Florida Business's Sue in Federal Court to Stop New Guns in Parking Lot Law

[MakAttak]

Much of this thread refers to corporate business, but most businesses are run by private individuals who owns that business. That makes it an individual's property, not corporate property. I don't think there's a good way to settle this as long as there are those with a phobia about handguns.

Actually, you are wrong. Even if it is owned by an individual most businesses are corporations. People do this to protect their assets.

As such, he has created a legal entitiy to own the property where business is conducted.

It is then argued that since he is using the law to shield himself from liability, he does not have free range to do whatever he desires with his legally created fiction.

I will be the first to say that in a sole proprietorship where the individual is taking all the risks, it is his property.

Most businesses, however, have limited liability.

 

[XDKingslayer]

Actually, you are mistaken. Property owners/employers have NEVER had the unrestricted ability to dictate their employees/invitees behavior. For example:

I must maintain handicapped parking places.
I must follow fire codes. I cannot lock my fire exits, I must maintain certain fire protection systems, etc.
I cannot require all female employees to perform sexual acts upon me in order to keep their job.
I cannot prohibit employees from wearing or even possessing clothes on my property.
I cannot require my employees to let me punch them when they pick up their paychecks.
I cannot discriminate against customers or employees on the basis of race, sex, creed, religion, or national origin.
I cannot refuse to sell my property to a person on the basis of race, sex, creed, religion, or national origin.
I cannot prohibit a handicapped invitee or employee from bringing a wheelchair or seeing eye dog on my property.

and on, and on. I am sure you get the picture. Property rights are not now, nor have they ever been, absolute.

You have many abilities and rights in your home that you do not have in your business. For example, you can prohibit persons of a certain race from entering, if you so choose. You do not have that right as a business owner. You cede certain rights when you open to the public. That is just the way it is, and always has been. The law is what it is, and all of the wishing in the world will not change hundreds of years of legal precedent.

All true, but none of this says they can't tell their employees that weapons are not allowed on the premises.

All the things you mentioned fall inside either safety laws or discrimination/harrassment laws. Weapons in the car do not. Big difference.

Office places do NOT protect their employees, employees have to protect themselves.

Again, true, but your right to protect yourself IS NOT greater than an employers right to tell you that you can't have your gun on his property.

Alot of people think their right to defend themselves is greater simply because they're gun owners.

What makes you feel your right to self defence is greater than an employers right to tell you that you can't have a weapon on HIS property? More than likely because you don't own a business, this doesn't impact you negatively so you could care less. That's not right.

That's what this all boils down to. As much as I would love to be able to leave my weapon in my vehicle, my employer still owns the property and the parking lot. My rights as an employee are neither greater or less than his.

Like I said, this law is unfair and borderline unconstitutional no matter how it plays out.

 

[divemedic]

The point was that a business/property owner has plenipotentiary power over all who enter his employees/property. Obviously that is not the case, and there are laws which restrict or even usurp the power of the owner. The constitutionality of this law from a property rights point of view is a non-issue.

I believe the OSH angle will also fail, as the argument made in support of the OSH point of view is a stretch. (Not even considering that the OSH is a larger invasion of property rights that this law will ever be)

This law is intended to balance the rights of two property owners, where their rights intersect. There is no black and white answer here. The law in question is a reasonable compromise that respects the rights of both without unduly placing a burden upon either.

This law allows the owner of a car to control what is on his property. It allows the owner of the business to control what is on his property. (The car owner's property starts/stops at the door to the car)

ETA:

All the things you mentioned fall inside either safety laws or discrimination/harrassment laws. Weapons in the car do not. Big difference.

How does a discrimination or harassment law have any more constitutional basis than this law?

 

[XD_fan]

Your all dancing around the real issue here. When a company prohibits weapons, in my mind at least, they automatically and immediately assume all responsibility from attack or violence in the work place. Should you come to harm in one of the these "restricted" areas then the entity doing the restriction has not done due diligence and is liable.

I left AT&T a few months ago and since I had nothing to lose I had this very conversation with the HR manager doing my exit interview. She was very nervous about the whole subject. She was adamant that this was all "legal and ethical" (interesting she felt it necessary to include ethics as a justification) and that these policies save lifes. When I asked the question about liability she said that it was a possibility but that a corporations deep pockets would ever keep someone from ultimately winning a case like this. The direct question of "is a company liable for your safety while at work?", drew a response of absolutely. Then she qualified it by saying someone bringing in a weapon was a different story, "since we have no way to prevent someone from doing something like that."

So to me this is all a house of cards that is starting to come apart. Hence my previous comments about how this will continue until some sues the crap out of company after they get hurt in a "restricted" area. These companies can't have it both ways. Either they can't restrict your right to life or they are responsible when they do exactly that.

 

[blackcash88]

I have free speech on my own land, but I can't tell my housekeeper she looks mighty sexy today.

Why not? It's not like it's a workplace sexual harassment thing. What recourse would she have other than to just leave? Same thing if I referred to someone of color with a racial slur. It's not illegal.

But, remember, if you employer finds out you have a gun in your car, they can always just find another reason to fire you. Downsizing, eliminate the position, etc.

 

[MechAg94]

Quote:
Even at our corporate office, parking is in a 3rd party lot, yet the company still maintains a no weapons policy. If they ask to search your vehicle and you refuse, it is grounds for termination per policy. They acknowledge it may not be illegal, but it is still against policy.
And you find it acceptable?

It would not be a very large stretch for your company to terminate you for owning any firearms at home or otherwise. After all I am sure they don't want you owning any firearms anywhere if you should become upset at management.

Never said I liked it. It is just the way it is. As I said, I know of no other place to work that has a different policy unless it would be some small business engineering outfit. Texas is a right-to-work-state. They can terminate me for no reason at all. I can also quit anytime I want. I have no idea if this type of thing has been tested in court. I doubt anyone has tried.

 

[thorn726]

given the number of auto break ins where i live

this is a bogus law. CCW people should be allowed to carry outright. making you put the gun in the car doesn't seem like that much help to me, although i understand it is an improvemnt of the current situation, it is not a real solution.

by the end of a year, if 20 guns are stolen out of cars, it will open a whole other can of legal worms

 

[GEM]

All the things you mentioned fall inside either safety laws or discrimination/harrassment laws. Weapons in the car do not. Big difference.


Most of the antidiscrimination/harrassment laws are the direct descendants of using the BOR to shut down racist or sexist buttwipes. A law preventing an employer from banning you having a gun in your private vehicle is clearly based on a similar reading of the 2nd Amendment.

Some businesses have tried to ban folks wearing large crosses as disruptive to business. They may or may not have a point about that.

However, banning a large cross in your glove compartment that you could put on later would not pass muster.

The same rationale applies to firearms in your vehicle.

Like I said before - if your property is so private that you think you are King Poop of the Castle - why should tax payer money be spent on putting out a fire? Let the Castle of King Poop burn. The fire department should only prevent the sparks from the manse of King Poop from spreading to the houses and businesses of the common folk. If you are King - don't have a business open to the public or only hire your family.

 

[blackcash88]

I wonder if SCOTUS recognizes the 2A as an individual right if military members would be allowed to have firearms in their car at work if they lived off base. A LOT of military bases, especially Naval ones, are located in less that desirable areas.

Wonder how it would pan out for that azzhole General in Alaska that prohibited Army members under his command from carrying at all.

 

[XDKingslayer]

How does a discrimination or harassment law have any more constitutional basis than this law?

Good point.

I would say simply because of existing case law. It's already been established harrassing someone or not hiring because of their skin color, etc. is bad. There is no case law to support that my right to self defense is greater than a businesses right to tell it's employees what they can't do on it's property.

Most of the antidiscrimination/harrassment laws are the direct descendants of using the BOR to shut down racist or sexist buttwipes. A law preventing an employer from banning you having a gun in your private vehicle is clearly based on a similar reading of the 2nd Amendment.

Some businesses have tried to ban folks wearing large crosses as disruptive to business. They may or may not have a point about that.

However, banning a large cross in your glove compartment that you could put on later would not pass muster.

The same rationale applies to firearms in your vehicle.

Does the same rationale apply? Then explain the smoking ban? My company can legally tell me that I can't smoke in their building...what's the difference between that and guns other than a smoker can keep their smokes out in their car?

 

[blackcash88]

Because ciggies aren't dangerous and cannot be directly used to kill people other than the idiot smoker over time.

 

[divemedic]

But there is case law on this. The Takings Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment, provides that private property shall not be taken for public use without just compensation. The Takings Clause does not prohibit the taking of private property but instead places a condition on the exercise of that power. It is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.

The "paradigmatic" taking is a direct government appropriation of private property. In addition to outright appropriation of property, the government may effect a taking through a regulation if it is so onerous that its effect is tantamount to a direct appropriation, this is known as regulatory taking. see Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 536, 125 S. Ct. 2074, 161 L. Ed. 2d 876 (2005).

In Lingle, the Supreme Court provided a framework for addressing regulatory takings. First, a court must determine if the regulation results in one of three types of "per se" regulatory takings. These occur (1) where a regulation requires an owner to suffer a "permanent physical invasion" of the property; or (2) where a regulation completely deprives an owner of "all economically beneficial uses" of the property; or (3) a government demands that a landowner dedicate an easement allowing public access to her property as a condition of obtaining a development permit.

This law does not deprive owners of all economically beneficial uses of their property, but does result in an unwelcome physical invasion onto a business owner's property by individuals transporting and storing firearms in their vehicles. It is apparent the invasion onto Plaintiffs' property is unwelcome because Plaintiffs have corporate policies preventing this. see Loretto v. Teleprompter Manhattan CATV Corporation, 458 U.S. 419, 434-35, 102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982)

The Supreme Court first carved out the category of per se physical takings. In Loretto, the Court distinguished temporary physical "invasions" from permanent physical "occupations." The Court made clear that not every limitation on the right to exclude is deserving of per se treatment, notwithstanding the importance of the right to exclude in the bundle of property rights. The court ruled that an invasion is temporary, while an occupation is permanent.

A physical occupation, as defined by the Court, is a permanent and exclusive occupation by the government that destroys the owner's right to possession, use, and disposal of the property. see Boise Cascade Corp. v. United States, 296 F.3d 1339, 1353 (Fed. Cir. 2002)

The laws we are talking about here do not force any permanent "physical structure" on an owner's property. Instead, they force an unwanted physical invasion by third parties engaging in an unwanted activity. The invasion itself is not "permanent" because the individuals engaging in the unwanted activity (guns in cars) do not remain on the property at all times, as would an actual physical structure. Nor does this law cause a "permanent" invasion by the government vis a vis a particular parcel of property, such as the public bike paths at issue in public easement cases. In those cases, even if no person ever chose to ride his bike across a public path, there is nevertheless governmental intrusion because that particular parcel of land is stripped of its right to exclude.

If no individuals choose to engage in the activity of transporting firearms in vehicles, landowners will not suffer unwanted invasions. It is therefore hard to classify the invasion caused by this law as "permanent" for purposes of a takings analysis.

See Pruneyard Shopping Center v. Robins, 447 U.S. 74, 82, 100 S. Ct. 2035, 64 L. Ed. 2d 741 (1980) (analyzing California constitutional provision permitting individuals to exercise free speech rights on private property against the wishes of the private property owner under a balancing test); Cienega Gardens, 331 F.3d at 1337-38 (applying Penn Central test to regulation that forced landlords to allow a "physical invasion" of their buildings by certain unwanted tenants); Boise Cascade, 296 F.3d at 1357 (holding that government official's periodic intrusion onto private property for purpose of conducting owl surveys over a period of five months was not a per se taking and must be analyzed under Penn Central test).

 

[sojournerhome]

Sigh. If someone comes in spraying it's probably too late to get to my car...
But, then I don't keep anything in my car

 

[Hkmp5sd]

My company can legally tell me that I can't smoke in their building...what's the difference between that and guns other than a smoker can keep their smokes out in their car?

No. Your company can fire you for smoking in their building. It is not illegal to smoke in their building (excluding those banned by law, which is then the state, not your company doing the banning). It is also legal for you to keep smokes in your car. Does your employer have the right to fire you if you have smokes in your car on their property?

If you believe a property owner can prohibit you from having guns in your vehicle while parked on his property, then you believe that property owner has the ability to prohibit ANYTHING he wants from being inside your vehicle. His property. His rules.

My employer cannot legally prevent me from having a firearm in my car. He cannot prevent the general public from having a firearm in their car in the same parking lot. What he can do is fire me. Something the general public is not subject to.

 

[blackcash88]

Actually, some companies can fire you for smoking at home if they find out about it. Some companies now refuse to employ smokers at all and a new employee has to sign the policy. Scott's Lawn Care is such a company.

 

[Hkmp5sd]

The Takings Clause does not prohibit the taking of private property but instead places a condition on the exercise of that power. It is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.

So states that ban smoking in restaurants, bars and other locations are compensating those businesses for this intrusion into their private property?


Feds/States requiring businesses to have disabled parking, disabled access, disabled restrooms, etc are compensating those businesses for this intrusion into their private property?

A couple of weeks ago, the Florida Senate was debating a law on the amount of toilet paper a restaurant should be required to have in a restroom stall, including the appropriate penalty for violations. Another intrusion?

 

[F4GIB]

No one's "property rights" are absolute. Not mine, not yours. Get over it!

In law school they referred to "property" as a bundle of rights and relationships. The State gets to decide what is in the bundle. They always have (even in 1791) and the State always will.

 

[blackcash88]

No one's "property rights" are absolute.

Yup. Just try to claim your "property rights" by not paying property taxes. A never ending expense even if your mortgage is paid off.

I'm surprised no one has mentioned that the government can come in and farking steal your property for pennies on the dollar via EMINENT DOMAIN. It's happened in my state. Where's your "property rights" now?

 

[ConstitutionCowboy]

All true, but none of this says they can't tell their employees that weapons are not allowed on the premises.

All the things you mentioned fall inside either safety laws or discrimination/harrassment laws. Weapons in the car do not. Big difference.

All that is notwithstanding unless the law employed to create the company allows the company to limit what a person may keep within their vehicle. If, however, you are willing to accept the liability for what ever may occur on the property your company is situated on, you can keep personal possession of the property and simply rent space on it to your company. (Don't lease your property to your company because that places the property squarely under the control of the company and you lose control.) Now, when you say "premises", you include all buildings and etcetera, not just parking lots.

A business is considered a separate entity from those/whomever owns the business. Even if you are the sole owner, you may only do with your business as the law specifies. That is the price you pay for the protection a business provides. Even a sole proprietorship is not as free as you might think. Even though there is much less protection in the sole proprietorship, you still do not have free reign as to how you conduct business.

Woody

 

[ConstitutionCowboy]

Brainstorm: If a company is concerned about the liability of having arms stored in employee vehicles in their employee parking lots, the company can lease spaces to their employees. One Dollar a year ought to cover it.

Woody

 

[mekender]

how about we just start a push to get gun owners declared a protected class just like race, sex and religion... then we wouldnt have to have this debate

 

[divemedic]

So states that ban smoking in restaurants, bars and other locations are compensating those businesses for this intrusion into their private property?

No. Read the entire post:

In Lingle, the Supreme Court provided a framework for addressing regulatory takings. First, a court must determine if the regulation results in one of three types of "per se" regulatory takings. These occur (1) where a regulation requires an owner to suffer a "permanent physical invasion" of the property; or (2) where a regulation completely deprives an owner of "all economically beneficial uses" of the property; or (3) a government demands that a landowner dedicate an easement allowing public access to her property as a condition of obtaining a development permit.

none of the situations you mention do that.

 

[dalepres]

The Oklahoma decision will never stand for several reasons. It is based on a flawed theory of federal preemption; i.e., the idea that federal law trumps state law. There is no federal law or regulation which bans guns from the cars of employees so there is no direct conflict. The court in Oklahoma apparently used the legal principle that there is federal preemption if federal law so occupies a particular field, that it leaves no room for state law.

Actually, the federal court in Tulsa invoked OSHA regulations to toss out the law based on guns being unsafe in the workplace. So they didn't claim a preemption that didn't exist, they claim that the preemption did exist.

Even at our corporate office, parking is in a 3rd party lot, yet the company still maintains a no weapons policy. If they ask to search your vehicle and you refuse, it is grounds for termination per policy. They acknowledge it may not be illegal, but it is still against policy.

In the Oklahoma case, the Weyerhaeuser employees were not given the opportunity to agree to a search or not. The search was carried out by local sherrif's deputies with dogs in a private (non-Weyerhaeuser) lot. The rifles were in rifle racks in pickups for hunting after work. The rifles were perfectly legal and not on Weyerhaeuser property.

I work for a company like that and if I had any choice I wouldn't. What I do, though, is to rent a parking spot away from their facility and walk in to work. As long as my employer doesn't pull an illegal Weyerhaeuser-like search, I'm ok. And just in case I do get such a search, even when there are no guns in my vehicles, I keep lots of rags with burned powder on them just for the hell of it.

 

[romma]

Sigh. If someone comes in spraying it's probably too late to get to my car...
But, then I don't keep anything in my car

Maybe, maybe not. However, if you want to stop at the store on your way home from work to pick up baby formula, or even a lottery ticket, you ar good to go!

 

[JerryM]

I am not aware of any Amendment that is without limitation, including 2A.
At any time the Constitution means what the USSC rules that it means. All the screaming and denying will not change that.

Property rights are not without limits, and neither are gun rights.

Regards,
Jerry