ALABAMA’S 2013 GUN LAW

A Business Guide

Edward A. “Ted” Hosp

thosp@maynardcooper.com

Alabama’s 2013 Gun Legislation

On May 22, 2013, Governor Bentley signed Senate Bill 286, the omnibus gun bill originally introduced by Senator Scott Beason.

The bill became Act 2013-283 and will become effective on August 1, 2013.

The bill prohibits businesses from restricting the possession and carrying of firearms onto the business's property in certain instances.

What Businesses Does the Law Effect?

ALL BUSINESSES(or nearly all)

The law will not impact: Businesses that only allow employees in their building

and do not provide employee parking; and Businesses that do not wish to restrict the possession of

firearms on their property.

The Four Major Business Provisions

The impact of the law will be felt in different ways by:

1) Businesses generally open to the “public” but with full-time security and some form of “other security features;

2) Businesses open to the “public” without full-time posted security and “other security features”; and

3) Employers that own and operate a parking lot for their employees.

The bill includes a strong civil liability immunity provision that is designed to protect businesses from lawsuits that result from harm caused when an employee brings a weapon onto the employers’ property.

Guns at Work – Employees

Don’t be confused:– An employer can always

prohibit an employee from

possessing a firearm inside the place of business and/or when the employee is engaged in the employers business.

– There are provisions (discussed later) that allow an employee to have a gun in his or her car.

Guns at Work – Non-employees

Section 6 of the Act lists certain places where guns are always prohibited:

– Police stations– Prisons and prison grounds– Courthouses– In-patient Mental Health facilities

Guns at Work – Non-employees

Subsection 6(b) states that a business may prohibit all persons, including those with a concealed weapons permit, from bringing a firearm inside any building or facility if:

"access of unauthorized persons is limited during normal hours of operation by the continuous posting of guards and the use of other security features, such as metal detectors, key cards, turnstiles or other physical barriers."

Security Guards & Other Security Features

Therefore, in order to completely prohibit firearms, the facility must have both:– Continuous posting of guards during regular

business hours, and – Some form of “other security feature” that

limits public access to the facility.

Security Guards & Other Security Features

The extent of the required “other security feature” or barrier is not clear from the law:

– Required “Visitor” Badge?– Locked inner door?– Velvet rope?– Security cameras?

Security Guards & Other Security Features

Posting Requirement:– If a business meets the requirements of Section 6(b)

and chooses to prohibit weapons on the property, the owner is required to place a notice that weapons are not permitted at the public entrances to the premises.

Section 6 and Parking Lots

Section 4 of the Act was intended to allow employees to have weapons in their cars in employee parking lots.Section 6 uses the term “inside any building or facility” to describe the areas where gun possession may be prohibited. Does Section 6 allow prohibition of a weapon in certain parking lots that meet the requirements of a guard and “other security feature”?

– Underground parking garages with an attendant– Separate parking lots with guards and a gate

Section 6 and Parking Lots

Underground parking garages with an attendant– An underground lot with a guard and a gate would

likely qualify under Section 6, because the underground lot is “inside [the] building or facility.”

Separate parking lots with guards and a gate– A closer call. Whether guns may be prohibited in

certain types of employee parking lots likely turns on the meaning of “facility.”

• Note: elsewhere in the Legislation when the intent was to prohibit weapons on the entire subject property, the term “premises” was used.

Businesses Without Guards & Other Features

Prior Alabama law prohibited any person from carrying a pistol onto property that he or she did not own.

– This provision had been called into question and was rarely (if ever) enforced.

SB286 allows a person to possess a pistol on someone else’s property if the person

– has a concealed weapons permit or – the consent of the owner.

Businesses Without Guards & Other Features

A business that allows members of the public access to its building and does not have guards AND other security features:– may prohibit a person from openly carrying a

holstered pistol into the building.– may not prohibit a person with a concealed

weapons permit from carrying his or her concealed pistol into the building.

Businesses Without Guards & Other Features

Consent: Implied v. Express?– A business that wishes to prohibit openly

carried holstered pistols in its building should consider posting a sign stating that firearms are not permitted on the property.

– However, absent guards and other security features, a posted sign will not prevent a person with a concealed weapons permit from bringing his or her concealed pistol into the building.

Employer Owned Parking Lots

Subsection 4(a): REMEMBER– An employer can always prohibit employees from

bringing guns inside its facility, and can prohibit employees from carrying guns when the employee is engaged in the employer's work, whether on or off-site.

Subsection 4(b): HOWEVER– Prohibits an employer from restricting an employee

from having a firearm that is out of sight and in his or her locked vehicle under certain circumstances.

Who Can Have a Gun In Their Car?

An employee with a valid concealed weapons permit may have:

– A pistol or any firearm legal for hunting in Alabama (such as a shotgun or rifle),

– Out of sight, – In his or her locked car.

Who Can Have a Gun In Their Car?

An employee who does not have a concealed weapons permit is only permitted to have:

– an unloaded firearm– legal for hunting (and not a pistol)– out of sight – in his or her locked vehicle

BUT ONLY if the following additional conditions are satisfied:

Who Can Have a Gun In Their Car?

An employee without a concealed weapon permit may have an unloaded firearm (not a pistol) that is legal for hunting that is out of sight in his or her locked vehicle if:

– The employee has a valid Alabama hunting license; – It is hunting season;– The employee has not been convicted of any crime of

violence, nor any crime involving domestic violence, nor be subject to a domestic violence restraining order;

– The employee has not been committed to a psychiatric hospital;

– The employee does not have any prior documented incidents of workplace threats or violence.

What Can an Employer Ask an Employee?

If an employer reasonably believes that an employee is a risk of danger, the employer may ask the employee whether the employee has a weapon in his or her car. If the employee states that he or she has a weapon, the employer may take necessary steps to determine if the employee is in complete compliance with the law:

– Is the employee eligible to have a weapon at work?– Was the weapon was maintained in compliance with the

law?

What Can an Employer Do?

If the employee was not in compliance with the law– The employer may take disciplinary action against the employee.

If the employee is in compliance with the law– The employer may not take any action against the employee based

on the presence of the lawful gun.

Note that there may be other permitted reasons to discipline the employee that are unconnected to the possession of an complying gun in the employee's car.

– For example, if a threat of violence against a co-worker led to the discovery of a weapon, the fact that the weapon was maintained in compliance with the law would not prohibit the employer from disciplining the employee for the threat of violence.

What Can an Employer Do?

If an employer learns by a means other than inquiry that an employee possesses a weapon that is in compliance with the law

– the employer may not take any action against the employee based on the presence of the lawful weapon.

An employer is permitted to report an employee to law enforcement for a threat made, or where there is credible evidence that the employee has broken the law.

Employee Remedies

An employee terminated solely on the basis of the presence of a weapon that is in compliance with the law may bring an action for wrongful termination against the employer.

The employee can seek damages for lost wages and other lost benefits.

The employee cannot seek reinstatement.

Immunity for Businesses from Civil Liability

Section 5 provides broad-based immunity to employers from civil liability that could result from an employee bringing a weapon onto the property of the employer.

An employer, and the owner or possessor of the property on which the employer is located (a landlord)

“shall be absolutely immune from any claim, cause of action or lawsuit that may be brought by any person

seeking any form of damages that are alleged to arise, directly or indirectly, as a result of any firearm brought onto the property of the employer, owner or lawful possessor by an employee. . .”

Immunity – An Employer’s Duty

The presence of a weapon on the employer’s property “does not, by itself, constitute a failure by the employer to provide a safe workplace.”

An employer does not have any duty to inspect a parking lot, or any privately owned vehicle on a parking lot.

Immunity for Businesses from Civil Liability

Immunity does not extend to the “affirmative wrongful acts” of an employer that cause harm.

A denial of a Motion to Dismiss on immunity grounds is immediately appealable

The action in the trial court is automatically stayed pending resolution of the appeal.

Alabama’s 2013 Gun Law – A Business Guide

Edward A. “Ted” Hospthosp@maynardcooper.com

204-254-1077 (office)334-233-7157 (cell)

1901 Sixth Avenue North 2400 Regions Harbert Plaza Birmingham, Alabama 35203-2618 205.254.1000 Fax 205.254.1999 www.maynardcooper.com