Small Business Arming Employees

[GAgunLAWbooklet]

I would like to get more owners and employees of small businesses to recognize their gun rights, carry / have guns available more often, vote for pro-gun candidates and pro-gun parties, and maybe even join pro-gun 2A activist groups.

One common objection to allowing gun carry at the workplace (by staff or management) is that it brings legal liability, if the employee uses a weapon incorrectly. Bad shoot, unjustified brandishing, accidental discharge, etc. This would cause the store to get sued, not just the individual who was personally negligent.

In contrast, some of these small business owners are confident that they face no liability for not allowing guns, and having a rule that all employees will be gun-free. It's never risky, from a legal standpoint, to tell your people that they can't have deadly weapons and must always cooperate with any robbers they encounter. It IS potentially risky to affirmatively approve of them arming themselves and having a plan to meet robbers with deadly force.

A third path is available-- have armed security guards as in-house employees. Make their job descriptions include defending the business and all the people lawfully present at the business-- other staff, and customers who happen to be present (and not the ones who are there to rob the place!). In-house security guards who work only for their one employer and are not hired-out to work at other locations in the role of a guard don't need to be licensed by the State as guards. They don't need a "blue card" to carry on the job. And the business they work for doesn't need to be licensed by the Secretary of State's office, since it's only using its own staff to guard its own business, not providing security or investigative services to others.

WHAT ARE SOME LEGAL LIABILITY IMPLICATIONS OF ALL THIS?
What are the best arguments / code sections / doctrine of law that address the topic of a business getting sued if something goes wrong with one of its armed guards / armed staff members, vs. their perceived lack of liability if they don't have guns (or don't allow guns, thus making any armed employee a rule-violating scofflaw that is acting outside the scope of his or her employment)?

 

[palmettomoon]

I could offer only that perspective from the rule violating scofflaw's. 33 years ago I worked for Starvin' Marvin food stores and sometime pulled third shift. No way was I working at Pio Nono and Eisenhower at 1:30 a.m. without my Ithaca 1911A1.

 

[GAgunLAWbooklet]

Some general legal principles and terms:

TORT: A civil wrong that can get you sued. There are two categories of torts-- negligent or intentional. If you are merely sloppy or careless and have an accident or allow circumstances to exist that are too risky, too likely to allow an accident to happen, you can be "negligent."
Intentional torts, however, are not accidents. They are cases where one person chooses to use force against another or harm another, although perhaps the actual harm turned out to be more than expected. Most "excessive force" claims against cops and security guards or store owners who confront thieves will be of the "intentional tort" class.

NEGLIGENCE FORMULA: In order to be found negligent, generally speaking, a person much "breach" a "duty of care" owed by that actor toward a person in the class or grouping as the injured victim, and the actions (or inaction--the refusal to act) at issue must be both the factual cause (part of the chain of causation) and "proximate cause" of the injury. Proximate cause and "duty of care" are terms that are necessarily vague, and can be loaded with moral judgment and policy choices, and involves risk-reward calculations, foreseeabilty, and all that. They are phrases that can mean whatever a judge and jury want them to mean, but the underlying idea is that the actions that the plaintiff complains about must be unreasonable AND predictably risky to cause the type of harm that actually did occur in this incident.

GEORGIA LAW has a perfect defense available if a person is sued for an intentional tort--that is, hurting that person was justified under the theories of self-defense or the defense of others, as provided in Code sections 16-3-20 through 16-3-24.2 You can admit that you intentionally hurt that other person, but you had a right to do so because of the threat that person posed to you / your customers.

 

[GAgunLAWbooklet]

I could offer only that perspective from the rule violating scofflaw's. 33 years ago I worked for Starvin' Marvin food stores and sometime pulled third shift. No way was I working at Pio Nono and Eisenhower at 1:30 a.m. without my Ithaca 1911A1.

I've been a scofflaw to some extent too. In January of 1991 when the first Iraqi war kicked off with the major offensive against Saddam, I was a security guard who was sent to a Jewish business that had gotten death threats from some outraged Muslim-American. In addition to the State-approved firearm (.38 special revolver), I had an unapproved firearm never authorized for armed guards-- a folding stocked Mini-14 with a 30-round mag in place, stock folded, and the entire gun discreetly concealed in a duffle bag or folded blanket (depending on which post I manned at various times of the day).

Had I used that rifle incorrectly and harmed an innocent person, I might have brought additional legal liability to myself, but probably not direct liablity to my employer, who knew nothing about it, didn't approve of it, didn't even suggest violating the State's weapons rules, etc.

On the other hand, I might have brought VICARIOUS liability to my employer, if I were negligent or committed an intentional tort on the job, simply because the gun was there as a tool of my job, and used in the scope of my employment. Master-servant doctrine. The torts committed by a worker, while doing his work (and not off on a frolic for purely his own personal reasons or pursuits) can be counted against the master, the boss, the business itself. Even if the employee violates a rule or policy of the workplace, or some applicable law. (Example: Domino's says to all its drivers: "Don't speed. Obey all traffic regulations. Keep both hands on the wheel at all times." Cleetus, one of their delivery drivers, drives 80 mph in a 45 mph street while steering with his elbows as he uses his hands to call the store to ask them to confirm the address, as he doesn't think the house numbers on that street go as high as what's listed on the delivery ticket. If Cleetus crashes while speeding and making that call, Domino's will surely be liable under the respondeat superior (master - servant) doctrine, regardless of Cleetus' violations of numerous laws and company policies.

 

[StuP]

When things go wrong everyone can expect legal challenges. Especially if you, or your insurance company, have enough money to be worth going after.

 

[Horsehat]

I could offer only that perspective from the rule violating scofflaw's. 33 years ago I worked for Starvin' Marvin food stores and sometime pulled third shift. No way was I working at Pio Nono and Eisenhower at 1:30 a.m. without my Ithaca 1911A1.

About this same time ,1983-1986, one of the stores I had supervisory responsibility for was the Krystal on Pio Nono ave. My boss and I were riding my market one day and leaving this restaurant he told me,”you know, it’s against company policy to be armed while working, just want you to know I’m not ever going to ask you if you are breaking that rule”. I had, since the first time I did a night visit to that location been breaking that rule.

 

[GAgunLAWbooklet]

Here's the general "duty of care" as to commercial / business property owners, with respect to what is expected of them about keeping their facilities safe. (Note that this standard isn't the same as what might apply to your private residence, your own personal lands and real estate, not used for a business purpose).

From the STATUTE:
Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.
OCGA § 51-3-1. 3 3

From THE COURTS:
...With regard to potential criminal attacks by third parties, the landowner is “not the insurer of the invitee’s safety,” but nonetheless is required “to exercise ordinary care to protect the invitee from unreasonable risks of which he or she has superior knowledge.” Lau’s Corp., Inc. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991). If there is reason to anticipate some criminal conduct, the landowner must exercise ordinary care to protect its invitees from injuries caused by such conduct, but landowners need not guard against imagined dangers.
(Lau case cited in Martin v. Six Flags Over Georgia case from the Ga. Supreme Court in 2017)
[Emphasis added]

 

[GAgunLAWbooklet]

When things go wrong everyone can expect legal challenges. Especially if you, or your insurance company, have enough money to be worth going after.

Yeah, but the purpose of this thread is to assess the risks. How likely is getting sued? How likely is it that a plaintiff would win against the deep-pockets business owner and its insurer ? Plaintiff's attorneys typically work on a straight contingency fee, so a case that won't win in court or with a negotiated settlement would be a huge loss for the attorney that took that case, invested tens of thousands of dollars in building up the body of evidence and researching the law and preparing the briefs, only to get 33% or 40% of NOTHING-- no recovery!
Thus, if the law isn't on your side, you're less likely to find a lawyer to sue for you.

 

[GAgunLAWbooklet]

There are a bunch of court cases on the topic of stores having their employees, or security guards on contract to the store, chase-down and detain (or flat-out arrest) suspected shoplifters, but those cases aren't on-point in Georgia because for generations Georgia's OCGA code has had a very specific statute (51-7-60) on this topic, about what merchants can and cannot do with suspected shoplifters.
I don't see any similar law that addresses the do's and don't, or talks about legal liability, as to other situations a store employee or guard might get into that DON'T involve shoplifting.

 

[GAgunLAWbooklet]

A key issue would be negligent hiring / negligent entrustment (of a gun for use in a new role as security officer as well as store employee).
Should an employee whose job duties cover security as well as routine, ordinary tasks around the workplace have more screening, more training, than one whose job is ONLY the regular stuff, not any security too?
I would think so, and I'd think that a company that lets staff members carry guns to act as "security guards" for the business would EASILY be found to have violated a yet-unwritten "duty of care" to give such people extra scrutiny as to their background, criminal history, involvement in civil litigation, involvement in altercations, fights, or public disturbances (could have resulted in merely an arrest without a conviction or subsequent civil suit). I'd think that a company hiring an in-house guard, OR adding "security duties" to the job description of a current employee, would need to send that security person to get some professional training, even if it may not be equal to what cops or state-licensed security guards must get.

But I haven't researched those issues yet. I'm just thinking out loud here.