Florida Judge Upholds Most of "Bring Gun to Work" Law; Rejects Customer Section as Unconstitutional

A few months ago I reported on a challenge to Florida's so-called "Bring Gun to Work" law brought by the the Florida Retail Federation and the Florida Chamber of Commerce . That lawsuit has now been concluded, mostly in favor of the defendants, which included Florida's Attorney General and the National Rifle Association. 

Before I get to the result, let's review the new law. The statute is formally (albeit awkwardly) entitled  the "Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008."  It is codified at section 790.251, Florida Statutes. The opinion in the Florida Retail Federation case provides a concise summary of the new law:

The statute provides that an “employer”—that is, a business with at least one worker who has a concealed carry permit—may not:  (1) prohibit a worker with a concealed-carry permit from securing a gun in a vehicle in a parking lot;(2) prohibit a customer—whether or not he or she has a concealed-carry permit—from securing a gun in a vehicle in a parking lot; (3) ask a worker with a concealed carry permit or a customer whether he or she has a gun in a vehicle in a parking lot, take any action against such a worker or against a customer based on a statement about whether the worker or customer has a gun in a vehicle in a parking lot for lawful purposes, or search a vehicle in a parking lot for a gun; (4) condition employment on whether a person has a concealed-carry permit; (5) terminate a worker with a concealed-carry permit, or otherwise discriminate against such a worker, or expel a customer, for having a gun in a vehicle on the business’s property, unless the gun is exhibited on the property.  A business that does not have at least one worker with a concealed-carry permit is not subject to any of these provisions.

The plaintiffs in Florida Retail Federation asserted that this statute is unconstitutional because: (1)without sufficient justification, it compels property owners to make their property available for purposes they do not support; (2) it violates the federal Occupational Safety and Health Act because it endangers workers; and (3) it draws an irrational distinction between the businesses that are and are not required to allow guns in the parking lot.

In a well-reasoned decision, United States District Judge Robert L. Hinkle rejected the plaintiff's first two arguments and agreed with the third.  Specifically, the court held that:

First, the state may compel a business to allow a gun to be secured in a vehicle in the parking lot. Second, the statute is valid to the extent it compels a Florida business to allow a worker—if he or she has a permit to carry a concealed weapon—to secure a gun in a vehicle in a parking lot. Third, the statute is unconstitutional to the extent it compels some businesses but not others—with no rational basis for the distinction—to allow a customer to secure a gun in a vehicle. Fourth, the plaintiffs met the prerequisites to entry of a preliminary injunction barring enforcement of the unconstitutional portions of the statute.

So what are employers to make of the new statute, to the extent it is enforceable?  Well, I think Judge Hinkle got it right when he concluded that whether the statute will lead to an increase or decrease is not clear, but that its effects will be marginal in any event:

The plaintiffs suggest that a gun in the parking lot will invariably increase the risk of an unlawful or accidental shooting with no offsetting benefit, because, they say, the gun will be available to an irate worker who may use it improperly but will never be available to an honest worker in time to be used defensively to successfully avert a crime. The defendants, in contrast, say a gun in the parking lot will have great benefit in averting crime and will never lead to the gun’s improper use. Common sense and human experience suggest the truth lies between these extremes.  The statute will rarely make any difference at all but may sometimes cause a result that is positive, sometimes negative.

First, gun stored in a vehicle in a parking lot while the gun owner is at work will almost always stay in the vehicle and affect nobody’s safety one way or the other. The possibility that a gun may be in a vehicle will have little deterrent effect on others.  Second... the statute’s only effect ... will be on workers who have or who obtain concealed-carry permits, keep guns in their vehicles, and would abide a directive not to do so. The statute will affect the number of guns in the parking lot only at the margin.  Third, sometimes—though rarely—a worker with a gun in the vehicle will  use it for lawful purposes to avert a crime....Fourth, a gun in the parking lot sometimes—though rarely—will be used by an irate worker to commit a crime that would not occur if the gun were not readily available.

Inevitably, there will come a time when an employee who has brought a gun onto his employer's property either uses the gun in anger, or successfully in self-defense or in defense of a co-worker or customer.  And when that happens, one side of the current debate over the new law will claim vindication.  But no single incident  will prove either side''s argument.  While ideologues on both sides of the debate may claim to know how the new law will play out in the coming years, the truth is that no one knows for sure.  

Florida Employers Claim Exemptions to Bring Gun to Work Law

In May I reported on an injunction action to challenge Florida's "Bring Gun to Work" legislation, which allows gun owners who have a concealed weapons permit to take guns to work as long as they remain locked in their vehicle. 

Now come news reports that some of the larger businesses in the state are claiming that they are not covered by the law, which exempts schools, prisons, nuclear power plants, military facilities, defense contractors, and explosives manufacturers, as well as any property leased or owned by an employer who has a permit for explosives.

If you have ever visited Disney's Magic Kingdom around sundown, you know that Disney is one of those employers that has a permit for explosives (which includes fireworks).  And Disney is claiming an exemption from the law, according to news reports.  Actually, it appears that Disney lobbyists may have created their own exemption, according to this article.  In any event, when a Disney security guard announced recently that he was going to bring his gun to work despite Disney's claimed exemption, he was promptly terminated, and then filed a lawsuit against Disney.  He is represented by attorney Jon Gutmacher, who apparently has a sincere interest in the case: his web site is http://www.floridafirearmslaw.com

Meanwhile, the injunction action filed by the Florida Chamber of Commerce and the Florida Retail Federation that I reported on in May remains pending.  Stay tuned.

UPDATE:  The Orlando Sentinel reports that the Disney security guard who was fired sought, and was denied, an injunction that would have allowed him to get his job back while the judge tries to decide whether Disney has the right to ban employees from keeping guns locked in their vehicles. The judge, Thomas Turner, advised the plaintiff's lawyer, Jon Gutmacher, that he would be better off if the Florida Attorney General joined the action. 


Florida Business Organizations Challenge Bring Gun to Work Law

The Florida Chamber of Commerce and the Florida Retail Federation recently filed a lawsuit in federal court in Tallahassee against the “Guns At Work” legislation. Their rationale? “A business owner should be able to decide if employees can or cannot bring guns on their property.”  The law bars employers from banning firearms on their premises, provided employees hold concealed-weapons permits and leave the guns locked in their cars.

The legal claim of these business organizations is that House Bill 503, which was signed into law April 15 by Governor Charlie Crist, violates the Takings and Substantive Due Process clauses of the Fifth Amendment to the U.S. Constitution, and is in direct conflict with the Occupational Safety and Health Act (OSHA), and therefore violates the Supremacy Clause of Article VI of the U.S. Constitution.

Most recently, on May 22, 2008, the Florida Chamber and Florida Retail Federation filed a motion to enjoin the enforcement of this statute.

I represent employers, so I can understand their concern that some employees will use this new right to intimidate their employers and co-workers, and possibly use their firearms in anger. On the other hand, the National Rifle Association makes some strong arguments in favor of the new legislation. Women who are being stalked, or employees who work in dangerous areas, may feel the need to have a firearm in their cars for their personal protection.

Stay tuned for further developments.