051203handout
CITY OF
SHOREWOOl
5755 COUNTRY CLUB ROAD · SHOREWOOD,
FAX(952) 474-0128. www.ct:shorewood.
MEMORANDUM
.. TO:
FROM:
DATE:
SUBJECT:
City Council ~
Craig W. Dawson, City Administrator ......... .'
May 12, 2003
Resolution Urging Amendment 6fNew Conceal-and,..CarryWeapons Law
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Councilmembers have expressed concerns about provisions in the new."Minrresota Personal
Protection Act", in Minnesota residents shall be granted permits (tlpon qualification) to carry and
conceal handguns; Of specific concern is the requirement, with very few exceptions, that concealed
weapons are expressly to be permitted on public property. Accordjngly, Council hasil"equeSt~d staff
to prepare a resolution-stating its opposition to the provisions in the Actrelating to City property.
The League of Minnesota Cities has prepared a memorandUm that discusses the IIlajor elements of
the Act as they relate to cities. A copy Qfthis inemor~dum is attachedJor your information.
City Council Action:
A resolution has been preparoo for your consideration. A Qlotion to. approv~th~. resolution,
withanymodific)ltions made by the CotlDcil,would be in order. The Council may adopt the
resolution with a simple majority vote.
A copy of the resolution would be forwarded to.Shorewood's legislators and to the leadership in th~
Minnesota Senate and HO\lse' of Representatives.
ft>
t.J PRINTED ON RECYClED PAPER
CITY OF SHOREWOOD
Hennepin County, Minnesota
RESOLUTION NO. 03 -
A RESOLUTION STATING THE CITY COUNCIL'S OPPOSITION
TO CERTAIN PROVISIONS IN THE 2003 MINNESOTA PERSONAL PROTECTION ACT,
AND CALLING FOR AMENDMENTS TO PROIDBIT CONCEALED WEAPONS
ON CITY PROPERTY
WHEREAS, the Minnesota Legislature has passed and the Governor has signed into law the "Minnesota
Personal Protection Act", in which Minnesota residents, subject to qualification, shall be issued permits
to carry concealed weapons, effective May 28,2003; and
WHEREAS, the Act provides that permittees shall, with very few exceptions, be permitted to carry concealed
weapons on municipal property; and
WHEREAS, the Act provides that owners of private properties may post and regulate the ability of permittees to
carry concealed weapons; and
WHEREAS, the Council is vitally concerned about the safety of its employees, and public safety of the users
and visitors of City properties; and
WHEREAS, the Council can fmd no rational justification to distinguish between a permissive provision for
private properties and a non-discretionary mandate for public properties; and
WHEREAS, there will very likely be an increase in public costs from this mandate as, for example, the greater
presence of weapons on City properties may increase insurance premiums, and the City would need to
provide facilities for employees with permits to store weapons at City properties; and
WHEREAS, the Council agrees in concept with the failed amendment to the House File that would have
allowed public facilities, such as city halls, parks, and recreation centers, to prohibit concealed weapons
on the premises; and
WHEREAS, time is of the essence for legislators to reconsider and amend the Act for the public safety of public
employees and users of public facilities,
NOW, THEREFORE, BE IT RESOLVED, by the Council of the City of Shore wood, that it state its
opposition to the sections of the Minnesota Personal Protection Act relating to rights to carry concealed
weapons on public property,
AND BE IT FURTHER RESOLVED, that the Council state its support for measures that will allow cities to
post "No weapons in city hall or on city-owned properties".
Adopted May 12,2003
Attest:
Craig W. Dawson, City Administrator
Woody Love, Mayor
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'LMC
League of Mi""esota Cities
Cities promoti~9 "x""II""",,
Phone: (651) 281-1200 (800) 925-1122
Fax: (651) 281-1299 IDD (651) 281-1290
Web Site: http://www.1mnc.org/
Minnesota Citizens' Personal Protection Act of 2003
"Conceal-and-Carry Law" -- What It Means For Cities
Introduction
Gov. Tim Pawlenty recently signed into law a bill that reduces local authority over issuance of
concealed handgun permits and is expected to significantly increase the number of permit-
holders. The Minnesota Personal Protection Act, (Senate File 842, will be 2003 Minn. Sess. Law,
Chap. 28), passed in the House on an 88-46 vote and in the Senate on a 37-30 vote, and was
signed into law by Gov. Pawlenty on April 28. It removes all authority from police chiefs to
issue conceal and carry permits, and mandates that sheriffs issue permits to all applicants except
those convicted of serious crimes. The law also prohibits cities from prohibiting guns on city
property, except in limited circumstances.
More than 300 organizations, including city councils, statewide police associations, churches and
health and education groups, opposed the legislation, arguing that the new law would put an
estimated 90,000 additional concealed weapons onto the streets. Currently, fewer than 12,000
individuals have permits to carry concealed weapons.
Proponents of the bill argued that sheriffs and police chiefs had too much discretionary authority,
and that applicants should decide for themselves if they need to carry a concealed weapon. Three
groups supported the legislation: the National Rifle Association, Concealed Carry Reform Now,
and the Republican Party of Minnesota.
An amendment offered in the House on behalf of the League of Minnesota Cities would have
allowed public facilities, such as city halls, parks, and recreation centers, to prohibit concealed
weapons on the premises. The amendment failed on a vote of 48-84. No similar amendment was
attempted in the Senate.
Conceal-and-carry law: What it means for cities
League staff has prepared this memorandum to help cities understand some of the most
significant implications of the new law. In addition, links to related information are provided at
the end of the memo. The League will continue to supplement this memorandum as additional
information is gathered about how the law is being interpreted by affected groups. Please let us
know if there are additional questions you would like us to address.
145 University Avenue West. St. Paul, MN 55103-2044. (651) 281-1200 . (800) 925-1122. www.lmnc.org
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Can cities prohibit guns on city property?
No, with some limited exceptions. While the law allows private property owners, who follow a
specific set of procedures, to request that guns not be brought into a "private establishment," the
law does not generally afford cities the same ability. For example, a private business may
prohibit the carrying of guns on its premises if the business "prominently" posts a "conspicuous"
sign at each entrance to the establishment stating that the "(NAME OF OPERA TOR) BANS
GUNS IN THESE PREMISES." In addition, the business owner or their agent must personally
inform "the person of the posted request, and demand compliance." Again, cities do not have a
similar ability to "post" their facilities.
The situations in which cities may limit guns on city property appear to be limited to the
following circumstances:
· Employees. As an employer, cities "may establish policies that restrict the carry or
possession of firearms by its employees while acting in the course and scope of
employment." The exception does not apply to parking areas. (This exception is further
discussed below.)
· Property used for "school purposes." It is a misdemeanor for an individual to carry a
firearm on "school property." "School property" is defined as including "a public or private
elementary, middle, or secondary school building and its improved grounds, whether leased
or owned by the school; a child care center licensed under chapter 245A during the period
children are present and participating in child care programs; . . . and that portion of a
building or facility under the temporary, exclusive control of a public or private school, a
school district, or an association of such entities where conspicuous signs are prominently
posted at each entrance that give actual notice to persons of the school related use."
Accordingly, if city property is being used for any of these defined school related purposes,
guns are prohibited.
· Private use of city property. A private party that leases space in city buildings or facilities
may prohibit firearms in the leased spaced by following the posting and notice requirements
described above. The city may also be able to condition the private use of city facilities on an
agreement to ban guns. However, as a landlord, the city may not restrict the "lawful carry or
possession of firearms by tenants or their guests."
· Persons under the influence of alcohol. A person is prohibited from carrying a pistol in a
public place while under influence of drugs or alcohol, or where the person's blood alcohol
concentration is more than 0.04. This exception may have particular applicability to
municipal liquor establishments. Consumption of one or two alcoholic beverages can often
put a person's blood alcohol level above 0.04. So, although municipal liquor stores do not
have the same ability to "post" their premises as private establishments, it might be
permissible for a municipal liquor store (particularly on-sale facility) to adopt a policy
requiring customers to disclose whether they are carrying a gun.
145 University Avenue West. St. Paul, MN 55103-2044. (651) 281-1200 . (800) 925-1122. www.lmnc.org
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As an alternative to attempting to ban guns on city property, the city may want to consider
posting portions of city facilities as "authorized personnel only." This would make it a trespass
violation for an individual to go into areas of city hall that are not normally accessible to the
public.
In addition, the city may be able to limit weapons on city property where the city has a
reasonable basis to suspect an individual constitutes a health or safety risk. For instance if a
person has made threats in the past, it may be legitimate for the city to prohibit the individual
from possessing a gun on city property.
Finally, cities may want to draw a distinction between access to city property and access to city
services and personnel. For instance, it may be acceptable to condition participation in city
recreation programs on an agreement to disarm. If a city wants to try to argue this distinction, it
should consult with its attorney in order to develop a well-reasoned and legally defensible policy
to support such an action.
Can the city prohibit employees from bringing firearms to work with them?
If so, can the city discipline employees for violations?
Yes, the law specifically allows an employer, public or private, to "establish policies that
restrict the carry or possession of firearms by its employees while acting in the course and
scope of employment." The law also allows the city to discipline employees for violations of the
policy.
This means cities can establish a policy that prohibits employees from carrying or possessing
firearms while:
· Working on city property.
· Working in any location on behalf of the city.
· Driving on city business.
· Riding as a passenger on city business.
· Performing emergency or on-call work after hours on behalf of the city.
· Attending training or conferences on behalf of the city.
(A link to a sample policy on this issue is included at the end ofthis memo.)
The law also states that an employer cannot prohibit the lawful carry or possession of firearms in
a parking facility or parking area. For many employees, this means that they will leave any
firearms in their cars during the workday if the city has a policy prohibiting possession while at
work. This could raise issues of security for city parking facilities.
However, it may be difficult to enforce a policy against possessing a firearm at work if the
employee routinely uses his or her car for city business. In this case, the city may have to allow
an employee to "check" a firearm during the workday and retrieve it after work. The police
department is likely to be in the best position to deal with the duty of checking firearms. This
duty will require locking the firearms in a secure location and implementing procedures to ensure
that only appropriate city staff can retrieve them. If the police department cannot perform this
function, it would be a good idea to give the employee checking the firearms some basic training
on how to safely handle firearms.
145 University Avenue West. St. Paul, MN 55103-2044. (651) 281-1200 . (800) 925-1122. www.lmnc.org
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The city may also find it difficult to handle situations where an employee must respond to an
emergency after-hours. In this case, since the employee would be on duty, the city can probably
prohibit the employee from carrying a firearm in their private vehicle unless the vehicle is
merely used to drive to a city parking lot, remains in the parking lot and is not used to respond to
the call.
Can the city restrict elected officials from carrying firearms while conducting city
business?
The law does not specifically address this issue. Therefore, it depends on whether elected
officials would be considered "employees" of the city under this particular law. This
determination could be different from city to city, depending on a number of factors.
For example, some cities have specifically taken actions to designate their elected officials as
"employees" in order to offer them certain types of benefits, such as workers' compensation
coverage, group health and life insurance, and coverage in pension and retirement plans. These
cities are more likely to be able to make an argument that the elected officials should be treated
as employees under this law.
On the other hand, many state and federal employment laws tend to exempt elected officials
from coverage. For example, elected officials are not considered employees for purposes of the
Fair Labor Standards Act, which governs minimum wage and overtime. They are also
specifically exempt from the state law that defines public employees for purposes of collective
bargaining rights.
The best practice is for the city to examine how it has treated elected officials in the past on
various types of issues and remain consistent with those practices. For example, if the city has
designated elected officials as employees for purposes of workers' compensation coverage and
other benefits, it should probably designate them as employees for purposes of this law as well.
Can the city restrict volunteers from carrying firearms when performing duties on
behalf of the city?
Probably not, but a city is not required to use volunteers who carry handguns. A true
"volunteer" probably cannot be restricted from carrying firearms on the basis of being an
employee of the city. However, the city may be able to adopt a policy stating that it will not use
volunteers unless they sign an agreement that they will not carry a firearm while acting on behalf
of the city.
In defining city volunteers, the city should take a particularly catefullook at its volunteer
firefighters. Many fire departments in the state compensate their volunteer firefighters in a
manner that would probably be seen by the Department of Labor as making them ineligible for
volunteer status under wage and hour laws. The city should attempt to be consistent in its
definition of volunteer firefighters either as true volunteers or as "paid on call" city employees.
If the city determines that its volunteer firefighters are actually employees, they can be included
in the city's general policy prohibiting employees from carrying firearms while on duty. A
similar argument could possibly be made with respect to positions such as ambulance attendants,
145 University Avenue West. St. Paul, MN 55103-2044 . (651) 281-1200. (800) 925-1122. www.lmnc.org
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first responders, police reserves, and emergency response volunteers, all of whom are
categorized as employees under Minnesota's workers compensation laws. If they are true
volunteers, the city may be able to require them to sign an agreement that they will not carry a
firearm while acting on behalf of the city. Included with this information is a link to a Fact Sheet
that describes factors to look at in determining whether an individual truly is a volunteer for
purposes of the Fair Labor Standards Act.
What additional enforcement obligations does the law impose on local law
enforcement officials?
Crimes under the law. The following is a list of some of the crimes under the new law:
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It is a gross misdemeanor for a person to carry a pistol in a public place without a permit.
.
It is a petty misdemeanor for a person authorized to carry a gun to not have the "permit card"
in immediate possession. The charge must be dismissed if the person later demonstrates in
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court or in the!office of the arresting officer that the person was authorized to carry the pistol
at the time of tihe alleged violation. A violation of this provision does not result in a forfeiture
ofthe person's gun.
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It is a petty mi!sdemeanor for a permit holder to fail to notify the issuing sheriff of a change
of address or ~ lost or destroyed card. A violation of this provision does not result in a
forfeiture oftl.i.e person's gun.
It is a misdem~anor for a person with a permit to carry or possess a firearm on school
property. A viplation of this provision does not result in a forfeiture of the person's gun.
.
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The law contiI~ues to make it a felony for a person without a permit to carry or possess a
firearm "whild knowingly" on school property.
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It is a petty mi!sdemeanor to remain at a "private establishment" that has banned weapons.
The private establishment must properly post the establishment as banning guns, must have
personally inftrmed the individual that the establishment bans guns, and must have asked the
individual to domply. A violation of this provision does not result in a forfeiture of the
person's gun. trhe owner of a private establishment may not ban guns in a parking facility or
parking area. !
.
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The law creat~s a new set of crimes known as "carrying while under the influence of alcohol
or a controlleq substance." The processes and procedures are very similar to those for driving
while under t~e influence of alcohol or a controlled substance. The one notable difference is
that it is a mis~emeanor for a person to carry a pistol in a public place when the person's
alcohol conce~tration is less than 0.10, but more than 0.04. A violation ofthe 0.04 limit does
not result in a forfeiture of the person's gun.
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Contracts with dounty Sheriff to conduct permitting activities. The law removes permit
issuance responsi~i1ity from local police chiefs and places it with the county sheriffs. A sheriff
may contract withj a police chief to process permits, but "the sheriff remains the issuing authority
and the police chiff acts as the sheriffs agent." The obligations associated with taking
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145 University Ave~ue West. St. Paul, MN 55103-2044 . (651) 281-1200. (800) 925-1122. www.lmnc.org
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applications, conducting background checks, and issuing the permits are significant.
Accordingly, the League recommends that cities carefully consider the risks and benefits before
entering into such contracts. We would also recommend that the contract make it clear that the
county would cover the liability for police chiefs' action. There is potential liability if the chiefs
do not follow procedures such as the mandatory background checks.
Notice to police chiefs of permit applications. When an application for a permit is filed with
the county sheriff, the sheriff is required to notify the chief of police of the municipality where
the applicant resides. The chief of police is then authorized, but not required, to provide "any
information relevant to the issuance of the permit." While the law does not impose an obligation
to provide information, local law enforcement officials may want to adopt policies that articulate
what sources of information they will review in responding to notification of a permit application
from a county sheriff.
Responsibilities of prosecutors. When a person is charged with an offense that would, upon
conviction, prohibit the person from possessing a firearm, the prosecuting attorney is required to
ascertain whether the person is a permit holder. If the person is a permit holder, the prosecutor is
required to notify the issuing sheriff that the person has been charged with a prohibiting offense.
The prosecutor must also notify the sheriff of the final disposition of the case. In addition to the
felony charges that would trigger this reporting obligation for county attorneys, local prosecutors
will also have this obligation for certain offenses such as Minn. Stat. Sec. 518B. 14, violations of
orders for protection; Sec. 609.2242 subd. 3, domestic assault; and Sec. 609.749, subd. 8,
harassment, and stalking. There could be potential liability to the city and its prosecutor if these
responsibilities are not carried out.
What authority do cities have to regulate handguns?
Not much. The law provides that "this section sets forth the complete and exclusive criteria and
procedures for the issuance of permits to carry and establishes their nature and scope. No sheriff,
police chief, governmental unit, government official, government employee, or other person or
body acting under color of law or government authority may change, modify, or supplement
these criteria or procedures, or limit the exercise of a permit to carry."
In addition, Minn. Stat. Section 471.633 states that: "The legislature preempts all authority of a
home rule charter or statutory city including a city of the first class, county, town, municipal
corporation, or other governmental subdivision, or any of their instrumentalities, to regulate
firearms, ammunition, or their respective components to the complete exclusion of any order,
ordinance or regulation by them except that:
(a) a governmental subdivision may regulate the discharge
of firearms; and
(b) a governmental subdivision may adopt regulations identical to state law.
Local regulation inconsistent with this section is void."
These two statutes severely limit a city's ability to regulate the carrying of handguns. The only
possible exceptions appear to be the ability to adopt local regulations limiting the brandishing
and discharge of weapons within the city and the possible ability to regulate establishments
where handguns may be present. For instance, because the law makes it a crime to possess a
145 University Avenue West. St. Paul, MN 55103-2044. (651) 281-1200. (800) 925-1122. www.lmnc.org
7
pistol while under the influence of alcohol, the city may be able to adopt an amendment to its
liquor regulations, requiring all liquor license holders to ban handguns.
How are permit-application data classified under the MN Government Data
Practices Act?
All permit-application data collected by state agencies, political subdivisions, or statewide
systems are classified as private. (M.S. 13.87, subd. 2.) As a result, only the applicant and
individuals within the state or local governmental entity whose work assignments reasonably
require access will be able to access this data. (M.S. 13.02, subd. 12; M. Rule 1205.0400, subp.
2.)
Will law enforcement agencies be able to verify whether permits are valid?
Yes. The commissioner of public safety is required to maintain an automated database of persons
authorized to carry pistols under this new law that is available 24 hours a day, seven days a
week. (M.S. 624.714, subd. 15.) This database will only be available to law enforcement
agencies, including prosecutors verifying the validity of permits.
Will any permit data be available to the public?
Yes. On an annual basis, beginning March 1, 2004, the commissioner of public safety must
report to the Legislature specific data regarding permits issued under the new law. (M.S.
624.714, subd. 20.) Sheriffs and police chiefs are specifically permitted to release private data to
the department of public safety for this purpose. The report will be available to the public at its
actual cost of duplication. The report will not contain any personally identifiable data. For
example, although the report will contain the number of permits applied for, issued, suspended,
revoked, and denied, it will only be categorized by the age, sex, and zip code of the applicant or
permit holder. (See M.S. 624.714, subd. 20 for a complete list of information required in the
report. )
Does the new law increase municipal liability exposure in any way?
Yes. There are a number of ways in which municipal liability exposure may be increased as a
result of the new law:
Immunity. The law includes an "immunity" section, but it likely does not protect the city from
all possible claims or lawsuits that may be brought as a result of the law. The immunity states
that" . . . a police chief, any employee .. . of a police chief involved in the permit issuing
process, is not liable for damages resulting or arising from acts with a firearm committed by a
permit holder unless the person had actual knowledge at the time the permit was issued or the
instruction was given that the applicant was prohibited by law from possessing a frrearm.".So
there is protection from claims or lawsuits where the permit holder shoots someone and the
injured party tries to sue the city for the information that it gave to the county to issue the permit.
145 University Avenue West. St. Paul, MN 55103-2044. (651) 281-1200. (800) 925-1122. www.lmnc.org
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This immunity does not apply if it can be shown that the city employee had actual knowledge
that the applicant was prohibited by law from possessing a firearm. Therefore, if the police knew
that the applicant was dangerous or mentally ill and did not say anything to the sheriff after being
notified, there may be potential liability.
The immunity also does not specifically apply to cities. Cities would have to argue that they are
immune through vicarious immunity because of the actions of their employees.
Finally, the immunity does not apply to lawsuits not involving acts with a firearm such as a
defamation lawsuit as discussed below.
Defamation. Under the new law (Minn. Stat. Sec. 624.714 subd. 4 (b)), after notification by the
sheriff of a person's application for a permit, the local police chief may provide relevant
information on the issuance of the permit.
There is a potential for defamation claims by the applicant. Defamation is where you tell
someone something in writing (libel) or orally (slander) that is proved to be false and resulted in
damages to the person's reputation or in obtaining some benefit (such as a gun permit). In this
situation, damages could also be argued to include physical injury if the person can show that if
they had had a gun, they would not have been injured.
Injuries to third parties. If a person or a city employee carrying a gun with a permit uses the
gun to hurt someone on city premises, the city could be liable for those injuries. Under common
law, the city could be liable if the city knew that the person or the employee was dangerous for
other reasons. Carrying a gun legally with a permit would not give the city sufficient reason to
act on the person's ability to be on the city premises. There must have been some other action
indicating danger, such as a threat or a fight.
If the city had such knowledge, it had a duty to protect other users by kicking the dangerous
person out of the building or premises at that time or for a period of time. If the city didn't do
this, there could be potential liability for negligent supervision of the premises. There also is the
argument that the dangerous action was foreseeable because of the past acts of the person. LMC
recommends that you have a procedure in place for expelling people or employees who may be a
danger to other users of the city premises. The procedure should afford some level of due
process.
Training by city. If the city provides training through a certified instructor to people who apply
for permits and later use the firearm, is there liability for the city? The certified instructor
individually would be immune from these types of claims and the city could argue vicarious
immunity if the instructor was working in the course of his or her city employment. As stated
before, the immunity doesn't apply if the instructor had actual knowledge that the person was not
eligible for a permit at time of application.
Chemical testing. Under Minn. Stat. 624.7143, there is a specific procedure established for
chemical testing to determine if a person is carrying a firearm while under the influence of
alcohol or drugs. Is there liability if city police do not follow this procedure? Potentially, if it
resulted in wrongful revocation of a permit or wrongful conviction.
145 University Avenue West. St. Paul, MN 55103-2044. (651) 281-1200. (800) 925-1122. www.lmnc.org
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Links to Related Information:
· LMC Sample Policy Prohibiting Firearms at Work (pdf document)
· LMC Fact Sheet #3: Police and Fire Employees Fair Labor Standards Act (pdf document)
(5-8-03)
145 University Avenue West. St. Paul, MN 55103-2044. (651) 281-1200. (800) 925-1122. www.lmnc.org