Guns in the Workplace

Everyone knows that Coloradans love their guns, but when it comes to guns and the workplace, it is important that everyone know the rules.

Article II of the Colorado Constitution declares that all persons have certain inalienable rights, which include the right to defend their lives and liberties, and Section 13 of article II protects the fundamental right of a person to keep and bear arms.

In implementing these provisions, the state legislature has declared that “the regulation of firearms is a matter of statewide concern:” 29-11.7-101 (2)(a), C.R.S., and there is a significant body of law regulating the carrying and use of firearms.

Except for certain classes of persons such as convicted felons, persons are permitted to carry a weapon on their own property; in a private automobile or other private means of conveyance for hunting or for lawful protection of such person’s or another’s person or property; or if the person, at the time of carrying a concealed weapon, held a valid written permit to carry a concealed weapon, or was a peace officer.

No municipality, county, or city and county has the authority to enact or enforce any ordinance or resolution that would restrict a person’s ability to travel with a weapon in a private automobile or other private means of conveyance for hunting or for lawful protection of a person’s or another’s person or property while traveling into, through, or within, a municipal, county, or city and county jurisdiction.

Taking a gun to work

Questions arise, however, when an employee wants to carry a weapon, openly or concealed, into the workplace, and while on duty on the job. Even though carrying the weapon may not be illegal, the biggest questions revolve around the liability that can come to the employer from an employee being armed on the job.

Some employees feel that because they have a permit to carry a concealed weapon, they are allowed to carry the weapon anywhere at any time. Actually, an employer, such as a special district, can adopt a policy or rule concerning the possession of weapons on the job, and by adopting such a rule, can prohibit an employee from having a weapon in the workplace or in the job duties of the employee. If the employee were to insist, in violation of the policy, he or she can find another place to work.

Some things to think about:

1. Can an employer authorize an employee to carry a weapon in the course and scope of job duties?

All special districts are governed by statute, and have only the powers that are expressed in the statutes, and those powers that can be reasonably inferred from the expressed powers. There is nothing in the special district act or correlative statutes that authorize the use of weapons in the powers of a special district. There are only a few job-related activities that are recognized by statute, authorizing employees to be armed, and they are called out for recognition in state statute. They all in one way or other, relate to peace officers and law enforcement.

The question is important because if an employee is not acting within the scope of his or her job duties, neither the actions of the district nor the employee are likely to be covered by the protections of the Governmental Immunity Act.

2. What if the employee is engaged in job duties that require a gun for self-defense?

It is hard to imagine a job related to a special district that would carry such risks, and if so, it is worthwhile to consider the risks of having armed employees going into such situations. Consider the following:

• In cases of self defense, only the amount of force necessary to repel the danger is allowed. If a weapon is brandished or used, it immediately becomes a matter for the courts to decide if the force was excessive, and it will usually be found to be excessive.
• The “make my day” law does not apply to defending a business, as it does to one’s home.
• A court, and the public, would certainly question the wisdom of sending an employee into a job situation known to be so dangerous as to warrant arming employees.
• If an employee injures another party, and it is found not to be a justified use of the weapon, both the employee and the employer may be liable to the victim. It is also questionable whether the district’s liability insurance would cover the claim.

3. What liability does the employer have if an employee comes to work with a gun?

• There is always the question of providing a safe workplace for other employees. If an employee threatens other employees, brandishes the weapon, or even worse, inflicts harm upon other employees, the employer (district) may well have liability. A sound policy concerning weapons that is uniformly applied is important to deal with these possibilities.
• If the employee accidentally causes harm to himself or herself, or to another employee, will these injuries be covered as job-related workers’ compensation claims? There is a good chance that the injury to oneself would not be, but to another employee, it probably would be covered.

4. Does the employer have authority to prohibit employees from carrying guns?

As stated above, the district can adopt a policy governing the possession of weapons in the workplace, and on the job. Some employers allow employees to carry weapons into the workplace or jobsite, but require that they be locked in a storage facility while on the job.

Carrying and Use of Firearms by EMS-SWAT Personnel

Some fire protection and emergency services districts in Colorado have entered into intergovernmental agreements (IGAs) with local law enforcement agencies, including police departments and sheriff’s departments, wherein certain fire and emergency services personnel of the district train and operate as part of a SWAT unit of the law enforcement agency.

These intergovernmental agreements routinely include language that places all liability and costs of insurance, including workers’ compensation coverage for the district personnel, squarely on the district and holds the law enforcement agency harmless for the actions and risks of the district employees.

Although the IGAs are generally silent concerning the carrying and use of firearms by district personnel, some participating districts have adopted strict policies prohibiting district personnel from carrying weapons, and others not only allow, but require employees that participate in these EMS-SWAT team arrangements to be trained in weapons use, and to be armed while so engaged.

Needless to say, district personnel carrying firearms in such arrangements raises serious issues of legal authority and liability, to wit:

No Express or Implied Authority

Special districts are formed and exist under the authority granted by the Special District Act and other relevant Colorado statutes. Neither the Special District Act, the Peace Officers Act, nor Colorado’s weapons laws contain any express authority for special district personnel to carry firearms as part of their duties, nor can such authority be implied to exist as flowing from any expressed authority.

Some districts have argued that their fire fighter/EMS personnel have permits to carry concealed weapons. However, the relevant issue is whether the person has legal authority to carry the weapon as part of the scope and duty of the position. Having a concealed carry permit without further authorization has nothing to do with whether carrying the weapon is a part of the scope and duty of the person.

If there is actually a need for the firefighter member of a SWAT team to enter into a situation requiring armed self protection, then the sheriff’s office or other law enforcement agency should acknowledge that the firefighter member is operating much more as a peace officer that as a firefighter/ EMT, and should follow the Peace Officer Act procedures in giving the authority through the law enforcement side, rather than expect the fire district to manufacture some marginal basis of authority.

A thorough reading of the Peace Officers Act makes clear that there is no basis for carrying a weapon in the scope of duty for any activity other than those recognized in the Act. The Act recognizes and enumerates many activities where authority is given, including peace officers, reserve peace officers, wildlife officers, arson investigators, but nowhere does it recognize firefighter/EMTs.

If it is important to the law enforcement agency that the firefighter/EMT be armed, then the law enforcement agency should appoint them as reserve peace officers, and require them to meet the ongoing requirements for qualification as such. Those requirements include “reserve certification by the P.O.S.T. board as a reserve officer, or a fully P.O.S.T.-certified peace officer serving as a volunteer…” 16-2.5- 110(1)(c) C.R.S. Along with this designation, the entity assigning duties to a reserve officer…shall assume the responsibility for ensuring that the reserve officer is adequately trained for the duties. Any expenses associated with the additional training shall be authorized by the (entity). If the jurisdiction allows or requires the reserve officer to carry or use a firearm while on duty, the reserve officer shall be certified for firearms proficiency with the same frequency and subject to the same requirements as a P.O.S.T.-certified peace officer in the jurisdiction.” 16- 2.5-110(2)

More significant, however, are the provisions of 16-2.5-110(5), which read as follows:

“(5) …The city, city and county, town, county,…shall pay the cost of workers’ compensation benefits for injuries incurred by a reserve officer while on duty and while acting within the scope of his or her assigned duties.”

It is a significant stretch to find a basis upon which to find an implied authority. Nothing in statute or in standard practice puts a firefighter in a peace officer or law enforcement mode, except for arson investigators, and that activity has been recognized by a statutory grant of express authority.

To imply that the authority is implied from the firefighter’s need to defend himself or herself implies that the law enforcement agency has granted peace officer authority to the firefighter, without complying with the clear procedure spelled out in Article 2.5 of Title 16, C.R.S., the Peace Officer’s authorizing statute.

It is unlikely that a court would recognize the authority to carry weapons under circumstances that would be otherwise unauthorized, simply because the fire district or fire chief adopted a policy granting this authority, where no authority otherwise exists for such an action.

It is argued that a weapon for a firefighter going into a dangerous law enforcement zone or activity is a piece of protective gear, just as a bunker jacket or gas mask would be, but that argument ignores two points: first, the bunker jacket or gas mask are not inherently dangerous and likely to cause damage in and of themselves, and second, a bunker jacket does not present the possibility for the bearer to use it in an aggressive, dangerous, or careless manner and by so doing, to bring damage or death to bystanders, innocent victims, or to the bearers themselves.

Based upon these facts and principles of law, the following points seem clear at this time:

1. If liability should arise from the use of a firearm by a firefighter/EMT who has not otherwise been authorized by the law enforcement agency, it is hard to see how a court would not find that statutorily, the action was not, and could not have been within the scope and duty of the party;
2. If a firefighter/EMT that was not otherwise authorized to be armed as part of his or her job duties were to discharge a firearm and cause damage to himself or herself, or to another worker, would the workers’ compensation claim of either the party or another worker be recognized as a job-related injury? It seems that the armed party injuring himself with a weapon which he had no statutory authority or duty to have in his possession under these circumstances would be hard to cover as a job-related injury. The injured coworker may have a valid claim, but was it a workplace injury, or was it negligence on the part of the unauthorized carrier of the weapon? In either case, the district may be subject to suit for failure to maintain a safe workplace.

Most property and casualty insurers will not cover such activities by a special district. After much thought and consideration, the CSD Pool Board has adopted the following policy, which is significantly more liberal than other insurers:

• The Pool specifically excludes property and liability coverage unless the firefighter/EMTs involved are designated as reserve peace officers or peace officers by the law enforcement agency participating in the arrangement, and all requirements for reserve peace officer training be met on a continuing basis.
• The Pool will assist in finding appropriate individual Law Enforcement Liability policies for the district(s) to purchase directly.
• The Pool recommends that districts participating in EMS-SWAT team arrangements and wishing to carry firearms as part of the arrangement insist that the participating law enforcement agencies designate their participating district personnel as reserve peace officers or peace officers, and accept liability and responsibility for them, both for property and liability, as well as workers’ compensation. If the law enforcement agencies resist due to the cost, nothing precludes the districts from subsidizing the law enforcement agencies for the premium costs of these coverages.
• The Pool will provide workers compensation coverage to EMS-SWAT teams provided that the district (1) adopts a policy concerning the training and use of firearms by such personnel; (2) disclose the names of covered employees; and (3) pay an appropriate surcharge to their annual contribution for workers’ compensation coverage.

Even though carrying the weapon may not be illegal, the biggest questions revolve around the liability that can come to the employer from an employee being armed on the job.

Nothing in statute or in standard practice puts a firefighter in a peace officer or law enforcement mode, except for arson investigators, and that activity has been recognized by a statutory grant of express authority.

This article was originally published in the February 2010 edition of SDA News and was reviewed for updates by Mr. Goulding,  as well as CSD Pool and SDA staff.