Gun Rights vs Property Rights

7/15/2018
Klepper
J. Bradley Klepper
Attorney at Law
800-333-DRIVE
www.interstatetrucker.com
www.driverslegalplan.com

The purpose of this article is not to discuss a CDL driver’s right to possess a firearm in a commercial vehicle. If you want to know the answer is to that question you will need to start with the employer’s policy and the laws of each and every state in which you travel. Second, while the right to keep and bear arms is confirmed in the 2nd Amendment to the U.S. Constitution the states will, in essence, determine the extent to which the right applies within that state. (Don’t blame me….it just is what it is.) With that being said, what we will discuss is how an individual’s right to bear arms affects an employer’s right to control whether firearms are brought onto their private property.

In the past, many employers prohibited the presence of guns anywhere on their property. To support this positon, they claimed such a policy would increase employee safety and, to be honest, just felt that they should be able to control what is allowed on their private property. In contrast, advocates of gun rights countered that the 2nd Amendment confirms the constitutional right to keep and bear arms and, besides, they should have the right to carry firearms for self-defense. Of course, this issue eventually made its way to the courts.

One of the first cases to address this matter was Bastible v. Weyerhauser Company. In this case the Tenth Circuit considered whether the right to bear arms granted by the Oklahoma Constitution trumped an employer’s right to ban firearms on company property. The court ruled that the right to possess firearms was not superior to the rights of a private property owner to regulate what is brought onto his property. Needless to say, this holding created quite a stir. In fact, after this case was decided the Oklahoma legislature enacted a statute prohibiting employers from banning firearms in employee vehicles. While this holding in this case is not solely responsible for the growth of gun rights legislation it certainly played a part.

During the past 20 years numerous states have adopted “workplace protection” or “parking lot” laws which serve to limit an employer’s ability to prohibit firearms on their property. These states include Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, Tennessee, Texas, Utah and Wisconsin. The exact wording of the “parking lot” or “workplace protection” statue in each of these states varies; however, they all serve a similar end. Generally, the statutes state than an employer may not restrict a person from transporting or storing a firearm in a locked vehicle in any parking lot, parking garage or other designated area unless the possession of such firearm is prohibited by state or federal law. Some states also limit this to area accessible by the public and some require that the firearm be stored in a locked compartment.

Any coin has two sides and other states have statutes which tend to favor the rights of the property owner. Many times the language supporting the rights of the property owner can be found in the states’ concealed carry statute. In many states, concealed carry statutes grant property owners the right to prohibit firearms on their premises and include language extending that right to all of the property. This can reasonably be read to include parking lots and other public access areas. Of course, many of these statutes have not yet been challenged in courts so it is unclear how the courts may rule should the issue come before them.

There are other issues that may be impacted by the gun rights vs property rights issue. For example, what liability issues would an employer face for an act of violence involving a firearm occurring on their property if they decide to allow firearms? What about if they prohibit firearms and an act of violence involving firearms occurs? Could they face increased liability for denying employee’s the right defend themselves? How do these laws apply to an employee driving a company car? What impact, if any, would workers compensation statutes have on an injury arising from a firearm? What liability could you potentially face for wrongful termination of an employee for violation of a prohibition against firearms on company property? These are all issues that need to be considered.

At the end of the day, what this really means for the trucking industry is that employers who have a presence (think terminals) in different states will likely be subject to very different laws regarding the right to prohibit firearms on their property. As a result, a company-wide policy prohibiting firearms will likely not work and could in fact be in violation of the law. If a carrier really desires to prohibit firearms then they will need to work within the framework of the laws of that particular state. (Perhaps making all employee parking lots secure (fenced and gated) would serve to remove them from the realm of publicly accessible and allow the employer to exercise greater control.)

Ultimately, there is no easy answer to this issue and the battle between gun rights and employer’s property rights will not end anytime soon. Accordingly, employers or their legal counsel should review the current law of the states in which they have a physical presence to maintain the knowledge necessary to avoid violating any laws and minimizing potential liability.

J. Bradley Klepper, Esq. is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Brad is also Executive Vice President & General Counsel of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Brad spent almost a decade with the largest law firm in Oklahoma where his practice included extensive experience in transactional law, business defense litigation, and intellectual property. In addition, Brad is a licensed architect and serves as General Counsel to the Oklahoma Board of Architects, Landscape Architects and Interior Designers.Brad has dedicated much of his time to DataQs challenges, which are challenges posed to the FMCSA for CSA incidents, to examine data and reports filed by law enforcement.

800-333-DRIVE (3748) or www.interstatetrucker.com and www.driverslegalplan.com


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