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Should “No Guns” Stores Be Liable for Harm?

One of the most common questions we get here at Law of Self Defense is whether stores that prohibit lawfully possessed firearms on their premises also assume liability for harm that results because their patrons are disarmed.

In other words, if the patrons leave their guns at home, as the store requires, and a criminal starts shooting the unarmed customers, is the store responsible for the harm resulting from their no-gun policy?

So, you step up to the door of some local business and see they have a “no lawfully possessed guns” sign. Maybe that posting has legal force in your state, maybe it doesn’t, but regardless it raises an interesting question:

If you disarm before entering the premises, as they demand, do they assume liability for harm to you that results from you being disarmed? If a bad guy with a gun ignores the sign, as bad guys tend to do, and starts threatening or shooting people, particularly in circumstances where you could have stopped the threat had you been permitted to remain armed, is the “no lawfully possessed guns” store liable?

The answer is no, they are not liable, neither to their customers generally (most of whom would never have been armed, in any case) nor to those of their customers specifically who might otherwise have been armed but for the “no lawfully possessed guns” demand.

Why is that?

Mostly because the “no lawfully possessed guns” demand is optional. By that I mean not that the demand is merely a suggestion—let’s assume that if you want to enter the premises the demand is mandatory.

What I mean is that the decision to enter the premises in the first place is optional, and thus subjecting yourself to the “no lawfully possessed guns” demand is also optional. You choose to subject yourself to that policy. Nobody is making you enter that business. If you don’t like the policy, don’t walk in. (A different argument may be made for governmental buildings that the state compels you to enter for various mandatory purposes.)

Indeed, arguably by choosing to follow the policy and enter the store anyway, you yourself are implicitly agreeing with the business that the risks of a deadly force attack are exceedingly low. After all, if you yourself really believed that you were at risk of attack in that store, you probably wouldn’t go in even if armed—you certainly wouldn’t go in unarmed.

If even you at least implicitly agree that the risk of harm is so low that you’re willing to comply with the store policy and disarm before entering the premises, you can hardly later claim that the store itself should have known that there existed a substantial risk of harm.

Having said all that, I should note that what I’ve described can be thought of as the default state of the law. That doesn’t mean the law has to stay in that default state. There’s nothing to prevent legislators from creating a duty on the part of stores that ban lawfully possessed guns from assuming a legal duty of protection if the legislators wished to do so.

That is, the legislature is free to create what lawyers would call a “cause of action” for persons claiming harm from a store’s “no lawfully possessed guns” policy. This cause of action could then be the basis of a lawsuit, and therefore legal liability, on the part of “no lawfully possessed guns” stores whose customers suffer harm as a result of that policy. The harm that results from the policy would be treated as what is technically known as a “tort,” for which damages could be sought in civil court.

Indeed, I’ve advocated the creation of precisely such causes of action for a great many years.

Note that such a cause of action would not prevent stores from adopting “no lawfully possessed guns” policies. They would still be free, as private property owners, to assert such a condition on entering their premises. The only difference is that they would now be liable for the harm that results from the policy.

The primary purpose of creating such a cause of action is not, really, to drive law-abiding citizens who have been harmed by the adoption of “no lawfully possessed guns” policies into civil court. The primary purpose is to serve as a factor discouraging businesses from adopting such policies in the first place.

It is my expectation that in the presence of such a cause of action we would see all but the most politically motivated businesses abandon their “no lawfully possessed guns” policies, if only because they were compelled to do so by their insurance providers being unwilling to assume the resulting liability, or because the store did not wish to assume the expense and inconvenience of mitigating its responsibility of safety to its customers (e.g., armed guards, TSA-style security, etc.)

Finally, it appears that a Michigan legislator has decided to pursue the creation of precisely such a cause of action. State Representative Gary Eisen has introduced House Bill 4976, which would make a business that adopts a “no lawfully possessed guns” policy responsible for the safety of individuals who enter it. (An accompanying bill, 4975 also seeks to strip the government of its usual immunity for similar “no lawfully possessed guns” policies.)

The drafting as such a cause of action is, really, simplicity itself, as demonstrated by the concise nature of House Bill 4576:

(1) A person that owns or occupies real property and that entirely or partially designates the property as a gun-free or weapon-free zone is responsible for the safety of an individual who enters the gun-free or weapon-free zone.

(2) A person that owns or occupies real property as described in subsection (1) is liable in a civil action for damages that result from injuries that an individual sustains in the gun-free or weapon-free zone if the person failed to provide adequate security in the gun-free or weapon-free zone.

(3) As used in this section, “person” means an individual, partnership, corporation, association, governmental entity, or other legal entity.

That’s all there is to it. (A PDF of HB 4576 is embedded at the bottom of this post.)

Here’s hoping that the adoption of “no lawfully possessed guns” torts becomes widespread across our great nation!

FLASH SALE: Law of Self Defense GOLD MEMBERSHIP!

We’re running a special FLASH SALE for our Law of Self Defense GOLD Memberships. Sign up for a GOLD Membership, and you’ll be sent a complimentary copy of our Law of Self Defense QUARTERLY 3-DVD/CD set for the third quarter of 2019. This includes all of our video and audio/podcast blog content for the months of July, August, and September 2019, yours to keep.

Each Law of Self Defense QUARTERLY is normally a $49.95 product, but it’s yours for FREE (we’ll even cover the S&H!) if you become a GOLD Member of Law of Self Defense before the FLASH SALE ends at the close of this week.

Even better, as a GOLD Member you’ll also receive every future Law of Self Defense QUARTERLY, as well, automatically!

That’s right folks, GOLD Membership costs about $19 per month, or $57 per quarter, but as a GOLD Member you automatically receive $50 of content immediately—meaning the net cost of your GOLD Membership is really only about $2 a month!

GOLD Members also receive direct access to me, Attorney Andrew F. Branca, for your use-of-force law questions through our Premium Q&A System, exclusively for GOLD and PLATINUM members, as well as ongoing, daily access to our secure Law of Self Defense podcast.

And by the way, folks, this is a RISK-FREE offer. It’s been our experience that our Members almost never leave, but if within 30 days you decide that Law of Self Defense Membership is not for you, simply contact us and we’ll cancel your membership and not charge you so much as a penny. AND you can keep the 3Q2019 DVD/CD set as our gift to you.

This FLASH SALE runs only through this week, however, so if you’re interested you need to head over NOW to:

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NEXT “Calling the Shots”: Wednesday October 9

Hey folks, the next episode of “Calling the Shots,” our online show in which we do legal analysis of use-of-force events caught on video, will air on Wednesday, October 9, 3 PM Pacific. You can watch the show live on the Facebook page of our show partner, Alien Gear Holsters:

http://facebook.com/aliengearholsters

If the live show doesn’t work for you because of timing or lack of a Facebook account, you can find the replay of the show on the Law of Self Defense Blog beginning the following day (Thursday):

http://losd-staging.nnl9m6ww-liquidwebsites.com/blog

SEND US VIDEOS! If you are aware of use-of-force videos that you’d like me to consider for analysis during an episode of “Calling the Shots,” please email a link to the video to cts@losd-staging.nnl9m6ww-liquidwebsites.com. Be sure to put “CTS” or “Calling the Shots” in the subject line of the email to ensure it’s expedited to my attention.

Also, every live episode of “Calling the Shots” we will raffle off a full-access pass to our full-day equivalent Law of Self Defense LEVEL 1 Class, a $200 value. I’m please to announce that this past show’s winner was Jonathan D. of Virginia!

To be entered into this raffle for next week’s show, simply sign up at:

http://losd-staging.nnl9m6ww-liquidwebsites.com/cts

If you enter the raffle YOU DO NOT HAVE TO BE PRESENT during the show to win, we’ll notify each winner by email directly

Remember:

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC
Law of Self Defense CONSULT Program

1 thought on “Should “No Guns” Stores Be Liable for Harm?”

  1. I’m in Arizona and I have a CCW. In Arizona, there are two specific signs based on the statutory limits for locations. If the sign notes the appropriate Arizona Revised Statutes (ARS) section relating to carrying on-site then it can be a felony to carry on-premises. Without the ARS statute listed (and there are very specific requirements for placement) then “No Guns” is nothing more than a company policy and there is no criminal liability. The only thing the business owner can do is ask you to leave. If you don’t leave when requested then you can be arrested for trespass, but if you leave there is no liability. I carry without regard to the signs (except for the ARS), have for a long time, never had an issue.

    Our law is similar to the law in Nevada. We just got back from three days in Las Vegas and every casino is posted “No Firearms” but it’s policy only. All they can do is ask you to leave (or escort you out.) I carried concealed in five different casinos with no issues.

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