What to Know Before Setting a Gun Policy at Your Site
by Andrea Brescia
Each week, gun-related violence makes headlines, followed shortly by hotly contested debates on gun control. The right to bear arms as defined by the U.S. Constitution, as well as by many state constitutions, has and remains an issue that divides individuals, businesses, communities, and politicians, and has wide-reaching implications for residential communities. To protect residents and avoid gun violence on your property, can you legally set a policy that bans guns at your site without violating the constitutional rights of the individuals who live there?
The answer may depend upon the state where you live and whether your site belongs to a public housing authority (PHA) or a private landlord.
First, a few numbers. According to 2017 data from the Pew Research Center, three in ten adults say that they currently own a gun, while another 11 percent say that they live with someone who does. Among owners, two-thirds report that they own more than one gun and 29 percent own five or more guns. Although most gun owners cite multiple reasons for owning a gun, 67 percent of owners say that protection is a major reason for gun ownership.
So how do you balance your residents’ right to protect themselves with your responsibility to protect your residential community? How do you—and can you—institute a gun policy at your site without violating one person’s Second Amendment rights while protecting another resident’s right to quiet enjoyment of his leased property? And is it easier to set a policy depending on whether your site belongs to a PHA or to a private landlord that accepts Housing Choice Vouchers?
We’ll take you through the ins and outs of how to institute a site gun policy that keeps your residents safe while also adhering to the rights of individuals to bear arms.
Landmark Case Shaped Gun Law
To understand gun laws today, it’s important to know how the protections afforded by the Second Amendment came to be interpreted through a landmark case.
The Second Amendment states, “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.”
In the 2008 case District of Columbia v. Heller the U.S. Supreme Court examined the long-standing constitutional question of whether an individual has the right to keep and bear arms apart from or unconnected to service in a militia. In a 5-4 margin, the Court held that an individual has the right to possess firearms for lawful use, such as self-defense, in the home. Further, the Court struck down a provision of a District of Columbia law that required that lawfully owned firearms must be kept locked, unloaded, and disassembled in a home. The Court ruled that requiring a firearm to be disassembled or locked made it “impossible for citizens to use arms for the lawful purpose of self-defense” in the home.
However, the Second Amendment right is not absolute, and a wide range of gun control laws remain “presumptively lawful” according to the Court, including laws that:
- Prohibit carrying concealed weapons;
- Prohibit gun possession by felons or the mentally retarded;
- Prohibit carrying firearms in sensitive places such as schools and government buildings;
- Impose conditions and qualifications on the commercial sale of arms;
- Prohibit dangerous and unusual weapons; and
- Regulate firearm storage to prevent accidents.
“The Second Amendment is the right to keep and bear arms, but you don’t have the right to keep and bear arms over everybody and at every time,” says Washington, D.C., attorney Richard M. Price, “So a coffee shop can ask you to leave your gun at the door.” (And that coffee shop isn’t alone. Many retailers, including Target, Ikea, Whole Foods, and Costco, have instituted no-gun policies in an effort to make their customers feel comfortable and safe.)
Five Tips for Restricting Guns at Your Site
Despite receiving federal funds, most HUD-assisted sites are not government entities but rather private properties. As such, private property owners are allowed to have control over their own property without restrictions. A private property owner accepting Housing Choice Vouchers can institute a gun policy according to federal and state laws. However, there have been cases recently where residents of PHAs have successfully sued for the right to own and keep a gun in their residential units. In the 2014 case of Doe vs. The Wilmington Housing Authority (WHA), Delaware’s highest court ruled in favor of an individual’s right to possess a gun in his unit, but upheld a ban in the public areas of the site. In its decision, the court ruled in favor of the WHA that the common areas are distinct from the residents’ units and can be regulated by the PHA. If you work for a PHA, speak with your attorney about what your policy can include as well as banning guns in common areas.
Here are recommendations that you can follow that will help you comply with federal and state laws and implement a policy that will prohibit or restrict guns at your site.
1. Check state gun laws. Laws vary from state to state and for those states that do allow citizens to carry weapons, some stipulate between a “concealed carry” and an “open carry.” Further, a permit to carry a gun is required in some states, whereas others sanction a “permit-less carry.” Some states have laws in place that allow a person to own a gun and keep it in the home or car without a permit, but not carry it. Your attorney will be able to advise you on the specific laws in your state.
In many states, the law usually provides that private entities are permitted to ban guns on their sites. Check with your attorney to understand the laws governing PHAs, as well as if your state laws have open carry or concealed carry policies. (In states with an open carry policy, the gun must be in plain site, in a holster, and visible by others.) If your state has an open carry policy and you decide to ban guns from your property, you must decide whether to post a sign for residents and visitors saying that guns are prohibited on property. You’ll want to post signage that warns residents, visitors, and staff about the gun policy at your property. Note that in order for the messaging on the sign to be considered enforceable, the signage must follow the requirements specific to your state laws, if applicable, regarding the language, font size, duration of display, etc.
2. Modify leases and house rules. To institute a new gun policy, add language that spells out your weapons restrictions in new leases, and for existing tenants, post notices for 30 days. After that, incorporate the policy into the house rules. When the time comes for lease renewal, make sure the gun policy is noted within the lease and point out the change to tenants for full transparency. For sites that allow gun ownership in the unit, you’ll want to include language that requires gun owners to comply with federal and state laws, prohibits weapons in common areas, and stipulates that weapons and ammunitions must be in a locked case when being transported.
If you want to ban guns outright, consider adapting the following language that HUD includes in its sample PHA lease agreement (see https://www.hud.gov/sites/documents/DOC_10768.PDF):
Tenant agrees not to display, use, or possess or allow members of Tenant's household or guests to display, use, or possess any firearms (operable or inoperable), or other offensive weapons as defined by Federal Law and the laws and courts of the State of ___________ anywhere in the unit or elsewhere on the property of the Authority.
3. Talk to your insurance broker. Liability issues could potentially result from either banning guns or allowing owners to keep a gun in his or her unit or on the premises. If you deny an individual the right to keep a gun and then the person is harmed and didn’t have the ability to protect himself, he could sue. Similarly, you could be sued if a person has a gun and it’s accidentally discharged, or if another tenant’s gun causes harm to a neighbor. Discuss all potential scenarios with your insurance broker to make sure that you, your residents, and your property are protected.
4. Include employees in your policy. Many PHAs don’t have armed security. If you have an employee who legally either has a gun or wants to carry a gun onsite for the protection of the community, he or she must be trained and insured and human resources rules must be in place. Otherwise, issue the same gun policy for employees as residents and visitors, and check with your attorney on your state laws—some might allow individuals to keep their guns locked in the car.
5. Enforce the policy. Discovering a violation might prove difficult. “You would have to have some obvious evidence that a tenant is violating a rule,” says Washington, D.C.-based attorney, Harry J. Kelly. “It would have to be documented visually or someone on staff would have to observe that someone has a gun.” Or if a staff member is admitted to someone’s unit and sees a gun rack, that would be a violation of the house rules or lease. “It gets kind of complicated,” Kelly says, “because there are some leases that make a distinction and might treat one violation as more serious than another.” So you must look at how a violation is treated under the lease and the house rules. To be clear, you should include language about the consequences of violating the gun policy such as, “the violation of this policy and/or as stipulated in federal or state laws results in the landlord’s immediate right to terminate your residency.”
Since the early 1980s, Price has worked with public housing residents over quiet enjoyment issues and guns in public housing. He says that many public housing residents and employees have favored removing guns from public housing because of concerns over their use in drug-related crime.
Whatever rights tenants may have to keep guns in their units, other residents may feel that their right to the quiet enjoyment of their homes is threatened when neighbors are armed, and they may worry about a correlation between gun ownership and drug-related crime. Setting a policy on your property that balances the laws of your state with the security of your residents, visitors, and employees may help ensure a safer, more transparent community. “It’s a wonderful system,” Price says. “Residents are receiving benefits that few have—reduced rent—and they have to do some things in exchange for that.”
Colleen Bloom: Director for Housing Operations, LeadingAge, Washington, D.C.; firstname.lastname@example.org.
Harry J. Kelly, Esq.: Nixon Peabody, LLP, Washington, D.C.; email@example.com.
Richard M. Price, Esq.: Nixon Peabody, LLP, Washington, D.C.; firstname.lastname@example.org.
Andrea Brescia is a New Jersey-based writer who covers housing-related issues.