- March 13, 2014
Illinois’ Concealed Carry Act
The Impact On Businesses And Employers
While Illinois’ enactment of the Firearm Concealed Carry Act, 430 ILCS §66/1, et seq. (the “FCCA” or “Act”) has serious implications for business owners, it fails to address whether business owners can prohibit the carrying of firearms in their shops, offices or other workplaces by their employees, customers or visitors. The Act’s effect on the rights of business owners and employers has been widely misinterpreted in the news media and by legal commentators who have made incorrect statements asserting “businesses may prohibit firearms.” BWM&S attorneys were recently featured in the Chicago Daily Law Bulletin (“Concealed carry law lacks clarity on liability,” February 13, 2014) for highlighting misconceptions about the Act’s failure to address basic issues concerning the rights of business and property owners.
In Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), the United States Court of Appeals for the Seventh Circuit ruled that Illinois’ ban on the concealed carry of firearms was an unconstitutional restriction on an individual citizen’s right to carry firearms “in public” or “outside the home.” The Court did not address whether the Second Amendment guarantees an employee’s right to carry a weapon to work. Responding to the Court’s mandate, on July 9, 2013, the Illinois legislature enacted the FCCA, becoming the last state in the country to permit some form of concealed carry. In 2014, the Illinois State Police began accepting applications for licenses to carry concealed firearms in public, and permits are being issued.
Mechanics of the Act
Under Section 10 of the Act, an individual may apply for and obtain a license to carry a loaded, concealed firearm in public, after undergoing 16 hours of firearms training. 430 ILCS §66/10. The Act prohibits the licensee from carrying the firearm into certain “prohibited areas,” such as schools, courts, government buildings, hospitals, libraries, airports, and bars at which over 50% of the establishment’s gross receipts come from the sale of alcohol or on public transportation. Id. at §65(a)(1)-(23).
Signs indicating the prohibition against carrying firearms must be clearly and conspicuously posted (uniform 4x6 inches in size) at the entrance of a building, premises or real property specified as a prohibited area, unless the building or premises is a private residence. Id. at §65(d). The Illinois State Police has approved the signage shown on Page 1.
In all other places (i.e., non “prohibited areas”), a licensee can carry a concealed firearm unless the “owner of private real property … under his or her control” prohibits the carrying of concealed firearms on the property by posting the prescribed sign. Id. at §65(a-10). Even if a private property owner bans firearms on his premises, a licensee is permitted to store a firearm in a vehicle in the owner’s private parking lot if it is concealed in a case within the locked vehicle or if it is in a locked container out of plain view within the vehicle. Id. at §65(b).
Discretion for Businesses and Employers to Post Signage?
Many business owners and employers have incorrectly assumed (or have been incorrectly told) that they have discretion on whether to post and enforce the approved signage prohibiting firearms in their work places. However, the Act limits that decision solely to the “owner of private property … under his or her control.” 430 ILCS §66/65(a-10). It does not extend to business owners and employers who lease the spaces they occupy. Business owners and employers who want to ban firearms in their workplaces and are renting their business premises should obtain permission from their landlords to post the signage, and should try to negotiate for that permission in any lease, or any lease renewal, they enter into.
Even the above provision, which seems to give sign-posting power to the property owner, is inartfully drafted and leaves unanswered questions. For example, in a single-tenant storefront, the business renting the space does not “own” the private property and thus cannot post signage, but the owner, by virtue of renting its private property and relinquishing possession subject to the terms of the lease, arguably does not “control” the property (under traditional premises liability analysis) and thus also arguably could not post or approve the prescribed signage. The phrase “under his or her control” will undoubtedly be the subject of future litigation regarding the Act. In the interim, the best course of action for business owners or employers desiring to ban firearms from their leased premises is to combine the posting of the prescribed signage with a written authorization or direction from the owner/landlord to support the posting.
Can Employers Prohibit Employees From Carrying Firearms?
Another unanswered question is whether an employer, who does not own the property it occupies, may prohibit its employees as a term of employment from carrying firearms in the workplace. That is, do the terms of the Act trump an employer’s common law right to control lawful employee behavior in the workplace? The Act is silent on this point (unlike similar laws in other states) and provides no guidance as to the rights of employers. Proponents of concealed carry will argue that such a decision again rests solely with the “owner of private property.” We think it is likely that employers ultimately will prevail in retaining the right to control working conditions and the conduct of their employees in the workplace, but the Act’s failure to deal with the issue means it will probably be resolved through litigation between (and at the expense of) private parties. Even if the right of the employer to control its workplace is upheld, the right would not extend to its customers or visitors without owner-approved signage.
Liability Risks of Allowing
Unlike states such as Wisconsin, Illinois’ passage of the FCCA did not include an immunity provision to protect private property owners (and/or businesses) that allow concealed carry in their premises. Property owners, employers and/or businesses that control the decision to permit concealed carry and allow it face an increased risk of safety concerns and potential liability for, among other things, premises liability and the risk of workplace violence. Therefore, from a strict liability standpoint, prohibiting firearms and enforcing the prohibition is probably the best practice.
The ambiguities surrounding the FCCA, and the restrictions on who is allowed to prevent the carrying of concealed firearms in space they occupy, has left businesses and employers in a difficult situation. Business owners and employers need to understand the Act and decide how to address its implications and effect with regard to customers, visitors, and employees.
The article was prepared by Jeff Warren and Alex Marks. Jeff can be reached at 312/840-7020 / firstname.lastname@example.org. Alex Marks can be reached at 312/840-7022 / email@example.com.