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The Northwoods River News | Rhinelander, Wisconsin

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January 27, 2022

11/19/2011 7:30:00 AM
Questions of concealed carry liability surface on all sides

Richard Moore
Investigative Reporter


This past week, the Legislature's Joint Committee for Review of Administrative Rules dumped a contentious four-hour training requirement for a Wisconsin concealed carry permit, as promulgated in Department of Justice emergency rules, but controversy continues to swirl around the rules, particularly on issues of liability and reciprocity.

In addition to the time requirement for training, the committee eliminated a word test from the definition of "firearms safety and training course," booted a time requirement for firearms instructor training, squashed the need for the instructor's signature on the certificate, and jettisoned the need for instructor contact information on the certificate.

That satisfied concerns about legislative intent among gun-rights advocates, including the National Rifle Association, but it did not put disputes entirely to rest. Now some lawmakers on both sides of the issue, not to mention concealed carry instructors and attorneys, are weighing in on the potential liability risks, or lack thereof, that business owners might face if a concealed-carry-related incident occurs on their property.

Last week, Sen. Tim Cullen (D-Janesville) and Sen. Jon Erpenbach (D-Middleton) asked attorney general J.B. Van Hollen for a formal opinion on liability risks for property owners related to Wisconsin's concealed carry law.



The liability issue

Here's the issue in a nutshell: The law specifically provides immunity for any incident arising from a property owners' decision to allow concealed carry on his or her premises. 

Specifically, the law reads: 

"A person that does not prohibit an individual from carrying a concealed weapon on property that the person owns or occupies is immune from any liability arising from its decision. ... An employer that does not prohibit one or more employees from carrying a concealed weapon ... is immune from any liability arising from its decision."

If someone gets shot, in other words, the business owner is not liable.

However, the law allows business owners to post "no guns allowed" signs, thereby prohibiting concealed carry. But what if someone posts such a sign and an incident occurs? Is that property owner liable? 

The law is silent on the question, and the answer depends upon whom you ask. Some certified concealed carry instructors say a business owner absolutely accepts liability if he or she decides to prohibit concealed carry. The logic is, in a business that doesn't prohibit concealed carry, every adult is responsible for his or her actions, and if a person fires a gun, that the person's responsibility and liability, not the business owner's.

But by posting a sign making people disarm themselves before entering a premise, the owner is explicitly accepting responsibility for that person's safety. In this view, if something happens to a customer forced by the owner to be defenseless, liability is on the business owner.

Opinions vary among attorneys. Some agree with the above perspective; others cautioned that the risks could vary. While ceding immunity for those allowing concealed carry, they said, potential risks for those who prohibit it would depend on circumstances. 

While businesses have some responsibility to maintain safe workplaces and to take reasonable actions to protect customers, in this viewpoint, the question boils down to whether a business could reasonably foresee that making patrons disarm might lead to their bodily harm. 

A court might decide that an owner was liable, for instance, if the store had been repeatedly robbed, or was located in a high violent-crime area. In that case, the risk might have been expected, and the owner liable. But most attorneys agree the courts will have to ultimately settle the question.

Not wanting to wait for the courts, Cullen and Erpenbach said the issue created enough confusion to seek out a formal attorney general's opinion. 

As they viewed the law, it contained twisted logic.

"We understand that the legislative intent of granting this immunity is to encourage property owners and employers to all allow concealed carry on their premises," the lawmakers wrote. "However on the face of it, the statute is counterintuitive and illogical."

To them the burden should be the other way around.

"It seems that if a business owner chooses to allow concealed weapons on their premises, they should have to take extra precautions to ensure the safety of employees and customers, not be given immunity," Cullen and Erpenbach wrote. "The law is silent on immunity for business owners who choose to prohibit concealed weapons on their premises, leaving the question open as to their liability for injuries caused by those weapons."

The issue raised a host of questions, they maintained. For example, for business owners prohibiting concealed weapons on the premises, exactly what types of liability claims could they be potentially exposed to if a customer pulls out a concealed gun and opens fire? Could the business owner be liable for any injuries? Did case law already exist on the question?

And, they continued, if a business owner allows concealed weapons, could that owner be liable for any shooting on his or her property, or does the statute offer blanket immunity?

Were there any circumstances in which a business owner could be held liable for injuries occurring as a result of allowing concealed weapons on the premises, for instance, if the business owner himself carried a concealed weapon and one day snapped and opened fire?

"These questions are of urgent importance to businesses employers and property owners in our districts," they wrote.

The lawmakers cited a concerned child-care center owner, as well a tavern owner opposed to concealed carry in the bar who nonetheless feared she might lose her business if she did not allow it and an incident occurred. 

"The law creates immunity for one group of people - those who choose to allow concealed weapons," Erpenbach said. "We are asking whether the law increases the liability for the other group of people - those who choose to prohibit concealed weapons. Business owners in our districts are pleading for guidance." 



Reciprocity

Reciprocity with other states is also causing anxiety. Reciprocity concerns which states will recognize a permit obtained in Wisconsin, and what permits will be recognized here.

Right now, the Wisconsin DOJ website lists 25 states whose permits would be recognized in Wisconsin. 

"Under (the law), DOJ is required to establish a list of states that issue a license to carry a concealed weapon, if that license requires, or designates that the holder chose to submit to, a background search that is comparable to the type of background check that DOJ is required to conduct for Wisconsin licensees," the DOJ website states. "The Wisconsin background check includes two components, a criminal history record search and a search of the national instant criminal background check system (NICS) operated by the Federal Bureau of Investigation." 

Any person who is at least 21 years of age, who is not a Wisconsin resident, and who holds a valid concealed carry license issued by any of the states on the 25-state list will be recognized in Wisconsin as an out-of-state licensee.

Still, the list excludes some fairly big concealed carry states, such as Florida, because of more rigorous background check requirements in Wisconsin. Wisconsin law mandates the NICS check for a permit, for example, and Florida does not.

Meanwhile, Van Hollen last week continued to support the four-training course requirement, and, before its vote, he cautioned the joint rules committee about the consequences of abandoning it, saying it could lead his agency to approve virtually every application received.

"The legislature's decision to require a 'course' - as opposed to a proficiency test or other method of qualification - is significant, because the law requires us to presume that the legislature chooses its words carefully and intends that they be given their plain meaning," Van Hollen said in testimony to the committee.

Van Hollen cited the dictionary to define 'course' as an educational unit consisting of a series of instruction periods dealing with a particular subject, or a series of such courses coordinated to constitute a curriculum.  

"Given the common meaning of 'course,' the language of the statute did not allow me to conclude that the training requirement can be satisfied by anything and everything that an instructor or organization might want to call a 'firearms safety or training course,' without any regard to the contours of that program," he stated. "If the 4-hour requirement is removed, DOJ will still be faced with implementing the undefined language of the concealed carry law, but will have to do so without any structure or guidance."  

Van Hollen cautioned that his agency might receive an application from a person who claimed to have taken a training course from an instructor certified by an academy not known to DOJ. His department would have to stop processing applications until new rules could be written to treat everyone fairly and consistently, he said, or DOJ would have to assign staff to follow up to gain the necessary information to determine if the applicant did indeed meet statutory requirements.

Neither of those options was viable, Van Hollen said.

"The first would create significant delay both because of the work that DOJ would be required to perform and because of the rulemaking timeline established by law," he said. "The second option is also unsatisfactory because (a) it would force applicants to guess as to what may be required; (2) it would be a time-consuming process and we don't have the staff to carry it out; and (3) there would be no uniformity, which would subject the state to a risk of legal challenges."

That left only a final option, he said: To process applications without any meaningful standards, in essence, accepting every application at face value without determining whether substantive and meaningful training had occurred.

The rules committee was unimpressed with that argument, however, voting 7-3 to eliminate the training time requirement.



Reader Comments

Posted: Monday, November 21, 2011
Article comment by: Tony Arten

The law is actually very clear and concise. Those property owners or operators who allow concealed weapons in their establishment will not be held liable if something occurs as a result. Example: a patron drops their weapon, it discharges, and harms another patron... the property owner or operator is not liable.

Just as simple is the fact that the law in NO WAY specifies additional responsibility or liability for the property owner or operator who does not allow concealed weapons. No where in the legislation does it state they are any more liable than in the past. In no place does Act 35 specify or state that a property owner or operator has more liability or responsibility than they did before this legislation was put in place.

At best, by stating that property owners or operators who do not allow concealed carry in their establishment now carry an increased liability, Gun proponents are reading into the legislation something that simply is not there.

At worst, they are using it as a threat in order to push their agenda on an unwilling owner or operator, and are trying to establish that their right to carry a concealed weapon reign supreme over all others, especially over property rights.

I have applied for a concealed carry permit. I plan to, at times, carry a concealed weapon. But I will also respect the right of a property owner to ask me not to bring a weapon on their property. That is their right, and I feel we all have the responsibility as community citizens to respect the rights of others without resorting to biased speculation and threats.




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