Florida’s Gun-Free Businesses May Soon Be Held Liable for Violence on Their Premises

Can an unarmed customer who is violently injured in a business designated a “gun-free zone,” and who is otherwise licensed to be armed, hold that business liable on the basis of its “no gun” policy? Traditionally , the answer has been no, but a Florida bill is seeking to change that.

The fact that “gun-free zone” businesses cannot be held liable under such circumstances seems counterintuitive to many of us who lawfully carry guns for personal protection. After all, we could have defended ourselves from acts of criminal violence in that store were it not for the store’s no-guns policy.

It is certainly true that a customer who disarms in compliance with a store’s ban on guns does so voluntarily: The store is not compelling them to shop there, and they are free to shop at alternative stores without such a policy. Further, the very fact that someone voluntarily disarmed in order to shop in a “gun-free zone” strongly suggests that they themselves did not believe they would face any meaningful threat there. It naturally follows that if they had no reasonable expectation of an attack, the store couldn’t have had one, either. Under traditional legal principles, if harm is not reasonably foreseeable it carries no liability.

Where traditional legal principles do not establish liability, however, the legislature is free to do so by creating a statutory “cause of action,” a right for one party to sue another. And Florida state senator Greg Steube is seeking to do just that, through the introduction of Senate Bill 610.

SB 610 provides that a “gun-free zone” store “assumes absolute custodial responsibility . . . for the safety and defense” of any person who disarms in compliance with the store’s policy and who is otherwise licensed to carry a firearm for self-defense. It ensures that the store’s liability for failing this responsibility is not limited to actual damages suffered by injured customers who disarmed in accordance with store policy, but also includes such customers’ “reasonable attorney fees, court costs, expert witness costs, and other costs.” And it requires any business enacting a “gun-free zone” policy to clearly display notice of its legal responsibility.

Should SB 610 become law, a store wishing to remain a gun-free zone would remain free to do so, and could mitigate its liability by taking reasonable steps to ensure the safety of its disarmed customers, such as hiring armed guards, installing a weapons-screening process, and so forth.

As someone who carries a concealed weapon wherever lawfully permitted, and who has done so for his entire adult life, the approach taken by SB 610 seems eminently reasonable to me, for several reasons.

SB 610 creates a sounder balance between the property rights of stores and the self-defense rights of law-abiding citizens.

First, “gun-free zone” policies are useless at best and in many cases demonstrably harmful. Only the law-abiding obey such policies; no person intent on murder and mayhem is going to be deterred by a “no guns” sign. Indeed, many mass shootings occur in “gun-free zones.” In the case of the 2012 mass shooting in an Aurora, Colo., movie theater, for example, shooter James Holmes bypassed several nearby theaters that allowed lawful concealed carry in favor of one that prohibited customers from being armed.

Second, though I am a strong advocate for private-property rights, and thus believe store owners ought to be free to ban guns on their premises, the choice to do so shouldn’t immunize them from liability for the otherwise avoidable and foreseeable harm that results.

Absent the creation of such a cause of action, the traditional legal framework is strongly biased against the licensed concealed-carrier in these circumstances, because a “gun-free zone” store faces no liability for mandating that law-abiding customers disarm even while knowing that bad actors will certainly ignore the prohibition. The result, too often, is effectively a free-fire zone for mass killers.

SB 610 creates a sounder balance between the property rights of stores and the self-defense rights of law-abiding citizens, encouraging stores to more rationally consider both the advantages and disadvantages of “gun-free zone” policies. It’s sensible public policy, and Florida legislators would be wise to enact it.

Editor’s Note: This piece has been amended since it’s initial publication.

— Andrew F. Branca is an attorney and the author of The Law of Self Defense: The Indispensable Guide for the Armed Citizen.