Illinois Municipal League - PowerPoint Presentation

Slide1

Illinois Municipal LeaguePresented by:John Redlingshafer, & Chrissie Peterson

Saturday, September 19, 2015Slide2

Concealed Carry:Illinois Law In ReviewSlide3

BackgroundFirearm Concealed Carry Act, 430 ILCS 66/1Effective January 1, 2014Act allows individuals with a valid license issued by the Illinois Department of State Police to carry a concealed handgun.Slide4

Background on IL Concealed CarryShepard v. Madigan 734 F.3d 748 (7th Cir. 2013)

Federal suit that challenged Illinois’ unconstitutional ban on carrying firearms for self-defense outside the home.

Plaintiff was church treasurer Mary

Shepard

, an Illinois resident and a trained gun owner with no criminal record, and licensed to carry a concealed handgun in two other states.Slide5

Shepard v. MadiganWhile working as the treasurer of her church, Shepard and an 83-year-old co-worker were attacked and beaten by a 6-foot, 3-inch, 245-pound man with a violent past and a criminal record.

They suffered major injuries to the head, neck and upper body with the church treasurer undergoing extensive surgery and physical therapy.Slide6

Shepard v. Madigan“Mary Shepard is a victim of anti self-defense activists in the Illinois legislature who have consistently refused to recognize that good people have the right to protect themselves when they go about their everyday business.” Slide7

Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012)The Illinois Unlawful Use of Weapons (

UUW

) 720

ILCS

5/24-1, statute and the Illinois Aggravated Unlawful Use of a Weapon (

AUUW

) 720

ILCS

5/24-1.6, statute, which prohibited the carrying of firearms in public, violated the Second Amendment right to bear arms for self-defense outside the homeSlide8

Procedural HistoryGovernor Pat Quinn had used his veto authority to suggest changes, including allowing employers to “prohibit an employee from carrying a concealed firearm during any part of the employee’s employment . . .”

On July 9, 2013, the Illinois Legislature

overrode

Governor Pat Quinn’s amendatory veto of the Illinois Firearm Concealed Carry Act. The legislative transcript reflects the July 9, 2013 deadline for implementing the law was a primary concern. Slide9

Qualifications for Concealed CarryConcealed Carry LicenseValid FOID CardAt least 21 years of age

16 hours of firearm training

Background check restrictions

DUI’s, violent misdemeanors, pending arrest warrants, alcohol/drug treatment programs

Concealed Carry License ApplicationSlide10

Mary Shepard got her CCPSlide11

Concealed Carry and the LawIndividual Rights and ResponsibilitiesEmployer Rights and ResponsibilitiesProperty Owner Rights and ResponsibilitiesGovernmental Entity Rights and Responsibilities

Insurance Coverage ConsiderationsSlide12

Individual Rights and ResponsibilitiesUse of Force in Defense of PersonNecessary to Prevent a Forcible Felony

Use of Force by Aggressor

Use of Force in Defense of Dwelling

Use of Force in Defense of Other PropertySlide13

What do our clients ask usthe most about CC?

The answer depends on several factors

May employers prohibit employees from carrying concealed firearms at work?

SHOULD employers prohibit employees from carrying concealed firearms at work?

YesSlide14

What do our clients ask usthe most about CC?

Yes, if you are the owner.

Can I prohibit CC on my property?

SHOULD I prohibit CC on my property?

It depends…Slide15

The finally, everyone wants to know:When am I liable if I shoot someone?

Should I shoot?

Guns? Here?

When am I liable if someone on my property gets shot by someone with CC?Slide16

EMPLOYER Rights andResponsibilities

Employer

= Private and Public EmployersSlide17

May employers prohibit employees from carrying concealed firearms?Answer:

Yes

, in at least three potential ways:

Under the Act if employment is in one of the prohibited areas (government building, school, or hospital);

Under the Act if the property owner decides to post the Illinois State Police sign, which prohibits

everyone

from carrying a concealed handgun on the property; and

Outside the Act pursuant to a particular employment policy (include in employee handbook).Slide18

Does allowing concealed carry expose employers to liability?In light of the concealed carry law and the absence of immunity for employers:

Employers face increased liability for consenting to the presence of firearms in the workplace

Workers’ compensation is recoverable

Employers should consider prohibiting firearmsSlide19

StatisticsViolence caused 17% of workplace fatalities in 2011Gun-related deaths were most frequentMost workplace shootings were caused by employees or former employees (Kraft Foods example)

Risk factors:

Face-to-face contact with public

Exchange of money

Delivery of services or goodsSlide20

Effect on Employers andBusiness OwnersThe Act specifies numerous areas where concealed carry licensees are prohibited from knowingly carrying a firearm.

Employers should determine whether they own or operate any of these “prohibited areas.”Slide21

Property Owners Employers, who are property owners, can prohibit anyone from otherwise carrying lawfully concealed firearms on their property by following the procedures in the Act and posting a sign that complies with the Illinois State Police signage requirements

Exception: parking lot “safe haven”Slide22

Prohibited Areas: Concealed Carry Is Not Allowed Prohibited areas include:

Local government buildings – “Any building or portion of a building under the control of a unit of local government.”

State government buildings (courts and buildings controlled by the executive and legislative branches)

Federally prohibited areas – “Any area where firearms are prohibited under federal law.” Slide23

Prohibited Areas (cont.)Schools and child care facilitiesPublic and private colleges and universitiesParks, playgrounds, athletic facilities and stadiums

Amusement parks and zoos

Libraries and museums

Nuclear facilities

Airports

Gambling facilities

Certain

bars, taverns, and other places serving alcoholSlide24

Prohibited Areas (cont.)Public transportation – “Any bus, train, or form of transportation… .” Hospitals – “Any building, real property, and parking area under the control of a public or private hospital or hospital affiliate, mental health facility, or nursing home.” Slide25

Prohibited Areas (cont.)Permitted Special Events – “Any public gathering or special event conducted on property open to the public that requires the issuance of a permit from the unit of local government, provided this prohibition shall not apply to a licensee who must walk through a public gathering in order to access his or her residence, place of business, or vehicle.”Slide26

Prohibited Areas (cont.)Concealed carry is not allowed at certain bars, taverns and other places that serve alcohol + 50% ruleChicago Ordinance: All businesses serving alcohol.Slide27

Exceptions to NO concealed carry:Exceptions to “prohibited areas”Public Right of Way

Parked CarsSlide28

Parking Lots ExceptionParking lots are an exceptionFirearms and ammunition can be stored in a vehicle in most parking areasLicense holder can carry firearm outside of vehicle for sole purpose of storing it inside trunkSlide29

Parking Lot ExceptionA licensee is “permitted to carry a concealed firearm on or about his or her person within a vehicle into the parking area and may store a firearm or ammunition concealed in a case within a locked vehicle or locked container out of plain view within the vehicle in the parking area.”

430 ILCS 66/65(b)Slide30

Employers as Property OwnersEmployers should determine whether they operate in any of the foregoing “prohibited areas.”Even if not, if an employer is a property owner, it may still prohibit firearms

pursuant to the law.

430

ILCS

66/65(a-10)Slide31

Employers as Property Owners Owner of Private Property May Prohibit: “The

owner

of private real property of any type may prohibit the carrying of concealed firearms on the property under his or her control. The owner must post a sign in accordance with subsection (d) of this Section indicating that firearms are prohibited on the property, unless the property is a private residence.”

430

ILCS

66/65(a-10)Slide32

Sign: No Guns AllowedOwners of prohibited areas may utilize signage larger in size than the template provided, at their discretion.Prohibited areas may include additional language on their signs.

If prohibited areas use a larger sign or include additional language, the template provided shall be reproduced somewhere on the larger sign no smaller than the 4” x 6” dimension required by the Act.

The required signs “shall be clearly and conspicuously posted at the entrance of the building, premises or real property.”Slide33

Sign: No Guns AllowedThe background is white, with no text, other than the reference to 403 ILCS 66/65, and no other marking within the one-inch area surrounding the graphic design. The graphic design is a handgun in black ink surrounded by a red circle with diagonal slash across the handgun. The circle shall be 4 inches in diameter. The black rectangle surrounding the image must measure 4 inches tall by 6 inches wide. Slide34

Ambiguities of the ActPrivate Property If Posted by Owner – “The

owner

of private real property of any type may prohibit the carrying of concealed firearms on the property under his or her control. The owner must post a sign in accordance with subsection (d) of this Section indicating that firearms are prohibited on the property, unless the property is a private residence.”

430

ILCS

66/65(a-10)

What if you are not the property owner?Slide35

Ambiguities of the ActDoes not address a number of employee-related issues.Can employees carry firearms while working?Can an employer prohibit employees from carrying firearms outside the workplace while conducting employer’s business?

Raises employment law issues

Imposes liability upon employers whose employees were conducting employer’s business at the time of an incident Slide36

Ambiguities of the ActDoes a TENANT have any rights to prohibit concealed carry on the premises, like the OWNER? Slide37

Potential Employer LiabilityNo immunity provisionVicarious Liability

Negligence Claims

Hiring, Supervision, Retention

OSHA General Duty Clause

“Each employer shall furnish . . . a place of employment which are free from recognized hazards that are . . . likely to cause death or serious physical harm to his employees.” 29

U.S.C.

§ 654(a)(1)Slide38

SHOULD Employers Prohibit Employees from Carrying Concealed Firearms at Work?There is no settled law in Illinois on the liability issues

Other states’ experiences provide a basis for discussionSlide39

States Surrounding Illinois:Concealed Carry LawsEmployer May Prohibit CC While Employee is in Course of Job, but Not as to Personal Vehicle in Parking Area

Indiana, Wisconsin, Kansas and Michigan

Missouri and Ohio:

Employer May Prohibit as to Employer-Owned Vehicles Slide40

Case LawSlide41

Burlington Ins. Co. v.Phillips-Garrett, Inc. (Illinois)

Bar employee shot a patron

Patron’s mother sued based on negligence

Insurance policy had “assault and battery exclusion”

Incident fit the definition of a battery

Insurance company had no duty to defend and indemnify

37 F. Supp. 3d 1005 (S.D. Ill. 2014)Slide42

Adames v. Sheahan (Illinois)Parents of a boy who was killed when his friend accidentally shot him with a gun that belonged to his father, a correctional officer, brought suit against the county sheriff under the theory of

respondeat

superior

Court held sheriff was not liable because correctional officer was not acting in the scope of his employment when he stored the gun in his bedroom closet

233 Ill. 2d 276 (2009)Slide43

Estate of Smith v. Mahoney’s Silver Nugget, Inc. (Nevada)

A casino patron was shot in a fatal altercation at a casino lounge.

The estate of the deceased brought an action against the casino.

The shooter possessed a concealed weapon on the premises.

Supreme Court of Nevada held that the casino owed no duty to the deceased as a matter of law.

265 P.3d 688 (Nev. 2011)Slide44

Robinson v. Hudson Speciality Ins. Group (Alabama)

Robinson and a group of friends went to a nightclub

Two men shot Robinson five times

Robinson survived but was severely injured

Robinson sued night club owner for negligence

Insurance company denied coverage and refused to defend the corporation that owned the night club.

Policy contained assault/battery and weapons exclusion

984 F. Supp. 2d 1199 (S.D. Ala. 2013)Slide45

Baker v. Aetna Cas. & Surety Co. (Ohio)Employee was shot in the face during a robbery and brought an intentional tort claim against employer

Intentional tort claim fell within employer’s commercial liability insurance policy covering employer’s liability beyond workers’ compensation benefits

107 Ohio App. 3d 835 (10th Dist. 1995)Slide46

Workers’ CompensationWhen an employee is injured, workers’ compensation provides a remedyInjury must:Arise out of employment; and

Occur in the course of employmentSlide47

4 Categories of Workplace ViolenceCriminal intentViolence is incidental to another crime, such as a robbery

Customer/client

Perpetrator has a relationship with the business

Worker-on-worker

Past or current employee harms other employees

Personal relationship

Assailant is usually an employee’s relativeSlide48

Workers’ Compensation ExamplesManchester, Conn. – worker accused of theft killed eight co-workers and seriously wounded othersKirkwood, Mo. – gunman opened fire at city council meeting, killing five and wounding two othersDespite headlines, most homicides in the workplace result from robberiesSlide49

Roberts v. Pup ‘N’ Taco Driveup (California)

Employee killed during robbery

Another employee failed to call for emergency help

Employee’s mother sued employer for negligence

Court dismissed negligence claim and held workers’ compensation provided the sole remedy

206 Cal.

Rptr

. 533 (2d Dist. 1984)Slide50

Panpat v. Owens-Brockway Glass Container, Inc. (Oregon)

A boyfriend and girlfriend worked the same shift at the employer’s manufacturing plant

When relationship ended, the boyfriend told plant superintendent he was having difficulty coping

While on medical leave, he entered the plant and shot and killed the girlfriend while she was working

Court held incident did not arise out of employment

334 Ore. 342 (2002)Slide51

Koerner v. OrangetownPolice Dept. (New York)

Police officer’s wife accidentally shot and killed him with his service revolver

Department policy required him to have firearm with him during off-duty hours

Court held incident arose out of employment, but did not occur in course of employment because officer was off-duty when shooting occurred

Workers’ compensation benefits were denied

68 N.Y. 2d 974 (Ct. App. 1986)Slide52

Johnson v. Drummond (Maine)Law firm employee did not recover workers’ compensation for injuries caused by her husband shooting her in the firm’s reception area

Firm’s office manager told employee not to use others as a “buffer” between her and her husband

Court held dispute was personal in nature

Workers’ compensation benefits were denied

490 A.2d 676

(Me

. 1985)Slide53

Galaida v. AutoZone, Inc. (Florida)

Employee had a loaded firearm in his car in employer’s parking lot

On a cigarette break, employee opened his car door to get a cigarette

The loaded firearm fell out of the car, hit the ground, and shot the employee in the leg

Workers’ compensation benefits were denied because exposure to a firearm was not a foreseeable consequence of a cigarette break and firearm violated employer’s policy

882 So.2d 1111 (Ct. App. Fla. 2004)Slide54

Southland Corp. v. Hester (Arkansas)Employee was found in his employer’s office and had been shot with his own rifleWitnesses testified employee had no motive for suicide and he was not familiar with firearms

Estate brought claim under workers’ compensation law

Court denied benefits because firearm had no connection with employer’s business

253 Ark. 959 (1973)Slide55

Investigating ClaimsPromptly investigate claimsGet copies of photographs, surveillance tapes, and employer’s workplace violence policyIdentify a motive

Employment-related motives;

Motives personal to the employee; or

Motives neutral to the employeeSlide56

Employers’ Potential Liabilities For Allowing Guns at WorkWorkers’ CompensationVicarious Liability

Negligence Claims

Negligent Hiring

Negligent Supervision

Negligent Retention

OSHA General Duty Clause Slide57

Employers’ Potential Liabilities For Allowing Guns at WorkIn light of the concealed carry law and the absence of immunity for employers:Employers face increased liability for consenting to the presence of firearms in the workplace

Workers’ compensation is recoverable

Employers should consider prohibiting firearmsSlide58

Prevention of Workplace ViolenceSteps to prevent workplace violence include:Train supervisors to spot potentially violent employeesImprove physical security

Adequate lighting

Alarms

Controlled entry points

Develop and enforce a workplace violence policySlide59

Governmental Entity Rights and ResponsibilitiesLaw Enforcement Agency Liability

Policies

Training

Granting of CC Permit

430 ILCS 66/45Slide60

Governmental Entity Rights and ResponsibilitiesReporting Requirements

Law Enforcement – 430

ILCS

65/8.1

School Administrator, Principal – 430

ILCS

66/105

Immunity – 430

ILCS

66/110Slide61

Governmental Entity Rights and ResponsibilitiesOdds and Ends

Don’t forget PROHIBITED AREAS

Privacy Issues related to CC

Seizure of guns

Public SafetySlide62

Coverage IssuesSlide63

Insurance Policy ProvisionsCoverage depends on:Language of the policyAllegations in complaint against the insured

Coverage applies to an “

occurrence

.” An occurrence is defined as “an accident, including continuous or repeated exposure to conditions which results in ‘bodily injury’ and/or ‘property damage’ neither expected nor intended from the standpoint of the Insured.”Slide64

Insurance Policy ProvisionsSome policies do not define “accident” Illinois courts have defined “accident” as:

“An unforeseen occurrence, usually of an untoward or disastrous character, with a result that is unintended and unexpected”Slide65

Insurance Policy Provisions ExclusionsPolicies often exclude coverage for intentional acts

Coverage is excluded for “bodily injury or property damage expected or intended from the standpoint of the insured.”Slide66

Insurance Policy Provisions ExclusionsPolicies often exclude coverage for criminal acts

Coverage is excluded for “bodily injury arising out of a criminal act committed by or at the direction of the insured.”Slide67

20th Century Ins. Co. v. Stewart (California)Insured was playing Russian roulette

Gun did not discharge for the first two people, but discharged and killed the third person

Insurance policy contained an intentional/criminal acts exclusion

Exclusion barred coverage for “bodily injury or property damage which is a foreseeable result of an intentional or criminal act of any insured….”

63 Cal. App. 4th 1333 (4th Dist. 1998)Slide68

Personal LiabilityHomeowners’ policies often contain an exception for self-defense“This exclusion does not apply to bodily injury resulting from the use of reasonable force by an insured to protect persons or property.”Slide69

Premises Liability under the ActPrivate Property If Posted by Owner –“The owner of private real property of any type may prohibit the carrying of concealed firearms on the property under his or her control. The owner must post a sign in accordance with subsection (d) of this Section indicating that firearms are prohibited on the property, unless the property is a private residence.”

What if you are not the property owner?Slide70

Premises Liability under the ActWhat about tenants?There seems to be three options:

Ask landlord to post sign at property’s entrance

Ask landlord for permission to post the sign at the entrance to tenant’s business

Post sign without landlord’s permission Slide71

Strahin v. Cleavenger (West Virginia)A landowner’s guest was shot by a third party and sought damages from the landowner.

“In the context of premises liability, we have said that the duty owed by landowners or possessors of property … to any non-trespassing entrant is a duty of reasonable care under the circumstances.”

216 W. Va. 175 (2004)Slide72

Commercial General Liability PoliciesAssault and battery exclusion:“This insurance does not apply to: Assault, Battery, or Other Physical Altercations.”Assault: “Any willful attempt or threat to inflict injury upon the person of another …”

Battery: “Wrongful physical contact with a person without his or her consent that entails some injury or offensive touching.”Slide73

Commercial General Liability PoliciesWillful and Malicious Exclusion:“We do not cover injury resulting from a willful and malicious act, no matter at whom the act was directed. Slide74

Personal Firearms Liability InsuranceInsuring Agreement:Personal Firearms Liability Insurance protects you against liability suits for any injuries you unintentionally cause while

hunting

or

trapping

on public or private land. This coverage also covers you while

shooting in competitions

or at

private shooting ranges

.

Coverage for bodily injury or property damage

caused by the use of a firearm, air gun, bow & arrow, or trapping equipment when you are legally obligated for damages

Most

defense costsSlide75

Personal Firearms Liability InsuranceExclusions:Only covers the individual insured member – NO household membersClaims made by your spouse or household member

Injury caused from loaded firearm while transported in vehicle

Injury intentionally caused by youSlide76

Personal Firearms Liability InsuranceExclusions:Injury arising out of any actual or alleged criminal activityInjury caused under the influence of drugs or alcohol

Punitive damagesSlide77

Self Defense Insurance Self-defense Insurance includes coverage for:Criminal defense reimbursement and civil suit damages

, up to the limit selected

The cost of civil

suit defense

, in addition to the limit of liability for bodily injury and property damage

Criminal defense reimbursement

for alleged criminal actions involving self-defense when you are acquitted of charges

Bodily injury or property damage

caused by the use of a firearmSlide78

Mandated Firearms InsuranceMandated Firearms Insurance?Not in IllinoisNot in other statesAt least 20 bills introduced, so not for lack of trying.Slide79

Watch it…I’m carrying a Concealed Weapon…MY LAWYER!Slide80

Questions? John Redlingshaferjredlingshafer@heylroyster.com

Chrissie Peterson

cpeterson@heylroyster.com