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  • Wisconsin Lawyer
    July
    01
    2012

    Wisconsin’s Concealed Carry Law: Protecting Persons and Property

    Mark R. Hinkston

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    Here is an in-depth look at the concealed carry law's provisions, how it applies in various property contexts, and practical ramifications and potential legal issues arising from the law's enactment.

    Wisconsin LawyerWisconsin Lawyer
    Vol. 85, No. 7, July 2012

    Concealed CarryWisconsin has had a long yet somewhat erratic tradition of gun ownership and use, whether for hunting, sport, or security. The state's early settlers openly carried weapons as tools for sustenance and survival. Conversely, many other people condemned concealed weapons as tools of cowards and impulsive criminals, leading to their ban in Wisconsin in 1872. A year later, Gov. Cadwallader C. Washburn boasted that Wisconsin "was never more free from crime."1 But the decline would not last. As with the rest of the nation, Wisconsin's social and technological transformation over the ensuing century wrought an explosion in crime.

    As a result of the increase in crime, developments in firearms technology, and ubiquitous media images, modern Wisconsinites as a whole tolerate openly displayed weapons far less than did their frontier predecessors. Throughout much of the 19th century, a man could walk in public visibly armed with a holstered firearm and go virtually unnoticed. Doing the same thing today – although legal if done peaceably2 – will likely invite onlookers' anxiety and law enforcement scrutiny.3 Until late last year, the combination of fear of crime and fear of public reaction left three unpalatable choices for a Wisconsin resident wishing to enhance self-defense: carry a concealed weapon and risk criminal conviction; openly carry a weapon and scare everyone in sight; or go unarmed into potentially crime-ridden areas.

    Ultimately, discomfort over openly carried weapons and recognition of the need for armed self-defense in some contexts led to passage of the Personal Protection Act (2011 Wisconsin Act 35), more commonly known as Wisconsin's Concealed Carry Law (CCL).4 Passage of the CCL, which took effect Nov. 1, 2011, and was enacted on the premise of "making Wisconsin safer for all responsible, law abiding citizens,"5 made Wisconsin the 49th state to allow concealed carry (with Illinois the sole prohibiting state).

    The CCL allows the carrying of concealed weapons with a state-issued license. In general, it establishes parameters for the licensure and regulation of individuals wishing to carry concealed weapons in the state, dictates where concealed weapons will be prohibited, and lets property and business owners decide whether to allow concealed weapons on their premises. This article 1) highlights the CCL's provisions, 2) discusses concealed carry in various property contexts, and 3) addresses practical ramifications and potential legal issues emanating from the new law's enactment.

    Background

    Wisconsin enacted its first law against concealed carry on Feb. 14, 1872. It prohibited a person from going "armed with a concealed dirk, dagger, sword, pistol, or pistols, revolver, slung-shot, brass knuckles, or other offensive and dangerous weapon," contained a self-defense exception, and excused individuals who possessed a concealed weapon "with harmless intent."6 These exceptions, and the specific list of weapons, were redacted in 1878. Thereafter, Wisconsin's law against concealed weapons remained relatively unchanged.7 From 1955 (when it was codified as Wis. Stat. section 941.23) to 2011 when the CCL was passed, the concealed-carry prohibition provided as follows: "Any person except a peace officer who goes armed with a concealed and dangerous weapon is guilty of a Class A misdemeanor." [Editor's Note: For more background information, please see "A Brief History of Concealed Weapons in Wisconsin," available only online with this article at www.wisbar.org/concealedcarry.]

    In 1998, Wisconsin voters approved a constitutional amendment (article 1, section 25) giving the people "the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose." A debate ensued over whether and to what extent this "fundamental"8 and "broad constitutional right to keep and bear arms"9 conflicted with the concealed weapons ban under Wis. Stat. section 941.23, which was seen as "essentially a strict liability offense."10 There was growing recognition that an absolute ban on "concealed carry" under all circumstances did not suit modern society and that citizens in some contexts (such as those doing business in high-crime areas) should be allowed to carry concealed weapons.11

    In 2003, in State v. Hamdan, the Wisconsin Supreme Court addressed the issue of the viability of Wis. Stat. section 941.23 vis-à-vis the state constitutional right to bear arms. In that case, the court overturned the concealed-weapon conviction of a storeowner who kept a firearm on the premises because of prior armed robberies and shootings. (Police officers doing a liquor license check discovered that the owner concealed the gun (normally kept on the counter) on his person while in the process of taking it to the back room for storage.) The supreme court held that the right to keep and bear arms must "permit a person to possess, carry, and sometimes conceal arms to maintain the security of his private residence or privately operated business, and to safely move and store weapons within these premises."12

    The court noted that without clarification the situation would present a continuing dilemma for law enforcement. It urged "the legislature to thoughtfully examine" Wis. Stat. section 941.23 "and to consider the possibility of a licensing or permit system for persons who have a good reason to carry a concealed weapon."13 The legislature promptly accepted the invitation. Although two initial measures (in 2003 and 2005) were vetoed and overrides fell short, a third attempt led to the 2011 enactment of the CCL.

    The Wisconsin Department of Justice (DOJ) is responsible for oversight and administration of the CCL and issuance of concealed-carry permits. The agency anticipated that it would issue 125,000 permits in the law's first year. It reached the 100,000 mark in less than six months (on April 20, 2012) and expects to easily surpass the projected level of 125,000. This would correlate to just over 2 percent of Wisconsin's population, which is close to the approximate percentage of all U.S. citizens that currently possess concealed-carry licenses.14

    The Law's Content

    The new law is generally an aggregate of an amended carrying-concealed-weapons statute (Wis. Stat. section 941.23), a newly created statute entitled "License to carry a concealed weapon" (Wis. Stat. section 175.60), and an amended trespass-to-land statute (Wis. Stat. section 943.13).

    Section 941.23, as Amended (Carrying Concealed Weapons)

    Although the CCW statute, section 941.23, has been for most of its existence a one-sentence proviso, it has now been extensively broadened, in effect greatly expanding the scope of persons who may lawfully carry a concealed weapon. Now, under the statute, any person "who carries a concealed and dangerous weapon is guilty of a Class A misdemeanor" unless that person is a peace officer, qualified out-of-state law enforcement officer, a former officer, or a concealed carry licensee or out-of-state licensee pursuant to Wis. Stat. section 175.60. (For ease of discussion, in this article "licensee" refers to both resident and nonresident licensees).

    Apparently in recognition of the Hamdan decision, the statute exempts an individual who carries a concealed and dangerous weapon in his or her own dwelling or place of business or on land that he or she owns, leases, or legally occupies.15 In all other places where concealed carry is not prohibited, a person must possess a valid license to lawfully carry a concealed weapon.

    Section 175.60, as Created (License to Carry a Concealed Weapon)

    DOJ Rules and Website. The crux of the CCL, newly enacted Wis. Stat. section 175.60, sets forth the general parameters for the issuance and administration of concealed carry licenses.16 The DOJ has also promulgated proposed rules to implement its responsibilities under the law, namely the issuance of licenses (setting forth the licensing standards and procedures), including verification of applicant credentials and confirmation that the applicant has met training requirements; administration of DOJ-issued licenses; and maintenance of licensing records. The DOJ's website contains information about the new law, including the proposed administrative rules and a frequently-asked-questions section, as well as application forms.17

    Lexicon and Miscellany. The law does not change basic terminology. To carry means "to go armed with," which has been interpreted by Wisconsin courts as meaning that "the weapon was on the defendant's person or that the weapon must have been within the defendant's reach and that the defendant was aware of the presence of the weapon." "Concealed" is not defined under the CCL but generally means that "a weapon is hidden from ordinary observation."18 Weapon under the CCL means a handgun, an electric weapon (such as a taser), a knife other than a switchblade, or a billy club. Handgun does not include a machine gun, a short-barreled rifle, or a shotgun.19

    More History of Concealed Carry in Wisconsin ...

    If you'd like to learn more about the concealed carry of weapons in Wisconsin, please see "A Brief History of Concealed Weapons in Wisconsin," available with this article online only at www.wisbar.org/concealedcarry.

    The CCL does not dispense with most preexisting firearms prohibitions. It is still unlawful, under Wis. Stat. section 941.20, to carry a concealed firearm while intoxicated or while unlawfully using controlled substances, point a firearm at another person, intentionally discharge a firearm into a vehicle or building or from a vehicle, or endanger the safety of another person by the negligent operation or handling of a dangerous weapon. And it remains unlawful, under Wis. Stat. section 941.29 and 948.60, for a person who is a felon, a minor, mentally ill, or under an abuse or harassment injunction to possess a firearm, even with a suspended or revoked concealed-carry license.

    Although the new law also does not infringe on or significantly limit a person's right to openly carry a firearm, it does clarify that right.20 Despite the Wisconsin Attorney General's attempt in 2009 (via an advisory memo) to facilitate uniform enforcement of the disorderly-conduct laws in the open-carry context, it was perceived that until the CCL, "open-carry rights were not clearly established under the state or federal constitutions."21 The CCL amends the disorderly-conduct statutes by requiring "facts and circumstances that indicate a criminal or malicious intent on the part of the person" to support a disorderly-conduct charge, regardless of whether a "firearm is loaded or is concealed or openly carried."22

    The new law also affects how weapons may lawfully be transported by vehicle. Under prior law, firearms transported in a vehicle had to be encased and unloaded, not within reach, and concealed. Under Wis. Stat. section 167.31, a CCL licensee may carry a concealed weapon, loaded or unloaded, in a vehicle, and a person without a license may place, possess, or transport a handgun in a vehicle without it being unloaded or encased and load a handgun in a vehicle, but the weapon cannot be concealed or hidden and within reach.

    "Shall Issue." Wisconsin's new concealed-carry-licensing process, like that of most states, is a shall issue process in that officials must issue a license if the applicant satisfies certain minimum requirements (as opposed to a "may issue" process, which affords more discretion to issuing officials). To that end, the DOJ "shall issue" a license to carry a concealed weapon to any individual who is a Wisconsin resident 21 years old or older who completes the specified application process, undergoes required training, is not prohibited by federal or state law from possessing a firearm, and is not prohibited from possessing a dangerous weapon as a condition of release in a criminal case.23 An applicant must also pass a background check to determine whether he or she is prohibited under federal or state law from possessing a firearm.24

    Application, Background Check, and Training. Application forms are available on the DOJ website or, on request, by mail. After receiving the application, the $50 fee, and proof of training, the DOJ conducts a background check and must issue or deny the license within 21 days after receipt of a complete application.25 A license issued under this section is valid for five years.26 The DOJ has the authority to revoke or suspend licenses under specified circumstances and has promulgated a rule regarding the denial, suspension, and revocation of licenses.27

    Applicants must undergo a training regimen. Although the DOJ initially dictated that four hours of training was required, there is no longer a minimum-hour requirement.28 The DOJ has also prepared a model training curriculum for use by law enforcement agencies and DOJ-certified instructors.

    DOJ Database. The DOJ maintains a computerized record listing the names and license information of all licensees. Law enforcement agencies may access or obtain information in the DOJ database only under limited circumstances, and the DOJ may not make database information available to the public "except in the context of a prosecution for an offense in which the person's status as a licensee or holder of a certification card is relevant."29

    Prohibited Areas and Penalties. Licensees "may carry a concealed weapon anywhere in this state" except 1) a police station, sheriff's office, state patrol station, or the DOJ's division of criminal investigation; 2) a prison, jail, house of correction, or secured correctional facility; 3) any secured portion of a mental health institute; 4) county, state, and federal courthouses (with exceptions for judges, district attorneys, and persons having written judicial authorization); 5) municipal courtrooms when court is in session; and 6) places beyond an airport security checkpoint. (These are hereinafter referred to as "gun-free zones.") However, the concealed-weapon prohibition does not extend to parking facilities affiliated with these locations.30

    It is generally a crime, under Wis. Stat. section 948.605, for any person to carry (openly or concealed) a firearm in or on the grounds of a school or within 1,000 feet of the grounds. A licensee may possess a firearm within 1,000 feet of school grounds but not in or on school grounds. Under Wis. Stat. section 941.237(3)(cx), a licensee may not carry a concealed weapon in a tavern unless he or she "is not consuming alcohol on the premises."

    Penalties for violations of Wis. Stat. section 175.60 range from minor forfeitures for failing to carry a license or report an address change to, for example, a fine of up to $500 or imprisonment for up to 30 days or both for the more serious offense of carrying a concealed weapon in a prohibited area.31

    Concealed Carry Restrictions

      Posting Posting Grounds Parking Lot Firearms Prohibited by Law

    Residence (single-family)

    No posting requirement specified – notice may be oral

    No posting requirement specified – notice may be oral

    N/A

    N/A

    Multifamily (condominium/apartment)

    No posting

    requirement specified – notice may be oral

    Common areas:

    Post at entrances to restricted portion of building & probable access points to restricted grounds

    May not prohibit firearms on grounds used for parking

     

    Nonresidential Building 

    (includes nursing homes, community-based residential facilities, residential care apartment complexes, hospices)

    Post signs in prominent place near all entrances

    where entrant can be reasonably expected to see the sign

    Post sign in a prominent place near all probable access points where entrant can be reasonably expected to see the sign

    May not prohibit firearms on grounds used for parking

    SCHOOLS:

    Concealed carry licensees allowed within 1000 feet of school grounds but not on school grounds

    TAVERNS:

    Concealed carry licensee allowed only if not consuming alcohol on premises

    Vacant Land

    To prohibit trespass in general, may notify "No Trespassing" personally (oral or writing) or post sign

    Post sign in a prominent place near all probable access points where entrant can be reasonably expected to see the sign

    N/A

    N/A

    Special Event

    (event of 3 weeks or less, open to public, with either entrances locked when event is closed or admission fee)

    Post sign in prominent place near all entrances and where entrant can be reasonably expected to see the sign

    Post sign in prominent place near all entrances and where entrant can be reasonably expected to see the sign

    May not prohibit firearms in any part of special event building or grounds used as a parking facility

     

    State/Local Government Unit

    In any part of a building that is owned, occupied, or controlled by the state or any local governmental unit – post signs in prominent place near all entrances and where entrant can be reasonably expected to see the sign

    May not prohibit firearms on governmental "grounds or land" (i.e., parks) (unless being used for "Special Event")

    May not prohibit firearms in parking facilities

    Open firearms &

    firearms without concealed-carry license: prohibited in all governmental buildings.

    With concealed-carry license, still prohibited in:

    • Police stations
    • Prisons/jails
    • Mental health facilities
    • Courthouses
    • Airports (beyond security checkpoint)

    University/College

    Post signs in prominent place near entrances where entrant can see them

    May not prohibit firearms on campus grounds (areas outside of buildings)

    May not prohibit firearms in parking facilities

     

    Section 943.13, as Amended (Trespass to Land)

    In addition to the gun-free zones specified by Wis. Stat. section 175.60, certain other areas may be designated as off-limits to weapons. Owners and occupants (including tenants and lessees) may prohibit the carrying of weapons – openly or concealed – on certain property. Wisconsin Statutes section 943.13 ("Trespass to land") permits owners and occupants to prohibit persons from carrying a firearm, concealed or otherwise, in or on property by providing notice (generally a posted sign) that a person may not enter or remain on the property with a firearm. A person may be subject to a Class B forfeiture (a fine not to exceed $1,000) if he or she carries a firearm on the property after being notified not to enter or remain on the property with a firearm or with a specific type of firearm.32

    Prohibiting Concealed Carry: Posting Guidelines. In places where firearms are prohibited by law (such as in police stations, courthouses, and schools), specific notice need not be posted because entrants are legally presumed to be aware of the prohibition. In all locations where an owner or occupant is allowed to prohibit firearms, the owner or occupant must do so by providing notice of the firearm prohibition. The type of notice depends on the nature of the property and its use.

    The nature of the property and the operations thereon as well as the status of the owner will dictate how, and to what extent, an owner of property not in a gun-free zone may restrict (or allow) concealed carry. The discussion below describes the extent to which owners of residential and nonresidential properties (including businesses, government, and colleges and universities) may prohibit concealed carry and the manner of doing so (via signage).

    Residential: Oral or Posting Notice. The law does not expressly provide a method that owners, tenants, and occupants of a residence – whether single family or nonsingle family (such as condominiums or apartment complexes) – must use to give notice. Presumably, they may do so either orally or with a sign.33

    Nonresidential: Posting. In all other scenarios (such as businesses, governmental buildings, and college and university buildings, including dorms), to prohibit weapons a sign of at least 5 by 7 inches must be posted in a "prominent place" near generally specified areas where entrants "can be reasonably expected to see the sign." The statute mandates no specific language or color for the sign, other than it must reference the "restriction imposed" (not to enter, or remain on, the premises with a firearm or a particular type of firearm).34

    The accompanying table illustrates the various posting requirements, contained in Wis. Stat. section 943.13(2). Rules of thumb are the following: 1) for buildings where posting is desired (restricted portions of condominiums and apartment complexes, nonresidential buildings, local and state governmental buildings, and universities and colleges), signs should be placed in a prominent and reasonably visible place near all entrances; 2) for grounds, such as condominium and apartment common areas and land surrounding nonresidential structures, signs should be placed near all probable access points to the grounds or land to which the restriction applies; and 3) for a special event, which is an event, open to the public, scheduled to last no more than three weeks and having either designated entrances to and from the event that are locked at closing or requiring an admission, signs should be posted near all entrances.

    May Not Prohibit: Public and Campus "Grounds"; Parking Facilities. There are several areas where, by law, one may not prohibit weapons, openly carried or concealed. For example, colleges and universities may not prohibit weapons on campus grounds (areas outside buildings), and governmental units may not prohibit weapons on public "grounds or land" (such as county parks, but not buildings or shelters in those parks). Also, "if a firearm is in a vehicle driven or parked in the parking facility," a firearms prohibition will not extend "to any part of a building, grounds, or land used as a parking facility."35

    Three Special Contexts: Employers, Municipalities, and Tenancies

    Employers. The new law provides certain guidelines and restrictions for employers, regardless of size. An employer may generally prohibit an employee who has a valid concealed-carry license from carrying a concealed weapon or a particular type of concealed weapon in the course of his or her employment. However, an employer may not, as a condition of employment, prohibit a licensee from carrying or storing in the licensee's own motor vehicle a concealed weapon, a particular type of concealed weapon, or ammunition, even if the motor vehicle is used in the course of employment or driven or parked on the employer's property. However, an employer may ban concealed weapons from employer-owned vehicles (and from vehicles owned by persons not possessing a valid concealed-carry license).36

    Municipalities. Since the new law's enactment, many Wisconsin municipalities have enacted ordinances or resolutions to prohibit weapons in certain portions of governmental buildings (where weapons are already not prohibited by law). As for state buildings, concealed carry is allowed in most state facilities, with some exceptions.37 (The State Assembly even voted to allow concealed carry on its floor and in its galleries; at least one legislator has publicly announced that he has a concealed-carry license and periodically carries a concealed weapon in the Assembly).38 

    Municipalities are barred, by Wis. Stat. section 66.0409(2), from adopting ordinances or resolutions regulating concealed carry more stringently than does the CCL. Thus, because the applicable state statute mandates that firearms may not be prohibited on municipal property and grounds (such as parks) or in parking facilities, a municipal ordinance prohibiting firearms in such areas would presumably be invalid and unenforceable.

    Tenancies. Businesses often lease the space where they conduct their business. Rental property is generally comprised of three areas: the leased area, a common area, and a parking lot. It is clear that property owners (in this case, that is, landlords) may determine whether and to what extent they will prohibit or allow concealed weapons in the common areas. Neither the landlord nor the tenant may prohibit firearms in parking areas. As for the leased space, one presumes that the tenant, and not the landlord, would have the decision whether to prohibit concealed weapons as to the leased space (residential or commercial), in the absence of a provision in the lease providing otherwise.

    The viability of lease provisions under which a tenant abdicates to the landlord authority to decide whether to allow or prohibit firearms on the leased premises is not absolutely clear under the new law. In some states, it is apparent that a tenant can give up the right to possess firearms in his or her leased premises.39 Wisconsin law does not necessarily reject such a proposition. However, a tenant could challenge such a lease provision by alleging, for example, that it conflicts with Wisconsin's broad constitutional right to keep and bear arms or the legislature's proclamation that concealed carry is not illegal in one's dwelling, business, or on land that "he or she owns, leases, or legally occupies."

    Illustrations: Proprietors, Employers, Municipalities

    Under the CCL, a person who does not prohibit individuals from carrying concealed weapons on property the person owns or occupies is "immune from any liability arising from" such decision. Employers that do not prohibit employees from carrying concealed weapons are also afforded immunity "from any liability arising from" such decision.40 The question arises: Is the purported immunity grant a truly protective incentive or a mere illusion?41 A series of illustrations in three contexts (businesses, places of employment, and municipalities) may assist in examining that question.

    Proprietors: Foreseeability Is Key. Illustration: A storeowner posts a "No Guns Allowed" sign. The sign is smaller than the requisite 5- by 7-inch size and is not easily seen by entrants. Store employees are not allowed to carry concealed weapons, but the owner keeps a handgun hidden near the front register in case of emergency. An armed assailant enters the store, points a gun at the cashier, and demands money. Customer A tries to thwart the attack by pulling out a concealed handgun and shooting at the assailant, who is struggling with the cashier for control of the firearm kept near the register. Customer A inadvertently shoots the cashier, who has wrestled the front-register gun away from the assailant. When the mortally wounded cashier hits the ground, his gun fires, wounding Customer B. Customer B sues the storeowner and Customer A.

    Assume that the plaintiff (Customer B) first predicates liability on a contention that the lack of immunity under the CCL automatically imposes liability. This is a nonstarter. Although one can assume that the immunity proviso was included as an enticement to promote concealed carry, an absence of immunity for persons who prohibit concealed weapons should not be equated with ipso facto liability if there is a shooting incident on the premises. There is no basis in the law's content or history (or under existing common law) for such an interpretation. In such cases, a plaintiff must still allege and prove a recognized and viable legal claim against a defendant.

    Assume that, alternatively, the plaintiff contends that the owner was negligent in 1) prohibiting concealed weapons, 2) improperly posting a "No Guns Allowed" sign, and 3) not implementing adequate safety precautions in view of the neighborhood and the history of criminal activity at the store. The first two of these bases are weak. Although it can be argued that by prohibiting concealed weapons, the owner has deprived licensees on the premises the opportunity to defend themselves and thus has assumed responsibility,42 this seems to be a fairly absurd position given that the legislature obviously gave owners a choice of whether to allow or prohibit concealed carry. Moreover, the mere posting of a sign does not make it foreseeable that a criminal will enter the premises on a certain day and create havoc.43

    As to the second basis, that the "No Guns Allowed" sign is ineffective (too small and not easily seen), this too would likely fail since it is highly unlikely that one could prove that had a proper sign been properly posted, the assailant would never have targeted the store. Individuals bent on crime will likely be undeterred by a sign (and some may even be attracted by such a sign, believing that no one on the premises will be armed).44

    These bases are moored by a "disarmed victim" paradigm, which assumes that the victim, if armed, certainly could have thwarted the attack or shooting. However, in Jones v. Tokhi, the Wisconsin Court of Appeals noted that shooting or attempting to disarm an attacker is far easier said than done: "When victims are facing the barrel of a gun and listening to threats to shoot them, it is difficult to know what they should do. Actions that seem prudent and prove successful under one set of circumstances may prove disastrous under others."45 In view of this uncertainty when a victim faces a gun barrel, it is unlikely that a court could ever rule as a matter of law that a proprietor should be held liable to a victim merely because the proprietor prohibited concealed weapons on the premises.

    The highest likelihood of success comes with the third basis: that the history and location of the store mandated extra precautions. Even so, "liability for criminal acts" cases against business proprietors "are difficult cases which will present our trial courts with many matters of complex factual proof."46 A proprietor "is not required to guarantee the safety of patrons against injuries inflicted by other patrons on the premises."47 To impose liability, foreseeability is key: liability will not be imposed unless the danger presented was foreseeable and could have been prevented or stopped within time. Because shootings often occur in a flash and without warning, in many such circumstances it will not be easy to impose liability on a proprietor.48

    Factors that a court might evaluate to determine whether a particular danger was foreseeable include the nature of the business, industry standards, the community's crime rate, and the number of prior similar incidents or police calls to the premises.49 In the absence of any prior criminal incidents, the absence of security does not constitute a breach of a proprietor's duty to protect patrons.50 If there is an attack, a plaintiff must show that the proprietor had knowledge of the perpetrator's "violent propensities" and that the defendant could have undertaken action in sufficient time to stop or control the perpetrator.51

    As for liability against Customer A, the errant-shooting "Good Samaritan," the CCL does not expressly afford immunity. However, liability would likely have to hinge on proof that the customer knew that guns were not allowed (communicated via a sign, albeit small) but carried one in anyway, again a daunting proposition.

    Employer and Employee Liability. Illustration: A 5- by 7-inch "No Guns Allowed" sign is clearly visible to all store entrants. An armed assailant comes to the store looking for his ex-wife, who works there. Employees are prohibited from having concealed weapons on the premises. The assailant confronts the cashier, threatening to shoot him, after the cashier tells him that the ex-wife is not at the store. Hearing the chaos, an employee with a concealed-carry license reaches into his jacket, removes his handgun from its holster, and starts shooting at the assailant. He misses the assailant and accidentally shoots the cashier and a customer instead. The assailant escapes. He had gone to the store to shoot his ex-wife. Not finding her there, he goes to her home and fatally shoots her. (He received her unlisted address via a phone call to her employer impersonating a loan officer doing a credit check.) The injured cashier, injured customer, and estate of the slain ex-wife bring suit.

    Employee's (Cashier's) Claim against Employer. Employers do not have a general duty to protect their employees from criminal acts.52 Employees shot at work by coworkers or third parties will be entitled to worker's compensation coverage (even in situations in which the shooting resulted from an intentional act without a purely personal connection to the employee victim), regardless of whether the employer allowed or prohibited concealed weapons.53 Moreover, under Wisconsin's safe-place statute, Wis. Stat. section 101.11(1), every employer is required to furnish both "safe employment" and a "safe place of employment." Although the court of appeals has noted that "[p]rotection of employees from injury during an attempted crime by a third-party is part of the employer's duty to provide safe employment," there has been little elaboration on what efforts will satisfy this duty.54

    Employee's (Ex-wife's) Claim against Employer. When conditions of liability for worker's compensation are satisfied, the exclusive remedy provision of the Worker's Compensation Act (WCA) applies, thereby precluding an injured employee from maintaining a negligence action against his or her employer or a coworker. In a true-life situation similar to that above, in which the injury was caused by the employer's "unwitting disclosure" of "information to a private individual" (the employee's "abusive former husband"), the Wisconsin Supreme Court held that the circumstance was an accident compensable under the WCA.55

    Customer's Claim against Owner (Employer). Under certain circumstances, employers can be subject to liability for the tortious or criminal acts of employees committed within the scope of employment.56 (As with "proprietor liability" cases, the liability bar is high.) In cases involving a shooting injury inflicted by an employee who is a concealed-carry licensee, there will be a two-fold analysis: 1) was the employee acting within the scope of his or her employment,57 and 2) is the employer immune. (In other words, does the employer's potential liability arise from his or her decision to not prohibit licensed concealed carry on the premises?)58

    The safe-place statute "provides that it is an employer's duty to provide safe employment, premises and equipment for the protection" of employees and frequenters.59 But "the safe-place statute does not make the employer an insurer of the safety of a frequenter on the premises" and, therefore, it "deals with unsafe conditions of the employer's premises and not with negligent or inadvertent acts of employees or activities conducted on the premises."60 Therefore, a safe-place negligence claim premised on a failure to timely act in the face of an unannounced and unforeseen shooting will likely fail.

    Creative plaintiffs could, in situations such as those in the examples, turn to other bases to skirt the employer immunity, primarily by asserting that the liability arises out of something other than the decision to not prohibit concealed weapons. For example, a plaintiff could focus on the word "decision" and contend that allowing concealed carry by default (for example, not posting signs because of unawareness of the law) is not really a decision per se and thus does not afford immunity.

    Situations might also arise in which plaintiffs could attempt to avoid the immunity protection by asserting other claims not "arising from" a concealed-carry decision:

    1) If a concealed-carry licensee employee with a troubled past or a history of violence inflicts injury through shooting, plaintiffs will likely premise claims on negligent hiring, supervision, and training.

    2) Employers are generally counseled to draft workplace weapons policies if they intend to allow firearms on the premises, and under some circumstances they will implement certain safety or security devices or protocol. Injured third parties could argue that liability should be premised on the failure to strictly enforce such weapons policies (for example, if an employee is not disciplined for continuing violations).61

    3) An employer that installs security equipment, such as metal detectors or surveillance equipment, has in doing so assumed a duty to act with greater care than otherwise would be imposed. If it fails to follow through by properly and consistently using such equipment and training the personnel in charge of running it, liability might be found to arise.

    Plaintiffs might also try to premise liability on a failure to provide a safe workplace under 29 U.S.C. § 654(a)(1), the Occupational Safety and Health Administration's (OSHA's) "general duty clause," which provides that "[e]ach employer shall furnish to each of [its] employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to its employees." But it is unlikely that an employer's allowance of concealed weapons, without more, would invite OSHA oversight, especially because OSHA has not promulgated a specific rule banning weapons in the workplace, and courts have held that the general duty clause does not preempt state gun laws.62 Moreover, the Wisconsin Court of Appeals has also held that the clause is "not a safety law intended to be the basis for imposing tort liability."63

    Municipality: Failure to Protect. Illustration: The police were summoned to a woman's home via 911 just a few minutes before she was shot by her ex-husband. During the couple's 10-year marriage, law enforcement had been summoned to the house twice.

    Does the woman's estate have a claim against the municipality? No. "[I]t is well established that public entities generally are not liable for failing to protect individuals against crime."64 Thus, law enforcement personnel will generally be immune from liability to shooting victims in most cases involving an alleged "failure to protect the victim" from a third party's act (shooting). The fact that persons and entities that do not prohibit concealed carry are granted immunity as to such decision would not emasculate such sovereign immunity in the concealed-carry context.65

    Under most circumstances involving shootings, it is likely that municipalities will have the benefit of sovereign immunity. Wisconsin Statutes section 893.80(4) grants to municipalities and their officials and employees immunity from liability for their legislative and quasi-legislative functions, which are generally acts involving "the exercise of discretion and judgment." Decisions whether to prohibit the public and municipal employees from carrying concealed weapons in a municipal building would obviously be categorized as part of the discretionary (not ministerial) function. Thus, immunity under section 893.80(4) will generally protect municipalities that choose to prohibit invitees or employees from carrying concealed weapons on the premises or in the course of their employment.

    Shootings in public buildings do not occur frequently, and rarely is the governmental entity held liable for the consequent injuries. Plaintiffs generally are unable to premise liability on an entity's decisions as to adoption and implementation of security plans or a decision to forego having visitors go through monitoring devices (metal detectors) upon entry.66

    Conclusion

    Due to its breadth, the CCL will affect virtually all people in Wisconsin, regardless of their viewpoint on, or experience with, weapons. Even if one does not get a concealed-carry license, he or she may know someone who does, will (likely unknowingly) interact with licensees in public (such as in stores or at entertainment venues), and will frequent businesses that have chosen to prohibit or allow concealed weapons on the premises. In short, along with the law's impact on concealed-carry licensees, it will affect property and business owners, their customers and invitees, and employers and employees.

    Gun rights advocates tout Wisconsin's new concealed-carry law as widespread recognition of a long-deserved exercise of the state constitutional right to bear arms, which they believe will inevitably decrease crime. Gun control advocates stress the danger of arming tens of thousands of new licensees and emboldening them with other legislative protections against liability. This article has not taken sides or challenged any beliefs on the subject, other than to neutrally note that as of now, and as portended by the experience in the 48 preceding states, Wisconsin has been transformed into neither the Wild West (gun opponents' fear) nor a crime-free utopia (gun proponents' hope). There has been no demonstrable resulting uptick in violent gun-related crime by trigger-happy gun-owning neophytes. Conversely, passage of the law has not resulted in a significant dip in crime as a result of criminals being rendered gun shy by previously vulnerable citizens who now lawfully (and secretly) pack heat.

    Mark R. HinkstonMark R. Hinkston, Creighton 1988 cum laude, practices as Hinkston Law Office S.C. and is of counsel to Knuteson, Powers & Quinn S.C., Racine. His practice is primarily devoted to business and construction litigation. He can be reached at net mhinkston sbcglobal sbcglobal mhinkston net.

    The new CCL may present some initial perplexity in implementation and interpretation. As with much new socially significant legislation, many of the currently opaque liability issues will ultimately need to be worked out through judicial consideration and possible legislative supplementation. Unfortunately, most appellate cases considering liability under the new law will inherently present a precipitating incident involving the negligent or intentional discharge of a firearm, leading to injury or death. In view of this reality, this author for one does not wish to become well-versed in real-world concealed-carry liability law, hopes that there are no test cases, and will gladly allow his intellectual curiosity to be piqued solely via insight and illumination by legal commentators, the State Attorney General, and the legislature in due course as it sees fit. In the meantime, one suspects that the many potential liability questions can also keep Wisconsin tort professors supplied with a multitude of examination scenarios for years to come.

    Endnotes

    1 Message of Cadwallader C. Washburn, Governor of Wisconsin, Delivered at the Twenty-sixth Annual Session of the Legislature of the State of Wisconsin, Assembled in Joint Convention, Jan. 9, 1873, p. 16.

    2 See Advisory Memorandum from Wis. Atty. Gen. J.B. Van Hollen (April 20, 2009) ("The Wisconsin Department of Justice (the Department) believes that the mere open carrying of a firearm by a person, absent additional facts and circumstances, should not result in a disorderly conduct charge from a prosecutor").

    3 Gonzalez v. Village of W. Milwaukee, No. 09-CV-384, slip op. at 6 (E.D. Wis. May 11, 2010) ("No reasonable person would dispute that walking into a retail store openly carrying a firearm is highly disruptive conduct which is virtually certain to create a disturbance").

    4 The Department of Justice (DOJ) refers to the new law as the "Carrying a Concealed Weapon Law," with the acronym "CCW." Because Wisconsin appellate courts, including the supreme court, have referred to the criminal statute prohibiting concealed weapons (Wis. Stat. § 941.23) as the "CCW law" or "CCW statute," so as to not conflict with those decisions the author herein uses the acronym "CCL" to refer to the new law allowing concealed carry with a permit.

    Two other Wisconsin laws that went into effect in late 2011, ostensibly to increase self-protection, are the subject of a future article: the so-called castle doctrine law (2011 Wis. Act 94), which creates a presumption of civil and criminal immunity for persons who use force in response to the unlawful and forcible entry into a dwelling, motor vehicle, or business; and the trespasser liability law (2011 Wis. Act 93), which generally provides that private landowners owe no duty of care to a trespasser on their property and may not be found liable for an act or omission relating to a condition on the property causing injury or death to a trespasser.

    5 Jason Stein, Walker signs concealed-carry measure into law, Milw. J. Sentinel, July 8, 2011.

    6 § 1, ch. 7, Laws of 1872. "...[S]o going armed shall not be deemed a violation of this act whenever it shall be made to appear that such person had reasonable cause to fear an assault or other injury or violence to his person, or to his family or property, or to any person under his immediate care or custody, or entitled to his protection or assistance...."

    7 After the redaction, the statute read: "Any person who shall go armed with any concealed and dangerous weapon, shall be punished by imprisonment in the county jail not more than six months, or by fine not exceeding one hundred dollars; provided, this section shall not apply to any policeman or officer authorized to serve process." Wis. Stat. § 4397 (1878).

    8 State v. Cole, 2003 WI 112, ¶ 21, 264 Wis. 2d 520, 665 N.W.2d 328.

    9 State v. Hamdan, 2003 WI 113, ¶ 103, 264 Wis. 2d 433, 665 N.W.2d 785 (Crooks, J., concurring/dissenting).

    10 Id. ¶ 48. See also Gonzalez, 671 F.3d at 657 ("Before its sweeping modification in 2011, the concealed-weapon statute was in significant tension with the newly adopted constitutional right").

    11 Examples include those "making nighttime bank deposits after closing their stores; seeking protection from serious, threatened attack; [or] traveling to hunt or target shoot without awareness of the legal manner of transporting weapons." Epstein v. Benson, 2000 WI App 195, ¶ 44, 238 Wis. 2d 717, 617 N.W.2d 224.

    12 2003 WI 113, ¶¶ 48, 103, 264 Wis. 2d 433.

    13 Id. ¶ 85.

    14 Patrick Marley, Wisconsin issues 100,000th concealed-weapon permit, Milw. J. Sentinel, April 20, 2012; Mike Stuckey, Record numbers licensed to pack heat, June 24, 2010, http://tinyurl.com/7ob6qjh (estimating at 6 million the number of concealed-carry permit holders nationwide).

    15 Wis. Stat. §§ 941.23(2)(e), 941.295(2)(d)2.

    16 The DOJ "may not impose conditions, limitations, or requirements that are not expressly provided for" in Wis. Stat. section 175.60 "on the issuance, scope, effect, or content of a license." Wis. Stat. § 175.60(2)(b).

    17 www.doj.state.wi.us/dles/cib/ConcealedCarry/ConcealedCarry.asp.

    18 State v. Asfoor, 75 Wis. 2d 411, 433-34, 249 N.W.2d 529 (1977).

    19 Wis. Stat. § 175.60(1)(bm), (j).

    20 See Wis. Stat. § 175.60(2)(c) (unless expressly stated otherwise, it "does not limit an individual's right to carry a firearm that is not concealed").

    21 Gonzalez v. Village of W. Milwaukee, 671 F.3d 649, 660 (7th Cir. 2012).

    22 Wis. Stat. §§ 66.0409(6), 947.01(2).

    23 Wis. Stat. § 175.60(2), (3).

    24 Wis. Stat. § 175.60(9g).

    25 Wis. Stat. § 175.60(4), (5), (5b), (7), (9), (9g).

    26 Wis. Stat. § 175.60(15)(a).

    27 Wis. Stat. § 175.60(14).

    28 Wis. Stat. § 175.60(4).

    29 Wis. Stat. § 175.60(12), (12g).

    30 Wis. Stat. § 175.60(16).

    31 Wis. Stat. § 175.60(17).

    32 Wis. Stat. § 943.13(1m)(c), (2)(bm).

    33 Wis. Stat. § 943.13(2)(am).

    34 Wis. Stat. § 943.13(2)(bm).

    35 Wis. Stat. § 943.13(1m)(c)2.

    36 Wis. Stat. § 175.60(15m).

    37 Mike Johnson & Larry Sandler, Some cities act to ban guns from government buildings, Milw. J. Sentinel, Aug. 20, 2011; Jason Stein, Most state buildings get OK for guns, Milw. J. Sentinel, Oct. 28, 2011.

    38 Associated Press, GOP lawmaker packing gun on Assembly floor, Milw. J. Sentinel, Feb. 3, 2012.

    39 See, e.g., Op. Tenn. Att'y Gen. 09-170 (Oct. 26, 2009) ("A landlord can prohibit tenants, including those who hold handgun carry permits, from possessing firearms within the leased premises").

    40 Wis. Stat. § 175.60(21)(b), (c).

    41 In a Nov. 8, 2011, letter, Wisconsin state senators Tim Cullen and Jon Erpenbach requested a legal opinion from attorney general J.B. Van Hollen on the issue of the extent to which a person or entity that bans concealed carry may be liable, stating that the new law's immunity provisions "are counterintuitive and illogical, not to mention outrageous" in that they afford immunity to those who allow concealed weapons. They contend that those who allow weapons on their premises "should have to take extra precautions to ensure the safety of people on the premises."

    42 See A. Nicole Hartley, Business Owner Liability and Concealed Weapons Legislation: A Call for Legislative Guidance for Pennsylvania Business Owners, 108 Penn. St. L. Rev. 637, 644 (2003).

    43 See Texas Atty. Gen. Op. DM-363 (Aug. 30, 1995).

    44 See Thomas E.J. "Tobie" Hazard, In the Crosshairs: Colorado's New Gun Laws, 33 Colo. Law. 1, 17 (2004).

    45 193 Wis. 2d 514, 522, 535 N.W.2d 46 (Ct. App. 1995) (in a case in which the plaintiff, a high school basketball star, was shot while in a restaurant parking lot at 1:45 a.m., reversing circuit court's postverdict decision that the plaintiff's attempt to disarm the gunman constituted negligence that exceeded the defendants' negligence as a matter of law, rebuffing defendants' argument that plaintiff knew that the likelihood of being shot would increase if he tried to disarm his attacker).

    46 Peters v. Holiday Inns Inc., 89 Wis. 2d 115, 129, 278 N.W.2d 208 (1979).

    47 Wis. JI-Civil 8045 ("Duty of a Proprietor of a Place of Business to Protect a Patron From Injury Caused By Act of Third Person"). See Hawkes v. Bagain, No. 03-0754-FT, ¶ 6 (Wis. Ct. App. Sept. 9, 2003) (citing Weihert v. Piccione, 273 Wis. 448, 456, 78 N.W.2d 757 (1956)) ("The degree of care required by employees fluctuates with the facts and circumstances of each particular case").

    48 In Wisconsin, a proprietor is subject to liability for injury caused by a third party's criminal act "if the proprietor by the exercise of reasonable care could have discovered that such acts were being done or were about to be done, and could have protected the members of the public by controlling the conduct of the third persons, or by giving a warning adequate to enable them to avoid harm." Weihert, 273 Wis. 448 (holding, in case in which restaurant patron was beaten and injured when altercation broke out between customers, owner was not liable because owner could not have discovered that fight was about to occur or warned plaintiffs that any altercation might happen).

    49 Peters, 89 Wis. 2d at 124.

    50 Kolstad v. White Birch Inn LLC, No. 2007AP002970 (Wis. Ct. App. Sept. 16, 2008).

    51 Griffin v. V & J Foods Inc., No. 95-1335-FT (Wis. Ct. App. Jan. 16, 1996) (holding that fast food restaurant was not liable for injuries to plaintiff shot while waiting in drive-through lane because there was no evidence that the staff had notice or knowledge of shooter's "violent propensities" and no liability for failure to summon police because evidence showed that even if police had been called, they could not have intervened in time).

    52 Dupont v. Aavid Thermal Tech., 798 A.2d 587 (N.H. 2002).

    53 Weiss v. City of Milwaukee, 208 Wis. 2d 95, 559 N.W.2d 588 (1997).

    54 Naaj v. Aetna Ins. Co., 218 Wis. 2d 121, 579 N.W.2d 815 (Ct. App. 1998).

    55 Weiss, 208 Wis. 2d 95.

    56 Pamperin v. Trinity Mem'l Hosp., 144 Wis. 2d 188, 198, 423 N.W.2d 848 (1988).

    57 See Wis. JI-Civil 4035 ("Servant: Scope of Employment").

    58 It is not clear who has the burden of proof on this issue (whether the employer must prove that its decision and alleged liability are connected or whether the plaintiff must prove that something other than the decision to allow licensed concealed weapons is the basis for liability). But see Kimps v. Hill, 200 Wis. 2d 1, 18-19, 546 N.W.2d 151 (1996) ("it should be noted that Hill does not carry a burden to demonstrate that he is entitled to immunity; on the contrary, the general rule for state employees is immunity and an exception must be demonstrated in order for this rule not to apply").

    59 Stefanovich v. Iowa Nat'l Mut. Ins. Co., 86 Wis. 2d 161, 166, 271 N.W.2d 867 (1978).

    60 Montey v. Steve's on Bluemound, No. 99-1612 (Wis. Ct. App. Sept. 19, 2000).

    61 Note, Weapons In the Workplace: The Effect of Tennessee's Concealed Weapons Statute on Employer Liability, 28 U. Memphis L. Rev. 281 (1997).

    62 See, e.g., Florida Retail Fed'n v. Atty. Gen. of Fl., 576 F. Supp. 2d 1281, 1298 (N.D. Fla. 2008).

    63 Taft v. Derricks, 2000 WI App 103, ¶ 29, 235 Wis. 2d 22, 613 N.W.2d 190.

    64 Zelig v. County of Los Angeles, 27 Cal. 4th 1112, 1126, 45 P.3d 1171 (2002). See also District of Columbia v. Harris, 770 A.2d 82, 87 (D.C. 2001).

    65 See Claire Silverman, League of Wisconsin Municipalities, December 2011 Comment, Oct. 31, 2011, Frequent Questions Arising under Wisconsin's Concealed Carry Law, available at www.lwm-info.org.

    66 See, e.g., Sczyrek v. County of Essex, 324 N.J. Super. 235, 241-42, 735 A.2d 33 (1999) ("Here, the decision of the Essex County authorities respecting adoption of a security plan, the decision as to how that plan should operate, and the question of whether and to what extent employees and others should be required to pass through monitoring devices, epitomizes the policy or political decisions entrusted to governmental officials, with which judges and juries should not interfere. They are decisions that reside with the public entity,..."); Zelig, 27 Cal. 4th at 1130 ("To the extent the complaint relies on the policy decisions of unnamed public officers and employees with regard to the nature and degree of security that should be utilized in the courthouse to protect all of its users – for example, decisions regarding the posting of signs or the installation and operation of metal detectors – such conduct would not give rise to liability on the part of these persons").