Gun rights and property rights slug it out in the parking lot

The mere fact that the title of this article references gun rights is likely enough to guarantee that I will receive comments, phone calls and emails about it. With that in mind, let’s get a couple of things out of the way up front.

First, 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 to that question you need to start with an employer’s policy and the laws of each and every state in which your vehicles travel. Second, while the right to keep and bear arms is confirmed in the 2nd Amendment to the U.S. Constitution, states in essence will determine the extent to which that right applies within their jurisdiction.

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 its private property.  In the past, many employers prohibited the presence of guns anywhere on their property.  To support this position, they claimed such a policy would increase employee safety and, to be honest, 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 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 the 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 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 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 Alaska, Arizona, Florida, Georgia, Indiana, Kentucky, Louisiana, Maine, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, Texas and Utah.  The exact wording of the “parking lot” or “workplace protection” statute in each of these states varies.  Generally, however, 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 areas accessible to the public and some require that the firearm be stored in a locked compartment. 

In other states, statutes 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, if they decide to allow firearms, what liability issues would employers face for an act of violence involving a firearm occurring on their property?  What if they prohibit firearms and an act of violence involving firearms occurs?  Could they face increased liability for denying their employees’ rights to defend themselves? How do these laws apply to an employee driving a company vehicle?  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. 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. Alternatively, 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.

If a motor carrier desires to prohibit firearms on its property then it will need to work within the framework of the laws of each particular state in which it has facilities.  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. 

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.

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