Editor’s Note: This is the latest in a series articles this week by the labor and employment team at the law firm of Wright Lindsey Jennings of Little Rock examining key trends for employers and the workplace in 2018.
Changes to Arkansas’ concealed carry laws have left many employers with questions about what rights their employees have and whether non-employees are allowed to bring a concealed weapon onto a business’ premises.
To fully address these issues requires breaking down a key legislative change that created a new class of the concealed carry permit.
Generally, carrying a concealed weapon is prohibited in publicly owned buildings and facilities. Pursuant to Ark. Code Ann. § 5-73-122, “it is unlawful for any person other than a law enforcement officer or a security guard in the employ of the state or an agency of the state, or any city or county, or any state or federal military personnel, to knowingly carry or possess a loaded firearm or other deadly weapon in any publicly owned building or facility or on the State Capitol grounds.”
Although this statute prohibits carrying a firearm in publicly owned buildings, there are new exceptions provided for certain permit holders. Further, private employers can ban weapons by placing a sign providing notice of the prohibition. The written notice must be clearly readable at a distance of not less than 10 feet and must state that “carrying a handgun is prohibited.”
Creating the Enhanced Permit
Earlier this year, the Arkansas General Assembly took significant steps to expand the rights of concealed carry holders. One of the most important developments was the creation of an enhanced concealed carry endorsement.
The enhanced permit requires an additional eight hours of firearms training and allows the holder to legally carry a concealed firearm in places where firearms have traditionally been prohibited. The required training course is intended to be very accessible as the law requires that:
- It will not have to be renewed.
- It must be offered by all training instructors and at all concealed carry training courses.
- It may not cost more than a nominal amount.
Subject to the Arkansas State Police Director’s discretion, four of the eight hours of additional training can be waived if a person has completed the regular training for a concealed carry permit within the past 10 years. Once an individual successfully completes the enhanced permit course, which will most likely become available the first quarter of 2018, she will receive a concealed carry endorsement on her concealed carry license that shows she satisfied the additional training requirements.
Although the enhanced permit was originally intended to expand the rights of concealed carry holders at public colleges and universities, it grew in scope to include a number of both private and public locations.
Enhanced permit holders are legally allowed to carry a concealed handgun in a bar, church or private college unless signs are posted that expressly state that guns are prohibited. Further, enhanced permit holders are legally allowed to carry a concealed handgun in publicly owned buildings, including the state Capitol, subject to a few exceptions.
College Sporting Events
One of those exceptions is college sporting events that have been designated as a fire-arm sensitive area. You may recall the widespread media attention related to whether concealed handguns should be allowed at college sporting events. The General Assembly addressed this issue by prohibiting firearms in certain firearm-sensitive areas, such as the Arkansas State Hospital, UAMS or a collegiate athletic event.
To designate an area as a firearm-sensitive area (e.g., while hosting or sponsoring a collegiate athletic event), public colleges and universities must submit their own security plans to the Arkansas State Police for approval no later than five days before the scheduled event. Whether private colleges and universities are required to submit security plans in order to prohibit firearms at sporting events is debatable. Although the statute states that “any institution of higher education that hosts or sponsors a collegiate athletic event” may designate an area as a firearm-sensitive area, private institutions already have discretion on whether to allow or ban firearms on campus.
The enhanced permit does have its limitations and expands the rights of enhanced permit holders only to those specific places stated within the statute. Critically important to note is that the enhanced permit cannot preempt federal restrictions. Restrictions that are in place by both federal and state law that prohibit carrying a handgun in certain places, like K-12 and pre-K schools, daycares, prisons and courtrooms, still apply regardless of whether a person possesses an enhanced permit.
What does this mean for employers? Generally, Arkansas employers may prohibit the possession of handguns in the workplace if they provide proper notice of the prohibition.
However, certain public employers now have limited authority to do the same. Public universities, colleges, or other higher educational entities may not restrict the carrying of concealed handguns by persons who obtain the enhanced permit. Further, an employee who possesses either a traditional concealed carry permit or the enhanced permit may store a legally owned handgun in the employee’s vehicle while it is parked in the employer’s parking lot. There are some restrictions on how the firearm must be stored, including that the handgun must be lawfully possessed, stored out of sight inside a locked vehicle, and stored inside a “locked personal handgun storage container.”
What constitutes a locked personal handgun storage container has been a subject of debate. Some suggest that keeping the handgun in the vehicle’s locked glove compartment is sufficient while others argue that a lock box or something similar is required to comply with the law.
The rights granted by the enhanced permit apply to both employees and non-employees. Therefore, any licensee who possesses the enhanced permit may carry where permitted whether it is the licensee’s workplace or not. For example, an enhanced permit holder may legally carry in a public library or other publicly owned facility designated under the law regardless of whether they work there or are simply visiting. But the limitations that were previously in place still apply to those who possess only the traditional concealed carry permit.
Employers should know that they cannot be held liable in a civil action for damages, injuries or death resulting from an employee’s or non-employee’s actions involving a handgun stored in a parking lot unless the employer intentionally solicited or procured the person’s actions. Further, a handgun possessed in a parking lot does not constitute a failure (at least under state law) of a private employer to provide a safe workplace. Finally, a private employer may terminate any employee who unreasonably displays a handgun in plain sight of others in the workplace, in a parking lot, or in a motor vehicle.
What about open carry? In 2015, the Attorney General issued an opinion in regards to Act 746 of 2013, which amended Ark. Code Ann. § 5-73-120(a). Act 746 created some confusion on where and when Arkansans may legally possess a handgun. The opinion, while not binding law, provides some direction to local prosecutors and law enforcement officers on the current law within the state regarding open carry.
While not encouraging open carry, the attorney general opined that the mere open possession of a handgun without the intent to unlawfully employ the handgun as a weapon was not a crime. There were four critical caveats to the opinion:
- law enforcement officers may lawfully inquire into a person’s purpose when they are openly carrying and reasonable suspicion exists
- general prohibitions of handguns in certain circumstances remain in effect
- private property owners have the right to prohibit firearms on their property; and
- laws requiring a license to carry a concealed handgun still have full force and effect.
Many Arkansans agreed with the attorney general’s opinion but there was some concern that the final caveat limited a concealed carry permit holder’s ability to openly carry a firearm.
To address this issue, the Arkansas General Assembly passed Act 486 of 2017, which amended Ark. Code Ann. § 5-73-324. Their intent was to protect concealed carry permit holders’ right to openly carry a firearm.
Specifically, the statute prohibits an Arkansan from having a concealed carry permit denied, suspended or revoked for openly carrying. Also, it limits the Arkansas State Police from promulgating any rules or amending any existing rules that would result in a licensee losing a concealed carry permit solely because he or she openly possessed a handgun and the possession was not in violation of any criminal offense or statute.
With the significant changes that were made in 2017, concealed carry in Arkansas will be dramatically different in 2018 as the enhanced permit is implemented. As future action to broaden the locations in which enhanced permit holders may lawfully carry seems probable, the status of open carry within that state will also remain a debated topic moving forward.
Jacob Lively’s practice at Wright Lindsey Jennings is focused on commercial litigation and contract disputes. You can email him at firstname.lastname@example.org.