Civil Law Implications Employee Carry Vince Cruz, Jr., Chief Civil Division April 7, 2016 Sharen Wilson Criminal District Attorney 1
What Legal Presumptions? 2
Does Texas open carry mean legislature determined citizens safer when carrying handguns? US Constitution 2 nd Amendment provides that 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. Texas Constitution states that every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime. Both focus on individual right to bear arms for defense. But, Texas Constitution permits regulation so long as premised on view to prevent crime while U.S. reads that right shall not be infringed. 3
Is what s good for public good in workplace? State constitutional rights to bear arms does not create or extend public policy exception to employment. Stewart v. FedEx Express, WL 2881804 2014 (Pa.Com.P. Civi Div.). No workplace constitutional right to: Free speech Privacy (i.e., computer, desk, email, etc. subject to search & seizure) Bear arms 4
Rights of Employers Tex. Gov t Code 411.203 Handgun carry statute does not prevent or otherwise limit the right of a public or private employer to prohibit persons who are licensed under this subchapter from carrying handgun on the premises of the business. Employer means (includes): (c) an individual elected to public office in this state or a political subdivision of this state; or (d) a county, municipality, state agency, or state instrumentality, regardless of the number of individuals employed. 5
Worker s Compensation Liability 6
Worker s Compensation Except for incidents involving gross negligence or intentional harm, employee injured or killed in course of employment is generally eligible for workers compensation. Texas Labor Code, 504.011; City of Dallas v. Gatlin, 329 S.W.3d 222 (Ct. App. Dallas, 2010) Employee who was accidentally shot by co-employee has worker s compensation claim where injured employee: Neither created the dangerous situation; Nor voluntarily joined in dangerous activity. Adkins v. Teledyne Exploration Co.,, 652 S.W.2d 55 (Ark.App. 1983) 7
Worker s Compensation Accident whereby retail sales clerk injured when gun he brought to work accidentally discharged and bullet struck him in spine arose out of and in course of employment. Court found risk of employment in which employer acquiesced. Martinez v. Soundtown, 563 N.Y.S.2d 221 (Supreme Court, Appellate Div. 3 rd Dept. 1990) 8
Employee Parking Areas Texas Labor Code 52.061 A public or private employer may not prohibit an employee who holds a license to carry a handgun under Subchapter H, Chapter 411, Government Code, who otherwise lawfully possesses a firearm, or who lawfully possesses ammunition from transporting or storing a firearm or ammunition the employee is authorized by law to possess in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the employer provides for employees. 9
How about in garage of Courthouse? Premises means a building or a portion of a building. The term does not include any: public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area. 10
Texas Liability of Government, Officials, & Employees 11
Texas Tort Claims Act - TCPRC 101.021(2) Limited waiver of a governmental unit s immunity for use (or misuse) of tangible personal or real property. Would presumably include employee s negligent use of handgun authorized by employer in workplace. Comparable to incidents cause by armed law enforcement in workplace. TTCA not waive governmental immunity from liability for intentional acts of personnel. Or, simply adopting policy by governmental unit. Waco v. Williams, 209 S.W.3d 216, 225 (Ct. App.-Waco 2006) TTCA 101.106(e) (f) 12
Texas Tort Claims Act - TCPRC 101.021(2) If employee sued in individual capacity for conduct in general scope of employment, TTCA permits employee to file motion to dismiss & substitute/leave govt l entity as sole defendant. TTCA 101.106(e) (f) 13
Limitation of Liability Tex. Gov t Code 411.208(a)(2) Action may not be brought against a governmental entity or official/employee and a court may not hold governmental entity or official/employee liable for any damage caused by the actions of an applicant or license holder under this subchapter. May provide immunity to employer for negligent use of handgun by employee who holds handgun license. But: Given lack of legal authority interpreting 411.208 [Atty Gen l] unable to provide definitive guidance. Tex. Atty. Gen. Opin. No. GA-1008 (6/10/13) May just be limited to injury claims based on person being issued handgun license. 14
Federal Liability of Government, Officials, & Employees 15
Federal Liability - Title 42 U.S.C. 1983 Person injured (or survivor of estate) has civil rights claim for wrongful gun/shooting incident. Denial of 14 th Amendment Right: deprive any person of life, liberty, or property, without due process of law. Gov t not held liable b/c one s employee is a tortfeasor (i.e., no respondeat superior liability). Instead, claims based on: Failure to adequately train or supervise employee Creating condition/situation causing substantial likelihood of danger City of Canton, Ohio v. Harris, 489 U.S. 378, 387 (1989) 16
Federal Liability - Title 42 U.S.C. 1983 Requires finding of deliberate indifference to rights of persons with whom (employee) comes into contact. City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197 (1988). Liability only where polcy is moving force [behind] constitutional violation. Id. at 389. [Govt l] liability under 1983 attaches where and only where a deliberate choice to follow a course of action is made from among various alternatives by policymakers. Deliberate indifference is high standard defined as intentional conduct greater than even gross negligence. Smith v. Brenosettsy, 158 F.3d 908, 911-912 (5 th Cir. 1998). 17
Federal Liability - Title 42 U.S.C. 1983 Deliberate indifference is stringent standard of fault under 1983, requiring proof that municipal actor disregarded a known or obvious consequence of his action. 42 U.S.C.A. 1983. Common sense tells us that guns are inherently dangerous; responsible gun owners treat them with great care. Unfortunately, not all gun owners are responsible Ezell v. City of Chicago, 651 F.3d 684, 714 (7 th cir. 2011). 18
Risk Management 19
Risk Management Application Process: Individual authorization for employee to carry could be made after approval of application (showing need). Require Additional Training: Require more than minimum Texas training (e.g., NRA Basic Pistol 8 hour. Pistol self-defense tactics (use of deadly force, maintaining accuracy while under stress, etc.). Require concealed & holstering at all times (belt, shoulder, ankle or purse). Regulating storage: No desk drawer, unattended purse Only employer provided/approved gun locker 20
Gun Insurance: Risk Management Patriot Legal Protectition, LLC Armed Citizens Legal Defense Network NRA Second Call Defense U.S. Concealed Carry Association 21
Helpful Links Citizen Complaint Form No Gun Access to Public Buildings: https://www.texasattorneygeneral.gov/3006/3006-complaints AG Ruling Letters: https://www.texasattorneygeneral.gov/3006/3006-ruling-letters 22