HOW DOES GEORGIA S SAFE CARRY PROTECTION ACT AFFECT LOCAL GOVERNMENT EMPLOYERS?

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1 HOW DOES GEORGIA S SAFE CARRY PROTECTION ACT AFFECT LOCAL GOVERNMENT EMPLOYERS? By R. Read Gignilliat Georgia s new gun law, the Safe Carry Protection Act, took effect earlier this month and continues to be a significant source of controversy, debate, and confusion. As has been widely reported, the legislation substantially alters prior law regarding the carrying, possession, and transport of firearms and other weapons, and affects a broad range of individuals and organizations throughout the State, including bars, churches, schools, libraries, airports, and local governments. The purpose of this article is to address many of the questions that Elarbee Thompson s Public Sector Group has received from its local government clients regarding the new law s impact on them particularly in their roles as employers since it was first signed into law by Governor Deal on April 23, Does the new law require local government employers to allow their employees to carry or possess weapons in the workplace? No. Except as provided below, the new law permits local government employers to adopt and enforce policies prohibiting their employees from carrying or possessing weapons in the workplace. Unless or until such policies are implemented, however, local government employees are permitted to carry or possess weapons in the workplace in accordance with the new law. A limited exception is applicable to those local governments with police departments or other law enforcement agencies. In this regard, the new law grants sole responsibility to the executive heads of such agencies (e.g., the police chiefs or sheriffs) to determine what weapons policies, rules, or standard operating procedures to adopt and enforce with respect to their departmental personnel (sworn and unsworn). Does the new law require local government employers to allow their employees to carry or possess weapons when they are on-duty but outside of the workplace? No. Local government employers may still adopt and enforce policies prohibiting their employees from carrying or possessing weapons while on-duty or otherwise acting in the course of their employment. Does the new law require local government employers to allow their employees to carry or possess weapons when they are off-duty? Yes. If local government employees/license holders are off-duty, not acting in the course of their employment, and otherwise acting entirely in their capacities as citizens, local government employers cannot prohibit them from carrying or possessing weapons in accordance with the new law. This includes when the off-duty employee has occasion to enter a government building, a park or recreational area, etc., where he/she would not be permitted to carry a weapon were he/she on-duty or otherwise acting in the course of their employment. Notwithstanding the foregoing, local government employers may lawfully adopt and enforce policies prohibiting their employees from carrying, possessing, or transporting weapons in any government-owned.

2 vehicle, where employees are allowed the use of such vehicles when off-duty and not otherwise acting in the course of their employment. Similarly, some local governments have adopted policies prohibiting their employees from wearing uniforms, work shirts, jackets, hats, or other visible items of clothing or other items identifying them as their employees while exercising their right to carry, possess, or transport weapons in accordance with the new law. The purpose of such a prohibition is to prevent misunderstandings or confusion among the general public as to an employee s status, position, authority, duties, responsibilities, etc. While this prohibition is not expressly authorized by the new law and, therefore, its enforceability is a bit of an open question, it serves a legitimate government purpose, does not purport to impose any significant burdens on employees rights under the new law, and is otherwise consistent with other expressly authorized prohibitions. As such, they stand a good chance of being upheld. Are local governments required to permit their employees to keep weapons in their personal vehicles while parked in government-owned or operated parking lots or garages? It depends. If the government-owned or operated parking lot or garage (or the portion thereof in which the employees park their vehicles) is secured by a gate, security station, security officer, or similar means to restrict public access, then local government employees can be prohibited from having weapons in their personal vehicles while in the parking lot or garage. Conversely, if the parking lot or garage is unsecured and is available to the general public, then such employees cannot be prohibited from keeping weapons in their personal vehicles, provided each such weapon is locked and secured out of sight in a compartment (e.g., trunk or glove box), rack, or container in the vehicle. In addition, while entering and exiting such a parking lot or garage in his/her personal vehicle, a local government employee cannot be prohibited from having a weapon on his/her person or otherwise in his/her control (i.e., not secured in a locked compartment, rack, or container), provided that if the weapon is one for which State law requires a license, the employee holds such license. Notwithstanding the foregoing, local governments cannot adopt or enforce policies that allow it to search private vehicles of employees (or invited guests) in government-owned or operated parking lots or garages, regardless of whether they are secured. Such searches can only be conducted under certain circumstances, such as where a reasonable person would believe that doing so is necessary to prevent an immediate threat to human health, life, or safety. Finally, when a given parking lot or garage is privately owned or privately operated pursuant to a lease, rental agreement, etc., the owner/operator may lawfully prohibit weapons in the parking lot or garage, regardless of whether the parker possesses a weapons carry license, regardless of how the weapon is stored in the vehicle, and regardless of the parker s status as a local government employee. Does the new law require local governments to allow members of the public to carry weapons into government buildings? With some important exceptions, yes. First, this aspect of the new law applies only to holders of valid weapons carry licenses (and certain others, noted below), and not to all members of the general public. Non-license holders will continue to be prohibited from bringing weapons into government buildings at all times. 2

3 Second, license holders are only allowed to carry weapons into government buildings when the buildings are open for business and where the entrances are not restricted or screened by security personnel. Where the entrances to a government building are restricted or screened by security personnel, weapons may be prohibited. For purposes of this aspect of the new law, the individuals performing the security function need not be P.O.S.T. certified peace officers. Third, license holders are prohibited from bringing weapons into courthouses, jails, detention facilities, or prisons, regardless of whether they are restricted or screened by security personnel. Also, with very limited exceptions, no license holder may bring a weapon into a school. Fourth, P.O.S.T. certified peace officers and persons currently serving as prosecutors and judges of all courts continue to be exempt from the above-described weapons restrictions (as well as licensing requirements). Under the new law, however, this exemption now extends to former judges of all courts who are either (a) retired but otherwise are qualified to obtain a weapons carry license or (b) served as a judge for at least twenty-four months and are qualified to obtain a weapons carry license. Interestingly, the new law does not limit application of these exemptions to current or former judges carrying weapons within their own jurisdictions or provide any guidance as to what steps a local government may take to determine or confirm a person s status as a current or former judge for purposes of this exemption. Fifth, the right of license holders to carry weapons into unrestricted/unscreened government buildings applies only to any firearm having a barrel equal to or lesser than twelve inches and to any knife with a blade greater than five inches. Rifles, shotguns, and other long guns (defined as a firearm with a barrel length of at least eighteen inches and an overall length of at least twenty-six inches that is designed to be fired from the shoulder) are prohibited from all government buildings, regardless of license or building security. Importantly, no license holder attempting to carry a weapon into a restricted or screened government building or into a courthouse, jail, etc., can be charged with a criminal offense if he/she (a) leaves after being notified that weapons are prohibited or (b) notifies security personnel or management that he/she is carrying a weapon and follows their instructions for removing, securing, storing, or temporarily surrendering the weapon. As noted, the personnel performing the security function need not be P.O.S.T. certified; however, a license holder who refuses to leave or follow the above-described instructions cannot be charged with the offense of entering an unauthorized place with a weapon unless one or more of the security personnel is a P.O.S.T. certified peace officer. Conversely, a non-license holder carrying a weapon who attempts to enter a government building at any time, regardless of security, can be charged with a criminal offense. What about those local governments that enter into agreements with private staffing firms to provide workers to perform certain functions normally performed by government employees? Are these workers considered employees or members of the public under the new law? Although more and more local governments are implementing various forms of the public/private partnership model, the new law does not appear to contemplate this situation. As noted above, local governments have the right to adopt policies prohibiting their employees from carrying or possessing weapons in the workplace or while otherwise acting in the course of their employment, but the term employees is not defined. The term, therefore, must be interpreted in accordance with its ordinary meaning which, in most instances, would not encompass the workers provided by staffing firms. In fact, 3

4 these arrangements are often designed specifically to avoid the creation of employer-employee relationships. Consequently, it would appear that such workers would normally be regarded as members of the general public for purposes of the new law, in which case they would not be subject to the same restrictions that local governments can impose on their own employees. On the other hand, there is nothing in the new law prohibiting a local government from including a provision in its agreement with a private staffing firm requiring that the firm prohibit its employees from carrying or possessing weapons while acting in the course of their employment (which, in this scenario, would be while performing services on behalf of the local government). In so doing, the firm would be acting within its authority as a private employer, and the end result would be fully consistent with the statutory purpose underlying the new law s employee exception (i.e., to enable local governments to prohibit or restrict the carrying or possession of weapons in the workplace). While this approach is not expressly authorized by the new law, it would nevertheless appear to be a reasonable method by which a local government providing services through a public/private partnership may address the issue. What about independent contractors who perform services for local governments? Or venders such as service technicians who often have access to areas within government buildings where the general public is typically not permitted? Neither bona fide independent contractors nor venders would constitute employees for purposes of the new law and, therefore, such persons would have the same rights as members of the general public to carry and possess weapons in government buildings. That said, as with the private staffing firms discussed above, there is nothing in the new law prohibiting a local government from imposing weapons restrictions in its agreements with independent contractors and venders. Does the new law require local governments to hire or assign security personnel to restrict or screen access to government buildings? No. The new law leaves it to the discretion of the local government whether to take such steps, with the only consequence of not doing so being that license holders must be permitted to bring weapons into the building (subject to the exceptions previously discussed). By the same token, where license holders are permitted to bring weapons into a government building, the new law imposes no requirements on the local government to take any additional safety measures. Whether the rights granted to license holders under the new law affects the standard of care that a local government must satisfy in providing a safe working environment for its employees remains to be seen. What if the local government only restricts or screens a government building s entrances with security personnel on certain days or at certain times (such as during City Council or Board of Commissioners meetings)? Under those circumstances, license holders can only be prohibited from carrying weapons into the building on the days or during the times that such security personnel are present and restricting or screening the building s entrances. What if the local government only uses security personnel to restrict or screen a government building s main entrance? The new law does not speak to this specific situation, but if members of the public can freely access the building through any other entrance, it is unlikely that the local government can lawfully prohibit license holders from carrying weapons into the building. 4

5 What if the local government only uses security personnel to restrict or screen public access to certain portions of a government building? The new law does not expressly address such a situation, but the most reasonable interpretation would be that license holders could lawfully be prohibited from carrying weapons only in the restricted/secured portions of the building. What if the local government conducts its business from a privately-owned building pursuant to a lease or similar arrangement? For purposes of the new law, a government building is defined as a building where a government entity is housed or any portion of a building that is not publicly owned that is occupied by the government entity. The term government building also includes a building where a government entity meets in its official capacity; provided, however, if it is not a publicly owned building, then it is only a government building while the government entity is meeting in the building. What if the portion of a privately-owned building that is occupied by a local government cannot be accessed without going through a portion of the building that is occupied by a private entity prohibiting weapons? The new law does not appear to contemplate this precise situation. On one hand, as just noted, there is no question that the portion of the building occupied by the local government constitutes a government building for purposes of the new law. On the other hand, under the new law, private property owners retain the right to forbid, exclude, or eject a person who is in possession of a weapon on their private property in accordance with the State s criminal trespass statute (subject to the aforementioned provisions relating to parking lots and garages). While this may ultimately be an issue for the courts to resolve, it is probable that the specific right of a license holder to carry a weapon into an unrestricted/unsecured government building would supersede the private property owner s right to prohibit weapons on his/her property (which is a component of his/her general property rights). In any event, where these specific circumstances exist, the local government is advised to acknowledge the right of license holders to carry weapons in its portion of the building and refrain from taking a position, if possible, with regard to the private entity s right to prohibit such license holders from carrying weapons through its portion of the building. Given that the new law distinguishes between license holders and non-license holders, what can a local government do to determine whether a given member of the public attempting to carry a weapon into a government building is a license holder? Very little. Under the new law, a member of the public carrying a weapon can be asked to display his/her license, but is not required to comply with such a request. Furthermore, a member of the public cannot be detained solely for the purpose of determining whether he/she has a weapons carry license. Rather, before such a person can be detained, he/she must have created a reasonable suspicion that a crime has been committed or is about to be committed. According to one observer, this requirement may very well render provisions of [HB 60] granting license holders different rights from non-license holders in government buildings worthless. Since law enforcement would be prohibited from detaining to see a weapons carry license in many situations, all persons carrying weapons in an unsecured government building, including prohibited persons, would have to be treated as if they were license holders or the officer and [local government] could face a lawsuit for simply asking to see a weapons carry license. Patel, Rusi, Important Changes for Cities in Georgia s New Gun Legislation, (Georgia Municipal Association, June 6, 2014). 5

6 So, if members of the public can be prohibited from carrying weapons into a courthouse, what if a local government s court is in a building that also contains other offices, departments, etc.? Must weapons be permitted in the non-court areas of the building? No. A courthouse, under the new law, is defined as "a building occupied by judicial courts and containing rooms in which judicial proceedings are held." By this definition, if a portion of a government building is used to hold judicial proceedings, then that building is regarded as a courthouse and weapons may not be brought into the building regardless of whether its entrance is screened by security personnel and regardless of whether the person is a license holder. It should also be noted that, in order for a building or other structure to constitute a courthouse for purposes of the new law, it must meet the statutory definition of the term. Consequently, a historic courthouse in which judicial proceedings are no longer conducted would be regarded as a government building for purposes of the new law (if still owned and operated by the local government). Can a local government employer take disciplinary action against an employee who refuses to interact with members of the public exercising their right to carry weapons into government buildings? Yes, assuming the employee s duties and responsibilities include such interaction. Georgia law requires employers to provide a safe working environment for its employees, see O.C.G.A , and an employee s safety-related concerns regarding interacting with persons carrying weapons are not frivolous. At the same time, however, this new law grants certain rights to members of the public which local governments are required to accommodate. An employee who refuses to provide services to a member of the public who is exercising these rights places his or her local government employer at risk of being held in violation of the new law. In an effort to reach a workable compromise, some local government employers have enacted policies allowing employees with particularized concerns regarding interacting with a member of the public who is exercising his/her right to carry a weapon to request a special accommodation from a supervisor. Such accommodations may include having another employee step in for the concerned employee, having another employee (possibly even a law enforcement officer) accompany the concerned employee, or relocating the meeting or other interaction to a building where weapons may lawfully be prohibited (e.g., a courthouse). It should be noted, however, that the new law does not authorize or otherwise address such accommodations and, therefore, they should be the exception rather than the rule and implemented only in response to particularized concerns (e.g., where prior interactions between the employee and the person in question became heated and tense). If the person in question perceives that the accommodation interferes in any way with his/her rights under the new law, litigation may ensue. How does the new law affect schools? The new law continues the general rule that no person may carry, possess, or transport a weapon at school buildings, at school activities, in school safety zones, or on school buses regardless of whether he/she is a license holder. Notwithstanding the foregoing, the prohibition does not apply to a weapon possessed by a license holder which is under his/her control or otherwise securely stored in a motor vehicle being used to drop off or pick up a student or for some other purpose authorized by the statute. Other exceptions exist for certain persons acting in the performance of their official duties (or when en route to or from such duties), including P.O.S.T. certified peace officers, federal law enforcement officers, and prosecutors. Similarly, the general prohibition does not apply to bats, hockey sticks, and other sports equipment intended for 6

7 legitimate athletic purposes, sport shooting events, firearm training courses, military training programs, and certified law enforcement training. The new law expands on the above-described exceptions by expressly authorizing local boards of education to designate personnel to carry guns in school buildings, at school functions, in school safety zones, and on school buses, provided that such personnel (a) must be license holders and (b) must either undergo specified training or have previously served in the military or as a certified law enforcement officer. How does the new law affect polling places? The new law does not change the law applicable to polling places. As such, only P.O.S.T. certified peace officers and certified security guards are allowed to carry firearms in a polling place (which, by definition, is limited to the room in which voting takes place). All other persons carrying weapons, regardless of license or security, are not permitted within 150 feet of a polling place. The comments, observations, and suggestions contained in this article are designed to provide a general overview of the legal and practical issues addressed; as such, the article is intended for informational purposes only and does not constitute legal advice. Additional information concerning these and other public employment law issues can be obtained by contacting your city or county attorney, the author, or any other member of Elarbee Thompson s Public Sector Group via or