot Experiences ........................................................7 Responses ...........................................................................................8 Immunity Provisions ......................................................................................10 Developing Issues ..........................................................................................10 Unrestricted Carry Laws ....................................................................10 Open Carry Laws ...............................................................................10 Campus Carry Laws ...........................................................................11 ISSUES FOR HOSPITALITY VENUES ..........................................................................11 The Practical Experience ...........................................................................................11 Gun Free Zones ..........................................................................................................12 Banning Guns.................................................................................................12 Marketing Issues ............................................................................................13 Employees ......................................................................................................15 LIABILITY EXPOSURE ...................................................................................................15 Liability to Employees ...............................................................................................15 Workers Compensation .................................................................................15 OSHA.............................................................................................................16 State Agencies ................................................................................................16
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Liability to Government Agencies .............................................................................16 Liability to Guests ......................................................................................................17 Liability for Injuries Caused by Employees Actions....................................17 Respondeat Superior ..........................................................................17 Negligent Hiring, Training, Supervision and Retention ....................18 Ordinary Negligence ..........................................................................18 Liability for Armed Employees .........................................................19 Potential Liability for Banning Guns .........................................................................19 Potential Liability for Allowing Guns .......................................................................20 Injury Claims .................................................................................................20 Property Claims .............................................................................................21 Room Safes ........................................................................................21 Housekeeping.....................................................................................21 In the Safe Deposit Box .....................................................................22 In the Parking Facility........................................................................22 Liability to Invitees and Permitees ............................................................................22 Statutory Immunity from Liability.............................................................................22 CONCLUSION ....................................................................................................................23 End Notes ..............................................................................................................................24

Acknowledgement The author would like to publicly acknowledge and sincerely thank his wonderful assistant, Lilli Eaves, for her exhaustive research, editorial assistance, deadline focus and incredible patience in bringing this paper to fruition. Any deficiencies remain the responsibility of the author but the excellent support and focus from Ms. Eaves made his job much more manageable and the final product more easily usable by the reader.

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HAVE GUN, WILL TRAVEL


Dealing with Concealed Firearms in the Hospitality Industry
David Moseley 2011

I.

INTRODUCTION

Some states have always allowed their citizens to carry hand guns. Most have restricted the practice at one point or another. Many states have authorized citizens to carry pistols again in the last twenty five years to varying degrees. Since Florida passed the first modern Right to Carry statute in 1987 1, there has been a tidal wave of legislation in various states mandating or permitting the state government to issue concealed handgun licenses (CHLs). There are now 46 states allowing concealed carry with a CHL and others allowing guns to be carried openly or without a license. At last count, only Illinois and the District of Columbia completely prohibit persons from being legally armed outside of their homes. II. SCOPE

This paper will focus on the issues raised in the hospitality industry by the increased incidence of legally armed employees, guests, patrons and invitees. Second Amendment issues and the advocacy of banning or authorizing some or all citizens to carry guns are beyond the scope of this paper. Similarly, except where illustrative, this paper will not attempt to educate the reader on the specific laws governing the carrying of a weapon because the laws of various jurisdictions are substantially dissimilar in this regard. III. HISTORICAL BACKGROUND

Historically, travelers were often armed because of the danger of highwaymen lurking on roads linking population centers. This practice was continued in the United States through much of our early history but began to decline after the middle of the nineteenth century. This decline was a result of the confluence of several phenomena, some legal and others social. In larger cities closer to the Atlantic, a growing law enforcement presence eliminated, to some extent, the fear of being unarmed. Also, the waning influence of brute force as a societal norm in an increasingly civilized society reduced the perceived necessity for individuals to be armed. The danger of travel was also reduced by the proximity of towns to one another and the growing number of travelers on those roads, not to mention the rapidly expanding presence of coaches, passenger boats and railroad cars, where criminals lurking on the roads became less of a threat. Additionally, many states outlawed the arming of slaves. Subsequently, many states prohibited the carrying of handguns to prevent freedmen from being armed after emancipation. Many of these later laws were neutral on their face but selectively enforced against black citizens. Others were Jim Crow laws that specifically applied to freedmen and their descendants.

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The twentieth century witnessed an explosion of legislation relating to firearms at all levels of government. Most of the statutory framework surrounding firearms generally, and handguns specifically, was increasingly restrictive up through the 1960s. This was a reflection of a growing number of Americans who believed that the availability of handguns drove the rate of violent crime. The percentage of Americans sharing this belief was 60% in 1959, the first year George Gallup polled on this issue. It stayed pretty level for the next decade. Since 1975 a majority of Americans polled have opposed controls on private ownership of handguns with those numbers increasing ever since. The most recent polling indicates that over seventy percent of Americans now believe that there should be no legislation disarming law abiding citizens. 2 Most recent legislation has reflected this public perception. IV. CURRENT LEGISLATIVE SCHEMES A. Federal

All federal law relating to owning and carrying firearms exists in the shadow of, and must be interpreted consistently with, the Second Amendment to the Constitution. The Second Amendment simply states, A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. For the first century of our nations existence these twenty seven words were noncontroversial and commonly understood. As such, no federal legislation regulated the ownership, possession or transportation of firearms. Today there are over 231 Sections of the U.S. Code regulating the importation, manufacture, sale, ownership, possession, transportation and use of firearms. Additionally, many federal agencies have promulgated numerous rules and regulations relating to firearms. On November 15th of 2011, the U.S. House of Representatives passed the National Right to Carry Reciprocity Act (H.R. 822) on a bipartisan vote of 272 154. There was no companion bill in the Senate. It is assumed that one or more senators will sponsor such a bill at some point. Passage of some version of the bill in the Senate is possible although not assured. Several democrat senators from southern and western states, including Harry Reid, Max Baucus, Jon Tester and Mary Landrieu, represent gun friendly jurisdictions. If some version of this bill passes both houses, it is uncertain whether President Obama will sign it into law. If this pending legislation becomes law it will undoubtedly create a larger number of armed travelers in hotels and other hospitality venues because all states will be required to recognize concealed carry licenses from other jurisdictions, just as they currently honor each others drivers licenses.

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B.

State

The current patchwork of state laws governing the types of firearms allowed, their ownership, use, possession, storage, etc. is so diverse that even a summary description is not possible. The common threads of the statutory framework will be discussed more fully below. Many of the states which license the possession of concealed handguns have entered into reciprocity agreements allowing a CHL from one state to be recognized in another. Because of the relatively recent proliferation of this type of legislation, the Commissioners on Uniform Laws have promulgated no uniform law for the reciprocal recognition of CHLs. Tennessee is currently the only state that recognizes a facially valid CHL issued by any other state. 3 There, a CHL is treated like a drivers license or other state issued permit. C. Local

While regulation of firearms is not generally a local issue, over the years, many counties and municipalities have passed their own gun laws. Interestingly, the last two U.S. Supreme Court decisions related to Second Amendment issues arose out of municipal ordinances. Another case winding its way through the system now arises out of the Alameda County, California ban on gun shows in its convention center. 4 Some cities, like Philadelphia 5, have attempted to pass laws which are more restrictive than the statewide statutes for the jurisdiction in which they are located. These attempts have rarely been successful and when they have been, the state legislatures have generally passed preemption legislation, making the cities efforts short lived. 6 On the constitutional level, the U.S. Supreme Court has barred Washington, D.C. from banning handguns in the city as a violation of the Second Amendment to the Constitution, holding that the right to bear arms is a personal right of individuals, not just a right to have an armed militia. 7 Subsequently, the high court struck down the gun possession laws of the City of Chicago by ruling that the Fourteenth Amendment selectively incorporated this fundamental right to the states. 8 Both of these Supreme Court decisions dealt with the prohibition of firearms in a persons home and do not directly affect the hospitality industry. Additional cases are now making their way to the Court seeking both expansion and restrictions on the rights of gun owners. D. The Texas Experience

The Lubys Cafeteria massacre in Killeen, Texas occurred in 1991, before Texas had a handgun licensing process. Suzanna Hupp, a central Texas chiropractor, had gone to meet her parents for lunch at a local cafeteria. She left her pistol in her truck since, at the time, she could not legally carry it into Lubys. While she was eating with her folks, a

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deranged individual drove his truck through the glass entrance of the cafeteria, jumped out of his vehicle and started shooting. He ultimately killed twenty three people, including both of Dr. Hupps parents. When the Texas legislature considered the initial passage of the Concealed Handgun law, the Killeen shooting was fresh on everyones mind and Dr. Hupp appeared before the committees considering the bill. She testified there (and later before congress and other state legislatures) that if she had been able to carry her pistol into the cafeteria, she could have neutralized the shooter and saved many lives, including her own parents. The bill passed. The next year Dr. Hupp was elected to the Texas Legislature from central Texas and was a reliable vote for liberalization of firearm restrictions for ten years until she retired from public service. E. Distinctions and Typical Provisions in State CHL Laws

As mentioned above, state gun laws are similar in spirit, but the specifics of the state laws differ significantly from jurisdiction to jurisdiction. That being said, some distinctions exist but many principles consistently appear. 1. May Issue vs. Shall Issue States

The major distinction between the licensing states is whether they have may issue or shall issue statutes: a. In the may issue jurisdictions, the state (or often, the counties) may issue CHLs to their residents if the chief law enforcement officer determines the issuance necessary and appropriate. In California, for instance, the local sheriff makes the decision, with wide discretion in determining whether an applicant has met the show cause standard. 9 For this reason, some observers refer to these states as show cause states. In shall issue states, a CHL is an entitlement to any adult who: (i) has no felony convictions; (ii) has no history of mental illness; (iii) completes the application; (iv) pays the fee; (v) completes the training; and

b.

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(vi) demonstrates their ability to safely handle and accurately shoot a pistol. This is a generalization and specific state requirements differ on the amount, if any, of training, the demonstration of knowledge of gun safety and laws governing the use of deadly force, as well as proficiency in safely and effectively operating a firearm. 2. CHL Law Generally a. The typical state statute authorizes licensees to carry a handgun so long as it is concealed and is not carried into prohibited locations, such as; (i) (ii) (iii) (iv) (v) (vi) (vii) secure areas of airports; courthouses; school buildings; legislative or other government meetings; stadia, ball parks, and other athletic venues; hospitals; nursing homes; and

(viii) places which ban handguns b. Alcoholic Beverage Vendors The restrictions on carrying a pistol where alcohol is served are very jurisdiction specific and continue to change. Tennessee, for instance, eliminated the prohibition on carrying weapons in places where alcohol is served in 2008. Texas, on the other hand, allows CHL licensees to carry in a restaurant which serves alcohol but not in a bar which serves food. The legal distinction between a restaurant and a bar is whether 51% or more of the establishments revenue is derived from the sale of alcoholic beverages. If so, it is a bar and must put a promulgated white sign on the wall with big blue numbers, the text of which reads, 51%. This is statutory notice in Texas that no firearms are allowed inside, even with a CHL. Violation of this Texas statute is a felony offense. In Ohio, the prohibition against carrying a weapon in places that serve

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alcohol has been rescinded but a patron with a CHL may carry his pistol only as long as he is not under the influence of alcohol or drugs when he arrives and consumes no alcohol while he is armed. Violation of these restrictions remains a felony offense. 10 c. Signage Requirements Most shall issue states provide for some or all property owners to ban persons with CHLs from coming on their property or in their premises. The notice required to do so, however, varies from state to state. The laws require everything from simply giving reasonable notice to posting signs which completely repeat the statute verbatim in both English and Spanish with letters at least one inch high in a color distinct from the background. 11 3. The Castle Laws

In December of 2011, Wisconsin became the 30th state to pass Castle Doctrine legislation. Florida was the first in 2005. Basically, the Castle Doctrine is that no one should have the legal obligation to retreat from a violent attack. Many jurisdictions required retreat as an element of a justified use of deadly force in a self-defense claim. Some of the Castle Laws are restrictive and apply primarily to home defense. Others are extremely broad, allowing a person to use deadly force in any place they have a legal right to be. This would, of course, include your hotel or your restaurant. 4. Parking Lot Laws a. Publicity These laws have gotten a lot of press over the last few years, acquiring nicknames like the Packing and Parking Law or the Bring Your Gun to Work Day Law. 12 Changes to Common Law Historically, an employer could ban firearms anywhere on its property. The Texas legislature, however, passed a law last year that prohibits employers from barring their employees from carrying a gun in their car, even if it is parked on the employers property, as long as the employee has a CHL or otherwise legally possesses a gun. 13 There are exceptions which should be considered if you have employees in Texas. In 1996, Kentucky was the first to prohibit private employers from banning guns in their employees cars. 14 There is now similar legislation in thirteen other jurisdictions and local counsel should be consulted if your company operates in those states.

b.

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c.

Background The initial push for these types of laws arose out of the firing of employees for having guns in their cars in the early years of this century. Eight employees of Weyerhaeusers Valliant, Oklahoma plant were terminated for having guns in their cars in 2002. 15 Oklahoma subsequently passed the first general Parking Lot Law in 2004 in response to the terminations being upheld in federal court. 16 Similarly, the Utah Parking Lot Law was precipitated by the termination of three employees by AOL at their Odgen, Utah facility. Those terminations were upheld by the Utah Supreme Court. 17 The last of this trio of cases arose from a 2007 incident in Jacksonville, Florida, where a leasing agent for an apartment complex was terminated because he carried his shotgun when he responded to a cry of distress from a tenant who had been shot. His termination was upheld by the U.S. District Court for the Middle District of Florida. 18 Constitutional Issues The cases attacking the Parking Lot Laws raised interesting arguments based on the rights of property owners guaranteed by the Fifth Amendment versus the rights of armed citizens guaranteed by the Second Amendment. That discussion is extremely interesting but beyond the scope of this paper. Exceptions (i) (ii) (iii) (iv) Petro Chemical Industries Explosives Government vs. Private All places where guns are banned by state or federal law

d.

e.

f.

Recent Parking Lot Experiences In June 2008, a worker at a plastics manufacturing plant retrieved a gun from his car and killed 5 co-workers. 19 This was approximately two years after the passage of the Kentucky Parking Lot bill became law. Opponents of Parking Lot Laws have said, See, we told you so. Proponents of the legislations have pointed out that the killer did not have a CHL. Whether he kept a gun in his car before it was legal is unknown. They see this as a continuation of employees

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going Postal and posit that the shooter was unaffected by the statute. In any event, the outcome was horrendous. Similarly, in a December, 2011 workplace shooting, in Irwindale, California, a deranged employee shot four of his co-workers before ending his own life. California has no Parking Lot Law. Theories abound on this shooting like many others, since the venue has some of the most restrictive gun laws in the nation. As business people and their advisors, we really dont care about the theories. We simply want to know how to best run our businesses; best advise our clients; and best protect our employees, patrons and companies from physical, emotional and economic harm. Everything else is truly academic. The Parking Lot Laws are much more recent than the CHL laws and sufficient time has not passed to develop any body of case law on them to provide meaningful guidance to the businesses subject to the Parking Lot Laws. g. Responses (i) Employer Challenges to Gun Laws

Employers in Oklahoma, Georgia and Florida have challenged the Parking Lot Laws unsuccessfully. 20 Their attacks have been on three fronts. (a) Claims that all forced entry of armed employees in their parking lots constituted a violation of the Fifth Amendment guarantee of no deprivation of property without due process; (b) Arguments that any law which forces them to allow armed employees on Company property rendered them unable to provide a safe work environment for their workers as required by OSHA; and (c) The position that in a right-to-work state they had the absolute right to determine the conditions of employment.

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(ii)

Employee Challenges to Employer Policies

In the absence of Parking Lot Laws, the cases have consistently held that employers were free to discipline employees for violating company rules regarding guns. On the other hand, at least one jurisdiction has now provided a judicial remedy for employees wrongfully terminated for exercising his or her constitutional right to bear arms. 21 (iii) Discrimination Exposure (a) Some commentators have suggested that the Parking Lot Laws create a new protected class.22 Based on the language of the Florida statute, some professionals are advising their business clients to not ask an employee or an applicant if they have a CHL or if they carry a gun in their car. This advice is based on the specific prohibitions of the Florida statute although the advice may be appropriate in other jurisdictions. (b) Another theory to support wrongful discharge claims is a public policy argument. One of the well recognized exceptions to an employers absolute right to terminate an at-will employee is a violation of fundamental public policy. 23 In an oft cited case arising out of the termination of an employee in California, the California Supreme Court 24 identified one of the four bases of such a claim is when an employee is terminated for exercising a statutory right or privilege. That case did not involve a constitutional or statutory right to be armed, but some commentators fear that, based on the holding of this case, gun rights advocates will allege that employees were terminated for exercising their Second Amendment and state statutory carry rights. 25 (c) In 2011, Indiana created a cause of action for employment discrimination against applicants or employees based on their lawful ownership,

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possession, storage, transportation or use of firearms or ammunition. 26 The day that the Indiana bill became effective, ArcelorMittal, a Luxemburg multi-national steel company, announced that any Indiana employee bringing a gun to work would be terminated. 27 They appear to be raising the same arguments as previous cases (Fifth Amendment property rights, workplace safety requirements and employment-at-will discretion) but are also raising the Maritime Security Law which, ArcelorMittal alleges, would preempt Indianas legislation because they are a shipbuilder. 28 Stay tuned. A similar bill was filed in South Dakota 29 and is currently pending. 5. Immunity Provisions

The Texas Parking Lot Law provides that, except in cases of gross negligence, an employer is immune from liability for injury or death involving a firearm that an employee brought to work pursuant to the law. 30 Florida 31 and Louisiana 32 have similar language in their immunity provisions. Georgia even provides immunity to a business from liability arising from the use of a gun that was stolen from their employees car. 33 Most states with Parking Lot Laws have immunity for employers who comply with the statute. Utah and Kentucky are conspicuous exceptions to this rule. 34 6. Developing Issues

There are a few other legal provisions relating to firearms which have gained momentum in some states, including: a. Unrestricted Carry Laws Eliminating CHLs and gun possession laws, with the result that anyone who chooses to do so, and who is not otherwise prohibited, may be legally armed. 35 b. Open Carry Laws These laws remove the requirement that handguns be concealed when carried. Actually 44 states allow guns to be carried openly, including some that have not allowed concealed carry. It does not appear to be a widespread practice, even where legal. Of the six

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states who prohibit the open carrying of handguns, four have considered open carry legislation in the past two years. 36 c. Campus Carry Prohibiting concealed carry on college campuses has become illegal in one jurisdiction. 37 It is optional for colleges in 22 other states 38 and is being proposed in several others. In some states, campus carry restrictions have been attacked in court. The Oregon Court of Appeals, for instance, overturned the system-wide gun ban of the Oregon University System in September of 2011. The Chancellor has announced that the System had decided against an appeal and would, instead, deal with the change through internal processes. 39 This push for CHLs on campus is an outgrowth of the Virginia Tech murders. An excellent analysis of this issue from the academic perspective is found in The Second Amendment Goes to College. 40 V. HOSPITALITY VENUES A. The Practical Experience

When concealed carry laws began being proposed in the last two decades of the twentieth century, the proponents of the legislation predicted that street crime would disappear because muggers would fear that all victims were armed. The opponents of concealed carry laws predicted that the new laws would have the streets running with blood as a result of gun fights everywhere over minor disputes, road rage and perceived slights. Neither of these prophecies has come to pass. Gun crime has steadily declined since the passage of concealed carry laws but it still exists. 41 This has been consistent in virtually all jurisdictions where carry laws have passed. Overall, the United States has experienced a 39% reduction in the number of homicides from 1992-2009 42, roughly the timeframe of the proliferation of CHL laws. Many have suggested that there is a causal relationship in this reduction in gun violence during a period when gun ownership and CHLs have increased. While this is an issue upon which reasonable minds can differ, there are certainly other societal and demographic changes which have undoubtedly impacted the reduction in violent crime, as well. Commentators have suggested that other factors have influenced the decline in workplace violence over the last few years such as: (i) human resource policies and professionals who have learned to identify warning signs and how to manage disgruntled employees; (ii) zero tolerance policies toward workplace violence; and (iii) a younger workforce more willing to confront inappropriate behavior earlier. 43 Demographers posit that the aging of the Baby Boomer generation has had a significant effect on the reduction in street crime.

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Others argue a more direct causal relationship between the legalization of guns and the drop in violent crime. They point to data from the Bureau of Labor Statistics indicating workplace homicides peaked in 1994 at 1,080 and dropped continually to 551 in 2004 (ignoring the 3,000 or so victims of the September 11, 2001 terrorist attacks). 44 The number of private sector workplace homicides has dropped further to 461, 453, 451 and 450 during 2007, 2008, 2009 and 2010, respectively. 45 On average, the number of workplace homicides during these most recent years is less than 42% of the 1994 level. The most recent FBI Reports on the issue indicate that states with CHL laws have a 22 percent lower total violent crime rate; a 30 percent lower murder rate; a 46 percent lower robbery rate; and a 12 percent lower aggravated assault rate, compared to the states without CHL laws. Similarly, they continue to show that violent crime rates consistently drop after states enact CHL laws. 46 Additionally, there has been a paucity of criminal use of guns by permit holders in the twenty-five years since the laws began appearing on the books. Studies have shown that the average permit holder commits fewer crimes than the general population and almost none of those crimes involve violence. One study found that 1.3% of CHL holders committed serious crimes during the period studied, compared with 4.1% of the general population. 47 The major crimes committed by CHL licensees generally involved DUIs, DWIs, possession of contraband and felony violations related to the places they carried guns. 48 The message of these trends for the hospitality industry is that the presence of guns in hotels and other venues is a reality of which we need to be aware and for which we need to be prepared. The major examples of gun violence in hotels, however, have never involved those legally carrying weapons. They have involved political assassins (the murder of Robert Kennedy at the Ambassador Hotel in Los Angeles in 1968); the mentally ill (the attempted assassination of President Reagan in 1981 at the Washington Hilton Hotel in D.C.), terrorists (the attack on the Taj Mahal Hotel in Mumbai, India in 2008), or common criminals engaging in robbery, murder, rape and other assaults. B. Gun Free Zones 1. Banning Guns

One option for dealing with armed customers, guests, employees and invitees is simply to prohibit guns in your venue. That will not prevent anyone from bringing a gun on your premises but it gives rise to several remedies for doing so, depending on the jurisdiction in which your property is located. The methods and authorization for doing so vary widely and local law should be consulted if this approach seems appropriate for your locations. Interestingly, the Texas statute only allows employers to ban guns on their premises, not business

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owners generally. This is probably a distinction without much of a practical difference, but interesting, nonetheless. 2. Marketing Issues

There is an old political axiom that your enemies will work harder to defeat you than your friends will work to elect you. This is why pollsters look for high negatives along with approval ratings. That same phenomenon is present in marketing, especially around an issue as emotionally charged as firearms. One risk of banning concealed handguns from your business is the alienation of a portion of your target market. If you do nothing to discourage the presence of handguns in your place of business, few customers or guests will ever think about it. On the other hand, signs prohibiting guns bring the issue to the forefront. Some concealed handgun licensees will refuse to do business with any establishment which forbids its customers to be armed. It is hard to quantify some but it is a big issue for many people. A larger concern may be the advocacy groups. Both local and national businesses can experience a formal or informal boycott by gun owners, which is never publicized. Like other groups of people with agendas, gun owners have both an active grapevine and well funded advocacy groups. Some of these groups rarely go public with their plans. The public becomes more aware of others. 49 One example of a major faux pas by a large chain occurred at the 2009 Annual Convention and Gun Show of the National Rifle Association. The headquarters hotel was the Convention Center Marriott in Charlotte, North Carolina. After the group arrived and the convention had begun, someone posted a no guns allowed sign on all entrances to the hotel. Suffice it to say that Marriott did not endear itself to the NRA and its members in the process. Some advocacy groups print cards to be delivered to merchants which have signage banning firearms. The cards state that the customer will not be shopping there because the business fails to welcome CHL holders. In the first few years after the CHL process began, some large chains implemented no gun policies in all of their locations. This was met by immediate push-back from gun rights organizations using various tactics. The responses by the businesses have been: a. Maintaining Gun Free Zones despite the push back;

b. Removing the signs, essentially allowing weapons to be brought into the business;

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c.

Maintaining the policy but removing the signs (the Hilton approach);

d. Posting the signs but adding a subscript which provides that the proprietor cannot or will not enforce the ban (DADT?); 50 e. Posting legally insufficient signs on the entrance which do not comply with local law requirements to ban firearms but leaves the impression with the uninitiated (basically everyone without a local CHL) that the place is a gun free zone. The theory here is that the licensees will know that the sign is not legally sufficient to ban firearms and will pay no attention to it, while those who oppose weapons in public will applaud your strong stand against guns. This is a proposed way to have your cake and eat it too in a jurisdiction where passions run high on both sides. I know of no study which validates this as an effective method to keep all of your guests and customers happy. One flaw in this approach for the hospitality industry is that many of your guests will be from other jurisdictions and will not know the specific requirements of local law with regard to public notice prohibiting firearms on the premises. The subtlety of this approach will be lost on them. Remember also that there are statutory restrictions on carrying firearms in hospitality establishments in certain jurisdictions where alcohol is served. You can never alienate a customer or potential customer by displaying statutorily required signage banning weapons from bars or restaurants. For multi-state operators any policy will have to consider the law of the various jurisdictions in which the company operates. One must, however, keep the marketing issue in perspective. While forty five percent of Americans self-report that they currently own a gun (the highest number since 1993) 51 no state has licensed more than six percent of its population to carry concealed handguns. Hilton has instituted a policy that it does not allow anyone to possess firearms in any of their hotels with the exception of members of law enforcement agencies, air crews and armored car crews. The policy has been in place since at least 2008 but is not uniformly enforced at Hilton properties. In recent conversations, I have spoken with third party operators of Hilton franchised properties and they were unaware that Hilton had any policy on guns. Perhaps the policy applies only to company owned or operated hotels or it may just be eyewash for anti-gun advocacy groups.

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3.

Employees

In most states, employees are the easiest category to deal with. There are no jurisdictions which require you to allow an employee to be armed at work. Exceptions exist for sworn law enforcement personnel, certain commercial air crew members and armored car guards. Beyond these exceptions, employers in most jurisdictions can always prohibit your employees from carrying a weapon on premises or in the performance of their duties in other places. This longstanding rule applies only to your premises now in states where Parking Lot Laws have been enacted. Some of those are so expansive that they could apply inside your office or your store. Courts have consistently held that employees can be terminated for having weapons at work in violation of company policy, even when they used the weapon to foil a robbery, assault or other crime. 52 VI. LIABILITY EXPOSURE

While there is little, if any, judicial guidance on liability issues arising from the banning of firearms, some general legal positions can be anticipated. A. Liability to Employees

This exposure is particularly relevant to our industry because hotel and food service are among the occupations at the greatest risk for being killed on the job. The vast majority of the deaths, however, are at the hands of robbers, not employees or patrons. 53 1. Workers Compensation

Liability to employees for workplace injuries or death will generally be limited to recovery under the employers workers compensation policy. There are some exceptions: a. Some states have removed the compensation cap for cases where the employer was grossly negligent. Since death and serious injury cases support significant damages, plaintiffs counsel may well seek to prove that either the gun policy or the enforcement or lack thereof constitutes gross negligence. If a business prohibits weapons in its place of business can that be evidence of gross negligence if an employee is shot by a coworker because the disarmed victim was unable to defend herself? What if the employer has a no guns policy but does not enforce it? Does an employee who gets shot have a claim that his employer was grossly negligent in failure to enforce the policy? Finally, if guns are allowed in the business, does a gross negligence claim arise if an armed patron or co-

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worker shoots an employee? Would that result change if the shooting was accidental rather than intentional? The result in any of these cases would be fact specific and dependent on the laws of the jurisdiction as well as the mindset of judges and juries. These hypothetical situations deserve some consideration in jurisdictions which have a gross negligence exception to the workers comp caps. b. The exclusive remedies provided in the workers compensation act for workplace injuries in some jurisdictions provide an exception for personal reasons. In those states, there is generally a rebuttable presumption that a workplace injury is covered by the workers compensation act. 54 That presumption can be rebutted by evidence that a co-worker or a third party attacked the injured employee for reasons unrelated to their employment. In that case, the employer has the common law duty to protect the employee. 55 2. OSHA

Section 4.6(4) of the Occupational Safety and Health Act makes government enforcement of its provisions the exclusive remedy for violations of the act. The Fifth Circuit has affirmed that the act provides no private right of action for OSHA violations. 56 3. State Agencies

Various states have agencies that duplicate or supplement OSHA. The rules of these agencies could become an issue in such jurisdictions, but no research on any state regulatory bodies was undertaken in preparation of this paper. B. Liability to Government Agencies 1. OSHA a. General Duty Clause Section 654 (a)(1) of the Federal Occupational Safety and Health Act is commonly called the General Duty Clause. It provides that each employer shall furnish each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause physical harm to his employees.

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b. Absence of Policy In 2006, the Director of the OSHA Directorate of Enforcement Programs specifically declined to issue a nationwide policy that would ban firearms in the workplace. 57 c. Lack of Regulation The sponsor of the Oklahoma law which prohibits employers from banning guns from employees cars received a response from OSHA that affirmed that the agency had never promulgated a prohibition of guns in the workplace, and had no regulation that would pre-empt the law. This letter was persuasive in the Tenth Circuits opinion upholding the enforceability of the Oklahoma law. 58 d. Case Law One case arising out of an attack on the Florida 59 Parking Lot Law held that OSHA does not preempt state law regarding employees leaving guns in their cars parked in their employers parking lots. e. The Result One study of the incidence of workplace injuries and deaths related to firearms indicated that the incidence of intentional shootings in the workplace has fallen by 5.5% but that the incidence of unintentional shootings has increased by one half of one percent since the enactment of CHL laws. 60 As proprietors, we are forced to pick our poison. C. Liability to Guests 1. Liability for Injuries Caused by Employees Actions

A business liability to injured parties based on the actions of its employees generally arises under the theories of respondeat superior, negligent hiring and supervision or general negligence. a. Respondeat Superior

Common law has long recognized that an employer is liable for damages caused by its employee for actions taken within the course and scope of employment. The scope of employment has included any action taken to benefit the employer even if the employer did not authorize the specific harmful act. Some courts have gone so far as to hold that an employees willful, malicious and even criminal torts may fall within the scope of his or her employment for purposes of respondeat superior, even though the employer has not authorized the employee to commit crimes or intentional torts. 61 A majority of the courts have drawn a line between foreseeable violent acts and those that are unforeseeable. An interesting case arose from the death of a patron shot by a bar bouncer in

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Pennsylvania. The Supreme Court of Pennsylvania recognized that some level of violence is foreseeable in the course and scope of a bouncers job. They held, however, that the shooting of an unarmed patron, who posed no immediate threat of harm to the bouncer or anyone else, was so unforeseeable that it was outside the course and scope of his employment. In that case, the bar owner was not liable for the murder committed by its employee. 62 This case is sixty years old and the same facts today would probably draw a claim of negligent hiring, training, supervision and retention, which is discussed below. Cases like this turn on the employees state of mind and not the instrumentality used. If an employee used a gun for a rational purpose to further an interest of the employer (preventing a robbery, for instance) the employer could still be liable to an innocent bystander for the employees acts under the theory of respondeat superior. There are no cases yet of claims by a third party for gun violence arising out of an employer allowing employees to carry guns pursuant to CHL statutes based on the theory of respondeat superior. 63 b. Negligent Hiring, Training, Supervision and Retention

These types of cases differ from Respondeat Superior claims in that the liability arises for the acts of the employer. The Restatement (Second) of Agency 217(d) theorizes that an employer may even be liable for damages arising from crimes committed by their employee if their negligent hiring, supervision or retention of the employee provided the employee the opportunity to commit a crime. Negligent Hiring cases are based on claims that the employer knew or, in the exercise of reasonable diligence should have known, that the employee had a history of violence, dishonesty, negligence or other negative attributes before he was hired. The duty of the employer is increased in situations where the employee will have access to homes, isolated individuals or valuables. Claims of negligent retention are raised where the employer gained knowledge during the term of employment that the employee had violent or other red flag tendencies. From a practical HR standpoint, you dont want people with tendencies toward violence in your workforce, with or without guns. c. Ordinary Negligence

There are currently no decided cases in which a business has been held liable for damages arising out of workplace violence based on its compliance with CHL statutes or lack thereof. Although not on all fours,

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since it did not involve gun laws, an employer was found liable for workplace gun violence where one co-worker killed another in the company parking lot. The court held the employer liable because of the acts of two of the companys supervisors who both: (i) escorted the coworkers outside when it appeared that violence would erupt; (ii) observed escalating anger on the part of the killer; (iii) were told that the angry employee was armed; (iv) failed to separate and isolate the two; (v) failed to warn the victim that his antagonist was armed; and (vi) failed to call 911. 64 d. Liability for Armed Employees

Some hotels authorize specific personnel to carry firearms. On July 26, 2011, for instance, the night clerk at a Days Inn in Orangeburg, South Carolina killed an intruder during an attempted sexual assault when he laid down his knife to tie her up. She had been authorized by her manager to carry a pistol after being robbed previously. While this episode had a happy ending (except for the assailant) other outcomes were equally possible, some with horrific consequences. The authorization of armed employees is problematic at best. A worst case outcome would raise allegations under all three theories of negligence discussed above. If an insufficiently trained employee hurts someone else it may well rise to the level of gross negligence to have armed such a person. There is a very clear distinction between allowing an individual to be armed for self-defense and paying someone to be armed to protect an interest of the employer. Unless your company is large enough to do it right, the best practice would be to use only off duty law enforcement officers or contractors with rigorous hiring, training and supervision capabilities in situations where armed security is appropriate. 2. Potential Liability for Banning Guns

a. The Risk It is not a stretch to anticipate that in a shooting in a business which bans legally carried handguns, the same argument will be made that we heard from Suzanna Hupp after the Lubys Cafeteria mass murder. That is, if one witness with a CHL testifies that he left his pistol in his car because the establishment bans firearms, the case will be made that, but for that sign, the handgun licensee would have stopped the carnage quickly and lives would have been saved.

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b. The But For Rationale When the perfect storm case arises with an employee, the court will have to balance the interest of the employer in enforcing reasonable employment or access rules versus the duty it has to its customers to protect them from a bad actor. The case will probably turn on the foreseeability of the shooting. The current law establishing a proprietors duty to its invitees will, most likely, form the basis upon which gun liability will be based. The higher duties hotels owe their guests may create a lower hurdle for liability in our industry. c. The Insurer Theory Without a specific statutory bar, many commentators have posited that retail businesses which prohibit weapons essentially become insurers of their customers safety. The argument here is that if you deprive a customer of the ability to defend herself, you then accept the responsibility to protect her. 65 d. The Magnet Theory Several commentators have raised an additional theory of liability for businesses that ban guns. They theory is that by proclaiming publically that they are a gun free zone they are announcing that no one in the place is armed. This, they argue, makes them a magnet for criminals looking for unarmed victims. If you follow the reasoning, they theorize that by reducing the ability of a patron to defend herself, the proprietor assumes the duty of protecting her. It is the resulting higher duty that creates increased liability for the safety of the patron. 66 e. One Safe Harbor The Texas Attorney General has opined that a business which posts the statutory notice prohibiting guns on the premises has exercised sufficient reasonable care that it would not be liable for damages resulting from anyone violating that prohibition. 67 f. The Future We can expect to see cases at some point raising both the but for and duty to protect disarmed patron claims. In terms of risk management, the likelihood of such an event is extremely low but the damages are extremely high. The risk/reward analysis at this point is subjective, at best. The case law will ultimately determine the extent to which an armed assault could have been foreseen. It should be expected that shooting cases will follow the basic considerations of a long line of premises liability cases involving criminal acts. 3. Potential Liability for Allowing Guns a. Injury Claims

If a business does nothing to ban firearms and a customer is injured or killed by an either an intentional or unintentional discharge from the

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gun of a person legally carrying it, it is pretty predictable that a claim will be made that the business is liable for allowing guns in the establishment. Once again, we are damned if we do and damned if we dont. b. Property Claims (i) In the Guest Room (a) Room Safes

Remember that most, if not all, jurisdictions have limited the hoteliers liability to guests for the loss of valuables. In order for the hotel to avail itself of this protection, however, it must provide for the safekeeping of the guests property. Standard room safes currently in use will accommodate most handguns. (b) Housekeeping

Inevitably, housekeeping personnel will come across guns in guest rooms and the hotels procedure manual and training should anticipate this occurrence. The number one rule should be never, under any circumstances, should housekeeping personnel touch a guests firearm. Simply clean around it. If the firearm is on an unmade bed or other location requiring housekeeping attention, the best practice is to leave the bed unmade, or other spot uncleaned, and have the housekeeping supervisor leave a note for the guest that the maid will return to make the bed and complete the housekeeping checklist after the firearm has been secured. When firearms are left in rooms after checkout, security personnel should remove the gun from the room and secure it until the guest has made a decision on how to handle the recovery of her property. Whether the presence of the firearm should be reported depends on the legality of the guests possession of the gun in that jurisdiction and the prohibition, if any, of firearms by the hotel operator. From a guest relations standpoint, legality should be assumed unless red flags are present.

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(c)

In the Safe Deposit Boxes

Guest Room or Front Desk controlled boxes can make a difference. You may not want the guest coming to your box vault and you surely dont want your front desk personnel handling the guests gun. (ii) In the Parking Facility Firearms are among the most expensive items left in cars. They are also one of the few items that can create separate liability after they are stolen. (a) cars. Always disclaim liability for contents of parked

(b) Always get indemnities and insurance coverage from parking contractors. (c) Always train Employees to lock cars containing guns and never touch a firearm in a vehicle. C. Liability to Invitees and Permitees

Liability to Invitees and Permitees should be similar, if not identical, to the liabilities of Guests, discussed above. Because of the higher duty owed to a guest by an innkeeper, however, the law may develop a lower threshold for liability for hoteliers. D. Statutory Immunity from Liability

Some jurisdictions have provided statutory immunity to businesses for liability arising out of the possession or use of firearms in their place of business. They are neither universal nor consistent where they exist. 1. Immunity from Liability Arising from Allowing Guns in Your Place of Business There are no cases where a third party has raised a general negligence claim against an employer that has complied with workplace gun laws 68 but situations under which a third party could allege negligence related to firearms policies are numerous. The general discussions of liability issues are an attempt to predict how common theories of negligence and developing immunities will apply to the presence or prohibition of guns in our places of business. In

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addition to the common law defenses, many of the state CHL statutes provide immunity for businesses from lawsuits based on handguns being allowed on their premises pursuant to the law. Business Lobbyists have worked very hard to include immunity provisions in the various CHL statutes. These efforts have been successful to one degree or another in several jurisdictions. Similarly, most, but not all, Parking Lot Laws provide immunity to businesses in compliance with the statute, but not all states do. 69 Numerous states provide statutory immunity for gun related liability as part of their CHL legislation. Wisconsin, in 2011, was the last state to authorize its citizens to carry concealed weapons. Interestingly, that statute provides immunity for businesses that allow concealed handguns on their premises but do not provide such immunity for businesses that ban guns. 70 2. Immunity from Liability Arising from Prohibiting Guns in Your Place of Business As mentioned above, the Texas Attorney General has opined that posting the required notice is evidence of the exercise of reasonable care and that the business it is not liable for the acts of persons who ignore the sign and the law. Given the immunities available for businesses allowing guns, the risk/reward analysis in some jurisdictions will lead many to the conclusion that welcoming armed patrons will actually reduce the companys liability exposure. The law of each specific jurisdiction would have to be factored into any such analysis. 3. Immunity from Liability Arising from Allowing Guns in Your Parking Lot Since Parking Lot Laws are more recent than CHL laws in the most states, they typically include immunity for businesses following the law. This is a result of the insurance and business lobbies attempting to modify the bills rather than defeat them. The statutes vary considerably from state to state and local law will dictate the extent of immunity, if any, in each jurisdiction. VII. CONCLUSION

What we know is that there is an increasing incidence of an armed population in our places of business and that this trend can be reasonably expected to continue for the short term.

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We also know that if history is a meaningful predictive tool, it is unlikely that we will experience an intentional shooting by a person with a CHL in our place of business, although the potential for unintentional discharges is a slightly greater likelihood than it has been previously. We can generally ban handguns in our premises and CHL carriers will comply, but common criminals, terrorists and the mentally ill will not pay any attention to our signs or our rules. The signage has risks of its own, from both marketing and liability standpoints. We also know the general rules for premises liability and expect them to be applied in cases involving guns. We also know the general rules for liability to our employees and those governing liability arising out of the acts of our employees. No changes are anticipated for either. Additionally, we know that immunity from liability is statutorily mandated to one degree or another in the gun laws of various states. The immunity laws are, however, neither universal nor consistent. Finally, we know that the differences in the legislation make it difficult to promulgate any policies for general application for multi-unit operators. Kneejerk reactions have been counterproductive. As the proliferation of new statutes diminishes and a body of case law develops, best practices will become apparent and certainty of outcomes will be more predictable. Until then, we will just have to make decision calls based on the datum available and trust our judgment in doing so. In the meantime, make sure your premiums are paid.

Fla. Stat. Ann. 790.06 Gallup Poll, October 26, 2011 @ www.gallup.com/poll/1645/guns.aspx Tenn. Code Ann. 39-17-1351(r). Nordyke v. King 229 F. 3d 1266 (9th Cir. Cal. 2000).

Clark and Miller vs The Commonwealth of Pennsylvania, No. 493 M.D. 2007, In the Commonwealth Court of Pennsylvania (2008) See a complete restatement of the preemption statutes on the website for Legal Community Against Violence (www.lcav) under Law and Politics/State Preemption/Local Authority to Regulate Firearms.
6

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See District of Columbia v. Heller, 554 U.S. 570 (2008). See McDonald v. City of Chicago, 130 S. Ct. 3020 (2010). Cal. Penal Code 12050 (Supp. 1996) ORC Ann. 2923.121(B)(1)(e) (2011) Tex. Penal Code 30.06 Armour, Stephanie, A Bring Your Gun to Work Movement Builds, Bloomberg Business Week, March 31, 2011. Restrictions on Prohibiting Employee Access to or Storage of Firearm or Ammunition, TEX. LAB. CODE 52.061 (2011). Ky. Rev. Stat. Ann. 237.110(14) (Michie 1996). See Bastible v. Weyerhaeuser Co., 437 F.3d 999 (10th Cir. 2006). Okla. Stat. Tit 21, 1290.22 (2008) Hansen v. America Online Inc., 96 P. 3d 950, Utah 2004. Bruley v. Vill. Green Mgmt. Co., 592 F. Supp 2d 1382 (M.D. Fla. 2008). Bob Driehaus, Man in Kentucky Kills 5 Co-Workers, N.Y. Times, June 25, 2009.

10

11

12

13

14

15

16

17

18

19

ConocoPhillips Co., 520 F. Supp. 2d at 1287 n. 7, [GA case], Fla. Retail Fedn, Inc. v Attorney Gen. of Fla., 576 F. Supp. 2d 1281, 1286 (N.D. Fla. 2008).
21

20

Fla. Stat. 790.251 (2009).

Glazer-Esh, Esther, Floridas Guns -At-Work Law: Why it Has Employers Up in Arms and What the Florida Legislature Should Do About It, 64 U. Miami L. Rev. 663 (2010)
23

22

Stevens v. Superior Court of Los Angeles County, 941 P. 2d 1157 (Cal. 1997).

24

Ibid.

Fleming, Mark and Miles, Angela, Legal Illustrations of Workplace Gun Laws and Their Implications on Employers and Human Resource Managers, ALSB Journal of Employment and Labor Law, Vol. II, No. 2, p. 104.
26

25

Senate Bill 0506 [Codification information not yet available].

Heikens, Norm, ArcelorMittal throws down the gauntlet on gun law, Indianapolis Business Journal, News Talk Blog, July 1, 2010.
28

27

Ibid. S. Dakota HB 1204. SB361, Codified as Tex. Labor Code, Chapter 51, Sub-Chapter G. 52.061 52.064. Fla. Stat. Ann. 790.251(5)(b) La. Rev. Stat. Ann. 32:292.1(B) Ga. Code Ann. 16-11-135(e) 2009.

29

30

31

32

33

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34

Utah Code Ann. 53-5a-102 and Ky. Rev. Stat. 237.106. Arizona Revised Statute 13-3112 Donna Leinwand, Four states among last holdouts, eye open carry gun laws, USA Today, February 11, 2009. UTAH CODE ANN. 5B-3-103 (West 2007). Guns will be Legal on Two CSU Campuses, Denver News, May 6, 2010.

35

36

37

38

39

From the website of Inside Higher Education found at www.insidehighered.com/quicktakes/2011/11/09/oregon-campuseswont-appeal-concealed-carry0ruling#ixzzlgvRjVPU1


40

Joan H. Miller, Comment, The Second Amendment Goes to College, 35 SEATTLE UNIV. L. R. 235 (2011).

41

Plassmann, Florenz and Tideman, T. Nicholaus, Journal of Law and Economics, Vol. XLIV (October 2001) University of Chicago.

Robert Cisneros, Stricter Company Policies Help Lower Number of Homicides in the Work Place; Training, Early Intervention Can Keep Violence from Escalating, BUS. INS., June 16, 2008.
43

42

Ibid.

BUREAU OF LAB. STAT., NATL CENSUS OF FATAL OCCUPATIONAL INJURIES (2004), available at http://bls.gov/iif/oshwc/cfoi/cfoibulletin2004.htm.
45

44

Cisneros, supra.

46 Shuler, Heath and Stearns, Cliff, Nation needs right to carry reciprocity, Washington Times, Nov. 11, 2011 [note: these statistics were quoted in an op-ed piece written by the congressional sponsors of HR 822 (The National Right-to-Carry Reciprocity Act) based on analysis of Semi-Annual Uniform Crime Report, June December, 2010, compiled by the FBI and published by the US Department of Justice]. 47

Dan Harrie, Crimes Trigger Revocation of 584 Concealed-Weapons Permits, Salt Lake Tribune, March 25, 2001, Section A1. Cisneros, supra. Sylvia Moreno, Some Firms Drop Attempt to Ban Guns, Dallas Morning News, July 11, 1996, Section A1.

48

49

Mack, Raneta Lawson, This Gun for Hire: Concealed Weapons Legislation in the Workplace and Beyond, 30 Creighton Rev. (1997).
51

50

Gallop, supra.

Cherry v Municipality of Metro. Seattle, 808 P. 2d 746 (Wash. 1991) and Farnham, Alan, Video Shows Michigan Pharmacist Shooting Gun at Robbers, bcnews.go.com/Business, Sept. 10, 2011. Robert Cisneros, Workplace Violence Rate Continues to Decline; On-the-Job Assaults, However, Show Volatility, Business Insurance, Sept. 8, 2008.
54 53

52

Mike v. Aliquippa, 421 A.2d 251, 254 (Pa. Super. Ct. 1980).

55

Mike, 421 A.2d at 254; see also McBride v. Hershey Chocolate Corp., 188 A.2d 775, 777 (Pa. Super. Ct. 1963); Scott v. Acme Wire Products, Inc., 319 A.2d 436, 438 (Pa. Commw. Ct. 1974). Jeter v. St. Regis Paper Co., 507 F.2d 973, 976-77 (5th Cir. 1975).

56

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57

Neil D. Perry, Employer Firearm Policies: Parking Lots, State Laws, OSHA, and the Second Amendment, EMPLOYMENT LAW COMMENTARY Vol. 20, No. 7 (Morrison & Foerster LLP, San Francisco, CA), July 2008, at 3. Ramsey Winch, Inc. v. Henry, 555 F.3d 1199 (10th Cir. 2009). Florida Retail Federation, Inc. vs Attorney Gen. of Florida, 576 F. supp. 2d 1281 (N.D. Fla. 2008)

58

59

Lott, John R., Jr. and Mustard, David B., Crime, Deterrence and Right-to-Carry Concealed Handguns, Journal of Legal Studies, (Vol. 26, No. 1, pages 1 68 (January, 1997).
61

60

Lisa M. v. Henry Mayo Newhall Memorial Hosp., 12 Cal. 4th 291, 297 (1995). See Howard v. Zaney Bar, 369 Pa. 155 (1952). Fleming & Miles, supra. Dupont v Aavid Thermal Techs, Inc., 798 A. 2d 587 (N.H. 2002). A. Nicole Hartley, Comment, Business Owner Liability and Concealed Weapons Legislation: A Call for Legislative Guidance for Pennsylvania Business Owners, 108 PENN ST. L. REV. 637, 643-44 (2003). MacNutt, supra. Op. Tex. Atty Gen. No. DM-363 (1995). Fleming and Miles, supra. UTAH CODE ANN. 53-5a-102 (2008); KY. REV. STAT. ANN. 237.106 (2006).

62

63

64

65

66

67

68

69

Forward, Joe, Concealed carry: Could prohibiting weapons in the workplace lead to liability?, Wisconsin Bar Journal, July 2011 and ODay, Thomas, Update: Employers and Wisconsins New Concealed Carry Law, All in a Days Work: Insights on Labor & Employment Law from Godfrey & Kahn, S.C., July 8, 2011.

70

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