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!
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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:
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):
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You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
Law of Self Defense CONSULT Program