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Keeping Guns Off Your Company Premises Effective Policies and Practices for

Dealing With Concealed Weapons Lawspresents

Today's panel features:

John Harris, Principal Consultant, The Harris Group, Atlanta

Richard Frank, Former Senior Manager, Loss Prevention and Safety Services, Eddie Bauer Fulfillment Services, Columbus, Ohio

John Roche, Attorney, Perkins Coie, Washington, D.C.

Wednesday, May 6, 2009

The conference begins at:1 pm Eastern12 pm Central

11 am Mountain10 am Pacific

The audio portion of this conference will be accessible by telephone only. Please refer to the dial in instructions emailed to registrants to access the audio portion of the conference.

A Live 90-Minute Audio Conference with Interactive Q&A

Keeping Guns Off Your Company Premises Teleconference

May 6, 2009

A Review of U.S. Weapons Access Laws

John K. RochePerkins Coie

(202) 434-1627jroche@perkinscoie.com

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Shall-issue: Thirty-six states are “shall-issue” concealed-carry states, because their law maintains that most individuals, with a few objective limits, shall be issued a concealed-carry permit upon application. In Virginia, for example, if an applicant is 21 years old and has completed a gun safety course, he or she is entitled to a permit upon submission of an application and payment of the required fee. Alaska is included in this group even though it does not require a permit in order to carry a concealed weapon, but it does issue permits so that residents can take advantage of any reciprocity offered by other states. See Alaska Stat. § 11.61.220(a).May-issue: Eleven states are "may-issue” concealed-carry states, because permit applicants must demonstrate good cause for their permit before it is approved, with varying degrees of restrictiveness. In California, for example, a county sheriff, upon getting proof that applicant is of good moral character, that good cause exists and the applicant has completed safety training, etc., may issue that person a license.No-issue: Illinois and Wisconsin are the only states that affirmatively prohibit carrying a loaded concealed handgun and do not have a permit system. See 720 ILCS 5/24-1; Wisc. Stat. § 941.23. No permit, no problem: Vermont does not issue permits because it does not require a permit in order to carry a concealed weapon. See Vt, Stat, Ann. tit. 13 § 4008.

State Concealed-Carry Laws

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Workplace Gun Laws

States with guns-in-the-workplace laws: Alaska, Florida, Georgia, Kansas, Kentucky, Louisiana, Minnesota, Mississippi, Nebraska, Oklahoma and UtahSome states are considering guns-in-the-workplace laws:

Arizona (HB 2474)Texas (SB 730)

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Summary Of Alaska’s Workplace Gun Law

“A person may not adopt or enforce a … policy, or rule that prohibits or has the effect of prohibiting an individual from possessing a firearm while that individual is within a motor vehicle or prohibiting an individual from storing a firearm that is locked in the individual’s motor vehicle while the motor vehicle is otherwise legally parked in or on … another person’s property.” ee Alaska Stat. § 18.65.800.Exceptions: Alaska law also provides that an employer or its agent may prohibit the possession of firearms within (1) a secured restricted access area, defined as “the area beyond a secure point where visitors are screened and does not include common areas of ingress and egress open to the general public”; (2) a vehicle owned, leased or rented by the employer or its agent; or (3) a parking lot owned or controlled by the employer within 300 feet of the secured restricted access area that does not include common areas of ingress and egress open to the general public. Id. The employer or its agent must post conspicuous notice of the prohibition against possession of firearms at each entrance to the restricted access area and affected parking area. Id.

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Summary Of Florida’s Workplace Gun Law

“[N]o public or private employer may prohibit any … employee … from possessing any legally owned firearm when such firearm is lawfully possessed and locked inside or locked to a private motor vehicle in a parking lot and when the … employee … is lawfully in such area.” F.S.A. § 790.251(4)(a).Exceptions:

“[P]roperty owned or leased by a public or private employer or the landlord of a public or private employer upon which are conducted substantial activities involving national defense, aerospace, or homeland security.” Id. at § 790.251(7)(d).“[P]roperty owned or leased by a public or private employer or the landlord of a public or private employer upon which the primary business conducted is the manufacture, use, storage, or transportation of combustible or explosive materials regulated under state or federal law, or property owned or leased by an employer who has obtained a permit required under 18 U.S.C. § 842 to engage in the business of importing, manufacturing, or dealing in explosive materials on such property.” Id. at § 790.251(7)(e).“[A]ny other property owned or leased by a public or private employer or the landlord of a public or private employer upon which possession of a firearm or other legal product by a customer, employee, or invitee is prohibited pursuant to any federal law, [or] contract with a federal government entity …” Id. at § 790.251(7)(f).

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Summary Of Georgia’s Workplace Gun Law

“No private or public employer … shall establish, maintain, or enforce any policy or rule that has the effect of allowing such employer or its agents to search the locked privately owned vehicles of employees or invited guests on the employer’s parking lot and access thereto.” See O.C.G.A. § 16-11-135(a). Additionally, “no private or public employer … shall condition employment upon any agreement by a prospective employee that prohibits an employee from entering the parking lot and access thereto when the employee’s privately owned motor vehicle contains a firearm that is locked out of sight within the trunk, glove box, or other enclosed compartment or area within such privately owned motor vehicle, provided that any applicable employees possess a Georgia firearms license.” Id. at § 16-11-135(b).Some exceptions include:

To an employer providing applicable employees with a secure parking area which restricts general public access through the use of a gate, security station, security officers, or other similar means which limit public access into the parking area; provided that any employer policy allowing vehicle searches upon entry shall be applicable to all vehicles entering the property and applied on a uniform and frequent basis.To any U.S. Department of Defense contractor, if such contractor operates any facility on or contiguous with a U.S. military base or installation or within one mile of an airport.Where transport of a firearm on the premises of the employer is prohibited by state or federal law or regulation.To any area used for parking on a temporary basis. Id. at § 16-11-135(d).

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Summary Of Kansas’ Workplace Gun Law

Kansas law provides, without exception, that “no employer may prohibit possession of a firearm in a private means of conveyance, even if parked on the employer’s premises” See K.S.A. § 75-7c11(a)(1).Any private business may “restrict or prohibit persons [with concealed weapons permits] from carrying a concealed weapon within a building or buildings of such entity, provided that the premises are posted, in accordance with rules and regulations [codified at K.A.R. § 16-11-17]” Id. at § 75-7c11(a)(2).

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Summary Of Kentucky’s Workplace Gun Law

“Private but not a public employer may prohibit employees or other persons holding a concealed deadly weapons license from carrying concealed deadly weapons, or ammunition, or both in vehicles owned by the employer, but may not prohibit employees or other persons holding a concealed deadly weapons license from carrying concealed deadly weapons, or ammunition, or both in vehicles owned by the employee ... ” Ky. Rev. Stat. Ann. § 237.110

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Summary Of Louisiana’s Workplace Gun Law

“A person who lawfully possesses a firearm may transport or store such firearm in a locked, privately-owned motor vehicle in any parking lot, parking garage, or otherdesignated parking area” and that “[n]o … private employer, or business entity shall prohibit any person from transporting or storing [such] a firearm.” See La. R.S. § 32:292.1. However, employers may adopt a policy “specifying that firearms stored in locked, privately-owned motor vehicles on property controlled by an employer or business entity be hidden from plain view or within a locked case or container within the vehicle.” Id.Exceptions:

Property where possession of firearms is prohibited under state or federal law.Vehicle owned or leased by a public or private employer, or business entity, and used by an employee in course of employment, except for those employees who are required to transport or store a firearm in the official discharge of their duties.Any vehicle on property controlled by a public or private employer or business entity, if access is restricted or limited through the use of a fence, gate, security station, signage or other means of restricting or limiting general public access onto the parking area; and if one of the following conditions applies: (a) Employer or business entity provides facilities for temporary storage of unloaded firearms, or (b) Employer or business entity provides an alternative parking area reasonably close to the main parking area, in which employees and other persons may transport or store firearms in locked, privately-owned vehicles.

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Summary Of Minnesota’s Workplace Gun Law

Private employer may establish policies that restrict possession of firearms by employees while acting in the course and scope of employment. But, employer may not ban guns from parking lots Minn. Stat. § 624.714(18)

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Summary Of Mississippi's Workplace Gun Law

“A public or private employer may not establish, maintain, or enforce any policy or rule that has the effect of prohibiting a person from transporting or storing a firearm in a locked vehicle in any parking lot, parking garage, or other designated parking area.” See Miss. Code § 45-9-55.Exceptions:

“A private employer may prohibit an employee from transporting or storing a firearm in a vehicle in a parking lot, parking garage, or other parking area the employer provides for employees to which access is restricted or limited through the use of a gate, security station or other means of restricting or limiting general public access onto the property.” Id.This prohibition does not apply to “vehicles owned or leased by an employer and used by the employee in the course of his business.” Id.A person is not authorized “to transport or store a firearm on any premises where the possession of a firearm is prohibited by state or federal law.” Id.

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Summary Of Nebraska’s Workplace Gun Law

A person with a concealed weapons permit “may carry a concealed handgun anywhere in Nebraska, except any … place where the possession or carrying of a firearm is prohibited by state or federal law; [or any] place or premises where the person, persons, entity, or entities in control of the property or employer in control of the property has prohibited permitholders from carrying concealed handguns into or onto the place or premises; or into or onto any other place or premises where handguns are prohibited by law or rule or regulation.” See Neb. Rev. St. § 69-2441.However, Nebraska law also provides that for premises that are “open to the public,” “the person, persons, entity, or entities in control of the property or employer in control of the property [must] post[] conspicuous notice that carrying a concealed handgun is prohibited in or on the place or premises or … ma[k]e a request, directly or through an authorized representative or management personnel, that [a] [concealed weapons] permitholderremove the concealed handgun from the place or premises.” Id. Furthermore, “[a] permitholder carrying a concealed handgun in a vehicle into or onto any place or premises does not violate this section [regarding premises “open to the public”] so long as the handgun is not removed from the vehicle while the vehicle is in or on the place or premises.” Id. (emphasis added). Additionally, the law specifically provides that “[a]n employer may prohibit employees or other persons who are permitholders from carrying concealed handguns in vehicles owned by the employer.” Id. (emphasis added).

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Summary Of Oklahoma’s Workplace Gun Law

“No person, property owner, tenant, employer, or business entity shall maintain, establish, or enforce any policy or rule that has the effect of prohibiting any person, except a convicted felon, from transporting and storing firearms in a locked motor vehicle, or from transporting and storing firearms locked in or locked to a motor vehicle on any property set aside for any motor vehicle.” See 21 Okl. St. Ann. § 1289.7a; see also 21 Okl. St. Ann. § 1290.22. The law provides no exceptions and can be enforced via civil action for injunctive relief, actual damages, court costs and attorney’s fees. See 21 Okl. St. Ann. § 1289.7a.

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Summary Of Utah's Workplace Gun Law“A person may not establish … any policy or rule that has the effect of … prohibiting any individual from transporting or storing a firearm in a motor vehicle on any property designated for motor vehicle parking, if: (i) the individual is legally permitted to transport, possess, purchase, receive, transfer, or store the firearm; (ii) the firearm is locked securely in the motor vehicle or in a locked container attached to the motor vehicle while the motor vehicle is not occupied; and (iii) the firearm is not in plain view from the outside of the motor vehicle.” Utah Code § 34-45-103(1).Exceptions: “A person may establish … a policy … that has the effect of placing limitations on or prohibiting an individual from transporting or storing a firearm in a motor vehicle … if: (a) the person provides, or there is otherwise available, one of the following, in a location reasonably proximate to the property the person has designated for motor vehicle parking: (i) alternative parking for individuals who desire to transport, possess, receive, transfer, or store a firearm in the individual's motor vehicle at no additional cost to the individual; or (ii) a secured and monitored storage location where the individual may securely store a firearm before proceeding with the vehicle into the secured parking area.” Id. § 34-45-103(2).Also an exception for federal law that specifically forbids the presence of a firearm on property designated for motor vehicle parking or a property owner who is subject to Section 550 (regarding security of chemical facilities) of the U.S. Department of Homeland Security Appropriations Act of 2007. However, in order to take advantage of these exceptions, it must be “an undue burden” for the property owner to provide alternative parking or a storage location under subsection 34-45-103(2) and the property owner must file a statement with the attorney general citing the federal law that forbids the presence of a firearm and detailing the reasons why providing alternative parking or a storage location poses an undue burden.

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Signage Requirements

Even if state law permits employers to ban guns from their buildings and/or parking lots, employers may still be required to adhere to certain signage requirements in order to make those bans legally enforceable

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Summary Of Alaska’s Signage Requirement

“An employer or its agent may prohibit the possession of firearms within a secured restricted access area, [ defined as “the area beyond a secure point where visitors are screened and does not include common areas of ingress and egress open to the general public”], in a vehicle owned, leased, or rented by the employer or its agent or in a parking lot owned or controlled by the employer within 300 feet of the secured restricted access area that does not include common areas of ingress and egress open to the general public. The employer or its agent shall post conspicuous notice of the prohibition against possession of firearms at each entrance to the restricted access area and affected parking area.” Alaska Stat. § 18.65.800.

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Summary Of Kansas’ Signage Requirement

Each sign posted shall contain the graphic in the document titled “personal and family protection act required signage for K.A.R. 16-11-7,” dated Oct. 19, 2006, and hereby adopted by reference. Available athttp://www.ksag.org/files/shared/concealcarrysignage.pdf (last visited on Aug. 22, 2008).The size of the sign shall be 8 inches X 8 inches or larger. If the sign is 8 inches X 8 inches, the size of the graphic referenced above shall be 6 inches in diameter. If the sign is larger than 8 inches X 8 inches, the size of the graphic shall be proportional to the size of the sign. Each sign must meet all of the following requirements: (1) The background shall be white (2) The portion of the graphic depicting the handgun shall be black (3) The portion of the graphic depicting the circle and diagonal slash across the handgun shall be red, and (4) No text shall be placed within the 1-inch area surrounding the graphic. Each sign shall be displayed in a manner that makes the sign reasonably likely to come to the attention of persons entering the premises. K.A.R. § 16-11-17.

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Summary Of Mississippi’s Signage Requirement

“The carrying of a concealed pistol or revolver may be disallowed in any place in the discretion of the person or entity exercising control over the physical location of such place by the placing of a written notice clearly readable at a distance of not less than ten (10) feet that the ‘carrying of a pistol or revolver is prohibited.’” Miss. Code Ann. 45-9-101.

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Summary Of Nebraska’s Signage Requirement

For places open to the public, conspicuous notice must be posted that carrying a concealed handgun is prohibited. Neb. Rev. St. § 69-2441(2). While state law does not mandate a specific requirement for this notice, the Nebraska State Patrol “strongly suggests” that businesses use their suggested signage and post it between 54 and 66 inches from the floor at each public entrance to the place or premises. Neb. Admin. R. & Regs. Tit. 272, Ch. 21, § 018.04. The Nebraska State Patrol’s suggested signage is available at the agency Web site: (www.nsp.state.ne.us/Docs/forms/CCW_Sign.pdf)

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Summary Of New Mexico’s Signage Requirement

“A licensee may not carry a concealed handgun on or about his person on private property that has signs posted prohibiting the carrying of concealed weapons or when verbally told so by a person lawfully in possession of the property.” New Mexico Administrative Code § 10.8.2.16.E.

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Summary Of North Carolina’s Signage Requirement

“A permit does not authorize a person to carry a concealed handgun … on any other premises … where notice that carrying a concealed handgun is prohibited by the posting of a conspicuous notice or statement by the person in legal possession or control of the premises.” N.C. Gen. Stat. § 14-415.11(c).

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Summary Of Ohio’s Signage Requirement

“The owner or person in control of private land or premises … may post a sign in a conspicuous location on that land or on those premises prohibiting persons from carrying firearms or concealed firearms on or onto that land or those premises.” Ohio Rev. Code Ann. § 2923.126(C)(3)(a).

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Summary Of South Carolina’s Signage Requirement

Signs prohibiting the carrying of a concealable weapon upon any premises must express the prohibition in both written language interdict and universal sign language. All signs must be posted at each entrance into a building where a concealable weapon permit holder is prohibited from carrying a concealable weapon and must be: (1) clearly visible from outside the building; (2) 8 inches wide by 12 inches tall in size; (3) contain the words “NO CONCEALABLE WEAPONS ALLOWED” in black 1-inch-tall uppercase type at the bottom of the sign and centered between the lateral edges of the sign; (4) contain a black silhouette of a handgun inside a circle 7 inches in diameter with a diagonal line that runs from the lower left to the upper right at a 45-degree angle from the horizontal; (5) a diameter of a circle; and (6) placed not less than 40 inches and not more than 60 inches from the bottom of the building’s entrance door. See S.C. Code § 23-31-235. If the premises where concealable weapons are prohibited does not have doors, then the signs must be: (1) 36 inches wide by 48 inches tall in size; (2) contain the words “NO CONCEALABLE WEAPONS ALLOWED” in black 3-inch-tall uppercase type at the bottom of the sign and centered between the lateral edges of the sign; (3) contain a black silhouette of a handgun inside a circle 32 inches in diameter with a diagonal line that is 2 inches wide and runs from the lower left to the upper right at a 45-degree angle from the horizontal and must be a diameter of a circle whose circumference is 2 inches wide; (4) placed not less than 40 inches and not more than 96 inches above the ground; and (5) posted in sufficient quantities to be clearly visible from any point of entry onto the premises. Id.

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Summary Of Tennessee’s Signage Requirement

An individual, corporation, business entity … or agent thereof is authorized to prohibit the possession of weapons by any person at meetings conducted by, or on property owned, operated, or managed or under the control of the individual, corporation, [or] business entity … Notice of the prohibition shall be posted. Posted notices shall be displayed in prominent locations, including all entrances primarily used by persons entering the building, portion of the building or buildings where weapon possession is prohibited. If the possession of weapons is also prohibited on the premises of the property as well as within the confines of a building situated on the property, the notice shall be posted at all entrances to the premises that are primarily used by persons entering the property. he notice shall be in English, but a notice may also be posted in any language used by patrons, customers or persons who frequent the place where weapon possession is prohibited. In addition to the sign, notice may also include the international circle and slash symbolizing the prohibition of the item within the circle. The sign shall be of a size that is plainly visible to the average person entering the building, premises or property and shall contain language substantially similar to the following:“PURSUANT TO § 39-17-1359, THE OWNER/OPERATOR OF THIS PROPERTY HAS BANNED WEAPONS ON THIS PROPERTY, OR WITHIN THIS BUILDING OR THIS PORTION OF THIS BUILDING. FAILURE TO COMPLY WITH THIS PROHIBITION IS PUNISHABLE AS A CRIMINAL ACT UNDER STATE LAW AND MAY SUBJECT THE VIOLATOR TO A FINE OF NOT MORE THAN FIVE HUNDRED DOLLARS ($500).” Tenn. Code § 39-17-1359.

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Summary Of Utah’s Signage Requirement

“At least one notice shall be prominently displayed at each entrance to an area in which a firearm, ammunition, dangerous weapon, or explosive is restricted.” Utah Code Ann. § 76-8-311.1.

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Examples Of Legal Challenges/Exceptions To

Guns-In-The-Workplace Laws

Takings Clause of the federal Constitution

Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. §§ 651-678

Brady Handgun Violence Prevention Act, 18 U.S.C. §922

Employers subject to federal contracts/regulations that prohibit weapons on-site

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Takings Clause Of The Federal Constitution

Regulation of private property may be so onerous that it violates the Takings Clause of the Fifth Amendment of the federal Constitution (“nor shall private property be taken for public use, without just compensation”) and requires the government to provide compensation

The argument is that these laws are a physical per se taking because they require employers to provide an easement for individuals transporting firearms

This argument has been rejected by every court that has considered it, on the grounds that a per se taking in the constitutional sense requires a permanent physical occupation or invasion, not simply a restriction on the use of private property:

Ramsey Winch Inc. v. Henry, 555 F. 3d 1199 (10th Cir. 2009)Conoco Phillips Co. v. Henry, 520 F. Supp. 2d 1282 (N.D. Okla., 2007)Florida Retail Federation, Inc. v. Attorney General of Florida, Case No. 4:08cv179-RH/WCS, 2008 WL 2908003 (N.D. Fla. July 28, 2008)

State constitutional challenges?

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OSH Act’s General Duty ClauseThe OSH Act’s General Duty Clause provides that “[e]ach employer…shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” See 29 U.S.C. § 654(a)(1).

Rejected by:Occupational Safety and Health Administration (OSHA). See Letter from Thomas Stohler, OSHA Acting Assistant Secretary, to Jerry Ellis, Oklahoma State Senator (Jan. 16, 2009) ("OSHA Letter") ("Gun-related violence is not a recognized occupational hazard in industry as a whole, under normal working conditions.")

ight the Obama administration interpret the General Duty Clause differently?Ramsey Winch Inc. v. Henry, 555 F. 3d 1199 (10th Cir. 2009); Florida Retail Federation, Inc. v. Attorney General of Florida, Case No. 4:08cv179-RH/WCS, 2008 WL 2908003 (N.D. Fla. July 28, 2008)

Accepted by:U.S. v. Dorosan, Criminal Action No. 08-042, 2008 WL 2622996, at *6 n.20 (E.D. La., June 30, 2008) (“federal law [OSH Act] requires employers to abate workplace hazards and encourages employers to take measures to prevent gun-related injuries.” ) (denying a former postal worker’s motion to dismiss an indictment for alleged violations of 39 C.F.R. § 232.1, which bans the storage or possession of weapons in an enclosed postal parking lot)

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OSH Act's General Duty Clause (Cont.)

Still applies in workplaces where there is a "recognized hazard"

Guns may be a "recognized hazard" in workplaces related to health care and social services, given the presence of mentally individuals or criminal suspects (see OSHA letter)Possible example of a potential “recognized hazard”: businesses subject to Section 550 (regarding security of chemical facilities) of the United States Department of Homeland Security Appropriations Act of 2007

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Brady Handgun Violence Prevention Act, 18 U.S.C. § 922

One court has noted that Oklahoma’s guns-in-the-workplace law is “likely in direct conflict with the Brady Act (prohibiting nine specific categories of persons from ever possessing firearms, only one of which is excepted from the [Oklahoma statute])” Conoco Phillips Co. v. Henry, 520 F. Supp. 2d 1282 n. 29 (N.D. Okla., 2007)

But, the court did not rule on whether this invalidated the law, and on appeal before the Tenth Circuit, the parties did not address the issue

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Requirements In Federal Contracts/Regulations

Employers subject to federal contracts or regulations that prohibit weapons on-site

Defense contractors with hazardous materials on-siteExample: Section 550 (regarding security of chemical facilities) of the United States Department of Homeland Security AppropriationsAct of 2007

Maritime Transportation Security Act, 46 U. S. C. Chapter 701Some companies argue that because they receive large amounts of oil by barge, and must therefore submit a security plan (which bans guns) to the Department of Homeland Security, they are exempt from state guns-in-the-workplace laws. See http://www.naplesnews.com/news/2008/jul/14/georgia-pacific-palatka-plant-exempt-gun-law/ (last visited on Aug. 6, 2008)

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Web Resources For Staying Apprised Of Gun Laws

http://www.nraila.org/Legislation/State/

http://www.handgunlaw.us/

http://www.bradycampaign.org/

Keeping Guns Off Your Company Premises

Teleconference

May 6, 2009

Rich Frank, CPP richfrank1@sbcglobal.net

Specific Corporate Security Experiences I. Developing A Company Policy

A. Written policy (see below for examples) Policy must be in writing and located in policy manuals Policy must be reviewed by corporate legal department Pay attention to various laws from state to state Communicated to visitors, vendors and contractors

B. All-inclusive

Policies include all associates at all levels Inclusive of corporate locations, distribution and warehousing

locations, store locations, branch offices, company vehicles, etc.

C. Limited or zero tolerance Limited tolerance means there is some grey area Limited tolerance may allow an armed cash courier or armed guard on

the premises by contract/agreement Zero tolerance means everyone treated the same, no room for

discretion Termination is inevitable upon violations

D. Enforceable

Policy must be enforceable uniformly to be effective II. State Concealed-Carry Laws

A. Ohio’s law, Revised Code 2923.126 (C) allows private employers to prohibit the presence of firearms on their property or in motor vehicles owned by the employer

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B. State of Texas now considering restrictions on firearms, including storage in car

C. Tip: Consult the online map of current state laws at http://handgunlaw.us D. Posting signs to restrict weapons, where sanctioned by law III. Case Study On Bringing Weapons to Work/Threat Assessment A. Initial notification via witness B. Involvement of legal and HR partners and consultant C. Investigation done by loss prevention and HR managers

D. Interview off-site and away from workplace option, but company may still have liability. On-site, but managed

E. Depending on severity, involve police coverage for associate safety

F. Conduct any terminations off-site and away from workplace; preference is via phone

G. Use employee assistance program for counseling IV. Example Of Corporate Awareness Efforts

A. Policy statement given in orientation classes: Our Company believes in a weapon-free workplace. This means you are not welcome to have or carry any firearms, or weapons such as knives, tasers, or pepper spray, on your person or in your personal effects or locker at work. If you are working in a free standing store and you park your car in our parking lot, you must refrain from keeping any firearms or weapons in your car while it is on company property. You may be working in a state that has a law allowing for you to carry a concealed weapon once you are licensed, in Ohio that state law gives the workplace the right to ban weapons. Any violation of this policy will result in corrective action up to and including termination of your employment. .

“Managers and associates are responsible for knowing what is expected of them on the job, including the principles of conduct that all associates must observe…Examples of prohibited conduct, which may result in corrective

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action up to and including termination of employment include, but are not limited to:

Possession of firearms or weapons of any kind on company property.” Also, please see pdf example of another policy statement.

C. Proper signage on doors designating “weapons-free” establishments D. Training for HR, LP and legal professionals

Keeping Guns Off Your Company Premises Teleconference

May 6, 2009

John Harris, The Harris Group john@thgconsult.com

Detailed Examination Of Florida Law; Review Of Key Related Issues

I. FLORIDA’S “PRESERVATION AND PROTECTION OF THE RIGHT TO KEEP AND BEAR ARMS IN MOTOR VEHICLES ACT OF 2008” [Euphemistically Known As The “Take Your Guns To Work Act]

A. Background

The Florida Chamber of Commerce and the Florida Retail Federation opposed Florida’s “guns in the workplace” law saying that it was a “direct attack” on their property rights.

B. My Testimony on Behalf of Opponents of the Act

“Because the act prohibits a business from engaging in any acts that would enable the business to become aware of the existence of firearms in the vicinity of the business, and severely restricts the ability of the business to take action even when it becomes aware of a specific threat, it makes it impossible to effectively safeguard a business’ employees, customers and other business invitees from the risk of death or severe bodily injury resulting from the use of a firearm on the business’ premises. “Since the hands of the business are tied with respect to guns in motor vehicles, the only method of effectively safeguarding employees, customers and other business invitees while on the business premises would be to search the persons entering the premises with either weapons detectors or by physical scanning. In a large business center or mall, this is not practicable due to the necessity of multiple points of entry. Moreover, such methods would drive away a significant number of customers because of the inconvenience, the aversion to imposition on personal privacy and the heightened perception of security risks associated with such extreme measures. “Based upon my studies of security of business premises of different sizes and configurations and of authoritative literature and case studies of violent acts on business premises, it is my opinion that a person confronted with a threat of death or serious

JOHN HARRIS 04/27/2009 1 of 12

bodily injury would not have an opportunity to retrieve a firearm locked in or on a motor vehicle in sufficient time to serve as a defensive deterrent.”

C. Federal District Court Decision regarding Florida’s “Preservation and Protection of

the Right to Keep and Bear Arms in Motor Vehicles Act of 2008” [euphemistically known as the “Take Your Guns to Work Act] U.S. District Judge Robert Hinkle upheld a provision of the Florida law that allows employees holding a state-issued concealed weapons permit to keep a gun locked in their vehicle in the company’s parking lot. But Judge Hinkle then upheld a request from retailers to prevent customers from locking firearms in their cars while shopping or visiting a private business. The Federal 10th Circuit Court of Appeals has said that the Occupational Safety and Health Act of 1970 does not expressly or by implication preempt the state law.

II. COMBATING WORKPLACE VIOLENCE: GUIDELINES FOR EMPLOYERS AND

LAW ENFORCEMENT, INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE (IACP)

A. IMPORTANCE OF EMPLOYERS ESTABLISHING CLEAR GUN POLICIES

It is extremely important for employers to establish clear gun policies. A written policy should be specific regarding weapons in the workplace. Employees must be instructed regarding the policy in order to make certain the policy is made known and that it is clearly communicated.

W. Barry Nixon, executive director of the National Institute for Prevention of Workplace Violence, ”In states where ‘guns are permitted in the parking lot,’ employers should include in their policy that vehicles must be locked and are subject to inspection. Possessing a weapon in an unlocked vehicle will be grounds for immediate termination. The policy should also include that employees choosing to carry their weapon onto company property must register their permit to carry the weapon with the company and sign a release agreeing to be searched whenever they enter the company’s facilities.” In states that do not have “guns in the work place” laws, he said, “A policy should state that the company is a ‘gun free’ work environment and that possession of a gun and any other weapons may be grounds for termination. Signs to this effect should be posted at the entrance to parking lots and buildings. Also specific procedures should be put in place to ensure that weapons are not brought into company buildings.”

B. REASONS FOR EMPLOYERS ESTABLISHING A PROGRAM TO COMBAT WORKPLACE

VIOLENCE 1. Some organizations may not see the need for creating a program to reduce the hazards

of violence in the workplace, especially if they have never experienced an incident of violence. The following reasons are why it is important for all employers to consider the recommendations included in this document.

JOHN HARRIS 04/27/2009 2 of 12

2. Businesses are beginning to realize the high cost of just one violent incident. These costs can include medical and psychiatric care as well as potential liability suits, lost business and productivity, repairs and clean-up, higher insurance rates, consultants’ fees, increased security measures and — most important of all — the death or injury of valued employees and coworkers.

3. Threats and other violent, abusive behaviors are no longer being tolerated in the workplace.

4. Executives, professionals, and administrative personnel are no longer immune to acts of violence in the workplace.

5. Layoffs, increased workload, having to do more with less, and other unpopular changes in the work environment have been associated with increased risk for violence.

6. Recent reports and surveys suggest that workplace violence impacts large numbers of employers and employees (see Impact of Workplace Violence for more details).

7. It’s the right thing to do. Employers have both a moral and a legal obligation to provide a safe workplace for their employees, clients and visitors.

These issues are spurring employers to develop plans for addressing workplace violence. When compared to the potential costs of an incident, these plans are a relatively inexpensive way to reduce the risk of violence and to minimize its impact.

C. PRE-EMPLOYMENT SCREENING

Employers who conduct effective background checks can often improve productivity and reduce the number of personnel prone to exhibiting violent behaviors. 1. Use a job application form that includes an appropriate waiver and release (permitting

the employer to verify the information reported on the application). Prior to hiring any applicant, check references and inquire about any prior incidents of violence. In addition, conduct thorough background checks and use drug screening to the extent practicable.

2. Also, evaluate the need for screening contract personnel who work at your facility. Vendors and service organizations whose personnel make frequent visits or spend long periods of time working at your facility should certify that those individuals meet or exceed your firm’s safety and security requirements. Conversely, contractors who assign personnel to work at other organizations’ facilities should also consider the host firm’s safety and security policies and practices.

3. Recommend to legislative bodies that access to conviction records in all states be made available to businesses when conducting their background investigation process.

D. TAKE ADVANTAGE OF COMMUNITY RESOURCES

There are many programs and resources in the community that can help you develop your workplace violence plans. 1. Use law enforcement and security experts to educate employees on how to prevent

violence in the workplace. Such experts can provide crime prevention information, conduct building security inspections, and teach employees how to avoid being a victim.

JOHN HARRIS 04/27/2009 3 of 12

2. Consider utilizing local associations and community organizations, such as the Chamber of Commerce, security organizations, and law enforcement groups, as a resource in order to stay abreast of crime trends and prevention techniques. Communicate to your employees those issues and trends which pose a significant threat.

E. INSTITUTE AND REVIEW SECURITY PROCEDURES

Periodic review of security policies and procedures will help minimize your organization’s vulnerability to violence and other forms of crime. 1. Conduct security surveys at scheduled intervals to help determine whether

modifications should be made. Four examples of improvements that might be considered during a security survey are: a. Improved lighting in and around the place of work (including parking lots); b. Arranging escorts for employees who are concerned about walking to and from

the parking lot; c. Having reception areas that can be locked to prevent outsiders from going into the

offices when no receptionist is on duty; and d. When appropriate, having more than one employee on the premises.

2. Use, maintain, and regularly review appropriate physical security measures, such as electronic access control systems, silent alarms, metal detectors, and video cameras in a manner consistent with applicable state and federal laws.

3. Limit former employees’ access to the workplace as appropriate. 4. Develop policies regarding visitor access within facilities. For example, if warranted,

require visitors to sign in and out at reception, wear an identification badge while on the business premises, and/or be escorted.

Use a Common Sense Approach to Risk Management. F. IMPROVE INTERNAL/EXTERNAL COMMUNICATIONS

Employees should have a means to alert others in the workplace to a dangerous situation and to provide information requested by emergency responders. 1. If appropriate, establish an internal emergency code word or phone number similar to

911. 2. Place lists of contact persons, crisis management plans, evacuation plans, and

building plans where they can be made available to emergency responders. Keep important telephone numbers in several places (including offsite locations), available to all appropriate managers and employees.

G. ESTABLISH GROUND RULES FOR BEHAVIOR

Organizations that do not tolerate drug abuse or aggressive interaction lower the risk of workplace violence. 1. Organizations should inform employees about policies concerning drugs, violent acts,

and possession of weapons so that employees know exactly what is expected of them. 2. Implement procedures for your organization to become a drug-free workplace. This

includes prohibiting unauthorized use or possession, or being under the influence of alcohol at work.

JOHN HARRIS 04/27/2009 4 of 12

3. Disseminate to all employees a policy of zero tolerance to threats or actual violence at the workplace. For example, discipline or terminate every threat-maker if the complaint is substantiated.

4. Establish a policy applicable to everyone employed by the company or on company property, including the company parking lot, prohibiting the possession of weapons which have not been authorized by your organization.

H. EMPLOYEE AND MANAGER TRAINING

In order for policies and procedures concerning workplace violence to be effective, they must be implemented in conjunction with appropriate employee training. 1. Train managers and other selected individuals on appropriate ways to handle

employee termination’s, layoffs, and discipline. Examples include appropriate use of Employee Assistance Program (EAP) counselors and outplacement services; providing managers with sensitivity and aggression management training; and, when possible, assessing violence potential of individuals prior to termination and taking appropriate measures such as hiring additional security.

2. Suggest local police encourage victims of threats and violence outside the workplace to notify their employers about the incident when warranted so their employers can take appropriate measures to help protect them and their coworkers from possible future incidents of violence at the work site. It is recommended that employers reinforce this message to their employees. Upon notification, employers should provide receptionists and other frontline personnel having a need to know a description or picture of the alleged offender and inform them what actions they should take in the event that individual seeks entry or contact.

3. Have available for your employees information about the potential for violence in the workplace, how to recognize the early warning signs of a troubled or potentially violent person, how to respond to those individuals, and how to report such incidents. See the following: Warning Signs of Potentially Violent Individuals, and Personal Conduct to Minimize Violence for details on identifying and conducting yourself around potentially violent individuals.

I. PREVENTION PROGRAMS

Companies need to have programs in place to assist troubled employees and to address managerial concerns before violence or threats arise. 1. Provide confidential employee assistance programs (EAP) to deal with emotional,

substance abuse, marital, and financial problems. Or, provide employees with a list of relevant community resources. Employees, supervisors, and managers should be actively encouraged to use these services.

2. Conduct exit interviews when employees retire, quit, or are transferred or terminated to identify potential violence-related security or management problems.

J. REPORTING PROCEDURES

All employees should know how and where to report violent acts or threats of violence. 1. Encourage employees to report and establish avenues of communication so they can

do so without fear of reprisal or criticism: a. Incidents of threats, harassment, and other aggressive behavior

JOHN HARRIS 04/27/2009 5 of 12

b. Conditions where employees are subjected to excessive or unnecessary risk of violence; and

c. Suggestions for reducing risk of violence or improving negative working conditions, such as establishing a telephone hot-line, identifying specific points of contact in the organization for addressing those issues, having a suggestion box or computer bulletin board, or providing an ombudsman.

2. Establish a policy to assure that reports which are submitted from outside the company, concerning potentially violent people who are likely to be present at your worksite are routed to the appropriate manager and then investigated. The types of information collected during an investigation are discussed in: Threat Incident Report.

K. PREPARE A THREAT MANAGEMENT PLAN

It is important to prepare a threat management plan so that when a threat occurs everyone will know that there is a policy and will understand what to do. The plan might include: 1. Designating a threat management team; 2. Providing guidance concerning liaison with outside assistance; 3. Providing guidance developed in concert with local authorities for collecting and

preserving evidence, including interviews of involved parties; 4. Managing of communications regarding the incident, for example, media relations,

internal communications, and possible use of a rumor control desk; 5. Managing the release of sensitive information where appropriate; 6. Assigning responsibilities for contacting the families of victims; 7. Managing clean-up and repairs; 8. Making decisions about returning to work; 9. Notifying customers and suppliers about changes in orders; 10. Providing employees and their families with information about their benefits; and 11. Managing operations and trauma care after the crisis.

The threat management team is a critical component of every successful threat management plan. For more information about the composition and role of the threat management team, see Threat Management Team.

L. ADDRESSING VIOLENT OR THREATENING INCIDENTS

When an incident occurs, bring together all the necessary resources, which may include help from outside the company. 1. When a serious threat is made, consult the sources available to you to help evaluate

the level of risk posed by the threat-maker. 2. When appropriate, obtain fitness-for-duty evaluations of employees exhibiting

seriously dysfunctional behaviors at the workplace. 3. Maintain an internal tracking system of all threats and incidents of violence. 4. When a threat has been made or an incident has occurred, evaluate the situation and,

if warranted, notify the potential victims and/or police

JOHN HARRIS 04/27/2009 6 of 12

III. MANAGING THE AFTERMATH OF AN INCIDENT Trauma Plan Helping employees with the psychological consequences of workplace violence is the humane thing to do. It also greatly helps to reduce financial losses caused by absence, loss of productivity among employees, and workers’ compensation claims. A. After a violent incident, provide information and offer counseling services to employees

and their families which may include: 1. Providing a debriefing 24 to 72 hours after a serious incident of violence to include

all affected employees so that the cause of the violence and expectations can be discussed, a plan of action can be addressed, and those needing further counseling can be identified;

2. Providing a group debriefing after a serious incident of violence for immediate coworkers in how to communicate with the victim/coworker who is re-entering the job after absence; and

3. Providing ongoing follow-up treatment, as needed. IV. SUPPORT PROSECUTION OF OFFENDERS

To prevent further incidents from occurring and to show their support of the victims, employers should support prosecution of offenders. A. Accommodate employees after a violent incident so they can make court appearances and

work with the prosecution. B. Cooperate with law enforcement authorities to help identify and prosecute offenders

through the use of any means at your disposal, such as crime stoppers, rewards.

V. LEGAL OBLIGATIONS AND DUTIES OF EMPLOYERS The duty of an employer to provide a reasonably safe workplace may arise from a variety of federal or state statutes, regulations, or judicial decisions. Employers seeking to avoid liability for acts of workplace violence should become familiar with the legal requirements. The following highlights provide a foundation for the legal audit of your current business policies and practices for reducing workplace violence.

A. Workplace Safety

1. Compliance with the Occupational Safety and Health Act, and similar state laws, may contribute positively to reduction of the risk of workplace violence.

2. Many state courts have ruled that an employer is liable for the dangerous acts of employees if such harm was foreseeable. The employer must use reasonable care in hiring, training, supervising and retaining employees.

3. Case law in some jurisdictions suggests that the employer may be liable for the negligent acts of independent contractors, where such contractors are incompetent, negligently selected, or engaged in abnormally dangerous activities.

4. Under both federal and state statutes, the employer may be liable for failure to intervene in situations of harassment of employees by supervisors or management, and in situations involving coworkers where the employer was aware of the harassment.

JOHN HARRIS 04/27/2009 7 of 12

5. The employer may be liable for the acts of an employee who is intoxicated or otherwise a risk to others, if the employer exercises control over the employee and is negligent in exercising that control.

6. Employers are expected to use reasonable security precautions and other measures to minimize the risk of foreseeable criminal intrusion (based upon the prior experience of the employer, its location in a dangerous area, or industry victimization base rates).

7. Employers should be cautious about reducing the level of security because of financial pressures. To avoid or reduce liability the employer should first assess whether the level of security risk justifies reducing security measures.

B. Training Issues 1. Various federal and state laws or case law may require the employer to establish

written policy and procedures dealing with harassment, as well as the training of employees as to company policies prohibiting sexual or racial harassment, fighting, and the use of drugs or alcohol in the workplace.

2. The employer may avoid or reduce liability for acts of violence in the workplace where it is shown that the employer conducted training for employees on the recognition of warning signs of potentially violent behavior, and on precautions which may enhance the personal safety of the employee at work.

C. Duty to Warn

1. In some jurisdictions, an employer, employment counselor, or therapist may have a duty to warn an identified employee, spouse, or third party of a threat made by another to do bodily harm to that person.

VI. ASIS INTERNATIONAL — CONNECTING RESEARCH IN SECURITY TO

PRACTICE (CRISP): PREVENTING GUN VIOLENCE IN THE WORKPLACE A. Executive Summary

1. This report addresses the problem of gun violence in the workplace and strategies to prevent it. Its geographic focus is the United States because of the unique protections the Second Amendment to the U.S. Constitution gives to the possession and carrying of firearms.

2. Homicide is the third leading cause of death on the job for all workers in the United States, and the leading cause for women

3. Retail industries have both the largest number and highest rate of worker homicides.

4. More than 30 states have laws liberalizing the carrying of concealed weapons and five have taken additional steps to restrict property owners’ and employers’ ability to exclude weapons from their premises. These laws threaten employers’ ability to establish and enforce policies prohibiting clients, visitors, and employees from carrying firearms in workplaces.

JOHN HARRIS 04/27/2009 8 of 12

5. “Regardless of their intent, employer policies allowing guns on the job seem to

increase the risk of fatal violence in the workplace”.

6. Workplace violence affects more than two million workers in the United States every year and accounts for about 20% of all violent crime. Although most workplace violence is not fatal, an average of 500 homicides occur in U.S. workplaces each year, which costs society approximately $800,000 for each death.

7. More than ¾ of workplace homicides are committed with guns.

8. About 2/3 of workplace homicides are related to robbery; the remainder result from conflicts between workers and clients, co-workers, acquaintances, or family members.

9. The report begins with a description of the broad problem of workplace violence and then discusses factors contributing to gun violence in the workplace, responses to the problem, challenges to those responses, and research on the effectiveness of various responses. Finally, specific actions are recommended along with a summary of future research needs.

10. A comprehensive, written policy prohibiting weapons in the workplace is an essential part of an employer’s violence-prevention plan. Research suggests that workplaces that prohibit weapons are significantly less likely to experience a worker homicide than workplaces that allow guns.

11. Rigorous evaluation and research is needed to identify effective measures for preventing workplace violence and to gauge the effect of new legislation on workplace safety.

12. Many employers have specific policies prohibiting firearms, but the ability to maintain these policies may be challenged by state laws liberalizing the carrying of weapons in public and private places.

13. The majority of fatal workplace violence is gun-related, which leads to high social, psychological, and monetary costs. However, homicide is a relatively rare outcome of workplace violence. Nonetheless, fatal workplace violence is consistently investigated, so it has been the subject of most research on the problem.

14. Most responses to workplace violence prevention are broad and are not limited to gun-related violence. Those responses and related research are discussed where they are relevant.

15. Data from the Census of Fatal Occupational Injuries conducted by the U.S. Bureau of Labor Statistics (2006) indicate that, in recent years, an average of 500 to 600 American workers die annually as a result of violence on the job.

JOHN HARRIS 04/27/2009 9 of 12

B. Employer Policies: North Carolina Study 1. Compared to workplaces that prohibited all kinds of weapons, workplaces that

allowed guns were 6.8 times as likely to have had a worker killed on the job. 2. Data from workplaces that had not had an employee death show that most

employers (about 88%) had a policy about weapons, and most of those (62%) prohibited weapons of all types. However, 12% of the employers in the study allowed guns on the job.

3. In contrast, workplaces that prohibited guns but allowed other kinds of weapons

were only 1.4 times as likely to experience an increase in the risk of having a homicide, which was statistically insignificant. The risk of workplace homicide was still 4.8 times higher and statistically significant in workplaces that allowed guns. The authors concluded that, regardless of their intent, employer policies allowing guns on the job seem to increase the risk of fatal violence in the workplace.

C. Violence Prevention Policies

1. Employers are not only obligated to take steps to reduce known hazards in the workplace, but, where current employees are concerned, they have a special responsibility to demonstrate that they have not been negligent in hiring, supervising, or retaining their employees. In light of more liberal laws toward concealed weapons, a strict anti-violence policy and a clear, consistently-enforced policy against the possession of weapons in the workplace are considered cornerstones of responsible efforts to prevent workplace violence.

2. Violence prevention policies can also include procedures to identify potentially

violent employees and to increase the likelihood that appropriate action is taken should violence be threatened or occur. The effectiveness of these measures has not been adequately evaluated but their presence demonstrates that the employer is taking appropriate steps to ensure that employees are properly hired, supervised, and retained.

3. Companies should develop, publicize, and enforce a violence prevention policy for

employees. Policies should be written and should specify actions that are not tolerated in the workplace. They should also include procedures for sanctions against employees who violate the policy

D. Legal Obligations And Duties Of Employers The duty of an employer to provide a reasonably safe workplace may arise from a variety of federal or state statutes, regulations, or judicial decisions. The following highlights provide a foundation for the legal audit of your current business policies and practices for reducing workplace violence.

JOHN HARRIS 04/27/2009 10 of 12

1. Workplace Safety a. Many state courts have ruled that an employer is liable for the dangerous acts

of employees if such harm was foreseeable. The employer must use reasonable care in hiring, training, supervising and retaining employees.

b. Case law in some jurisdictions suggests that the employer may be liable for the negligent acts of independent contractors, where such contractors are incompetent, negligently selected, or engaged in abnormally dangerous activities.

c. Under both federal and state statutes, the employer may be liable for failure to intervene in situations of harassment of employees by supervisors or management, and in situations involving coworkers where the employer was aware of the harassment.

d. The employer may be liable for the acts of an employee who is intoxicated or otherwise a risk to others, if the employer exercises control over the employee and is negligent in exercising that control.

e. Employers are expected to use reasonable security precautions and other measures to minimize the risk of foreseeable criminal intrusion (based upon the prior experience of the employer, its location in a dangerous area, or industry victimization base rates).

f. Employers should be cautious about reducing the level of security because of financial pressures. To avoid or reduce liability the employer should first assess whether the level of security risk justifies reducing security measures.

CONCLUSION Reasons For Establishing, Implementing, and Monitoring Gun Policy in the Workplace

• The high cost of just one violent incident: These costs can include medical and psychiatric care as well as potential liability suits, lost business and productivity, repairs and clean-up, higher insurance rates, consultants’ fees, increased security measures and — most important of all — the death or injury of valued employees and coworkers.

• In the current economic recession, layoffs, increased workload, having to do more with

less, and other unpopular changes in the work environment have been associated with increased risk for violence.

• If an employee has a gun in car and becomes enraged, the law does not allow for a

“cooling off” period.

• It’s the right thing to do. Employers have both a moral and a legal obligation to provide a safe workplace for their employees, clients and visitors.

• When compared to the potential costs of an incident, these plans are a relatively

inexpensive way to reduce the risk of violence and to minimize its impact.

JOHN HARRIS 04/27/2009 11 of 12

JOHN HARRIS 04/27/2009 12 of 12

FILEDUnited States Court of Appeals

Tenth Circuit

February 18, 2009

Elisabeth A. ShumakerClerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RAMSEY WINCH INC.; AUTOCRANE COMPANY;CONOCOPHILLIPS; NORRIS, aDover Resources Company; DPMANUFACTURING, INC., aDelaware Corporation; TULSAWINCH, INC., a Delawarecorporation,

Plaintiffs-Appellees,

v. No. 07-5166

C. BRAD HENRY, Governor of theState of Oklahoma; W. A. DREW B.EDMONSON, Attorney General of theState of Oklahoma, and their Agentsand Successors,

Defendants-Appellants,

NATIONAL RIFLE ASSOCIATION;THE BRADY CENTER TOPREVENT GUN VIOLENCE; THEAMERICAN SOCIETY OF SAFETYENGINEERS; ASISINTERNATIONAL; SOCIETY OFHUMAN RESOURCESMANAGEMENT; HR POLICYASSOCIATION; EQUALEMPLOYMENT ADVISORYCOUNCIL; NATIONALFEDERATION OF INDEPENDENTBUSINESS LEGAL FOUNDATION,

Case: 07-5166 Document: 01017620877 Date Filed: 02/18/2009 Page: 1

2

Amici Curiae.

APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 04-CV-820-TCK)(520 F. Supp. 2d 1282)

Steven A. Broussard (Mark K. Blongewicz, Robert P. Fitz-Patrick, and Marshall J.Wells, Hall, Estill, Hardwick, Gable, Golden & Nelson, Tulsa, Oklahoma; and W.Kirk Turner and Christopher S. Thrutchley, Newton, O’Connor, Turner & Ketchum,Tulsa, Oklahoma; with him on the briefs) Hall, Estill, Hardwick, Gable, Golden &Nelson, P.C., Tulsa, Oklahoma; for Plaintiffs-Appellees.

Charles J. Cooper (Sherry A. Todd, Oklahoma Attorney General’s Office, OklahomaCity, Oklahoma, with him on the briefs) Cooper & Kirk, PLLC, Washington, D.C.for Defendants-Appellants.

_______________________________________

Before KELLY, BALDOCK, and McCONNELL, Circuit Judges.

BALDOCK, Circuit Judge.

A number of Oklahoma businesses forbid their employees from bringing

firearms onto company property. In March 2004, the Oklahoma legislature amended

its laws to narrow the reach of such company policies. These new laws hold

employers criminally liable for prohibiting employees from storing firearms in

locked vehicles on company property. Various Oklahoma businesses subsequently

filed suit seeking to enjoin the enforcement of the new Oklahoma laws, alleging they

were (1) unconstitutionally vague; (2) an unconstitutional taking of private property,

Case: 07-5166 Document: 01017620877 Date Filed: 02/18/2009 Page: 2

1 The original amendment to the OFA was passed in 2004. A revisedversion, 21 Okla. Stat. § 1289.7a, was passed in 2005 which included protectionfrom tort liability for property owners. The original 2004 amendment to theOSDA, 21 Okla. Stat. § 1290.22, remains in effect. Thus, before us on appeal arethe 2005 OFA amendment and the 2004 OSDA amendment. Throughout thisopinion, we collectively refer to these new laws as “the Amendments.”

2 21 Okla. Stat. § 1289.7a provides:(continued...)

3

as well as a violation of Plaintiffs’ due process right to exclude others from their

property; and (3) preempted by various federal statutes. The district court for the

Northern District of Oklahoma held that the challenged laws were preempted by the

Occupational Health and Safety Act (OSH Act) of 1970 and permanently enjoined

enforcement of the new laws. We have jurisdiction under 28 U.S.C. § 1291, and

reverse.

I.

Numerous Oklahoma businesses maintain a policy of absolute prohibition on

employees’ possession of firearms on company property, a violation of which may

serve as grounds for termination. After several Oklahoma employees were, in fact,

discharged for storing firearms in their vehicles on company parking lots, the

Oklahoma legislature amended its firearms laws. Specifically, the legislature

amended the Oklahoma Firearms Act (OFA) of 1971 and the Oklahoma Self-Defense

Act (OSDA) of 1995 to prohibit property owners from banning the storage of

firearms locked in vehicles located on the owner’s property.1 See 21 Okla. Stat.

§§ 1289.7a & 1290.22.2

Case: 07-5166 Document: 01017620877 Date Filed: 02/18/2009 Page: 3

2(...continued)TRANSPORTING OR STORING FIREARMS INLOCKED MOTOR VEHICLE ON PRIVATEPREMISES–PROHIBITIONPROSCRIBED–LIABILITY– ENFORCEMENT

A. No person, property owner, tenant, employer,or business entity shall maintain, establish, orenforce any policy or rule that has the effect ofprohibiting any person, except a convicted felon,from transporting and storing firearms in a lockedmotor vehicle, or from transporting and storingfirearms locked in or locked to a motor vehicle onany property set aside for any motor vehicle. B. No person, property owner, tenant, employer,or business entity shall be liable in any civilaction for occurrences which result from thestoring of firearms in a locked motor vehicle onany property set aside for any motor vehicle,unless the person, property owner, tenant,employer, or owner of the business entity commitsa criminal act involving the use of the firearms. The provisions of this subsection shall not applyto claims pursuant to the Workers’ CompensationAct. C. An individual may bring a civil action toenforce this section. If a plaintiff prevails in acivil action related to the personnel manualagainst a person, property owner, tenant, employeror business for a violation of this section, thecourt shall award actual damages, enjoin furtherviolations of this section, and award court costsand attorney fees to the prevailing plaintiff. D. As used in this section, “motor vehicle” meansany automobile, truck, minivan, sports utilityvehicle, motorcycle, motor scooter, and any othervehicle required to be registered under theOklahoma Vehicle License and Registration Act.

(continued...)

4

Case: 07-5166 Document: 01017620877 Date Filed: 02/18/2009 Page: 4

2(...continued)21 Okla. Stat. § 1290.22 provides:

BUSINESS OWNER’S RIGHTSA. Except as provided in subsection B of thissection, nothing contained in any provision of theOklahoma Self-Defense Act, Section 1290.1 etseq. of this title, shall be construed to limit,restrict or prohibit in any manner the existingrights of any person, property owner, tenant,employer, or business entity to control thepossession of weapons on any property owned orcontrolled by the person or business entity.B. No person, property owner, tenant, employer,or business entity shall be permitted to establishany policy or rule that has the effect ofprohibiting any person, except a convicted felon,from transporting and storing firearms in a lockedvehicle on any property set aside for any vehicle.

3 Whirlpool has since withdrawn from the litigation and numerous othercompanies have intervened as Plaintiffs. We collectively refer to the group ofcompanies currently seeking a permanent injunction as “Plaintiffs.”

5

Whirlpool Corporation filed the initial action in this case seeking an injunction

against enforcement of the Amendments.3 In November 2004, the district court

entered a temporary restraining order (TRO) against enforcement of the

Amendments, finding they were likely preempted by various federal laws. Before

deciding whether to issue a permanent injunction, the district court certified to the

Oklahoma Court of Criminal Appeals the question of whether the Amendments were

criminal statutes. At the time, the status of the Amendments was uncertain. The

district court was concerned that if the Amendments were civil in nature, the

Case: 07-5166 Document: 01017620877 Date Filed: 02/18/2009 Page: 5

4 We agree with the district court, as do both parties, that the Governor andthe Attorney General were properly named as Defendants. Oklahoma law grantsenforcement authority of the Amendments to the Governor and Attorney General. See 74 Okla. Stat. § 18(b)(A)(1)-(3) (conferring authority to the AttorneyGeneral, subject to the direction of the Governor, to appear for the state incriminal appeals and in all cases of particular interest to the state). As such, asufficient case or controversy exists between Plaintiffs and Defendants. SeeWilson v. Stocker, 819 F.2d 943, 947 (10th Cir. 1987) (“[A] plaintiff challengingthe constitutionality of a state statute has a sufficiently adverse legal interest to astate enforcement officer sued in his representative capacity to create a substantialcontroversy when . . . the plaintiff shows an appreciable threat of injury flowingdirectly from the statute.”); see also Ex Parte Young, 209 U.S. 123, 157 (1908)(noting that a state officer can be named a party defendant if the officer “hassome connection with the enforcement of the act”).

5 A thorough description of this case’s procedural history is provided in thedistrict court’s opinion. See Conoco Phillips Co. v. Henry, 520 F. Supp. 2d 1282,1286-95 (N.D. Okla. 2007).

6

Oklahoma Governor and Attorney General might not have enforcement authority

over the Amendments, thereby making them improper parties to this action. The

Court of Criminal Appeals alleviated the district court’s concerns, ruling that the

Amendments were, in fact, criminal statutes. See Whirlpool Corp. v. Henry, 110

P.3d 83, 86 (Okla. Crim. App. 2005).4 Following this ruling, the district court moved

forward with Plaintiffs’ request for a permanent injunction and ordered extensive

briefing by the parties on the issue of preemption, in particular whether the

Amendments conflict with the OSH Act.5

In October 2007, the district court ruled the Amendments were not an

unconstitutional taking and did not violate Plaintiffs’ due process rights. The district

court further ruled Plaintiffs lacked standing to assert a facial vagueness challenge.

Case: 07-5166 Document: 01017620877 Date Filed: 02/18/2009 Page: 6

6 The district court intimated that it believed the Amendments mayconflict with the Brady Handgun Violence Prevention Act (Brady Act), 18 U.S.C.§ 922. See Conoco Phillips, 520 F. Supp. 2d at 1302 n. 29, 1304. But the districtcourt did not ultimately rule on the Brady Act’s potential preemption andPlaintiffs do not raise the issue on appeal. Thus, we do not address the Brady Acthere. See Tele-Commc’ns Inc. v. Comm’r, 104 F.3d 1229, 1233 (10th Cir. 1997)(noting that we generally do not resolve issues on appeal unless they arepresented, considered, and decided by the district court).

7 When the district court issued its permanent injunction, the TRO was stillin effect pursuant to the parties’ agreement.

7

Lastly, the district court held the Amendments were preempted by the OSH Act’s

general duty clause.6 Accordingly, the district court permanently enjoined

enforcement of the Amendments.7

II.

Congress derives its power to preempt state law under the Supremacy Clause

in Article VI of the United States Constitution. See Choate v. Champion Home

Builders Co., 222 F.3d 788, 791 (10th Cir. 2000). Determining whether Congress

intended to preempt state law is the ultimate touchstone of preemption analysis. See

Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 96 (1992). Three types of

preemption exist. See Choate, 222 F.3d at 792. First, Congress can explicitly

preempt state law, also known as “express preemption.” Id. Second, courts infer

preemption where Congress extensively regulates conduct in an entire field, or where

the federal interest clearly dominates. See id. This is known as “field preemption.”

Id. Express and field preemption do not apply to the present case. The third

category, known as “conflict preemption,” occurs “where it is impossible for a

Case: 07-5166 Document: 01017620877 Date Filed: 02/18/2009 Page: 7

8

private party to comply with both state and federal requirements, or where state law

stands as an obstacle to the accomplishment and execution of the full purposes and

objectives of Congress.” Id. Conflict preemption requires that the state law

materially impede or thwart the federal law or policy. See id. at 796.

The district court enjoined enforcement of the Amendments based upon

conflict preemption, ruling that (1) gun-related workplace violence is a recognized

hazard under the general duty clause; and (2) the Amendments impermissibly

conflict with Plaintiffs’ ability to comply with the general duty clause, thereby

thwarting Congress’ overall intent in passing the OSH Act. See Conoco Phillips, 520

F. Supp. 2d at 1330. In support of its ruling, the district court relied on various

studies and scholarly works outlining the growing problem of workplace violence.

The district court also cited published statements from the Occupational Safety and

Health Administration (OSHA) and prior cases concerning the OSH Act’s general

duty clause. We review the district court’s preemption determination de novo. See

Mount Olivet Cemetery Ass’n. v. Salt Lake City, 164 F.3d 480, 486 (10th Cir. 1998).

A.

Courts do not “lightly attribute to Congress or to a federal agency the intent

to preempt state or local laws.” Nat’l Solid Wastes Mgmt. Ass’n v. Killian, 918 F.2d

671, 676 (7th Cir. 1990) In fact, we begin “with the assumption that the historic

police powers of the States [are] not to be superseded by the Federal Act unless that

was the clear and manifest purpose of Congress.” Altria Group, Inc. v. Good, 129

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9

S.Ct. 538, 543 (2008) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230

(1947)). This assumption applies with greater force when the alleged conflict is in

an area traditionally occupied by the States. See id. Here, we are faced with “public

crimes” meant “to protect the health, safety, and public welfare of citizens and to

deter crime.” Whirlpool, 110 P.3d at 86. The Amendments, therefore, implicate

Oklahoma’s police powers, an area traditionally controlled by the states. See, e.g.,

United States v. Lopez, 514 U.S. 549, 561 n. 3 (1995) (noting in its preemption

review of the federal Gun-Free School Zones Act of 1990 that defining and enforcing

criminal law primarily rests with the states); Richmond Boro Gun Club, Inc. v. City

of New York, 97 F.3d 681, 687 (2d Cir. 1996) (recognizing in its preemption review

of a city gun ordinance that areas of safety and health are traditionally occupied by

the states). Accordingly, our analysis is guided by the assumption that Congress did

not intend the OSH Act to preempt the Amendments. See Altria Group, 129 S.Ct.

at 543.

B.

Congress’s declared “purpose and policy” in enacting the OSH Act was “to

assure so far as possible every working man and woman in the Nation safe and

healthful working conditions and to preserve our human resources.” 29 U.S.C.

§ 651(b). To effect its stated purpose, Congress authorized the Secretary of Labor

and OSHA to set and enforce occupational safety and health standards for

businesses. See 29 U.S.C. § 651(b)(3); see also OSHA’s Role,

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http://www.osha.gov/oshinfo/mission.html. In addition to requiring employers’

compliance with OSHA’s promulgated standards, see 29 U.S.C. § 654(a)(2),

Congress imposed upon employers a general duty to “furnish to each of his

employees employment and a place of employment which are free from

recognized hazards that are causing or are likely to cause death or serious

physical harm.” 29 U.S.C. § 654(a)(1). This provision of the OSH Act, known as

the general duty clause, was not meant to “be a general substitute for reliance on

standards, but would simply enable the Secretary to insure the protection of

employees who are working under special circumstances for which no standard

has yet been adopted.” S. Rep. No. 91-1282, at 5186 (1970).

The original impetus behind the OSH Act was danger surrounding

traditional work-related hazards. See 29 U.S.C. § 651(a) (noting the OSH Act

arose from concern surrounding “personal injuries and illnesses arising out of

work situations”); S. Rep. 91-1282, at 5178 (describing at length the problems of

industrial accidents and occupational diseases, without referencing workplace

violence). In recent years, however, OSHA has recognized workplace violence as

a serious safety and health issue. See, e.g., Workplace Violence,

http://www.osha.gov/SLTC/workplaceviolence/index.html (a section of OSHA’s

website devoted to workplace violence). To that end, OSHA has issued voluntary

guidelines and recommendations for employers seeking to reduce the risk of

workplace violence in at-risk industries. See Guidelines for Preventing

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Workplace Violence for Health Care and Social Service Workers and

Recommendations for Workplace Violence Prevention Programs in Late-Night

Retail Establishments, both available at

http://www.osha.gov/SLTC/workplaceviolence/solutions.html. OSHA has not,

however, promulgated any mandatory standards regarding workplace violence.

C.

Because the absence of any specific OSHA standard on workplace violence

is undisputed, the district court correctly recognized that the only possible area of

OSH Act preemption was under the general duty clause and the OSH Act’s

overarching purpose. Thus, in finding preemption, the district court held that gun-

related workplace violence was a “recognized hazard” under the general duty clause,

and, therefore, an employer that allows firearms in the company parking lot may

violate the OSH Act. We disagree. OSHA has not indicated in any way that

employers should prohibit firearms from company parking lots. OSHA’s website,

guidelines, and citation history do not speak at all to any such prohibition. In fact,

OSHA declined a request to promulgate a standard banning firearms from the

workplace. See Standards Interpretations Letter, September 13, 2006, available at

2006 WL 4093048. In declining this request, OSHA stressed reliance on its

voluntary guidelines and deference “to other federal, state, and local law-

enforcement agencies to regulate workplace homicides.” Id. OSHA is aware of the

controversy surrounding firearms in the workplace and has consciously decided not

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to adopt a standard. Thus, we are not presented with a situation where the general

duty clause applies because OSHA has been unable to promulgate a standard for an

“unanticipated hazard.” Teal v. E.I. DuPont de Nemours and Co., 728 F.2d 799, 804

(6th Cir. 1984) (recognizing the purpose of the general duty clause was to cover

unanticipated hazards that were not covered by a specific regulation); see also Reich

v. Arcadian Corp., 110 F.3d 1192, 1196 (5th Cir. 1997) (“Courts have held that

enforcement through the application of standards is preferred because standards

provide employers notice of what is required under the OSH Act.”).

The district court’s conclusion is also belied by the only opinion issued by an

Administrative Law Judge (ALJ) concerning a general duty clause violation due to

workplace violence. See Megawest Fin., Inc., 1995 OSAHRC Lexis 80 (May 8,

1995). In Megawest, the Secretary of Labor cited the operator of an apartment

community located in a rough neighborhood for failing to take steps to prevent

residents’ violent acts. See id. at *1-2, *6-7. The ALJ reversed the Secretary’s

citation, ruling that potential violent behavior by residents did not constitute a

“recognized hazard” within the meaning of the general duty clause. Id. at *32. In

reversing the citation, the ALJ expressed the difficulties associated with requiring

employers to abate hazards of random physical violence. See id. at *28 (recognizing

that the “hazard of physical assault . . . arises not from the processes or materials of

the workplace, but from the anger and frustration of people”). The ALJ stressed that

an employee’s general fear that he or she may be subject to violent attacks is not

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enough to require abatement of a hazard under the general duty clause. See id. at

*27; see also Pa. Power & Light Co. v. Occupational Health and Safety Review

Comm’n, 737 F.2d 350, 354 (3d Cir. 1984) (recognizing that an employer’s “duty

does not extend to the abatement of dangers created by unforeseeable or

unpreventable employee misconduct”); Pratt & Whitney Aircraft v. Sec’y of Labor,

649 F.2d 96, 104 (2d Cir. 1981) (indicating the OSH Act only requires employers to

“guard against significant risks, not ephemeral possibilities”); Nat’l Realty and

Construction Co., Inc. v. Occupational Safety and Health Review Comm’n, 489 F.2d

1257, 1266 (D.C. Cir. 1973) (noting that “[a] demented, suicidal, or willfully

reckless employee may on occasion circumvent the best conceived and most

vigorously enforced safety regime”).

Undeterred by OSHA’s and Megawest’s express restraint in policing social

behavior via the general duty clause, the district court held firearms stored in

locked vehicles on company property may constitute a “recognized hazard.” In so

finding, the district court relied heavily on OSHA’s general statement that

employers may be cited for a general duty clause violation “[i]n a workplace

where the risk of violence and serious personal injury are significant enough to be

‘recognized hazards.’” Standard Interpretations Letter, December 10, 1992,

available at http://www.osha.gov/SLTC/workplaceviolence/standards.html. The

district court also relied on the ALJ’s indication in Megawest that it might be

possible to violate the general duty clause for failure to prevent workplace

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8 Despite the district court’s assertion to the contrary, its definition of“hazard” is not supported by Psychiatric Hospital in Chicago Cited by OSHA forWorkplace Violence, 23 O.S.H. Rep. (BNA) 646 (1993), in which a psychiatrichospital was cited under the general duty clause for failing to protect its workersfrom patients’ violent behavior. A primary function of a psychiatric hospital’swork is to manage unstable and often violent behavior. As such, the conduct inPsychiatric Hospital involved injuries “arising out of work situations.” 29 U.S.C.§ 651(a). In contrast, nothing about the Amendments’ proviso that employersallow employees to store firearms in locked vehicles on company propertyimplicates the fact-specific circumstances present in Psychiatric Hospital and thatare required by OSHA to constitute a general duty clause violation. See StandardInterpretations Letter, Dec. 10, 1992, supra (noting that general duty clauseviolations for incidents involving workplace violence are “entirely dependentupon the specific facts, which will be unique in each situation”) (emphasisadded).

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violence. See id. at *29 (noting a high standard of proof is necessary to show that

an employer recognized the hazard of workplace violence). Despite these general

statements, OSHA’s action (or inaction) regarding this matter undermines the

district court’s conclusion. The broad meaning of “recognized hazard” espoused

by the district court is simply too speculative and unsupported to construe as the

“clear and manifest purpose of Congress.” Altria Group, 129 S.Ct. at 543; see

also Oil, Chemical & Atomic Workers v. Am. Cyanamid Co., 741 F.2d 444, 449

(D.C. Cir. 1984) (refusing to apply a broad meaning of “hazard” under the general

duty clause and instead “confin[ing] the term ‘hazards’ under the general duty

clause to the types of hazards [the Court] kn[e]w Congress had in mind”).8

D.

The district court further reasoned the Amendments thwart the overall purpose

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and objective of the OSH Act. We disagree. The OSH Act is not meant to interfere

“with states’ exercise of police powers to protect their citizens.” Lindsey v.

Caterpillar, Inc., 480 F.3d 202, 208 (3d Cir. 2007) (citation omitted); see also Gade,

505 U.S. at 96 (noting “[f]ederal regulation of the workplace was not intended to be

all encompassing”); Florida Retail Federation, Inc. v. Attorney General, 576 F. Supp.

2d 1281, 1298 (N.D. Fla. 2008) (stating in its rejection of a nearly identical

challenge to the Florida “guns-at-work” statute that “[t]he OSH Act is not a general

charter for courts to protect worker safety”); Megawest, 1995 OSAHRC Lexis 80,

at *4 (recognizing that “enforcement in [the] arena [of workplace violence] could

place extraordinary burdens on an employer requiring it to anticipate the possibility

of civic disorder”). As such, “state laws of general applicability . . . that do not

conflict with OSHA standards and that regulate conduct of workers and non-workers

alike [are] generally not . . . preempted.” Gade, 505 U.S. at 107 (emphasis added).

Here, the Amendments conflict with no OSHA standard. Moreover, the

Oklahoma Court of Criminal Appeals defined the Amendments as “public crimes”

of general applicability “concern[ing] protection of the community as a whole rather

than individual citizens.” Whirlpool, 110 P.3d at 86. Thus, while the Amendments

may “have a ‘direct and substantial effect’ on worker safety, they cannot fairly be

characterized as ‘occupational’ standards, because they regulate workers simply as

members of the general public.” Gade, 505 U.S. at 107. The district court’s decision

interferes with Oklahoma’s police powers, see Lindsey, 480 F.3d at 208, and

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9 We note that OSHA recently issued a letter to Oklahoma State SenatorJerry Ellis in response to the present case stating that “[g]un related violence isnot a recognized occupational hazard in industry as a whole” and that “[OSHA]do[es] not believe that, as a general matter, the general duty clause of the OSHAct preempts [the Oklahoma Amendments].” Letter from Thomas Stohler, ActingAssistant Sec’y of Labor, to Jerry Ellis, Oklahoma State Senate (Jan. 16, 2009).

16

essentially promulgates a court-made safety standard—a standard which OSHA has

explicitly refrained from implementing on its own.9 Such action is beyond the

province of federal courts. See Chevron, U.S.A., Inc. v. Natural Resources Def.

Council, 467 U.S. 837, 843-44 (1984) (holding that deference must be given to an

administrative agency in filling any gaps in regulations).

In sum, the facts before us do not approach the level necessary to overcome

“the assumption that the historic police powers of the States [are] not to be

superseded by the Federal Act.” Altria Group, 129 S.Ct. at 543. We understand

Plaintiffs may disagree with the wisdom of the Amendments. Our task, however, is

not to second-guess the Oklahoma legislature, but rather to interpret the

Congressional intent behind the OSH Act and its general duty clause. Accordingly,

we hold that Congress did not clearly intend the OSH Act to preempt the

Amendments.

III.

The district court rejected Plaintiffs’ argument that the Amendments are an

unconstitutional taking of private property and a violation of Plaintiffs’ due process

right to exclude others from their property. Plaintiffs raise these arguments as an

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alternative grounds for affirmance, however, and we address them accordingly. See

Medina v. City and County of Denver, 960 F.2d 1493, 1495 n.1 (10th Cir. 1992)

(“[W]e are free to affirm a district court decision on any grounds for which there is

a record sufficient to permit conclusions of law, even grounds not relied upon by the

district court.”). As a matter of law, we review Plaintiffs’ challenge to the

constitutionality of the Amendments de novo. See Powers v. Harris, 379 F.3d 1208,

1214 (10th Cir. 2004).

A.

Regulation of private property may be so onerous that it violates the Takings

Clause of the Fifth Amendment and requires the government to provide

compensation. See Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 536-37 (2005).

Regulatory acts requiring payment are either (1) a per se taking, id. at 538, or (2) a

taking as characterized by the standards set forth in Penn Central Transp. Co. v. City

of New York, 438 U.S. 104 (1978). One category of per se takings is “where the

government requires an owner to suffer a permanent physical invasion of her

property.” Lingle, at 538. Such regulatory action is often referred to as a “physical”

taking. Id. at 548. A sub-category of physical per se takings is a “land-use

exaction” in which the “government demands that a landowner dedicate an easement

allowing public access to her property as a condition of obtaining a development

permit.” Id. at 546 (citing Nollan v. Ca. Coastal Comm’n, 483 U.S. 825 (1987) and

Dolan v. City of Tigard, 512 U.S. 374 (1994)). Such demands by the government are

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10 The second category of per se takings, which is not at issue here, isknown as a “total regulatory taking,” id. at 548, and involves regulations thatdeprive an owner of all economically beneficial use of his or her property. Id. at538.

18

“so onerous that, outside the exactions context, they would be deemed per se

physical takings.” Id. at 547.10

Recognizing that a permanent physical invasion by the government has not

occurred here in the traditional sense, Plaintiffs argue the Amendments are a physical

per se taking because they require Plaintiffs to provide an easement for individuals

transporting firearms. Thus, the argument goes, the Amendments constitute a

permanent physical invasion akin to the “land-use exaction” takings in Nollan and

Dolan. We do not find Plaintiffs’ per se taking argument persuasive. A per se

taking in the constitutional sense requires a permanent physical occupation or

invasion, not simply a restriction on the use of private property. See Loretto v.

Teleprompter Manhattan CATV Corp. et al., 458 U.S. 419, 426-34 (1982). Here, the

Amendments are most accurately characterized as a restriction on Plaintiffs’ use of

their property. In Nollan and Dolan, specific, individual landowners were forced to

dedicate portions of their privately owned land for public use in exchange for a

development permit from the local governing authority. See Lingle, 544 U.S. at 546.

In contrast to the regulatory acts in Nollan and Dolan, the Amendments (1) apply to

all property owners, not just Plaintiffs, (2) merely limit Plaintiffs use of their

property, and (3) do not require Plaintiffs to deed portions of their property over to

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the state for public use. See Dolan, 512 U.S. at 385. Thus, the specific set of

circumstances present in Nollan and Dolan are simply not applicable here. See, e.g.,

Lingle, 544 U.S. at 546-47 (describing the specific land-use exaction facts present

in Nollan and Dolan); City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526

U.S. 687, 702-03 (1999) (noting that the rough proportionality test used to find a

taking in Nollan and Dolan is restricted to the “special context” of land-use

exactions).

Rather, the facts here are more analogous to Pruneyard Shopping Center v.

Robins, 447 U.S. 74 (1980). In Pruneyard, California’s constitutional protection of

free speech rights prevented owners of a private shopping center from prohibiting the

circulation of petitions on the owner’s property. See id. at 77-78. Despite the fact

that individuals circulating petitions may have “physically invaded” the owner’s

property, id. at 84, the Supreme Court held that California’s requirement that

property owners recognize state-protected rights of free expression and petition

“clearly [did] not amount to an unconstitutional infringement of appellants’ property

rights under the Takings Clause.” Id. at 83. As in Pruneyard, Plaintiffs have not

suffered an unconstitutional infringement of their property rights, but rather are

required by the Amendments to recognize a state-protected right of their employees.

See id. at 81 (noting that the state may exercise its police power to adopt individual

liberties more expansive than those conferred by the Federal Constitution). As such,

we conclude that Plaintiffs have not suffered a per se taking.

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Plaintiffs argue that, even if the Amendments are not a per se taking, a taking

has nonetheless occurred under the standards set forth in Penn Central. Penn Central

establishes that while a regulatory act may not constitute a per se taking, it can be

“functionally equivalent to the classic taking in which government directly

appropriates private property or ousts the owner from his domain.” Lingle, 544 U.S.

at 539. The major factors under the Penn Central inquiry are (1) “[t]he economic

impact of the regulation on the claimant,” (2) “the extent to which the regulation has

interfered with distinct investment-backed expectations,” and (3) “the character of

the governmental action.” Penn Central, 438 U.S. at 124. In essence, Penn Central

focuses on “the magnitude of a regulation’s economic impact and the degree to

which it interferes with legitimate property interests.” Lingle, 544 U.S. at 540.

Plaintiffs’ takings argument also fails under the Penn Central inquiry. First,

the only economic impact cited by Plaintiffs is the general claim (located in a

footnote of their brief) that allowing firearms onto an employer’s property inevitably

increases costs linked to workplace violence. A constitutional taking requires more

than an incidental increase in potential costs for employers as a result of a new

regulation. See id. at 538 (“Government hardly could go on if to some extent values

incident to property could not be diminished without paying for every such change

in the general law.”) (quoting Pa. Coal Co. v. Mahon, 260 U.S. 393, 413 (1922)).

Second, Plaintiffs do not assert any interference with their investment-backed

expectations, and, therefore, “have failed to demonstrate that the ‘right to exclude

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21

others’ is so essential to the use or economic value of their property that the state-

authorized limitation of it amount[s] to a ‘taking.’” Pruneyard, 447 U.S. at 84.

Third, the governmental action at issue here involves “public crimes” of general

applicability “concern[ing] protection of the community as a whole rather than

individual citizens.” Whirlpool, 110 P.3d at 86. Plaintiffs must expect “the uses of

[their] property to be restricted, from time to time, by various measures newly

enacted by the state in legitimate exercise of its police powers.” Clajon Prod. Corp.

v. Petera, 70 F.3d 1566, 1579 (10th Cir. 1995); see also Penn Central, 438 U.S. at

125 (noting that laws meant to support the health, safety, morals, and general welfare

of the entire community are generally upheld even if they destroy or adversely affect

private property interests).

B.

In reality, Plaintiffs are less concerned about “compensation for a taking of

[their] property . . . but rather [seek] an injunction against the enforcement of a

regulation that [they] allege[] to be fundamentally arbitrary or irrational.” Lingle,

544 U.S. at 544. As such, Plaintiffs’ due process claim, i.e., the Amendments

deprive Plaintiffs of the right to exclude others from their property, is more apt than

their takings argument. A government regulation “that fails to serve any legitimate

governmental objective may be so arbitrary or irrational that it runs afoul of the Due

Process Clause.” Id. at 542. The Supreme Court, however, has “long eschewed . . .

heightened scrutiny when addressing substantive due process challenges to

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22

government regulation.” Id. at 545. Accordingly, we review the Amendments under

a “rational basis” standard. See Powers, 379 F.3d at 1215 (regulations not subject

to heightened scrutiny require rational basis review); Crider v. Bd. of County

Comm’rs, 246 F.3d 1285, 1289-90 (10th Cir. 2001) (regulations restricting the use

of property are subject to rational basis review). Under rational basis review, “we

look only to whether a ‘reasonably conceivable’ rational basis exists.” Id. at 1290

(citation omitted). We are not allowed to second guess the wisdom of legislative

policy-determinations. Powers, 379 F.3d at 1217.

One professed purpose of the Amendments is the protection of the broader

Oklahoma community. We need not decide the long-running debate as to whether

allowing individuals to carry firearms enhances or diminishes the overall safety of

the community. The very fact that this question is so hotly debated, however, is

evidence enough that a rational basis exists for the Amendments. See Village of

Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926) (noting that if a regulation

is fairly debatable, the legislative judgment must control). In addition to the

Amendment’s purpose of increasing safety, one could argue that the Amendments are

simply meant to expand (or secure) the Second Amendment right to bear arms. See

Pruneyard, 447 U.S. at 81 (noting that the state may exercise its police power to

adopt individual liberties more expansive than those conferred by the Federal

Constitution). Because we cannot say the Amendments have no reasonably

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11 Plaintiffs also argue the Amendments are unconstitutionally vague. Facial vagueness challenges “to statutes which do not involve First Amendmentfreedoms must be examined in light of the facts of the case at hand. One towhose conduct a statute clearly applies may not successfully challenge it forvagueness.” United States v. Day, 223 F.3d 1225, 1228 (10th Cir. 2000) (quotingVillage of Hoffman Estates v. Flipside, 455 U.S. 489, 495 n.7 (1982)). We agreewith the district court that the Amendments clearly forbid the conduct Plaintiffsseek to continue, i.e., prohibiting employees from storing firearms in vehicles oncompany property. See Conoco Phillips, 520 F. Supp. 2d at 1299-1301. Accordingly, the district court correctly denied Plaintiffs’ facial vaguenesschallenge.

23

conceivable rational basis, Plaintiffs’ due process claim must fail.11

For the foregoing reasons, we reverse the district court’s grant of a permanent

injunction.

Case: 07-5166 Document: 01017620877 Date Filed: 02/18/2009 Page: 23

Elisabeth A. Shumaker Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

OFFICE OF THE CLERK Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80257

(303) 844-3157

February 18, 2009 Douglas E. CresslerChief Deputy Clerk

Mr. Charles Justin Cooper Cooper & Kirk, PLLC 1523 New Hampshire Ave., NW Washington, DC 20036 Ms. Sherry A. Todd Attorney General for the State of Oklahoma Litigation Section 313 North East 21st Street Oklahoma City, OK 73105

RE: 07-5166, Ramsey Winch Inc. v. Henry District docket: 4:04-CV-00820-TCK

Dear Counsel:

Enclosed is a copy of the opinion of the court in the captioned case. Judgment was entered today.

Case: 07-5166 Document: 01017620881 Date Filed: 02/18/2009 Page: 1

Please contact this office if you have questions.

Sincerely,

Elisabeth A. Shumaker Clerk of the Court

cc:

Mark Kimball Blongewicz Steven A. Broussard Robert P. Fitz-Patrick Robert C. Gombar Jessica C. Ridenour Arthur G. Sapper Christopher S. Thrutchley William Kirk Turner Marshall James Wells

EAS/ao

2

Case: 07-5166 Document: 01017620881 Date Filed: 02/18/2009 Page: 2