Open Carry with permission?

[Gat0rs]

You can give permission for employees to open carry on your own premises. They still need a CHL to do this. There could be some wild scenarios in which this could open you up to criminal liability, but I doubt it as you would need some form of intent to be found guilty of anything other than a Class C misdemeanor. Therefore, you should probably put in your open carry policy (i) you must have a chl, and (ii) state that the firearm can only be used for lawful purposes. Because they each have a CHL, the state has found them to be responsible enough to carry a gun. It would be hard to be found to be criminally negligent or something similar if you can point to the state as also thinking the employee was safe enough to possess a gun.

As to civil, this should be your biggest worry. You do not need intent o be civilly liable. Thus, the more things you can do to document you were responsible (handbook, policies, etc..) that you can point a jury to would help in that regard.

My (free) legal advice (although I practice tax law, so this is not my area).

[RottenApple]

You can give permission for employees to open carry on your own premises. They still need a CHL to do this.

Could you please tell me where you found this information? Because as near as I can tell (from my own reading and the legal scholars on the board, like Charles), you cannot grant OC permission to employees except in some rather limited capacities (sporting use exception, etc). And I see nothing whatsoever that would require the employee in those limited capacities to have their CHL. In fact, I know several people who work in gun shops and/or ranges who OC at work (sporting use exception) but do not have a CHL.

[Gat0rs]

Here is my reading of the law. 46.02 allows the carrying of firearms on a premises the person "controls." An employee could be given control of a business. This does not require a CHL . . . HOWEVER...

if you read 52.063 , 52.064 relating to civil liability, and think for a bit about potential criminal negligence from allowing someone who may not legally be allowed to possess a firearm to control your premises with a firearm open on their person, you are opening yourself up to both civil and potentially criminal liability. However, if the person holds a CHL, a prosecutor would be hard pressed to convince a jury you were negligent when the state of Texas found the person to be competent to possess a firearm.

However, you are right, there is nothing in the law that I read that would make it a crime to allow an employee to open carry without a CHL. You are just setting yourself up for big trouble later.

[JKTex]

You can give permission for employees to open carry on your own premises. They still need a CHL to do this. There could be some wild scenarios in which this could open you up to criminal liability, but I doubt it as you would need some form of intent to be found guilty of anything other than a Class C misdemeanor. Therefore, you should probably put in your open carry policy (i) you must have a chl, and (ii) state that the firearm can only be used for lawful purposes. Because they each have a CHL, the state has found them to be responsible enough to carry a gun. It would be hard to be found to be criminally negligent or something similar if you can point to the state as also thinking the employee was safe enough to possess a gun.

As to civil, this should be your biggest worry. You do not need intent o be civilly liable. Thus, the more things you can do to document you were responsible (handbook, policies, etc..) that you can point a jury to would help in that regard.

My (free) legal advice (although I practice tax law, so this is not my area).

Exhibit j - Why you don't ask for and especially head, legal advice on the internet. The primary issue that removes the need to read any further is that a CHL is a Concealed Handgun Permit and has nothing to do with any other method of carrying anything, anywhere for any reason.

[Gat0rs]

Good luck with the jury.

[JKTex]

Here is my reading of the law. 46.02 allows the carrying of firearms on a premises the person "controls." An employee could be given control of a business. This does not require a CHL . . . HOWEVER...

if you read 52.063 , 52.064 relating to civil liability, and think for a bit about potential criminal negligence from allowing someone who may not legally be allowed to possess a firearm to control your premises with a firearm open on their person, you are opening yourself up to both civil and potentially criminal liability. However, if the person holds a CHL, a prosecutor would be hard pressed to convince a jury you were negligent when the state of Texas found the person to be competent to possess a firearm.

However, you are right, there is nothing in the law that I read that would make it a crime to allow an employee to open carry without a CHL. You are just setting yourself up for big trouble later.

Not prohibited from possessing, and being competent are on different planets. Also, the question of liability of use, has nothing to do with being licensed to carry.

Using that interpretation of law, a driver that causes a wreck that kills someone would be protected from criminal charges because he's got a license to drive.

That line blows my mind, "...if the person holds a CHL, a prosecutor would be hard pressed to convince a jury you were negligent when the state of Texas found the person to be competent to possess a firearm." Do you not see the massive problem with that statement?

Aside from the actual question of what circumstances can someone can authorize another to carry openly on their property, that and a CHL have nothing to do with each other. With all due respect, that's some scary stuff.

[Gat0rs]

Yea, you apparently are not an attorney.

The comparison to driving is this: person A has a drivers license, crashes, and kills a person. Person B has no license, crashes, and kills a person. Person B will have a harder time proving they should not be prosecuted for killing a person. Person A can point to their license. Does this mean Person A is immune from prosecution? No. It means I would rather be Person A in this scenario.

Now read these: http://www.statutes.legis.state.tx.us/D ... /PE.19.htm" onclick="window.open(this.href);return false; section 19.05 and http://www.statutes.legis.state.tx.us/S ... m/PE.6.htm" onclick="window.open(this.href);return false; section 6.03(d).

As an employer, would you rather be person A or person B if your employee shoots an innocent person.

[RottenApple]

Good luck with the jury.

How so? It seems to me that your advice will be much more likely to lead to legal troubles than to not allow OC at all. Don't misunderstand me. I'm not saying you're wrong. Heck, you may very well be right (which would be really cool). There's just no legal precedent to pave the way and someone who does allow OC at their business (other than the obvious exceptions, of course) will most likely have the dubious pleasure of being the test case. Why, there's not even been a test of the sporting use exemption for gun shops/ranges that I'm aware of.

[Gat0rs]

Good luck with the jury.

How so? It seems to me that your advice will be much more likely to lead to legal troubles than to not allow OC at all. Don't misunderstand me. I'm not saying you're wrong. Heck, you may very well be right (which would be really cool). There's just no legal precedent to pave the way and someone who does allow OC at their business (other than the obvious exceptions, of course) will most likely have the dubious pleasure of being the test case. Why, there's not even been a test of the sporting use exemption for gun shops/ranges that I'm aware of.

I agree with this. Your risk goes to zero if you prohibit all firearms on your business except as required under law. This is what most businesses do to keep from being sued. However, if you allow OC, you would be wise to have something to point to (a CHL) if your employee shoots the wrong person in your store.

[JKTex]

I'll leave it with this. Some people would greatly benefit from from having a prepaid legal plan at least, even better yet, an attorney on retainer.

Not many of us are attorney's but......

[RottenApple]

I agree with this. Your risk goes to zero if you prohibit all firearms on your business except as required under law. This is what most businesses do to keep from being sued. However, if you allow OC, you would be wise to have something to point to (a CHL) if your employee shoots the wrong person in your store.

I'm not talking about liability in the case of a defensive shooting. I'm just talking about the legality of allowing OC at you business. Period. The sporting use exemption is fairly well established for gun shops/ranges by simple fact that there ave been no legal challenges (that I'm aware of) to the rather common practice. Businesses outside of that exemption, on the other hand..... Well, that's where the problem comes in and I think your legal theory may fall flat on its face. I'd love to see this clarified (though I'd hate to be the test case myself) and your theory vindicated. If of OC passes it very well may be.

Right now, if you owned a.....grocery store (for example).....and allowed your employees to OC, you'd likely see the inside of a court room before too long. Regardless of whether your employees had CHLs or not.

[Gat0rs]

I agree, would depend on the definition of "control." It is arguable that "control" only means things you own or rent, and an argument could be made that this provision is only meant to allow renters the same liberty as home owners. However, suppose the renter is a corporation, who is the one that is in control? Employees, only officers of the company? What if no officer of hte company ever visits the store? A manager?

[RottenApple]

I agree, would depend on the definition of "control." It is arguable that "control" only means things you own or rent, and an argument could be made that this provision is only meant to allow renters the same liberty as home owners. However, suppose the renter is a corporation, who is the one that is in control? Employees, only officers of the company? What if no officer of hte company ever visits the store? A manager?

Exactly, Gat0rs. And therein lies the grey area. With no case law one way or another, anyone who allows OC in a business is inviting themselves to be the test case.

You know, this has been a GREAT discussion so far. We've all been civil, even in disagreement. Acknowledging points others have made, and just generally getting along while talking this out. It gives me hope that we might be able to eventually recover our civil society at sometime in the future.

[Gat0rs]

Found this in a Texas case. This is what the jury instruction would be if your employee is charged.

“As a part of the law in this case, a defendant has the legal right to carry a pistol upon premises of which he has control and which are subject to his *688 use; therefore, if you find from the evidence, or have a reasonable doubt thereof, that the carrying of the pistol by the defendant was solely upon premises under his control and of which he had the use, you will find the defendant not guilty and so say by your verdict. In this connection, you are instructed that the terms ‘control’ and ‘use’ do not mean exclusive control and use.”

[JKTex]

I think it's being overly simplified, or complicated but it's really taken a slight turn off the topic of permission which still hasn't been determined.

If I ask my neighbor to look after my house, he's become in control of and has the same protections in protecting it as I do. What, or if, anything conveys granting permissions of any kind is still unknown.

We just don't know if private property ownership brings with it the ability to grant permission for certain things that are not otherwise legal per law.

I think that's where the wisdom to not try to interpret or "wing it" is crucial. That's worse than not knowing, and neither has any protection.