In the Crosshairs: Can — and Should — Your Clients Regulate Firearm Possession?
With gun violence making headlines almost daily in some parts of the country, responses among communities vary widely.
“There are some associations where they’re open to owners having firearms for self-protection, but others don’t feel the same way and are more concerned about firearms in the community,” says Michael Kim of Michael C. Kim & Associates in Chicago. The latter may push their associations to restrict firearms.
Whether the associations have the authority to do that depends largely on where they’re located. But even it’s legally permissible, is it advisable?
Different States, Different Sentiments
In June 2019, Texas enacted a new law barring property owners associations from prohibiting or restricting the lawful possession, transportation, or storage of firearms, parts of firearms, or ammunition, as well as the otherwise lawful discharge of a firearm. S.B. 741 took effect Sept. 1, 2019.
“Associations started passing rules to keep everyone from carrying in common areas after concealed carry became legal,” says Marc Markel, a shareholder in the Texas-based law firm Roberts Markel Weinberg Butler Hailey PC. “But the problem is that ‘concealed carry’ means you can’t see it, so how do you enforce the rules?”
When the open carry of handguns became legal in 2016, Markel says, “Everyone was freaking out. They thought people would walk around associations brandishing guns. That didn’t happen, but associations passed rules and regulations against open and concealed carry in common areas.”
Now those rules and regulations are null and void. “So many associations have entered into the business of attempting to regulate possession of weapons in the past,” Markel says, “and those rules and regulations are no longer enforceable — if they ever were.”
In Florida, on the other hand, no state law specifically prohibits associations from restricting firearms. That doesn’t necessarily mean associations are free to do so, though. Jay Roberts, a shareholder in the Florida firm Becker & Poliakoff, says associations might be subject to at least two limits on their ability to regulate firearms.
According to Roberts, Florida courts have held that restrictions in recorded covenants can be invalidated if they violate public policy or a fundamental constitution right. “The preambles to several Florida gun rights laws state that it’s public policy that safe gun ownership should be promoted for the safety of home and property,” he points out.
“For instance, may a community association prohibit persons with a concealed weapons license from otherwise lawfully carrying the weapon in the common areas for self-defense? It may violate public policy and be deemed invalid by the courts.”
Then there’s the matter of the Second Amendment right to bear arms. The Constitution generally restrains only the government from restricting the right, not private actors like associations. But, under Florida law, when an association asks a court to enforce a restrictive covenant, the covenant becomes subject to constitutional scrutiny.
“As soon as you walk into the court to have the law enforce your private contract, the Constitution kicks in,” Roberts explains. “If an association tried to go to court to enforce an absolute ban on gun ownership, the court would say ‘no, it violates the Second Amendment and, by coming in here, you’ve become a state actor.”
Nonetheless, he believes that certain restrictions even within a home would be upheld for a court — for example, a rule against discharge of weapons except for lawful self-defense.
“There’s also legal support for the proposition that a community association could prohibit (with certain exceptions, such as for off-duty law enforcement officers) firearms at meetings or other gatherings held in common areas,” Roberts says.
Things are easier for Illinois associations that want to address firearms. The state condo law act doesn’t prohibit regulations, and the concealed carry law explicitly allows private property owners to prohibit the carrying of concealed firearms on their property.
“A condominium, common interest community, cooperative, or master association can prohibit persons from carrying concealed firearms on the property,” says Chicago-based attorney Kim.
He cautions, though, that restrictions done by rulemaking must be reasonable under the circumstances: “What’s reasonable in a high-rise may not be reasonable where detached homes are on five-acre lots.”
Interestingly, Kim dismisses Second Amendment concerns — and not just because, as noted above, the amendment applies to governmental action, not private action. “While the Illinois condo act specifically says an association can’t adopt rules that impair the First Amendment, it makes no mention of the Second Amendment,” Kim says.
“If an association is concerned about firearms on the property, our view is that you can regulate that or even prohibit it.”
To Regulate or Not to Regulate?
Assuming your clients are in states where they’re not barred from regulating firearms, is it advisable?
“Generally my answer is no,” Roberts says. “Not because it couldn’t pass legal muster if drafted correctly but because of the enforcement side.
“When you undertake a duty, you have potential liability. You’re going to have an unfortunate accident, or something intentional, and the personal injury lawyer can look to the association and say it didn’t act appropriately to enforce its own private rule.”
Markel agrees: “The fact pattern that creates the most angst is where you say they can’t carry, and then a law-abiding person can’t defend himself if someone else brings a gun in. The law-abiding person has a pretty good case against the association for failing to enforce.”
But Kim falls on the other side. “Having a rule might not have stopped the shooter,” he says. “The law allows you to restrict on your own property, but it doesn’t require rigorous enforcement like pat-downs or a metal detector.”
Kim notes, too, that most governing documents prohibit all illegal behavior. “Does that mean the association becomes a secondary enforcer of the law? No.”
One thing is certain — whatever the best route for any association, it begins with a trip to an attorney.