2011 Wisconsin Act 35 was signed into law by Governor Walker on July 8, 2011 and has an effective date of November 1, 2011. The Act is referred to in legislative circles as “The Personal Protection Act,” but is probably more widely referred to as “Concealed Carry.” The Concealed Carry Act (“CCA”) establishes the rights of Wisconsin citizens to carry concealed weapons anywhere in the state unless expressly prohibited by law or otherwise, and providing licensing and background requirements are met.

Licensing under the CCA permits a licensee to carry a concealed “weapon” which, for purposes of the Act, is defined to include a handgun, an electric weapon, a knife other than a switchblade knife, or a billy club.^{[1 ]} This article is likely the first of several I will be preparing for Wisconsin businesses concerning operational concerns. The purpose of this article is not to comment on whether the CCA is good or bad or to provide a full overview of all of the Act’s requirements. The purpose is to address the effect of the CCA on Wisconsin businesses and property owners.

How Does the CCA Affect Businesses?

Businesses are affected by the CCA in essentially two ways: as employers; and as property owners inviting guests (customers) to their premises. Under the CCA, both employees and customers (if properly licensed) are permitted to carry concealed weapons at a private business unless prohibited by the business or property owner^[2]. To prohibit concealed carry of weapons on the business premises, affirmative action by the business owner is required.

What Is Required To Prohibit Concealed Carry on Business Premises?

Under the CCA, the owner or occupant of a residential or nonresidential building may notify “an individual not to enter or remain in a part of the building while carrying a firearm or with a particular firearm.” Notice can be oral or by posting a sign. Any sign must be at least five inches by seven inches and must be:

. . . located in a prominent place near all of the entrances to the point of the building to which the restriction applies and any individual entering the building can be reasonably expected to see the sign.

Individuals carrying concealed weapons inside a building with posted signs may be found in violation of statutory trespass laws and are subject to civil forfeitures up to $1,000.

While businesses may prohibit carrying of weapons in business areas, they are not permitted to prohibit employees or customers from keeping weapons or ammunition in their vehicles driven to or parked in parking lots servicing the business and its premises. Business owners cannot prohibit employees from carrying concealed weapons in their personal vehicles parked in the employer’s parking lot or in personal vehicles used by employees in the course of their business.

Should Businesses Prohibit the Carrying of Weapons by Customers and Employees?

The question of what each business should do is one that has to be answered by each business based upon its own view of the law and by analysis of the risks of each course of action.

1. Statutory immunity if concealed carry is permitted.

Under the CCA, businesses and employers who do not prohibit carrying of weapons are granted immunity from liability:

A person that does not prohibit an individual from carrying a concealed weapon on property that the person owns or occupies is immune from any liability arising from its decision.

The scope of the immunity is unclear and may well not be defined until cases are filed with state and federal courts. The grant of immunity, however, begs another question, what is a businesses’ potential liability if it does prohibit the carrying of weapons on business premises? If the business is “immune” from liability if weapons are permitted, is it better to not prohibit concealed carry?

2. What liabilities do businesses face?

Businesses prohibiting concealed carry are not necessarily liable for harm caused by concealed weapons or the lack thereof. Businesses have certain common law duties to maintain safe workplaces and premises to which others are invited. Under Wisconsin law, a proprietor of a place of business has a duty to use reasonable care to protect its customers from bodily harm caused by accidental negligence or intentional acts of third parties if the proprietor could have discovered by the exercise of reasonable care that such acts were being done or were about to be done and could have protected members of the public by controlling the conduct of third persons, or by giving them adequate warning to enable them to avoid the harm.^[3]

Businesses are not insurers of the safety of patrons against injuries inflicted by other patrons on the premises.^[4] The question of liability of the business for acts of customers is whether the injury is foreseeable and whether the business and its employees exercised reasonable care to protect its customers from harm. These questions involve specific facts for each situation. For example, a business subject to repeated armed robberies might be found liable if it prohibits customers with appropriate licenses from carrying weapons and such a customer is injured in a robbery. Was the risk foreseeable and did the business use reasonable care in prohibiting weapons? On the other hand, what are the risks to customers and employees if weapons are permitted? If a business does prohibit concealed carry, it should be sure to enforce the prohibition if weapons are seen on customers.

Once again, the courts will be the ones having to decide the scope of liability under the CCA.

3. Workplace safety concerns under the CCA.

Complicating the issue of business liabilities under the CCA are employer duties imposed by the Occupational Safety and Health Administration (OSHA) requiring safe and healthful workplaces free from known hazards^[5]. Workplace violence has been considered by OSHA to be a hazard and at least potentially, OSHA has the ability to sanction employers who fail to maintain a hazard free workplace where the hazard is recognized, is likely to cause death or serious injury, and the hazard is preventable.

I am not aware of any instances where OSHA has addressed concealed weapons under this hazard scenario. Nonetheless, potential issues exist. Moreover, any grant of immunity under the CCA is likely to have no impact on liability imposed by OSHA as the state cannot grant immunities for liabilities incurred under federal law.

Conclusion

With the implementation of the CCA on November 1, 2011, businesses are forced to determine what their policies should be, post or not post. If concealed carry is not expressly prohibited, customers and employees will be permitted to carry weapons on business premises. Doing nothing is making a decision.

Each business will have to make a decision as to the potential harm caused by permitting employees and customers to carry weapons as opposed to the potential harm of prohibiting weapons. Further, employers will have to decide how to address weapons in the context of employment policies.

The CCA is complex and many answers will not be determined until there are many years of experience under the Act. Potentially, few people might apply for and obtain licenses to carry weapons and there might be few issues. Conversely, many licenses might be obtained and weapon carrying could be widespread raising numerous issues. Only time will tell. Until then, businesses are faced with difficult choices in how to respond.

^[1] “Wisconsin’s New Carrying Concealed Weapons Law Questions and Answers,” Wisconsin Department of Justice, August 1, 2001.
^[2] The CCA expressly prohibits concealed carry in certain public facilities including law enforcement offices, correctional facilities, courthouses, mental health institutions and areas beyond security checkpoints in airports. Private land and buildings, however, are not included in express prohibitions.
^[3] Weihert v. Piccione, 273 Wis. 448, 455-456 (1956).
^[4] Wis. JI-CIVIL 8045.
^[5] “This Gun For Hire: Concealed Weapons Legislation in the Workplace and Beyond,” Raneta Lawson Mack, 30 Creighton Law Review 285, 1996-1997.

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