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Thread: The right of businesses to disallow firearms

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    Default The right of businesses to disallow firearms

    In another thread, Kit wrote:

    A business owner has a right to ban firearms in his own establishment, and to kick you out if you are ignoring his rules.
    I was wondering what others thought or knew about the legalities of this. In some states, like Arizona, citizens are permitted by law to carry firearms in public. As such, it is not uncommon to see someone with a handgun holstered, or with rifles/shotguns in their vehicles. On the other hand, some Arizona businesses have signs stating no firearms allowed. I haven't read the phrasing of this AZ code, so I'll defer to others who know more about it as to whether this contradicts state laws or not.

    Another example is the right of off-duty LE in California to carry concealed firearms. However, many bars or other venues still will not allow entry, even when identified as LE. Following is the CA state law regarding this:

    12027(a)(1)(A) - Persons authorized to carry concealed firearms. Any peace officer (as defined by 830.1PC, 830.2PC, or 830.33(a)PC) whether active or honorably retired ... who during the course and scope of their employment as peace officers were authorized to, and did, carry firearms.

    The Attorney General has stated that CCW status for off-duty officers is permitted largely in part to the fact that such officers sometimes must act as peace officers, as we consider more fully [over time], and in that sense are never off duty. He further pointed out that peace officers have general obligations that go beyond their duties to a particular agency. For example, 836PC states that peace officers have the right to make arrests for offenses committed in their presence for violations unrelated to their particular employment; 142PC requires any peace officer to receive custody of any person who has been arrested by a citizen or face fines and/or imprisonment; and The Alcoholic Beverage Control Act states it is a misdemeanor crime for any peace officer to not enforce and/or report any violators. Furthermore, many off-duty officers carry due to the possibility of retaliation from criminals they've had prior on-duty contact with, or, from those criminals who simply are able to "recognize" the traits of LE when off-duty (this problem will only make since to those who are in the LE field, but it is a significant concern for those that are "typical cops").

    In 1995, the Attorney General Daniel Lungren gave the legal opinion that “...As long as the person has the status of being a duly appointed peace officer, the statutory exemption for possessing a firearm applies regardless of when or where the person may exercise peace officer powers. Such has been our consistent interpretation for 15 years, recently approved by the Court of Appeal in its Orange County decision”. This opinion is endorsed by the California Department of Justice. Of course, the 2nd Amendment to the Constitution states citizens have the right to bear arms ("A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed").

    So, I understand that business owners reserve the right to refuse service, but especially when those who operate businesses aimed towards being "open to the public" collectively make a trend of refusing service to those legally permitted to carry firearms, is there a point where the refusal becomes a form of unlawful discrimination? I believe that the spirit of refusing service to customers was intended towards those that prove themselves to be disruptive or offensive. Obviously business owners can't refuse service to someone based on their race, because racial discrimination is protected by law. But so is firearms possession, per authority of 12027PC. And all the above listed reasons for carrying off-duty would apply as much to being in the open public as it would to being inside any business open to the public.

    I'd be interested to hear the opinions of others, and especially any legal citations or opinions in general. On the other hand, I'd like to avoid obsessing over the obvious issues of rather it is *smart* for off-duty officers to choose bringing their guns to public places in which they intend to drink alcohol (I'm sure problems, or fear of problems in this regards, are the reason for this trend of refusal of entry), as this will only detract away from the legal contributions.

    Regards,
    Nathan Scott
    Nichigetsukai

    "Put strength into your practice, and avoid conceit. It is easy enough to understand a strategy and guard against it after the matter has already been settled, but the reason an opponent becomes defeated is because they didn't learn of it ahead of time. This is the nature of secret matters. That which is kept hidden is what we call the Flower."

    - Zeami Motokiyo, 1418 (Fūshikaden)

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    Hi Nathan,

    Maybe starting from point 8 you'll find a response.

    http://www.constitution.org/leglrkba.htm

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    This isn't a topic I've done a lot of research on and I really need to do more. However, the topic of what is public property and what is private property and the rights of the owner of said property or establishment have a lot of bearing on my job. Most of the lock ups I get are for trespassing on school grounds. I am often confronted on it when I issue a formal notice of trespass and/or lock someone up; how I can lock someone up for trespassing on (perceived) public property. "§ 26-102 ANNOTATED CODE OF MARYLAND Trespass on the ground of a public institution of elementary, secondary, or higher education." Even though the college is a publicly owned and funded institution we still have the right to refuse someone access and it is based on the college's written policy. If the college didn't have this power we'd have homeless people sleeping in our library (and trust me they've tried, too!).

    In Maryland it is notoriously difficult to obtain a carry permit so the issue of carrying into establishments is very small here. As I see it a private business owner should have the right to refuse service though. Even though a business might be open to the public it does not make that business a public place like a park or a sidewalk; otherwise we'd have Occupy movements sitting in at Walmart or the local mall. Even most public parks have stated hours of operation and you can be locked up for trespassing in them after hours. Is that a good marketing strategy? Maybe? maybe not? I can see why a store clerk might not want to see someone with a gun walk into the store while s/he is standing next to a cash register! Maybe I have a certain amount of sympathy for these folks because of my current position above and because I worked retail all through my under-grad and I'm sure if I saw somene walk in to a store with a gun I'd crap myself a little each time.

    As for police carrying off duty and refusing them service that is a different matter all together. If you do have a no firearms policy how do you vet every police officer who might come in the door; stop everyone and ask for credentials? Do you want to be the store clerk who stops everyone with a gun and give them the business (just had training last week on sovereign citizens, fun times)? I don't! And then how do you explain to each individual customer who complains that they are not allowed to carry inside of your store but the guy in aisle 3 can? It becomes a customer service nightmare at some point.

    Just a few thoughts I have on the topic.
    Christopher Covington

    Daito-ryu aikijujutsu
    Kashima Shinden Jikishinkage-ryu heiho

    All views expressed here are my own and don't necessarily represent the views of the arts I practice, the teachers and people I train with or any dojo I train in.

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    Thanks for the replies.

    Carina referenced:

    (8) In other words, citizens have a right to keep and bear arms in those places and situations where they have a right to be, unless such rights are disabled by due process of law. Fundamental natural rights can never be lost, as contractual rights can be, only the exercise of those rights restricted or "disabled", to use the legal term. The distinction is very important. Natural rights are those which the individual brings with him when he enters into the social contract, and reclaims if the social contract is broken. The right to keep and bear arms is such a natural right, as is the right of free speech, religious belief, and privacy. The alternative is a contractual right created by a contract, such as the social contract. The right to vote or to be judged by a jury of one's peers are examples of rights created by the social contract, albeit important ones that are also constitutionally protected. Because they are constitutionally protected, it is only proper to speak of them as disabled, rather than lost, so long as the subject remains a citizen or natural person, depending on whether it is a right of citizenship or personhood.
    This is, to me at least, a complicated way of explaining that we have constitutional rights that are sometimes restricted by laws. Makes sense and I get that. But my question has to do specifically with the *grounds* a business owner uses to refuse service. I fully agree that in general a business owner should have the right to refuse service to someone. Although the spirit of the policy is based on ridding themselves of those who are disruptive or offensive, I suspect it doesn't give a business owner the right to use such a policy to disregard a behavior/privilege (protected by law) a customer might have that they don't agree with or perceive as a possible liability.

    In other words, I think if someone walks in with no shirt on and you tell them they have to leave because they have to have a shirt on, that's fine. But if the guy with no shirt happens to be of another race that you don't like, then you can't use race as a reason to exclude them from your business, because freedom from such discrimination is protected by law.

    Trespassing is usually based on the concept that the victim has identified the offender as not having business on their property. If the location is open to the public, and not posted with no-trespass warnings, then the offender must be warned first prior to taking further enforcement action (in L.A. at least). This means the offender reasonably should have known they were not permitted to be on a property if it was posted no-trespassing, or would have had the opportunity to correct their action if they were previously warned before further enforcement happened. In both cases the offender would have been "warned" that if they had no lawful business on the property they were not legally allowed to enter. This is a reasonable law that protects residents and business owners from people coming on their property that have no business there, thereby disrupting business, invading privacy, or conducting criminal activity.

    As far as the LE thing goes, to use the example of going to bars, one is often frisked or scanned with a metal detector. If security is told you are LE and have a weapon, more times than not they won't let you in with it. Then you either risk locking it up in your car, or going home. In other words, don't go to bars anymore, or willfully put yourself at risk by allowing business policy to disarm you of a privilege that is protected by law.

    The second part of my point, that I've been implying but haven't stated yet, is that if bar owners view off-duty LE with guns as a threat to their business, then it should be addressed in the phrasing of state or municipal law codes, not enforced through the vague concept of a right to refuse service.

    Regards,
    Last edited by Nathan Scott; 7th December 2013 at 17:06.
    Nathan Scott
    Nichigetsukai

    "Put strength into your practice, and avoid conceit. It is easy enough to understand a strategy and guard against it after the matter has already been settled, but the reason an opponent becomes defeated is because they didn't learn of it ahead of time. This is the nature of secret matters. That which is kept hidden is what we call the Flower."

    - Zeami Motokiyo, 1418 (Fūshikaden)

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    "In other words, I think if someone walks in with no shirt on and you tell them they have to leave because they have to have a shirt on, that's fine. But if the guy with no shirt happens to be of another race that you don't like, then you can't use race as a reason to exclude them from your business, because freedom from such discrimination is protected by law."

    Agreed, that discrimination based on a protected class: age, gender, race, religion, sexuality, disability (did I miss any?) is wrong but carry permit owners are not a protected class. In Maryland you cannot smoke in any eating establishment or bars anymore. Before that though restaurants and bars were allowed to post no smoking signs and refuse service for it. As far as I know smokers aren't a protected class with special rights (although my mother-in-law sure wished they were lol). I guess as I see it, barring protected classes, a business owner should have the right to conduct business anyway they see fit. The punishment or reward should be economic. There are tons of places that say no shirt, no shoes, no service. There are others that say no shirt, no shoes, no problem. The folks kicked out of the first establishment will just go to the 2nd. Imagine a no shoes no shirt no service place on a beach boardwalk. They might be able to do it but think of the $$$ they'd miss out on.

    And you are right that here in MD a trespasser has to be notified before you can simply lock them up and they must be given the chance to leave. In my world they tend to not want to leave though and have a million reasons why. In the case of business owners posting signs that say if you carry a gun no service it isn't much different as I see it. A sign posted like a trespassing sign or a no smoking sign or a no shirt, no shoes, no service sign is basically states the terms of business as I see it. You can't force anyone into a business contract with someone and you can't punish someone for refusing to enter a business contract (at least not directly).

    "if bar owners view off-duty LE with guns as a threat to their business, then it should be addressed in the phrasing of state or municipal law codes, not enforced through the vague concept of a right to refuse service"

    Obviously I think it is bad business to refuse police service if they are carrying off duty or in any situation. But I can understand the challenges of dealing with it. I'd be more worried if a no-carry for off duty police were enforced via legislation or policy than a business owner's right to refuse service. There are other bars and clubs that are police friendly. I would be more upset if law or policy disarmed me at a bar and I was the DD that night and stone sober. In my case I do not drink so I'd be really salty! On the other hand I was taught as a child: beer+guns= bad news. I know we aren't talking about the obvious bad combination and I was thinking in a more general way actually. My understanding of your OP wasn't bars/clubs but a more broad business such as a 7-11 or local hardware store refusing service to anyone carrying including off-duty police.

    Cheers,
    Christopher Covington

    Daito-ryu aikijujutsu
    Kashima Shinden Jikishinkage-ryu heiho

    All views expressed here are my own and don't necessarily represent the views of the arts I practice, the teachers and people I train with or any dojo I train in.

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    Here is a bit more doubtful information about Mississippi,
    Return of the Wild West: Mississippi's new firearms law
    http://www.butlersnow.com/Return_of_the_Wild_West.aspx

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    And here in Seattle

    Packing heat? Some businesses may not let you shop at their store
    http://www.kirotv.com/news/news/seat...-stores/nZSPG/

    And in Starbucks Coffee Shops

    http://www.nytimes.com/2013/09/19/bu...hops.html?_r=0

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    Quote Originally Posted by Carina Reinhardt View Post
    And here in Seattle...in Starbucks Coffee Shops
    It should be noted that Starbucks hasn't "banned" open carry in it's stores, but rather -- tired of the "I love guns 'n' coffee" crowd making a political circus out of Starbucks allowing it -- Howard Shultz has "asked" that gun owners not open carry in his stores. As the above article states:

    Tired of being thrust onto the front lines of the nation’s debate over guns, Starbucks is asking customers to leave firearms behind when they are in its stores and its outdoor seating areas. ...Under the change, baristas and other store employees will not ask customers who come in with guns in holsters, say, to leave or confront them in any way, Mr. Schultz said. No signs explaining the policy will be posted in Starbucks stores, either. “We are going to serve them as we would serve anyone else,” he said.
    Still, I hope that folks will honor Mr. Schultz' wishes, and let everyone sip his or her beverages in peace. It's not hard to most non-felons get a Concealed Pistol License here in the Evergreen State (and despite the poor name, the permit covers revolvers as well as pistols), so there's really little need for open carry in most cases, other than to "make a statement."
    Yours in Budo,
    ---Brian---

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    Thanks for the interesting replies. Carina offered some links, one of which contained the following:

    Customers in the 44 states that allow legal gun owners to carry weapons openly have been permitted in its stores there, while those in the six other states — New York, California, South Carolina, Illinois, Florida and Texas — have not, according to the Law Center to Prevent Gun Violence.
    It seems that in most cases businesses choose not to refuse business to those legally entitled to carry weapons. However, apparently business owners are being allowed the right to refuse service based on *this* law (CCW permission), if they choose to, but not refuse service in regards to other more politically correct laws. So the true answer has seems to have more to do with political correctness than letter of the law.

    As far as guns and booze, yeah, they don't mix. But as you point out, sometimes you have are a designated driver, or just want to stop by briefly to support someone who is transferring or promoting at work. So the message is, if you want to enter LE, then either plan on not going to certain businesses anymore, or, putting your personal safety at risk by going unarmed.

    A specific and better example of what I'm talking about is the L.A. Dodgers baseball games. Dodger stadium is near downtown and surrounded by gang areas. In the recent past, the Dodgers games were dominated by drunk gang-bangers. with a seemingly smaller percentage of regular families going to enjoy a day at the games with their kids. The Dodgers hire off-duty PD to work uniformed security for them during the games, but don't allow off-duty PD to enter with CCW, due to them selling alcohol. Kind of sucks if you want to take your kid to a Dodger's baseball game and you happen to have picked LE as your profession.

    Regards,
    Nathan Scott
    Nichigetsukai

    "Put strength into your practice, and avoid conceit. It is easy enough to understand a strategy and guard against it after the matter has already been settled, but the reason an opponent becomes defeated is because they didn't learn of it ahead of time. This is the nature of secret matters. That which is kept hidden is what we call the Flower."

    - Zeami Motokiyo, 1418 (Fūshikaden)

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    As Brian has stated, open carry is lawful in Washington. and we encounter it from time to time. Unfortunately some people choosing to do so are more interested in the political statement than they are in simply exercising that right in a common sense way. All told I'd rather KNOW the guy I am dealing with is carrying a gun and where it is than not.

    Yes, many people - including police officers - are afraid of guns, which is as rational as being afraid of kitchen knives and pocket knives. It doesn't do the 2d Amendment cause any good to parade around a school carrying a rifle simply because its legal to do so. Then again, I've seen gun-loving cops eager to find reasons to take a legally carried firearm from someone in the interest of "getting it off the streets" and "making police officers safer."

    If a business asks you as off-duty LE not to carry, you have the option not to patronize the business.

    I personally assume that, unless specifically directed, a private business asking for no firearms carry doesn't mean LE or off duty LE. If I printed or was otherwise noticed to be carrying concealed in said business, and business owner objected, I would leave with no heartache. I don't really get wrapped around the axle about it and can't personally equate it to racial discrimination.
    Kit Leblanc

    In Harm's Way

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    Well, I had a longer reply. But, in short. It depends on the state and how their CCW/CPL/Open Carry laws are written.

    In most states that I'm aware of, LEO's are exempt from those aimed at regular citizens.
    "Hard won, buy easy lost. True karate does not stay where it is not being used."

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    In California, LE are exempt from needing a CCW permit, and are permitted/entitled to carry concealed off-duty, anywhere in the state of california. While I understand some business owners may object to guns, and may be concerned if a a gun is identified on a person, but if that person is an off-duty LEO, then they are "free armed security" for as long as they are there. What's the problem? I can see where bars might have concerns about off-duty LE drinking while having guns, based perhaps on bad experiences in the past, but there should be some type of work-around. Especially if you are a designated driver, or, not planning on drinking much (say have a "policy" of a two-drink limit for those packing).

    Personally, I don't see why the policy of a business that solicits to the public has the right to deny a privilege that is provided under state law. It may be true, but I don't think it's right. It basically implies that business owners don't have to comply with state laws. There are states that don't permit guns at all, or that have more strict gun laws. Maybe sensitive business owners should consider moving their business elsewhere?

    Regards,
    Nathan Scott
    Nichigetsukai

    "Put strength into your practice, and avoid conceit. It is easy enough to understand a strategy and guard against it after the matter has already been settled, but the reason an opponent becomes defeated is because they didn't learn of it ahead of time. This is the nature of secret matters. That which is kept hidden is what we call the Flower."

    - Zeami Motokiyo, 1418 (Fūshikaden)

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    Quote Originally Posted by Nathan Scott View Post
    ...Maybe sensitive business owners should consider moving their business elsewhere?
    That is just about the most chauvinistic thing I have ever heard.
    Yours in Budo,
    ---Brian---

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    That is just about the most chauvinistic thing I have ever heard.
    Wow, that sounds like quite an achievement.

    I don't know if this reply will help further qualify my point of view or not, but here it goes:

    My point is, the "right to refuse service" has a provable limitation, and a spirit for which it was intended. Off the cuff, I would say the spirit of the policy is based on protecting the business owner from customer behavior that damages their business, the main examples being offensive or disruptive behavior that impedes other customers from conducting business. I don't believe, however, that refusing to serve off-duty LE who are carrying concealed firearms qualifies, any more than disallowing seeing-eye dogs for those legally permitted to use them qualifies. If there wasn't a reason for these protected classes to engage in these activities when others can't, then there wouldn't be specific exemptions created in the legal code.

    So if you are a business owner who wishes to refuse service based on a *personal dislike/disapproval/prejudice of off-duty LE, those permitted by law to carry CCW, and/or service dogs (ie: public activities that are permitted by state law), then I call BS on what the basis of their right to refuse service is. In other words, I can't believe that the right to refuse service was intended to be used as a means to discriminate against certain prospective customers, who are exercising an activity that is permitted by law, and who *are not* damaging their ability to of others to conduct business by being there.

    Therefore, if some business owners don't agree with the laws that their state votes into action on a personal/emotional level, then it might be more appropriate and logical for them to move their business to a place that is more inline with their personal views, rather than - IMO, stretch the spirit of a business policy to include the right to discriminate against others. If there are valid concerns about such "protected" activities, then, again IMO, it seems more reasonable to create a common sense business policy that limits the nature of the customer interaction, based on sound reasoning rather than emotional disapproval.

    Every state/city has laws we don't all like. But we have the ability to change them, suck it up and follow them, or disregard them and roll the dice. Theoretically laws are intended to provide society with a structure that allows its citizens to live harmoniously in the same place (theoretically), but if a law doesn't sit well with you enough that you want to kick certain types of people out of your business, then get it changed. Or, move to a place that has a larger cross section of people who are more like-minded. To me that seems more reasonable and fair that excluding certain types of people based on discrimination.

    That's all I'm trying to point out, but if that still sounds chauvinistic, then I guess I'll take it.

    Regards,
    Nathan Scott
    Nichigetsukai

    "Put strength into your practice, and avoid conceit. It is easy enough to understand a strategy and guard against it after the matter has already been settled, but the reason an opponent becomes defeated is because they didn't learn of it ahead of time. This is the nature of secret matters. That which is kept hidden is what we call the Flower."

    - Zeami Motokiyo, 1418 (Fūshikaden)

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    In New Mexico, open carry and CCW can go anywhere that alcohol isn't served, as long as the business owner doesn't expressly forbid it. Like other places, you cannot carry into a federal building, a school, or a courthouse....It's also an "opt-out" state: the statute reads that if a business or homeowner forbids firearms, you cannot legally carry there.
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