Transit Conference & Firearms Wichita, KS August 12, 2014

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Katrina Mason
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1 Transit Conference & Firearms Wichita, KS August 12, 2014

2 Topics to Discuss Today CCH In General o Statistics o Law 2013 & 2014 Legislation

3 Topics to Discuss Today What laws apply to Transit Generally Concealed Carry Open Carry last

4 Kansas CCH updates As of 1/31/2013: Approximately 62,500 applications recd (10/12); 1344 (11/12); 1590 (12/12) 3166 (1/13) As of 5/24/2013: 75,000+ apps (2/13); 4065 (3/13); 3460 (4/13); ~ 1400 (5/13) As of 7/31/2013: +91,000 apps

5 Kansas CCH updates As of 8/2014: About 585 applications are denied More have been denied but some later became eligible

6 Kansas CCH updates As of 8/2014: Approximately 340 licenses currently suspended 410 licenses currently revoked 820 licenses currently surrendered

7 Kansas CCH updates Several incidents Unit is aware of where CCH prevented unlawful attack. Other alleged incidents on the other side of that coin; some pan out negatively for licensee some do not.

8 Kansas CCH Criteria Felonies: KSA or 18 USC 922(g)(1); Felonies (convictions or adjudications) that still fall within the confines of prohibitions within (a) prohibition periods

9 Kansas CCH Criteria Felonies: KSA or 18 USC 922(g)(1); (2014 Update) (a)(3)(a) Prohibition: listed in (a)(3)(A) regardless of how old or whether pardoned or expunged.

10 Kansas CCH Criteria Felonies: KSA or 18 USC 922(g)(1) Felony convictions that occurred in another jurisdiction (State or Federally) and are still prohibiting in that jurisdiction

11 Kansas CCH Criteria MCDVs: (922(g)(9)) Prior misdemeanor conviction Use of physical force (any unlawful touching US v. Castleman, USSC 2014) Committed against qualifying relation Against Spouse/Ex-spouse; against children/stepchildren; share child in common with; similarly situated to spouse, parent, guardian of victim; etc

12 Kansas CCH Criteria Disqualifiers: (922(g)(3)) Addicted to/unlawful User of Controlled Substances Disqualifiers 922(g)(8) Those subject to qualifying protection orders (PFA, PFS, Divorce, etc.) where protected party is an intimate partner or child of the intimate partner.

13 Kansas CCH Criteria Disqualifiers Mental Health Adjudications/ Involuntary Commitments (922(g)(4)) Fugitives (922(g)(2)) Dishonorably Discharged/Dismissals (922(g)(6)) Illegally residing in US (922(g)(5)) Renounce Citizenship (922(g)(7))

14 Training Each KS Licensee is required to prove they have been sufficiently trained: 8 hour training course minimum Includes written test Includes a live-fire demonstration of proficiency 25 rounds fired from various distances up to 10yds Must hit 18 x minimum (same ~70% hit rate as LEO qualification at KLETC)

15 Kansas CCH: Things to Know 75-7c10 (As of July 1, 2013) o Overarching rule of where CCH Licensees can carry; read in conjunction with 75-7c17 (anything regulatory beyond KPFPA is null and void) o Entire statute subject to K.S.A. 75-7c20 relating to state or municipal buildings

16 Kansas CCH: Things to Know 75-7c10 o Federally prohibited locations DO NOT have to post AG-approved signage. o 18 USC 930 ofederal facilities ofederal court facilities

17 Kansas CCH: Things to Know 75-7c10 o No other location is automatically offlimits (75-7c17 and 12-16,124/12-16,134 preempt local laws)

18 Kansas CCH: Things to Know 75-7c10 o Subject to 75-7c20 (a) Provided the building is conspicuously posted... as a building where carrying a concealed handgun... [CCH shall not entitle to carry] into any building...

19 Kansas CCH: Things to Know 75-7c10 o (b) Nothing in this act shall be construed to prevent : (1) any public or private employer from restricting or prohibiting by personnel policies... o BUT no employer may prohibit possession of firearm in private means of conveyance even if on employer property.

20 Kansas CCH: Things to Know 75-7c10 o (b)(2) private businesses w/ cities, counties and political subdivisions may restrict carry within buildings provided building is properly posted.

21 Kansas CCH: Things to Know 75-7c10 o All AG-approved signage must be PROPERLY posted: Correct & approved sign (available at POSTED ON BUILDINGS at ENTRANCES Completely within adult eye level (4-6 ) off of ground 12 inches to the right/left of entrance ALL entrances must be posted Must be visible from exterior & cannot become obstructed by opening door or other items

22 Concealed Carry Not Allowed

23 2013 Legislation Senate Substitute for House Bill 2052 Became 75-7c20 and 75-7c21 Established a line of demarcation between prohibiting licensed CCH in state and municipal buildings and prohibiting CCH in any other building.

24 2013 Legislation Senate Substitute for House Bill 2052 Subsection (a):the carrying of a concealed handgun as authorized by the personal and family protection act shall not be prohibited in any state or municipal building unless such building has adequate security measures to ensure that no weapons are permitted to be carried into such building and the building is conspicuously posted in accordance with K.S.A. 75-7c10, and amendments thereto.

25 2013 Legislation July 1, 2013, state and municipal buildings are opened up to CCH licensees Section 2 Unless the building has adequate security measures [ ASM ]; or Unless the building has exempted itself under 2(i) or 2(j)

26 2013 Legislation Exemptions (currently): Two 4-year exemptions (2(i) & 2(j)) Municipality defined by but does not include School Districts ; Chief Judges still control their courtrooms; state schools for deaf and blind

27 2013 Legislation 2(i) 4-year exemption requires a security plan in place which supplies adequate security ; listing of legal description of buildings exempted; reasons

28 2013 Legislation 2(j) only applicable to 5 categories Postsecondary educational institution State/Municipal Hospitals State/Municipal Adult homes State/Municipal Mental health centers State/Municipal Indigent Health Care 2(j) requires a declaration of reasons for exemption (no security plan required)

29 2013 Legislation If exercise one of the four year exemptions, how does a SOMB make CCH licensees aware of that decision? Law required signage to be posted per 75-7c10 OAG felt leaving same sign to prohibit at SOMB and private would lead to confusion Regulation , based upon 75-7c10, modified:

31 KSA 75-7c10 K.S.A. 75-7c10 Subject to the provisions of K.S.A Supp. 75-7c20, and amendments thereto: (a) Provided that the premises are conspicuously posted in accordance with AG regulations CCH will not entitle carry into any building amendments to 75-7c10 removed all of the previously enumerated locations including private or public elementary schools, secondary schools attendance centers etc.;

32 KSA 75-7c10 K.S.A. 75-7c10 New to 75-7c10 per SS HB 2052 is the fact that, under new subsection (d): a unified school district or postsecondary educational institution may, through their governing body or chief administrative officer (if no Governing Body exists), permit their licensed employees to CCH in the buildings even if properly posted as no licensed CCH with AG-approved signs if the employee meets the institution s own policy requirements as well. Postsecondary institutions include public university, municipal university, community college and technical college, and includes any entity resulting from the consolidation or affiliation of any two or more of such postsecondary educational institutions

33 KSA 75-7c10 K.S.A. 75-7c10 (b) Nothing in this act shall be construed to prevent: (1) Any public or private employer from restricting or prohibiting by personnel policies persons licensed under this act from carrying a concealed handgun while on the premises of the employer's business or while engaged in the duties of the person's employment by the employer, except that no employer may prohibit possession of a handgun in a private means of conveyance, even if parked on the employer's premises; or

34 AG Opinions Formal Opinions of the Attorney General s office ARE NOT the law of Kansas once they are penned and printed; Formal Opinions of the Attorney General s office are guidance for others and may be used as PERSUASIVE AUTHORITY in the Courts Cities, Counties or other entities that may be subject to an AG Opinion on any matter may abide by or disregard the opinion expressed therein.

35 AG Opinions OC

36 : Takeaways 1. A city or county may regulate the manner of OC a loaded firearm on the person of a CCH license. 2. A city or county may regulate the manner of OC a loaded handgun on the person of a non-cch 3. A city or county may regulate the manner of OC a loaded firearm in immediate control of a non-cch on public property 4. A city may not regulate OC of loaded firearm in immediate control of CCH on public or private property 5. A city may not regulate the OC of unloaded firearms for anyone

37 AG Opinions on OC

38 : Takeaways 1. The manner of OC includes things like the way, mode or method of OC Must have gun in holster Must have the safety engaged Must have firearm in immediate control Etc. 2. A city or county may not completely prohibit the open carry of loaded firearms. 3. Preemption position of the time for KSA 12-16,124

39 Other Items CCH holders NEED to be aware of Relevant AG Opinions: : Overland Park Cannot require CCH in order to OC (now likely covered by 2014 changes) : Saline Co building does not mean floor of; ASM are not equal to AS declaration in exemption statement; : Polling places (do not change private to SOMB by having PP there) : DofA Single office in multi tenant building is not a building; strip mall scenario can be : Wichita - Various CCH issues regarding 75-7c : Rep. Howell - Employees may not have a lot of protections BUT (disclosure portions of this opinion rendered moot by 2014 HB : Discussing some now OPEN carry allowances interpretations

40 2014 Legislation House Bill 2578 (L. 2014, ch. 97) New provisions regarding Open Carry; CCH CUI; Cities/Counties Amendments to current statutes

41 Section 5: Open Carry (~ 75-7c24) (a) Provided that the building is conspicuously posted in accordance with rules and regulations adopted by the attorney general as a building where carrying an unconcealed firearm is prohibited, it shall be unlawful to carry an unconcealed firearm into such building.

42 Open Carry (c) It shall be a violation of this section to carry an unconcealed firearm if the building is posted in accordance with rules and regulations adopted by the attorney general pursuant to subsection (d)....

43 Open Carry (d) (1) The attorney general shall adopt rules and regulations prescribing the location, content, size and other characteristics of signs to be posted on a building where carrying an unconcealed firearm is prohibited pursuant to subsection (a). Such regulations shall prescribe, at a minimum, that:

44 Open Carry (A) The signs be posted at all exterior entrances to the prohibited buildings; (B) the signs be posted at eye level of adults using the entrance and not more than 12 inches to the right or left of such entrance; (C) the signs not be obstructed or altered in any way; (D) signs which become illegible for any reason be immediately replaced; and

45 Open Carry (E) except as provided in paragraph (2), signs shall include the following, which shall be printed in large, conspicuous print: The open carrying of firearms in this building is prohibited.

46 NO Open Carry Signs

47 NO Open Carry Signs Octagon Only = Only Open Carry is PROHIBITED Octagon Only = CCH is ALLOWED

48 Open Carry (2) Such rules and regulations shall provide that the same signage used to prohibit the carrying of concealed handguns under K.S.A. 75-7c01 et seq., and amendments thereto, may be used to also prohibit the carrying of unconcealed firearms.

49 NO Firearms Signs

50 NO Firearms Signs

51 12-16,124 Effective July 1, 2014: (a) No city or county shall adopt or enforce any ordinance, resolution or regulation, and no agent of any city or county shall take any administrative action, governing the purchase, transfer, ownership, storage, carrying or transporting of firearms or ammunition, or any component or combination thereof.

52 12-16,124 (c) Any ordinance resolution or regulation prohibited by either subsection (a) or (b) that was adopted prior to July 1, 2014, shall be null and void.

53 12-16,124 (d) Nothing in this section shall: (1) prohibit a city or county from adopting and enforcing any ordinance, resolution or regulation relating to the personnel policies of such city or county and the carrying of firearms by employees of such city or county, except that any such ordinance, resolution or regulation shall comply with the provisions of K.S.A. 75-7c01, et seq., and amendments thereto;....

54 12-16,124 (d)... Nothing in this section shall: (2) prohibit a city or county from adopting any ordinance, resolution or regulation pursuant to K.S.A Supp. 75-7c20, and amendments thereto; or (3) prohibit a law enforcement officer, as defined in K.S.A , and amendments thereto, from acting within the scope of such officer s duties.

55 No CCH Posting Issues New to Kansas law in 2014: Proposed KSA 75-7c23 (section 3 of HB 2578): Employees of municipalities cannot have their employment status (no adverse administrative action) hinge on disclosure of CCH status; no record of CCH licensed employees can be created/maintained after July 1, 2014

56 Open Carry No CCH Only = CCH & Open Carry PROHIBITED

57 Open Carry Do NOT apply to on duty LEO, Retired LEO etc.

58 Open Carry

59 Open Carry (c)... continued... Any person who violates this section shall not be subject to a criminal penalty but may be subject to denial to such premises or removal from such premises.

60 Open Carry AG Opinion Howell, Couture-Lovelady, O Brien... no state statute that prohibits the [lawful] open carry of legal firearms, Kansas law still allows private building owners to prohibit the carrying of any firearm inside their buildings.

61 Open Carry AG Opinion Howell, Couture-Lovelady, O Brien... municipal buildings may also prohibit the carrying of any weapon within the building HB 2578 rendered unenforceable any preexisting city or county regulation that prohibited the transportation of a loaded firearm in a vehicle in plain view.

62 No CCH Posting Issues Criminal vs. Administrative Penalties At this point in time, Licensees need to be aware that in various situations, even if there isn t a CRIMINAL penalty available, the Licensee could still be subject to an ADMINISTRATIVE penalty or punishment by an employer or school. These administrative penalties could range in form and substance, depending on the situation. Potential penalties might be suspension to a termination or expulsion. Particularly need to mind this issue in the context of general employment : See, A.G. Opinion (citing AG Opinion ) Generally, employment in Kansas is at will right reason, wrong reason, no reason so long as not a prohibited termination basis (discrimination, age, work comp, whistleblowing, federal employer liability act, 1 st Amendment free speech on public issue, federal EEO race, color, religion, sex, national origin, disability)

63 No CCH Posting Issues Criminal vs. Administrative Penalties A.G. Opinion (continued) home. Currently CCH not a protected class or a recognized fundamental right such as self-defense in BUT. Several states, like Oklahoma have begun passing laws that protect employees who are carrying firearms in compliance with State law from adverse actions by employers (similar to KSA 75-7c20 protections for employees carrying in non-asm/non-exempt SOMB) but they go a step further by creating rights of action against employers who do take such action. AG Opinion highlights, current CCH law has no such protections at least not yet KS law goes the other way and places protections in the law for employers who cover one of two ends

64 No CCH Posting Issues Civil Liability Protections Since 2013: K.S.A. 75-7c20(e): State agency or municipality that provides ASM in their building & posts proper signage = not liable for wrongful act or omission relating to actions of persons licensed to CCH relating concerning acts or omissions regarding such handguns.

65 No CCH Posting Issues Civil Liability Protections Since 2013: L. 2014, ch. 97 4; ~ K.S.A ,124a No municipality liable for wrongful act or omission relating to actions of persons carrying firearm, including employees, concerning acts or omissions regarding such firearm.

66 No CCH Posting Issues Civil Liability Protections Since 2013: K.S.A. 75-7c20(f): State agency or municipality that does not provide ASM and allows CCH in their building = not liable for wrongful act or omission relating to actions of persons licensed to CCH relating concerning acts or omissions regarding such handguns.

67 No CCH Posting Issues Civil Liability Protections Since 2013: K.S.A. 75-7c10(c)(1): Private entity that provides ASM in a private building & posts proper signage = not liable for wrongful act or omission relating to actions of persons licensed to CCH relating concerning acts or omissions regarding such handguns.

68 No CCH Posting Issues Civil Liability Protections Since 2013: K.S.A. 75-7c10(c)(2): Private entity that does not provide ASM in a private building and allows CCH not liable for wrongful act or omission relating to actions of persons licensed to CCH relating concerning acts or omissions regarding such handguns.

69 No CCH Posting Issues Civil Liability Protections Since 2013: K.S.A. 75-7c10(c)(3): Nothing in this act shall be deemed to increase the liability of any private entity where liability would have existed under the personal and family protection act prior to the effective date of this act.

70 Contacts Charles W. (CW) Klebe 120 SW 10 th Ave., Topeka, (P)(785) (F)(785) Public Safety Concealed Carry

HOUSE BILL No {As Amended by House Committee of the Whole} As Amended by House Committee

HOUSE BILL No {As Amended by House Committee of the Whole} As Amended by House Committee {As Amended by House Committee of the Whole} Session of 0 As Amended by House Committee HOUSE BILL No. By Committee on Federal and State Affairs - 0 0 AN ACT concerning the personal and family protection