Public Chapter 467: Public Employers and the Battle Over Gun Rights

A few years ago, we authored an article, “Guns in Trunks: An Erosion of Tennessee’s Employment-at-will Rule?”[1] which discussed the “guns in trunks” legislation and the interaction between Second Amendment rights and a private employer’s ability to terminate and/or discipline employees who violated a no firearm policy. After that article went to print, and immediately before its publication, the Tennessee Attorney General issued an opinion stating that the “guns in trunks” legislation[2] “does not impact the employer/employee relationship” and does not prohibit an employer from terminating an employee for possession of a firearm or ammunition on the employer’s property.[3] This was one of the very questions raised in our June 2013 article, but left somewhat unanswered.

The General Assembly must have recognized the murky status of the “guns in trunks” law. So, in July 2015, the legislature sided with guns-rights advocates and passed a law prohibiting employers from terminating or taking other adverse employment action against an employee solely on the basis of that employee storing a firearm or ammunition in his or her vehicle in the employer’s parking lot — in other words, complying with the “guns in trunks” law.[4] Since our initial article, we have received numerous calls and e-mails from readers across the state about how firearm-related legislation could affect Tennessee workplaces. Some of you had questions, some wanted clarification, some just wanted to discuss what was, no doubt, going to continue to be a very important issue for Tennesseans and their employers.

Fast forward to May 1, 2017, when Gov. Haslam signed into law Public Chapter No. 467. This law, among other things, amends Tenn. Code Ann. § 39-17-1359 to prohibit local government entities (or their permittees) from prohibiting or restricting the possession of a handgun by carry permit holders on certain public property unless certain security measures are put into effect.

Let’s Start with Some Background

Prior to Public Chapter No. 467, public and private employers could lawfully prohibit firearms on their property, provided they post the signage required by Tenn. Code Ann. § 39-17-1359 (“The sign shall include the phrase ‘NO FIREARMS ALLOWED,’ and the phrase shall measure at least one inch (1") high and eight inches (8") wide. The sign shall also include the phrase ‘As authorized by T.C.A. § 39-17-1359’”.).

Public Chapter No. 467, which took effect July 1, 2017, now requires a public employer to do more than just affix a sign to the property if it wants to prohibit firearms. Indeed, it amended Tenn. Code Ann. § 39-17-1359 to add new subsection (g) which would require adopting significant security measures in addition to just the signage. Subsection (g) prohibits local government entities from prohibiting or restricting the possession of handgun by an individual with a valid carry permit unless the public entity provides the following at each public entrance to the property:

  • Metal detection devices;
  • At least one law enforcement or private security officer who has been adequately trained to conduct inspections of persons entering the property by use of metal detection devices; and
  • That each person who enters the property through the public entrance when the property is open to the public and any bag, package and other container carried by the person is inspected by a law enforcement or private security officer.[5]

Public Chapter 467 does not carve out any exception for employees. Instead, it governs the restriction or prohibition of a handgun for any “handgun carry permit holder.” Thus, if a public employee has a valid carry permit, then the law would allow him or her to carry the handgun inside the public building unless the public employer instituted the security measures listed above.

Of course, as with most any legislation, there are significant exceptions to the new security requirements. The new law does not apply to:

  • Licensed mental health facilities, facilities licensed under the provisions governing juveniles, such as childcare agencies or licensed healthcare facilities;
  • Schools and parks where certain school-related events are occurring, if present law prohibits firearms on such property;
  • Property on which judicial proceedings occur regardless of whether judicial proceedings are in progress;
  • Buildings that contain a law enforcement agency;
  • Libraries; or
  • Facilities that are licensed by the department of human services and administer a Head Start program.[6]

While Public Chapter No. 467 can obviously be seen as a victory for guns-rights advocates, it actually makes a change that would limit the ability to carry a handgun in at least one respect. Previously, Tenn. Code Ann. § 39-17-1306 prohibited carrying firearms in a room (any room) while court is in progress in that room. For example, assume a public building houses a myriad of county offices (property assessor, county commission, election administration, etc.) in addition to courtrooms. Previously, a permit holder could carry a handgun (assuming there was no prohibition sign) in the building, just not inside one of the courtrooms. Public Chapter No 467 has completely changed that. Firearms are now prohibited in any building — not just any room — in which judicial proceedings take place and the prohibition applies at all times regardless of whether judicial proceedings are actually in progress at the time.

Obviously, if public employers wish to prohibit firearms inside their buildings, there will now be a significant cost associated with complying with the new law. The cost of metal detectors (and their installation), training law enforcement or private security to properly inspect those entering the property, and additional staffing will all fall on public employers.

Some public employers who wish to prohibit firearms inside their buildings have already begun altering their policies and procedures to ensure that the new law has as minimal of an impact as possible. One such strategy is to re-evaluate what points of ingress actually constitute a “public entrance.” Notably, the new law only requires the additional security measures to be implemented at “each public entrance to the property.” Don’t be surprised if local governments begin to reduce the number of “public entrances” to each building.

Another option would be to classify certain buildings as being not open to the public. If a building is not open to the public, it would not have any public entrances, thus taking it outside the scope of § 39-17-1359. While this would not be an option for a town hall, for example, it may be feasible for certain local government buildings, such as the operations building of a public utility or wastewater treatment center.

This raises an interesting point, and perhaps an unintended consequence of the new law. What about those employees who do not enter through a public entrance, after all, they’re employees, not the general public? The security measures (metal detectors, inspection by law enforcement) are only required for those entering “the property through the public entrance when the property is open to the public."[7] Thus, even if the employer met the requirements of Tenn. Code Ann. § 39-17-1359 so as to prohibit firearms in the building, an individual (employee or otherwise) with access to a non-public entrance could easily by-pass the security screen.

We can’t predict the future, but don’t be surprised if we see some amendments to this new law in the upcoming legislative session.

Notes

  1. 49 Tenn. B.J. 17 (June 2013)
  2. Tenn. Code Ann. § 39-17-1313.
  3. Tenn. Op. Att’y Gen. 13-41 (May 28, 2013).
  4. Tenn. Code Ann. § 50-1-312(b)(1)(A) (“No employer shall discharge or take any adverse employment action against an employee solely for transporting or storing a firearm or firearm ammunition in an employer parking area in a manner consistent with § 39-17-1313(a).”).
  5. Tenn. Code Ann. § 39-17-1359(g)(1).
  6. Tenn. Code Ann. § 39-17-1359(g)(2).
  7. Tenn. Code Ann. § 39-17-1359(g)(1)(C).

Edward G. Phillips EDWARD G. PHILLIPS is a lawyer with Kramer Rayson LLP in Knoxville, where his primary areas of practice are labor and employment law. He graduated with honors from East Tennessee State University and received his law degree from the University of Tennessee College of Law in 1978 with honors, and as a member of The Order of the Coif. He is a former chair of the Tennessee Bar Association’s Labor and Employment Law Section.

BRANDON L. MORROW is an associate with Kramer Rayson LLP in Knoxville where his primary areas of practice are labor and employment, and litigation. He earned a bachelor’s degree from the University of Tennessee and a law degree from UT College of Law in 2012.

          | TBA Law Blog