"Concealed carry" legislation and workplace violence: a nightmare in employers' liability?

• Author: Martin, Donnie E.

Suits claiming negligent hiring and retention are burgeoning, and the threat is increased when employees can carry guns

MOST EVERYONE has heard the news reports of the vindictive former employee who returns to work and kills the boss and a coworker, or the divorced spouse who stalks his former wife to her work place and suddenly opens fire. This is workplace violence at the extremes. Workplace violence accounted for 1,262 of the 6,210 work place fatalities recorded in 1995.(1)

The threat of workplace violence affects employers, employees and consumers. Some employers have established written policies on violence, assembled threat-assessment teams, implemented pre-employment screening practices, or utilized a variety of other procedures to protect the workplace and to limit their liability exposure.(2) In addition, companies have begun to provide specific services in an attempt to alleviate the dangers and costs associated with workplace violence. For example, some companies offer consulting services that present tips on defusing threats of violence.(3) There are insurance policies covering both victims of work place violence and their employers.(4) The hazards of workplace violence affect all employers and the recent wave of carry reform laws may make the risks even more intimidating.

In response to a demand to improve public safety, a majority of the states in the United States now issue licenses or permits that allow individuals to carry concealed deadly weapons.(5) Some states require the licensee to show a legitimate need to carry a concealed weapon, but most require only a lawful purpose, such as self-defense. The influence of "concealed carry" laws on an employer's liability for workplace violence is (or should be) a major concern for every business.

"CONCEALED CARRY" LEGISLATION

1. An Overview

   Forty-three states and the District of Columbia now have legislation that legalizes the concealed possession of handguns or other deadly weapons. Thirteen states, as well as the District of Columbia, allow an individual to obtain a permit or license to carry a concealed on a showing of some specific need. Efforts to further relax gun control laws have failed in at least two of these "may issue" jurisdictions. A proposal which would have made it easier to carry concealed weapons and change the state to a "shall issue" jurisdiction, was turned down in Minnesota.(6) Similar carry reform legislation stalled in Delaware, along with the promise of a veto from the governor.(7)

   Kentucky recently became one of 29 "shall issue" states, so called because their legislation typically obligates the issuance of a permit within a certain number of days if the applicant is not disqualified under the enumerated eligibility terms of the statute. Only seven states continue complete prohibitions against individuals from carrying concealed deadly weapons.

   Many supporters of "concealed carry" laws expect the laws to be effective in reducing the crime rate, because "lawfully armed citizens will use guns to thwart criminal attack."(8) Research by the National Institute of Justice indicates that criminals are less likely to attack a potential victim if the attacker believes the victim has or might have a concealed weapon.(9)

   Opponents argue that "concealed carry" laws "will lead to tragic increases in homicide" rates, an assertion supported by a study at the University of Maryland indicating that firearm homicides increased after the liberalization of concealed carry laws in four of the urban areas studied.(10)

   Most of the available research regarding the effects of concealed carry legislation reach conflicting conclusions. Advocates and opponents alike appear able to support nearly any plausible argument.

2. Kentucky

   Kentucky's new statute, KRS [sections] 237.110 et seq., became effective October 1, 1996. The new statute establishes detailed guidelines whereby qualified individuals may obtain a near unrestricted right to carry a concealed firearm or other deadly weapon "on or about his person" in any part of the state. If the applicant satisfies all the enumerated eligibility requirements, the Department of State Police "shall issue" a license.

   The statute requires the applicant to be (1) a current resident of the state and has been for at least six months prior to the application; (2) at least 21 years old; (3) not otherwise ineligible to possess a firearm as a convicted felon under federal or state law; (4) not been committed to a facility for the abuse of, or been convicted of a misdemeanor violation relating to, controlled substances within the previous three-year period; (5) not a chronical and habitual user of alcoholic beverages as evidenced by having two or more convictions for driving under the influence of alcohol within the previous three years or having been committed as an alcoholic under alcohol and drug abuse treatment laws within the previous three years; (6) demonstrates competence with a firearm by satisfactorily completing any one of four enumerated firearms safety or training courses; (7) not been adjudicated an incompetent or has waited at least three years from the date competency was restored by a court order; and (8) not been involuntarily committed to a mental institution or suffered from the disability for at least the previous three years.

   If applicant meet each of the eligibility requirements for a license, they then submit a completed application, as well as the appropriate licensing fee, to the sheriff of the county where they reside. There also are required to submit a color photograph and a certificate evidencing the completion of a firearms training course.

   Within 90 days after the receipt of the required materials, the Department of State Police must either issue the license or deny the application based solely on the applicant's failure to qualify under the above criteria. Denied applicants have a right to seek de novo review in court.

   Additional provisions of the statute authorize the revocation or suspension of the license on account of certain acts and state specific locations in which concealed weapons are prohibited.

   Kentucky's legislation is closely analogous to Florida's 1987 licensing law, which has served as a model for numerous "shall issue" statutes.(11) However, Kentucky's law is inferior to many other concealed carry statutes. For example, it fails to require an applicant to submit a full set of fingerprints, which is a requirement in Florida and North Carolina.(12) Many other states have more stringent qualifying factors.

   Another shortcoming of the Kentucky law is that no definition of the term "concealed weapon" is given. Other jurisdictions offer some guidance on this issue. As a consequence of this omission, it is foreseeable that considerable litigation may result regarding various subjective interpretations of the differentiation of what does and does not constitute "concealed." Finally, one remaining issue seems notably extraordinary with regard to the Kentucky law. The Kentucky Capitol consists primarily of three floors, each occupied by a branch of state government: the governor's office...