PDA

View Full Version : Armed FFL employees


SDProtection
10-16-2010, 7:34 AM
The conversation came up the other day about "where" an employee can be armed while at work. Can they be armed walking through the parking lot, from their vehicle to the door of the shop? What about taking the trash out? Basically, we all know they can openly carry in the shop, but where is the line for "business property and public property?

Our shop is in a commercial building that has a large parking lot but also has other tenants in the upper floors. So therein lies the question about where on the property is ok to carry....

anyone have any experience or guidance on this?

Thanks!

Capt_Communist
10-16-2010, 8:20 AM
What I did was to have my employees carry inside only... occasionally we went outside to do whatever and we didn't get any hassle from the local LEO because they figured the parking lot is business property and we were good to go.

I'd suggest talking to the other businesses in the building and see if they're gun friendly, so they don't call the cops and make a big stink.... my other businesses were super cool cause the area tended to have less issues with a gun shop around.

Good luck

blueviper
10-16-2010, 11:01 AM
Parking lot is a "private property"

Turo
10-16-2010, 11:24 AM
Parking lot is a "private property"

It may be privately owned, but if it's accessible to the public then it's not legal to carry a firearm there any more than across the street.

The only time employees can carry firearms loaded and either exposed or concealed is if they are inside their businesses walls or in a closed, fenced-off, area.

dachan
10-16-2010, 12:32 PM
The conversation came up the other day about "where" an employee can be armed while at work. Can they be armed walking through the parking lot, from their vehicle to the door of the shop? What about taking the trash out? Basically, we all know they can openly carry in the shop, but where is the line for "business property and public property?

Our shop is in a commercial building that has a large parking lot but also has other tenants in the upper floors. So therein lies the question about where on the property is ok to carry....

anyone have any experience or guidance on this?

Thanks!


Besides where you plan to carry, like having a CCW, you should also ask whether you or your employees are willing and qualified to use the firearm should the need arise, and whether your business is prepared to handle the resulting liability, legal and other issues should a firearm be used.

spencerhut
10-16-2010, 1:21 PM
Good thing we have the entire property fenced off. My business neighbors like that we all carry, makes them feel safer when we are around.

inbox485
10-16-2010, 1:31 PM
Parking lot is a "private property"

There is a member that doesn't post often anymore that learned the hard way that those protections won't cover you in court (for now at least).

tube snake boogie
10-16-2010, 10:16 PM
It may be privately owned, but if it's accessible to the public then it's not legal to carry a firearm there any more than across the street.

The only time employees can carry firearms loaded and either exposed or concealed is if they are inside their businesses walls or in a closed, fenced-off, area.

I don't think so. that is like saying you cannot carry a weapon on the parking lot of your home cause the mailman or Avon lady can walk on it to knock on your door.
what statute or case law do you cite to support your position, or are you just guessing/assuming?

Librarian
10-16-2010, 10:29 PM
I don't think so. that is like saying you cannot carry a weapon on the parking lot of your home cause the mailman or Avon lady can walk on it to knock on your door.
what statute or case law do you cite to support your position, or are you just guessing/assuming?

You need to become familiar with the peculiar case of People vs Overturf. See the wiki entry: http://wiki.calgunsfoundation.org/index.php/Unlicensed_Concealed_Carry

paul0660
10-16-2010, 10:32 PM
that is like saying you cannot carry a weapon on the parking lot of your home cause the mailman or Avon lady can walk on it to knock on your door.

It sure is. Stick around, you will learn a lot.

jtmkinsd
10-16-2010, 10:49 PM
You need to become familiar with the peculiar case of People vs Overturf. See the wiki entry: http://wiki.calgunsfoundation.org/index.php/Unlicensed_Concealed_Carry

In reading this and pondering the OP's question, "employees" are not authorized to carry at work because they have no "...proprietary,
possessory, or substantial ownership interest in the place"...right? Unless they have a concealed carry permit?

That is, if your business is "open to the public"?

pullnshoot25
10-16-2010, 10:51 PM
You need to become familiar with the peculiar case of People vs Overturf. See the wiki entry: [url]http://wiki.calgunsfoundation.org/index.php/Unlice

In reading this and pondering the OP's question, "employees" are not authorized to carry at work because they have no "...proprietary,
possessory, or substantial ownership interest in the place"...right? Unless they have a concealed carry permit?

Correct.

BillCA
10-17-2010, 12:11 AM
In reading this and pondering the OP's question, "employees" are not authorized to carry at work because they have no "...proprietary,
possessory, or substantial ownership interest in the place"...right? Unless they have a concealed carry permit?

That is, if your business is "open to the public"?

Unless said employees can exclude persons from the business and/or control the activities of the business. This means if the employees can tell any person(s) to leave and can control the activities -- such as refusing to service customers, make appointments, open or close the store, direct others, etc. -- then they have a possessory interest.

Questions for Lawyers:
1. How far from a public thoroughfare (street, sidewalk, etc.) is considered a "public area"? Can you be charged with CCW in your huge front yard when standing 800 ft from a public access point?

2. If the above answer is "yes" because that is a "public place" as referenced by statutes, then may a gov't body legally use that same 800 ft position to post a "public notice", as required by statute, and satisfy the requirement of posting the notice? If not, why is it different?

pullnshoot25
10-17-2010, 2:33 AM
Unless said employees can exclude persons from the business and/or control the activities of the business. This means if the employees can tell any person(s) to leave and can control the activities -- such as refusing to service customers, make appointments, open or close the store, direct others, etc. -- then they have a possessory interest.

Questions for Lawyers:
1. How far from a public thoroughfare (street, sidewalk, etc.) is considered a "public area"? Can you be charged with CCW in your huge front yard when standing 800 ft from a public access point?

2. If the above answer is "yes" because that is a "public place" as referenced by statutes, then may a gov't body legally use that same 800 ft position to post a "public notice", as required by statute, and satisfy the requirement of posting the notice? If not, why is it different?

Not quite. A gate has to be involved for your line of thinking to be valid.

SDProtection
10-17-2010, 11:07 AM
In reading this and pondering the OP's question, "employees" are not authorized to carry at work because they have no "...proprietary,
possessory, or substantial ownership interest in the place"...right? Unless they have a concealed carry permit?

That is, if your business is "open to the public"?

I don't have the case law to back this up, just going off of what I have been told by other FFL's. (obviously we need to get a legal answer) Anyway, I have been operating under the impression that it since I am the owner, and the business is MY property, (at least the inside is) I can allow anyone I want to be armed. I thought I had read that FFL's were actually given this right somewhere, but I cannot recall where, so I am digging. anyway, any legal input would be helpful both as to "where" and "who" can carry in the shop and parking lot/trash areas.

EDITED: I just found this:
(Penal Code 12026, 12031(h) and (l).) Any person engaged in any lawful business (including
nonprofit organizations) or any officer, employee, or agent authorized for lawful purposes connected
with the business may possess a loaded firearm within the place of business if that person is
over 18 years of age and not otherwise prohibited from possessing firearms. (Penal Code 12026,
12031(h).)

jtmkinsd
10-17-2010, 11:25 AM
I think this is where it can get sticky...

The Legislature responded to the Melton decision (206 Cal.App.3d 580) by amending
Penal Code section 12026 to provide that a person may carry a concealable weapon
"either openly or concealed" in his or her place of business or residence.fn. 1
The Legislature also enacted an accompanying statement of purpose: "The purpose
of enacting this measure is to abrogate the holding in People v. Melton,
206 Cal.App.3d 580, insofar as that decision [234 Cal.App.3d Supp. 20] purports
to require the issuance of a concealed weapons permit in order to carry a pistol,
revolver, or other firearm capable of being concealed upon the person, whether
openly or concealed, within the places mentioned in Section 12026 of the Penal
Code, by an individual who has a proprietary, possessory, or substantial ownership
interest in the place." (Stats. 1989, ch. 958, 2, No. 8 West's Cal. Legis.
Service, pp.2988-2989 [No. 5 Deering's Adv. Legis. Service, p. 3340].)

The legislative statement of purpose makes clear that an employee must have a
possessory interest in his or her workplace in order for that workplace to be
considered the employee's "place of business" under section 12026. Only those
employees who have the right to exclude others from their workplace, and the
right to control activities there, may carry concealed weapons at work without
a permit or license.


I can see a DA having all kinds of fun with these restrictions. The "public" areas of the store? The "possessory interest" needed...A legal opinion would be nice...but in the end, it wouldn't mean you wouldn't have a gigantic headache on your hands if something went wrong. :(

tube snake boogie
10-17-2010, 2:55 PM
You need to become familiar with the peculiar case of People vs Overturf. See the wiki entry: http://wiki.calgunsfoundation.org/index.php/Unlicensed_Concealed_Carry

Interesting Decision in 1976. One wonders if the result would be the same now, given that in 1970s the CASC held the death penalty cruel and unusual punishment.
Thank goodness I live within a fenced and gated community. Ironic how those that do have "greater" second amendment rights than apartment/condo dwellers and the like.

Librarian
10-17-2010, 7:30 PM
So, my summary of the law and the case law runs this way - note there are those who disagree, and without a clarifying judicial opinion, my summary is just free electrons ...

(1) and (2) apparently are simply true.
1) owners or those with possessory interest can carry concealed and loaded inside their very own businesses.

2) with the permission of an owner, as (1), employees in that business may possess loaded handguns. Possess, however, does not necessarily include carry.

3) I think (1) and (2) combined allow employees OPEN LOADED carry but not concealed carry.

Without CCW, all 3 apply only inside the lockable doors of the shop - not sidewalk or parking lot or taking trash out back.

Seems to me that I recall River City in Sac, back in the 70s, had a locked front door; one had to knock for admission. And every staff person inside was open carrying.

I spent an hour or two on Lexis some time back, and I could not find any opinions on point.

ElectronWrangler
10-17-2010, 8:54 PM
AAA Sporting Goods in Vallejo has a locked door that you have to be buzzed through. Everyone inside is carrying.
EW

Capt. Speirs
10-18-2010, 8:03 AM
Parking lot is a "private property"

Check for school zone!

paul0660
10-18-2010, 11:48 AM
Thank goodness I live within a fenced and gated community

Unless yours is the only family living in that gated area, once you step outside your door you are in a public accessible area.

inbox485
10-18-2010, 3:47 PM
I don't think so. that is like saying you cannot carry a weapon on the parking lot of your home cause the mailman or Avon lady can walk on it to knock on your door.
what statute or case law do you cite to support your position, or are you just guessing/assuming?

Me thinks you have some homework to do. There are lots of private properties that are still public places.

pullnshoot25
10-18-2010, 5:56 PM
I don't think so. that is like saying you cannot carry a weapon on the parking lot of your home cause the mailman or Avon lady can walk on it to knock on your door.
what statute or case law do you cite to support your position, or are you just guessing/assuming?

It is written into the code as to what defines a public or private space.

Do thy homework.

BillCA
10-19-2010, 2:53 AM
It is written into the code as to what defines a public or private space.

Do thy homework.


Good luck on that.
I've tried searching most of the applicable codes and even CCR for a definition of "public place". Nada. Zip, Zero. Zilch. If someone knows where it resides, a code & section number would be good.

pullnshoot25
10-19-2010, 7:49 AM
It is written into the code as to what defines a public or private space.

Do thy homework.

Good luck on that.
I've tried searching most of the applicable codes and even CCR for a definition of "public place". Nada. Zip, Zero. Zilch. If someone knows where it resides, a code & section number would be good.

If I get to it before librarian posts, then I will post it up.

inbox485
10-19-2010, 9:56 AM
Here's a couple. Case law on left. My rantings and annotations on right. Relevant code references within.

https://docs.google.com/Doc?docid=0AX9Wq5IwKUx5ZHh2NHFqaF8xMGZod24zcmZw&hl=en
https://docs.google.com/Doc?docid=0AX9Wq5IwKUx5ZHh2NHFqaF8zZnYzZjQ3Zjk&hl=en

BillCA
10-20-2010, 12:31 AM
Here's a couple. Case law on left. My rantings and annotations on right. Relevant code references within.

https://docs.google.com/Doc?docid=0AX9Wq5IwKUx5ZHh2NHFqaF8xMGZod24zcmZw&hl=en
https://docs.google.com/Doc?docid=0AX9Wq5IwKUx5ZHh2NHFqaF8zZnYzZjQ3Zjk&hl=en

The first document deals with a public sidewalk (an easement) and not the issue of typically understood private property. I would expect that any part of the property that is publicly maintained by a .Gov agency would legally be public property or a public place.

The 2nd document was not accessible using your credentials.

The oxymoron here is that the courts claim you must have a possessory interest in the property -- i.e. the ability to use it to the exclusion of others -- which seems to imply that your front lawn is not a public place because you may exclude others from it (602pc).

The additional silliness is when courts claim that a fence and gate are required to show this exclusion. In so far as I can determine, said gate does not need to be locked to exclude others.

It seems that the .gov wants it both ways. Your front yard or parking lot is your property, your responsibility, your liability, yet, you may not enjoy it to its full benefit -- i.e. wearing your holstered pistol while mowing the lawn -- because it forms a "public place". This strikes me as a subtle 5th amendment violation in that it "takes" your property rights and devalues your property. If one's property is 850 feet from curb to doorstep, does this mean anywhere on the front property is a "public place"?

inbox485
10-20-2010, 8:07 AM
The first document deals with a public sidewalk (an easement) and not the issue of typically understood private property. I would expect that any part of the property that is publicly maintained by a .Gov agency would legally be public property or a public place.

The 2nd document was not accessible using your credentials.

The oxymoron here is that the courts claim you must have a possessory interest in the property -- i.e. the ability to use it to the exclusion of others -- which seems to imply that your front lawn is not a public place because you may exclude others from it (602pc).

The additional silliness is when courts claim that a fence and gate are required to show this exclusion. In so far as I can determine, said gate does not need to be locked to exclude others.

It seems that the .gov wants it both ways. Your front yard or parking lot is your property, your responsibility, your liability, yet, you may not enjoy it to its full benefit -- i.e. wearing your holstered pistol while mowing the lawn -- because it forms a "public place". This strikes me as a subtle 5th amendment violation in that it "takes" your property rights and devalues your property. If one's property is 850 feet from curb to doorstep, does this mean anywhere on the front property is a "public place"?

No idea what is wrong with the second link. It is set to share with everyone, but it isn't working that way. The case was:
People v. Overturf , 64 Cal.App.3d Supp. 1
In a nut shell, it covers the differences between "have" and "carry" in 12025 and 12031.

Librarian
10-20-2010, 9:58 AM
Already posted the link to the Wiki UCC article (http://wiki.calgunsfoundation.org/index.php/Unlicensed_Concealed_Carry#Semi_Public_Places_Rest rictions) and it has the links to Overturf, Yarbrough and Strider.

There's no general definition of 'public place' for firearms in PC; there are a couple of sections where 'public place' is defined for other things.

tube snake boogie
10-20-2010, 7:58 PM
It is obvious that a Public Place will depend upon the facts and circumstances, and of course the justices who are hearing the case at that time (funny how that works). I tend to believe that the 1976 Overturf decision is overly broad (note no other court has broadened it to a SFR, and it is an old case ripe for reconsideration) and that if anyone CC in their front yard of a SFR (not an apt), I am confident that would be fine.
Now, commercial property, which is what a store or an apartment is, a sidewalk which is public property, etc., is really a different story.
I'd be willing to bet on it, I do everyday...:19:

cheers!

JeffM
10-20-2010, 8:14 PM
If someone is in the parking lot, can you tell them to leave? If they do not leave, can they be arrested for trespassing?

If the answer is yes, I'd hazard that it is private property enough.

Librarian
10-20-2010, 9:24 PM
If someone is in the parking lot, can you tell them to leave? If they do not leave, can they be arrested for trespassing?

If the answer is yes, I'd hazard that it is private property enough.

The current state of the law, shown in Overturf, suggests that that is not correct.

Stupid, of course, and I agree it ought to be revisited, but I think until we get a countervailing court opinion Overturf's very odd opinion controls.

!@#$%40
11-02-2010, 12:26 AM
ummmm how about take the loaded mag out and empty the chamber and do your bizz outside the place of bizz (smoke, throw garbage, go get something out of your car or whatever) we are however an open carry state right?

donbing
11-02-2010, 1:06 AM
[QUOTE=Librarian;5143438] post #18
Seems to me that I recall River City in Sac, back in the 70s, had a locked front door; one had to knock for admission. And every staff person inside was open carrying.

River City Gun Exchange opened in 1997. I was still riding a bike to 7th grade and the only gun I owned was a Daisy model 25 in .17 roundball at the end of the '70's. Maybe you're thinking about Old Sacramento Armoury or Simm's or Christie's. David's Pawn in downtown Sacto used to buzz you in up until around 2005 but I think they're gone now.

Don @ River City

Librarian
11-02-2010, 11:58 AM
[QUOTE=Librarian;5143438] post #18
Seems to me that I recall River City in Sac, back in the 70s, had a locked front door; one had to knock for admission. And every staff person inside was open carrying.

River City Gun Exchange opened in 1997. I was still riding a bike to 7th grade and the only gun I owned was a Daisy model 25 in .17 roundball at the end of the '70's. Maybe you're thinking about Old Sacramento Armoury or Simm's or Christie's. David's Pawn in downtown Sacto used to buzz you in up until around 2005 but I think they're gone now.

Don @ River City

Ha! Thanks, Don. That was a long time ago and obviously I forgot.