Concealed Carry Issues in Commercial Leasing

Last year, the Illinois legislature passed the Firearm Concealed Carry Act, 430 ILCS 66/1 et. seq . (the Illinois Act), and thereby became the 50th ' and last ' state in the Union to enact a law that authorizes its citizens to carry concealed firearms. Amid a landscape of wildly divergent opinions on the subject, concealed carry is now the law of the land, in some shape or form.

Despite the political fireworks that preceded its enactment, the core elements of the Illinois Act ' prohibitions and permissions, licensure requirements and exemptions ' are relatively noncontroversial. But when superimposed upon the landlord-tenant relationship, the Illinois Act may give rise to more questions than answers with respect to liability arising from persons carrying concealed weapons. For instance, the Illinois Act does not address the rights of tenants, if any, to enforce its terms against persons within leased premises. Illinois landlords should not only be aware of the basic rights afforded them under the Illinois Act, but also of the issues raised regarding the rights of other occupants of their properties.

Section 65(a-10) of the Illinois Act provides that an “owner of private real property of any type” is authorized to prohibit the carrying of concealed weapons on property “under his or her control.” 430 ILCS 66/65(a-10). The term “owner” is not defined under the statute, an omission that puts into question whether tenants of real property are entitled to enforce any rights under the Illinois Act. However, some industry groups have suggested that the rights of the owner may be inferred as applying to tenants as well, due to the fact that the lease confers upon the tenant control of the premises in question. If such an inference is valid, then it may follow that a property owner concedes its right to enforce Section 65(a-10) in areas of the property that are subject to leases, as “control” of those areas has been surrendered to the applicable tenant. In any event, the Illinois State Police have advised that the Illinois Act does not prohibit a property owner from designating to its tenant through an express lease provision the right to prohibit concealed firearms in the premises.

Landlords and Tenants and Guns

The mechanism by which a property owner may take advantage of Section 65(a-10) is relatively straightforward. In order for a property owner to lawfully prohibit concealed firearms, the Illinois Act requires that he or she post prescribed signage “clearly and conspicuously ' at the entrance of a building, premises or real property specified ' as a prohibited area, unless the building or premises is a private residence.” 430 ILCS 66/65(d). The Illinois State Police have prescribed a standardized sign for this purpose, which measures four inches by six inches in size and is generally available for download via their website.

Neighboring states have taken a similar approach in some respects, and expanded the scope of the law in others. Wisconsin's concealed carry statute, Wis. Stat. ” 941.23, also requires that signage be posted to prohibit concealed firearms validly. However, contrary to the Illinois Act, the Wisconsin statute states that a person who does not prohibit individuals from carrying concealed weapons on his/her property or the property that he/she occupies is “immune from any liability arising from” that decision. Similarly, employers that do not prohibit their employees from carrying concealed weapons have immunity “from any liability arising from” that decision. Wis. Stat. ' 175.60(21)(b) and (c). Furthermore, the Wisconsin statute provides immunity to property owners whose tenants permit concealed carrying of a firearm on the property, and it exempts from liability an individual who carries a concealed weapon in his/her own dwelling or place of business or on property that he/she owns, leases, or legally occupies. Wis. Stat. ” 941.23(2)(e) and 941.295(2)(d)2.

When drafting the Illinois Act, the Illinois legislature opted not to include detailed immunity language similar to the language in the Wisconsin statute, and instead remained silent on the above issues, thereby (in the eyes of some industry groups) failing to protect commercial landlords adequately. An immunity clause like the one contained in the Wisconsin statute is common in more gun-friendly states, but in Illinois, the legislature apparently preferred to allow common law to dictate whether property owners are liable for concealed carry-related injuries occurring on the tenant-occupied premises.

But What If '

Over time, further legislation and case law will better define the contours of the Illinois Act. In the meantime, we are left to infer and speculate as to the application of the Illinois Act in the context of a lease. In doing so, many interesting (albeit esoteric) questions arise regarding the rights, obligations and liability of parties owning and otherwise occupying multi-tenant real property, particularly when the leases of such property are unclear or silent on the subject matter in question.

Consider any condition that is expressly permitted as a matter of right in public places under the law, but may also be prohibited under the law on private property by the owner of that property. Consider further that the owner has leased all or a portion of the property to a tenant pursuant to a lease that expressly allows the tenant to prohibit the condition within its premises. If the owner has not prohibited the condition on the property, but one of the tenants desires that the condition be prohibited within the leased premises, can the tenant eject or deny service to a violator? In litigation, the party denied by the tenant would seek to enforce his lawful right to engage in the conduct in lieu of a prohibition by the owner, whereas the tenant would cite his authority under the lease to deny the conduct.

Applied to the present subject matter, if a tenant, exercising a right expressly reserved to it under its lease, posts proper signage at the entrance to its premises and subsequently ejects or denies service to (or seeks to recover damages from) a person lawfully carrying (or otherwise using) a concealed firearm when the owner of the property has not posted signs prohibiting such conduct, which party will prevail? The individual bearing the weapon is licensed to do so and was not put on notice that his conduct was prohibited. However, the tenant should be entitled to the protection offered under its lease, and if Section 65(a-10) of the Illinois Act is to be read to include the rights of tenants, then the tenant may also lean on the Illinois Act to support its removal of the individual. Without further clarification of the Illinois Act by the legislature, Illinois courts are certain to face fact patterns like this in coming years.

Further clouding these issues is the fact that few forms of conduct are as unique and politically sensitive as bearing firearms (in recent history, perhaps only smoking comes close), and when applied to the scenario above, concealed carry raises questions that most landlords have never been forced to consider. The right to bear arms is protected conduct under the Second Amendment of the Constitution of the United States. Moreover, limitations of the Second Amendment have been strictly construed by the Supreme Court.

A related and perhaps thornier issue is who, between the landlord and the tenant, maintains the right to enforce the prohibition on concealed carry in the common areas of a multi-tenant building. If the right to prohibit concealed carry is read to include tenants, then how will liability be assessed when multiple parties attempt to enforce divergent rules in common space?

For example, consider the assessment of liability arising from the otherwise lawful use of a concealed weapon in an elevator lobby servicing some tenants who exercise their right to prohibit, and some who do not. Generally, commercial landlords have no duty to control a third party's conduct or to warn those who may be endangered by such conduct. Landlords may, however, have a duty to ensure that common areas within their control are maintained in a reasonably safe condition. In some states, this duty may include taking reasonable steps to secure common areas against foreseeable third-party criminal acts, which are likely to occur in the absence of precautionary measures. Sharon P. v. Arman, Ltd., 21 Cal. 4th 1181, 1189 (1999). But, there must be “a high degree of foreseeability” to impose any duty upon the landlord to take burdensome security measures. Id . at 1189. “[T]he requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner's premises.” Ann M. v. Pacific Plaza Shopping Center, 6 Cal. 4th 666, 679 (1993). In most commercial leases, the common areas are included in the tenant's leased premises; however, the tenant's rights in the common areas are usually limited relative to the primary space, and subject to restrictions, rules and regulations imposed by the landlord.

Conclusion

The Illinois legislature's silence on certain critical issues affecting landlord-tenant relations is likely to cause significant confusion and uncertainty for commercial landlords. Time will tell whether further legislation and interpretation of the Illinois Act by the courts will provide the necessary guidance on concealed carry conduct in leased spaces.

David P. Resnick, a member of this newsletter's Board of Editors, is a Partner at Robbins, Salomon & Patt, Ltd. in Chicago, concentrating his practice in commercial real estate development and finance. Desiree L. Lauricella is an Associate of the firm, concentrating her practice in commercial litigation.

Last year, the Illinois legislature passed the Firearm Concealed Carry Act, 430 ILCS 66/1 et. seq . (the Illinois Act), and thereby became the 50th ' and last ' state in the Union to enact a law that authorizes its citizens to carry concealed firearms. Amid a landscape of wildly divergent opinions on the subject, concealed carry is now the law of the land, in some shape or form.

Despite the political fireworks that preceded its enactment, the core elements of the Illinois Act ' prohibitions and permissions, licensure requirements and exemptions ' are relatively noncontroversial. But when superimposed upon the landlord-tenant relationship, the Illinois Act may give rise to more questions than answers with respect to liability arising from persons carrying concealed weapons. For instance, the Illinois Act does not address the rights of tenants, if any, to enforce its terms against persons within leased premises. Illinois landlords should not only be aware of the basic rights afforded them under the Illinois Act, but also of the issues raised regarding the rights of other occupants of their properties.

Section 65(a-10) of the Illinois Act provides that an “owner of private real property of any type” is authorized to prohibit the carrying of concealed weapons on property “under his or her control.” 430 ILCS 66/65(a-10). The term “owner” is not defined under the statute, an omission that puts into question whether tenants of real property are entitled to enforce any rights under the Illinois Act. However, some industry groups have suggested that the rights of the owner may be inferred as applying to tenants as well, due to the fact that the lease confers upon the tenant control of the premises in question. If such an inference is valid, then it may follow that a property owner concedes its right to enforce Section 65(a-10) in areas of the property that are subject to leases, as “control” of those areas has been surrendered to the applicable tenant. In any event, the Illinois State Police have advised that the Illinois Act does not prohibit a property owner from designating to its tenant through an express lease provision the right to prohibit concealed firearms in the premises.

Landlords and Tenants and Guns

The mechanism by which a property owner may take advantage of Section 65(a-10) is relatively straightforward. In order for a property owner to lawfully prohibit concealed firearms, the Illinois Act requires that he or she post prescribed signage “clearly and conspicuously ' at the entrance of a building, premises or real property specified ' as a prohibited area, unless the building or premises is a private residence.” 430 ILCS 66/65(d). The Illinois State Police have prescribed a standardized sign for this purpose, which measures four inches by six inches in size and is generally available for download via their website.

Neighboring states have taken a similar approach in some respects, and expanded the scope of the law in others. Wisconsin's concealed carry statute, Wis. Stat. ” 941.23, also requires that signage be posted to prohibit concealed firearms validly. However, contrary to the Illinois Act, the Wisconsin statute states that a person who does not prohibit individuals from carrying concealed weapons on his/her property or the property that he/she occupies is “immune from any liability arising from” that decision. Similarly, employers that do not prohibit their employees from carrying concealed weapons have immunity “from any liability arising from” that decision. Wis. Stat. ' 175.60(21)(b) and (c). Furthermore, the Wisconsin statute provides immunity to property owners whose tenants permit concealed carrying of a firearm on the property, and it exempts from liability an individual who carries a concealed weapon in his/her own dwelling or place of business or on property that he/she owns, leases, or legally occupies. Wis. Stat. ” 941.23(2)(e) and 941.295(2)(d)2.

When drafting the Illinois Act, the Illinois legislature opted not to include detailed immunity language similar to the language in the Wisconsin statute, and instead remained silent on the above issues, thereby (in the eyes of some industry groups) failing to protect commercial landlords adequately. An immunity clause like the one contained in the Wisconsin statute is common in more gun-friendly states, but in Illinois, the legislature apparently preferred to allow common law to dictate whether property owners are liable for concealed carry-related injuries occurring on the tenant-occupied premises.

But What If '

Over time, further legislation and case law will better define the contours of the Illinois Act. In the meantime, we are left to infer and speculate as to the application of the Illinois Act in the context of a lease. In doing so, many interesting (albeit esoteric) questions arise regarding the rights, obligations and liability of parties owning and otherwise occupying multi-tenant real property, particularly when the leases of such property are unclear or silent on the subject matter in question.

Consider any condition that is expressly permitted as a matter of right in public places under the law, but may also be prohibited under the law on private property by the owner of that property. Consider further that the owner has leased all or a portion of the property to a tenant pursuant to a lease that expressly allows the tenant to prohibit the condition within its premises. If the owner has not prohibited the condition on the property, but one of the tenants desires that the condition be prohibited within the leased premises, can the tenant eject or deny service to a violator? In litigation, the party denied by the tenant would seek to enforce his lawful right to engage in the conduct in lieu of a prohibition by the owner, whereas the tenant would cite his authority under the lease to deny the conduct.

Applied to the present subject matter, if a tenant, exercising a right expressly reserved to it under its lease, posts proper signage at the entrance to its premises and subsequently ejects or denies service to (or seeks to recover damages from) a person lawfully carrying (or otherwise using) a concealed firearm when the owner of the property has not posted signs prohibiting such conduct, which party will prevail? The individual bearing the weapon is licensed to do so and was not put on notice that his conduct was prohibited. However, the tenant should be entitled to the protection offered under its lease, and if Section 65(a-10) of the Illinois Act is to be read to include the rights of tenants, then the tenant may also lean on the Illinois Act to support its removal of the individual. Without further clarification of the Illinois Act by the legislature, Illinois courts are certain to face fact patterns like this in coming years.

Further clouding these issues is the fact that few forms of conduct are as unique and politically sensitive as bearing firearms (in recent history, perhaps only smoking comes close), and when applied to the scenario above, concealed carry raises questions that most landlords have never been forced to consider. The right to bear arms is protected conduct under the Second Amendment of the Constitution of the United States. Moreover, limitations of the Second Amendment have been strictly construed by the Supreme Court.

A related and perhaps thornier issue is who, between the landlord and the tenant, maintains the right to enforce the prohibition on concealed carry in the common areas of a multi-tenant building. If the right to prohibit concealed carry is read to include tenants, then how will liability be assessed when multiple parties attempt to enforce divergent rules in common space?

For example, consider the assessment of liability arising from the otherwise lawful use of a concealed weapon in an elevator lobby servicing some tenants who exercise their right to prohibit, and some who do not. Generally, commercial landlords have no duty to control a third party's conduct or to warn those who may be endangered by such conduct. Landlords may, however, have a duty to ensure that common areas within their control are maintained in a reasonably safe condition. In some states, this duty may include taking reasonable steps to secure common areas against foreseeable third-party criminal acts, which are likely to occur in the absence of precautionary measures. Sharon P. v. Arman, Ltd. , 21 Cal. 4th 1181, 1189 (1999). But, there must be “a high degree of foreseeability” to impose any duty upon the landlord to take burdensome security measures. Id . at 1189. “[T]he requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner's premises.” Ann M. v. Pacific Plaza Shopping Center , 6 Cal. 4th 666, 679 (1993). In most commercial leases, the common areas are included in the tenant's leased premises; however, the tenant's rights in the common areas are usually limited relative to the primary space, and subject to restrictions, rules and regulations imposed by the landlord.

Conclusion

The Illinois legislature's silence on certain critical issues affecting landlord-tenant relations is likely to cause significant confusion and uncertainty for commercial landlords. Time will tell whether further legislation and interpretation of the Illinois Act by the courts will provide the necessary guidance on concealed carry conduct in leased spaces.

David P. Resnick, a member of this newsletter's Board of Editors, is a Partner at Robbins, Salomon & Patt, Ltd. in Chicago, concentrating his practice in commercial real estate development and finance. Desiree L. Lauricella is an Associate of the firm, concentrating her practice in commercial litigation.