Two Tennessee state lawmakers have introduced an unusual measure aimed at business owners who ban guns in their buildings. Under the bill, they could be held liable for injuries suffered by concealed carry permit holders who are not allowed to bring firearms onto the property.
The bill, introduced last week, cuts to the heart of a central conflict of American gun ownership. How do we reconcile one’s right to bear arms with another’s right to govern his or her property? Both sides assert their rights in the name of safety: Concealed carriers feel unsafe venturing out without their guns, while advocates for gun-free zones fear accidental shootings and a coarsening of civil life. (The CDC identified that Tennessee residents are at unusually high risk of injury from the accidental discharge of firearms.)
The Tennessee legislature rejiggered the lines surrounding public gun-free zones — such as schools, the capitol building, and public parks — no fewer than five times last year. But pro-gun lawmakers can’t legislate private gun free zones out of existence, which vexes concealed carriers who want to carry everywhere. The drafters of the Tennessee bill take a novel approach to bridging the divide: If a concealed carry permit holder can’t be armed at a private business, then that business should pay for an injury that could have been prevented by a gun. As Jeremy Faison, the sponsor of the bill in the House, puts it, “If you deny me the chance to protect myself, you’re assuming the responsibility to protect me.”
In broad terms, the bill imagines the kinds of situations in which a gun would be useful. When attending a gathering, for instance, other people there could be dangerous or violent. While shopping at a store, you might encounter an armed robber. At work, a fellow employee could turn a dispute into a physical fight. The measure even cites the need to protect oneself against a potential attack by wild animals. But mostly, Faison had a specific — and statistically rare — event in mind: mass shootings. When asked what motivated him to propose the legislation, he told The Trace, “Aurora. Chattanooga.”
“I can’t tell others how to keep people safe,” the bill’s sponsor admits, but he adds, “I want businesses to allow armed citizens into their establishments.”
Only concealed carry permit holders would be able to sue for injuries sustained in a gun-free zone — business owners wouldn’t be responsible for the protection of those not licensed to carry. Additionally, only business owners who voluntarily make their property gun free could be held liable. Owners of properties where guns are already prohibited by law, such as court or other government buildings, would remain exempt.
The Tennessee bill goes far beyond common liability, which encourages property owners to prevent risks that could cause injury, such as slippery ice on a sidewalk, or a neighbor’s aggressive dog with a known history of biting strangers. “The key to finding that a property owner is at fault is that they didn’t protect you from a foreseeable danger,” says Benjamin Barton, a professor of tort law at the University of Tennessee College of Law. In a lawsuit, what “foreseeable” means is determined by a jury whose members are asked to put themselves in the shoes of business owner: Would they have salted or shoveled their parking lot? Or posted a sign warning of the dog?
In the mind of concealed carry holders, for whom “conditional readiness” is a virtue, the line between foreseeable dangers, like the neighbor’s dog, and what some would think of as unforeseeable — or improbable — dangers like mass shootings, is blurred. For them, all kinds of danger are foreseeable, from armed robberies to massacres at local movie theaters. Given this worldview, if people aren’t allowed to carry guns to defend themselves against all possible dangers, how much responsibility does this create for the gas station owner who wants to keep guns out of his store?
The bill does not require plaintiffs to show that the cause of their injury could have been thwarted by a lawfully owned firearm in any specific way. But that doesn’t mean a concealed carrier won’t have to make the case that a gun would have actually been useful in preventing the harm. Barton thinks it would take time to understand how gun carriers could effectively make this argument. “Someone will have to be shot at a gas station where they weren’t allowed to carry,” he says. “And then a judge might tell us how the bill should work.”
In the gas station example, there are numerous approaches the business could take to keep its customers safe. For instance, a gas station that has been robbed at gunpoint repeatedly over a period of months might install hidden cameras, lessen the amount of cash it keeps in the register, or even hire an armed guard. These things could be good ideas, but under current law, a gas station might not have to do any of them: It would be inefficient for lawmakers to have to think of all the things gas stations should do in the name of safety, from hiring security officers to installing hidden cameras. But injured guests can sue property owners when something goes wrong because it’s their responsibility to keep visitors safe, choosing whatever means.
What’s unusual about the Tennessee bill is that it envisions only one proper choice: Businesses should allow customers to carry guns. “I can’t tell others how to keep people safe,” Faison admits, but he adds, “I want businesses to allow armed citizens into their establishments. The best way to keep people safe is to allow people to carry.” This narrow interpretation of personal safety makes Barton think that, despite the bill’s stated intent to balance the interests of gun carriers and gun-free zones, the drafters want that balance tipped in favor of gun rights. “The purpose of the bill is to make it easier for gun owners to sue,” he says.
Barton thinks it’s odd that the Tennessee legislature is asking businesses to take a back seat to concealed carriers. He says lawmakers have sought to “shrink the reach of the tort system” in recent years, limiting liability for businesses. “The Tennessee legislature has not been pro-tort,” he notes. As the new bill would make businesses responsible for more — not less — injury, Barton thinks those views have been rearranged for the sake of gun rights. “This is unusual,” he says. “They’re fishing around for ways to be nicer to gun owners.”
[Photo: Flickr user Steve Snodgrass]
