Conceal carry prompting liability questions
A man walks into a business and pulls a pistol, threatening chaos. Suddenly, an employee with his own gun intercedes, managing to wrestle the intruder down without firing a shot.
Who faces arrest?
The answer may surprise you, but both assailant and hero could be in for the third degree.
That’s one of many broad effects of a new state law allowing licensed concealed carry of firearms in Illinois. Such are the unknowns that it is likely to take many legal challenges to determine how the law will fare when it is finished rolling out later this year.
“Is a person at risk of arrest for carrying a weapon where it’s not permitted? The answer is yes. Unlike some states, it is a misdemeanor for any person with a concealed-carry license to enter a premises with a concealed weapon if it’s been banned at the premises,” said Todd Sivia, an attorney in Edwardsville.
Sivia spoke to a large group of businesses recently in a session sponsored by the Illinois Small Business Development Center at Southern Illinois University Edwardsville.
Judging from the questions of his audience, the issue of a gun-toting society weighs heavily on the minds of employers. They wonder not only about their workplace but the places they send their employees, who often go into the field to perform their jobs.
Sivia, who grew up in a small-business family and specializes in the subject as an attorney, outlined the new law and answered a score of questions, some with admittedly more clarity than others.
The law went into affect Jan. 1 and immediately attracted thousands of applications for permits, which are now being processed by Illinois State Police. Conceal-carry firearms classes, which are mandated as part of the process, are drawing crowds.
Guns must be concealed on a person, or if prohibited at a site, left safely locked in a vehicle outside the location.
All permit holders must have completed an application, have valid Firearm Owners Identification Card, pay relative fees, have a driver’s license or state ID and have 16 hours of classroom and range training. The licenses must be carried by the permit holder.
To be licensed, applicants are fingerprinted and must pass a background check. They must not have a felony or violent criminal record, nor have failed a drug test, nor have two or more alcohol- or drug- related driving convictions, among other requirements.
Guns are prohibited from government buildings, schools, libraries, hospitals, entertainment venues, nursing homes and public transit facilities. Alcohol-serving establishments are also banned if more than 50 percent of their gross receipts in the previous three-month period were from alcohol sales. That would rein in most bars but restaurants would be a more open question.
Guns are also prohibited from events that are public-permitted, like town homecomings, and from licensed gaming establishments, including casinos and newly licensed video parlors and fraternal organizations.
Every business, whether on the prohibited list or not, must post a sign if the intention is to ban weapons. The sign must be 4 inches by 6 inches on every door providing access, including loading docks. (A sign template, showing a gun in a circle with a slash through it, is all that’s needed and easily obtained from the Illinois State Police website.)
Banks and churches are not among the entities automatically excluded.
“They are protected to a degree,” Sivia told the Illinois Business Journal. “They are allowed to call the police. If someone shows up with a gun and they have posted the sign, that individual would be charged with a misdemeanor. That is about it.”
Leased locations are also unique. Landlords, not tenants, have the choice, but any agreement should be written into the lease, Sivia said.
Vehicles are protected when it comes to gun storage.
“Whether you ban guns in your premises or not there is always going to be a safe harbor with regards to the parking lot,” Sivia said.
“When we look at parking areas you are safe around your vehicle. Think of it as a circle of protection around your vehicle. You walk away from you vehicle and you are away from your protected area. The idea is for someone who has a gun to get out of their vehicle and place the gun in their trunk. They should not walk away from the vehicle, if conceal carry is banned. Once they learn that it is banned, they will need to travel to their vehicle again and place the gun inside,” he said.
How a business handles its own employees is addressable in work policies, but there remain many questions about liability, and there are always going to be the odd cases. Sivia posed the scenario of a worker who discharged a weapon in the workplace, causing injury. The liability responsibility is likely to be determined in civil court, he said.
Injuries resulting from one employee shooting another employee, accidentally or otherwise, might trigger worker’s compensation coverage — but there’s no assurance of even that, Sivia said.
He recommends at the least that a company update its handbook and policies to reflect the new culture. Employers arguably can prohibit employees from carrying weapons, and post signage, but it still might not stop clients and vendors, he said.
And employees should be trained on their response, to avoid unnecessary panic. A waitress in a restaurant who alarmingly cries, “Gun!,” can cause the same reaction as the person who says “fire” in a movie theater, he said. He recommends building a crises plan into employee handbooks.
The law doesn’t limit liability of business owners who permit employees to carry. It also doesn’t absolve the property owner of a leased location.
“Unlike many states where they’ve set out the ground rules for employers, the state of Illinois has no ground rules (for liability). I can’t tell you if you’ll be liable. It’s going to be up to the courts to determine if you’re going to be liable or not,” Sivia said.
He advises businesses to enlist the advice of lawyers and insurers regarding such topics — and few insurance companies seem willing to specifically offer concealed carry coverage, he said. There might be coverage, however, within confines of an existing policy.
“There’s some due diligence that you as the owners of business or property need to do. You must do a little bit more digging in order to ease your mind that, yes, (liability) is going to be covered.”
The law basically covers handguns, which can be loaded or unloaded while carried. It does not include short barrel rifles, taser guns, paintball guns and the like.
Allen Keilman, a firearms instructor who participated in the session, said a simple conceal-carry violation, first offense, is a Class B misdemeanor punishable by up to 120 days in county lockup and a $2,500 fine.