TexasCHLforum.com

Armed & Safe has a post regarding a proposed law in Arizona that would establish a legal basis for civil liability for the owners/operators of areas off limits to concealed carry holders.

http://armedandsafe.blogspot.com/2008/0 ... ng-to.html

Under such legislation, any person, business, organization, unit of government, etc. that prohibits firearms can be held liable for harm inflicted on a person who might otherwise have used a firearm in self-defense.

Basically it means that insurance companies would be put in the position of telling mall owners "Don't you DARE put that 30.06 sign up! You can't afford the premiums that would cost you!".

There are numerous reasons why it would be a major fight to get this enacted in Texas. For one thing increasing civil liabilities runs counter to tort reform efforts. I could see anti-gunners supporting such legislation in the hopes that it would cause pro-business legislators to can CHL all together. If no one can carry then it's not the business' liability.

I know this sort of legislation was put on the "Wishlist for 2009" thread on this board.

[rant]
I have posted my desire for this numerous times and the threads and/or posts got shot so full of holes it looked like lacy swiss cheese. There was just no way the courts or whoever would ever hold some business liable for exercising their "right" to keep firearms from their "private" business. The thought was just un-American and stank of infringement of personal freedom.

[/rant]

I feel better.

Nice to know there are a few proper thinking people out there, but they are way over in Arizona.

Anygunanywhere

Just because it's been introduced doesn't mean it will pass. We can hope it does.

If it passes way over in Arizona, hopefully it will make the trip over to Texas.

I've long favored laws like the one proposed in AZ. I think it's a matter of simple fairness. Sure, you can ban guns on your premesis if you want. Just make sure you have secured your parking lot so no one breaks into or steals my truck while it's parked there with my gun inside. And while you're at it, make sure no one harms me while I'm on foot in between your building and my truck.

If you aren't willing to do this, Mr. Public Accommodation Proprietor, then you're in line to eat my damages if I sustain any while complying with your rules.

And for you, Mr. Employer, (who bans guns on all company property including the only available parking facility) you get to take responsibility for my safety while I'm travelling all the way from Smithville to Austin 250 times a year.

That's how I see it.

I read an article by a lawyer that discussed this concept, among others. I think it was in Concealed Carry magazine.

His analysis goes back to the legal concept of "bailment" which I'm sure our forum leader knows better than I do or want to.

The comparison, in law, was for a parking area. If you demand that the car's driver surrender the keys to your control, as a business, you ARE liable for any theft that occurs to the car because YOU took control of the car's safety mechanism. Someone operating a "you park it, you lock it" does not have this liability. The car's operator retained control of the car's safety mechanism.

Similarly disarming a CHLer removes the CHLer's safety mechanism. Therefore you assume liability for overriding that safety mechanism.

Now, case law does vary from state to state and therefor what is a liability in Arizona may not be in Texas. It was not that long ago when there was strong opposition to concealed carry in the majority of states. Now the majority of states have "Shall Issue" laws.

The law CAN be changed.

One reason to work toward this sort of change in the law is to remove the excuse "it's not me, it's my insurance company". By making it MORE expensive to insure a 30.06 business than one that doesn't post the sheep can start putting their money where their brains are, i.e. GONE!

You and I put money into practicing our rights. I don't expect to give the sheep a free lunch for theirs.

I don't have a whole lot of expierence with establishments that post 30.06, and I certainly wish I could carry my pistol into class at my University, especially with the frequency of campus shootings recently, but in my mind, most places with 30.06 up are against weapons on a basis of personal belief. The owner doesn't want civilians, even legal civilians, to carry weapons in there store. I disagree with that, as I'm sure most people on this forum do, but it is there establishment, and nobody is forcing you to give them your money. Just go somewhere else. I'm not sure about the feasibility of that for the folks who live in rural Texas, but there are plenty of stores in the Houston area to allow me to pick and choose.

As for the employer issue... man, that's rough.

Russell wrote:

LCplMustafa wrote: As for the employer issue... man, that's rough.

Hence why we are starting to forbid an employer from doing that, IE, the parking lot bill that just passed.

That bill passed in TX? Link please!

I've expressed my views on this matter on other forums when it came up in Colorado. I think spelling out liability explicitly is a good idea, but legislation like this is not a good idea, because the law is too general and thus goes too far. The text of the proposed change to the AZ Code:

13-3114. Gun-free zones; liability; definitions

A. This state or any agency or political subdivision of this state or any person, organization or entity that establishes a gun-free zone is liable for damages that result from criminal conduct that occurs against an individual in the gun-free zone if a reasonable person would believe that possession of a firearm could have helped the individual defend against the criminal conduct. If the criminal conduct was the result of terrorism or adversely affected a child under sixteen years of age or a person seventy years of age or older, this state or any agency or political subdivision of this state or any person, organization or entity that established the gun‑free zone is liable for treble damages.

B. For the purposes of this section:

1. "Criminal conduct" includes offenses listed in chapters 11, 12, 13, 14, 15, 17, 19, 25 and 29 of this title.

2. "Gun-free zone" means any building, place, area or curtilage or in or on any conveyance in which a person's right or ability to possess a firearm is infringed, restricted or diminished in any way by statute, policy, rule, regulation, ordinance, utterance or posted sign.

I would change Section A to read as follows:

A. This state, any agency or political subdivision of this state, or any person, organization or entity that is responsible for establishing a gun-free zone is liable for damages that result from criminal conduct that occurs against an individual in the gun-free zone, if and only if both of the following conditions are met:
i: The individual owned a firearm that could otherwise have been carried legally by the individual in absence of the gun-free zone, and
ii: a reasonable person would believe that possession of a firearm could have helped the individual defend against the criminal conduct.
If the criminal conduct was the result of terrorism or adversely affected a child under sixteen years of age or a person seventy years of age or older, this state or any agency or political subdivision of this state or any person, organization or entity that established the gun‑free zone is liable for treble damages.

What this does is allow the business to say that it is not liable under this law if the individual couldn't have carried anyway. If the individual doesn't own a carryable firearm (or any gun), then whether a gun would have helped or not is immaterial. Otherwise, the Brady Bunch could sue for damages under this law and win. That's not to say the mall can't still be found liable in the case of a non-gun owner's injury or death; the mall just cannot be forced to assume liability under this law if the person didn't have a firearm to carry.

It also more clearly spells out that the entity responsible for establishing the zone is the one liable for damages. Places where carry is prohibited by State law (alcohol sellers, private schools, entertainment venues like stadiums, etc), sign or no sign, are the State's responsibility; the business is only responsible if they post signage or tell someone carrying to leave it outside.

However, there are still issues. If I own a handgun, there's always the question of whether I would have left it home anyway even if I could have carried it. The current wording ignores this question and assumes that anyone who could have carried would have done so. On the one hand this has the potential for abuse; if I would have left my gun in the car, sign or no sign, I could still claim damages because the question of whether I would have carried is immaterial. On the other, requiring that the individual prove that they would have carried in absence of the gun-free zone is a "get out of jail free card" for the business; you cannot prove conclusively that you would have done anything other than what you actually did, and a smart defense lawyer can have your carry habits in non-posted places thrown out in a heartbeat.

There are other issues with this law which relate to the State's assuming liability coupled with other State laws restricting carry. If the firearm I own is a long gun, am I allowed to claim damages against the City or State if I'm shot on the street because State law or a city ordinance makes OC of a rifle or shotgun illegal? That would turn the State of Arizona into one big "rifle-free zone" with liability attached. Such a case is more likely to send this law back to the drawing board than to result in the repeal of existing GC legislation, and it might not re-emerge.

I don't know how I would resolve intangible damages such as mental distress. Currently the law would allow someone who was not physically harmed by the gunman to claim mental distress; the person would simply say they could have stopped the criminal without the gun, and were mentally tortured by watching helplessly because of the gun-free zone. Again, there is the potential for abuse by people just looking to make a quick buck, but there is real mental pain and suffering involved in a shooting so you can't limit liability to physical injury/damage. That would probably require an AG opinion and some judicial intelligence (contradiction in terms, I know).

Anyway, fuel for the discussion.

Just a thought...

Does anyone dissagree that the right to keep and bear arms is a choice???

Some choose to do so, and do not necessarily force others to do so; yet those that choose to NOT to keep and bear arms are generally unfettered in infringing upon "our" choice...

So, when we champion the idea about removing an infringement upon our ability to keep and bear arms, against people who choose to not exercise that right, and they are the ones who feel compelled to manufacture an environment that is (in their crase opinion) a level playing field...I choose to side on the part of passing a law that removes a private entities ability to criminalize, or allow them to put your life, liberty and the pursuit of happiness at extreme risk...And make them liable for any injuries or deaths as a result of their position...

A question you have to ask is this...

"How is my (and others) ability "and choice" (licensed or not) in carrying a firearm for lawful, self-defensive purposes, anywhere I deem it personally and reasonably necessary to do so, impacting anyone else, whether they agree with me or not in doing so?"

(I'm waiting for the folks who will ask me, "Well that's just fine and dandy Steve, what happens when you reasonably determine that discharging that weapon in a self defensive act WILL impact others that are not exercising their right to keep and bear arms?")

I'll wait to see if anyone will bite on this one...