WASHINGTON, September 26, 2015 − The Nassau County, New York, Prosecutor’s Office has a new policy. Their attorneys are not allowed to own a gun. Period. Not just “not allowed to bring a gun to work.” They are simply not allowed to own one.
Here is the policy:
Assistant district attorneys are not permitted to apply for a handgun permit nor own or possess a handgun while employed by the Nassau County District Attorney.
Our practice of asking prosecutors to not possess handguns is to ensure the safety and comfort of staff, victims, and witnesses.
Americans have the right to bear arms. Employers have a right to prohibit guns and other dangerous weapons on their private property.
Is there a Constitutional violation occurring in New York? The assistant DAs are private citizens when they are not at work.
The Second Amendment to the U.S. Constitution provides in pertinent part:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The Supreme Court has allowed some limits on the rights of government employees. Speech can be limited if it substantially interferes with government employer operations.
Gun rights advocates believe there is a Second Amendment violation with the Nassau County Prosecutors Office policy. They argue that citizens, including DAs, have the right to privately own guns, noting that gun ownership is a different issue from bringing a gun to work.
For now, a potential applicant to the NY DA’s office either gives up his or her gun or applies elsewhere. An interesting court battle may determine the constitutionality of this policy.
Without presenting a full legal argument here − since there is substantial and considerable debate about what should be the current state of the law − the law of the land, at least with regard to non-government employees, is that individuals do have the right to own guns and employers can legally prohibit their employees from bringing guns to work.
The broader discussion, however, concerns state laws regarding employees bringing guns to work. It is clear that states can limit this activity. States can limit gun ownership with with respect to licensing requirements, the transportation of weapons across state lines and bringing guns to work.
Thus, laws that have become commonly known as “Bring Your Gun To Work laws” have developed.
As of October 2014, 22 states had Bring Your Gun To Work laws. These laws might better be called “parking lot laws.” While they vary from state to state, they ban bringing any weapon into the workplace, but allow weapons to be stored in private vehicles in company parking lots.
States with laws permitting guns in workplace parking lots are Alabama, Alaska, Arizona, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Minnesota, Missouri, Mississippi, Nebraska, North Carolina, North Dakota, Oklahoma, Tennessee, Texas, Utah and Wisconsin. These laws allow people who feel a need to be protected to have their guns available nearby.
In states without such parking lot laws, employers can bar guns at work and can disallow them to be stored in vehicles.
Many large employers, such as Federal Express, Volkswagen, Caterpillar, Inc., and Bridgestone have fought these laws, maintaining that they have the right to secure a totally safe work environment and the right to set the rules on their property.
In 2010, the Labor Department reported that there were 16,910 workplace non-fatal assault and violent acts, including 518 killings. Weapons accounted for 78 percent of the killings.
In 2012, the Labor Department reported that 375 workers in the U.S. were killed in shootings on the job. An American Journal of Public Health study indicates that workplaces that allow guns were five times more likely to see a worker get killed on the job than workplaces that banned all weapons.
Employers are appropriately concerned not only about safety at their workplaces, but also about real time costs and liability. Workplace violence often results in physical and psychological harm and concurrent losses to property and productivity. Further, injuries or death can result in worker’s compensation claims and claims of negligence, exposing employers to potentially unlimited damages.
Under common law, an employer can be vicariously liable for the wrongful acts of its employees in the course and scope of their employment. While it can be argued that an employee committing an act of violence is acting outside of the scope of his employment, lawsuits brought in such matters will always be fact-dependent and costly to defend, and they will detract from work time and focus.
Workplace gun laws protect an employee’s right to store weapons in his or her locked private vehicle on the employee’s property. The laws often require that the weapon be in the vehicle’s glove compartment or in the trunk, and not in plain sight. They also often limit the employer’s right to search the vehicles of employees.
The “right” to store a weapon in a vehicle typically does not extend to an employer’s vehicle, even if that vehicle is designated for use on a routine basis by an employee.
Some states have gun possession laws, thus adding teeth to the employer’s ban and making storage of a gun in a vehicle illegal.
To effectuate the no-guns-at-work policy, an employer must post a sign or a notice conspicuously, prohibiting weapons at work. Employees who violate the policy can be fined or fired.
With the understanding today that mental health issues may play a role in violence, “best practices” for employers in guns-at-work (parking lots) states will include these elements:
- A comprehensive policy informing employees that threats or violent acts are prohibited;
- A statement specifying that many types of violence, including bullying, harassment and other forms of intimidation are prohibited;
- A procedure for reporting violence that clearly sets out penalties for violations; and
- A listing of readily available resources for employees, including counseling.
For some, gun laws are a very contentious topic. Concerns regarding the right to protection and self-defense are pitted against the concerns of society at large to be free from the added violence that guns can cause. In the continuing effort to reduce tragedy, parking lot laws are a good step, albeit not without their own problems, such as the ability of individuals to go to their vehicles and return to the workplace with the formerly stored gun.
If a law were to be passed today banning the ownership of all guns, getting rid of them all would never happen. There are simply too many guns out there to begin with. Passing that law anyway would be a step in the right direction.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/bookClick here for reuse options!
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