By John Triplett
State laws vary on the issue of what landlords can mandate regarding saying, “no guns in my apartments,” and on gun possession in general by tenants in privately owned rental properties.
Landlords and property managers need to be aware of whether their state and/or local governments have specific laws, Dobbins said in an interview with Rental Housing Journal.
Only four states have specific laws regarding landlords and guns at rental properties
- Minnesota: A landlord cannot restrict the lawful carry or possession of firearms by tenants or their guests. Minnesota Statute 624.714
- Tennessee: A private landlord can prohibit tenants, including those who hold handgun carry permits, from possessing firearms within a leased premises. Such a prohibition may be imposed through a clause in the lease. Tennessee Statute 39-17-1307(b).
- Virginia: Public housing prohibits landlords from restrictions on gun possession for tenants – Virginia Rental Housing Act 1974 Tennessee 55-248.9.6.
- Wisconsin: This state has a complicated maze of where a weapon can or cannot be possessed. W Stat. § 175.60(21)(b).
All other states are generally silent on the issue, Dobbins said, meaning that private housing providers can choose what they want to do on the issue and say no guns my apartments. California, Arizona, Colorado, Oregon, Utah, and Washington are six of the states that are silent on the issue.
For instance, Virginia law says public landlords cannot use a prohibition clause in their lease, and it does not require that a gun-free zone sign be applied or present on the property.
“Now in Minnesota, they have a different law. Generally, private landlords may not restrict the lawful carry of firearms by tenants,” Dobbins said. “All the other states are silent on whether private landlords can prohibit tenants from carrying weapons or possessing weapons on the property.”
Unless your landlord is a government entity, like a city or state agency or public housing, or receives state or federal funding for rental assistance on the property, the Second Amendment is unlikely to apply. However, private housing providers saying no guns in my apartments and prohibiting tenants from possessing firearms in a residential rental unit raises other constitutional and insurance issues.
Can a landlord say “no guns in my apartments” and implement a “no-firearms” provision in a lease agreement?
“Generally, the answer is yes. But, I think we need to take the most practical approaches we can for all the issues surrounding the question,” Dobbins said.
“I would simply say to private housing landlords that you have more issues to be concerned about than just whether or not you can implement such a “no firearm” policy. Look, the real issue that you want to protect against is tenants having guns willy-nilly, or just being carried around and shown off on the property common area
“You can stop that kind of behavior cold in the common areas altogether, so go ahead and put something in your lease to stop it in the common areas. Prohibiting the display of weapons in the common area, or even in the unit where handling or showing of a weapon that can be seen on the inside from the outside, will help protect against liability issues and insurance/liability issues and help avoid possible Second Amendment challenges.”
What about telling tenants no guns in my apartments and prohibiting tenants from having firearms in their apartment unit?
“Generally, a private landlord can do that too, but there are a wide variety of issues to think about when you do so,” Dobbins said.
“Most states have not made a decision whether or not to attempt to prohibit the constitutional rights of a citizen who wants to have a weapon in their rental unit for their own protection. What that means is that leaves it up to the private landlord to make a decision about their own property,” he said.
“Yes, a private landlord can say, ‘We prohibit all tenants from possessing a weapon anywhere on the property.’ The private landlord can make that decision because there hasn’t been a case yet that draws the Second Amendment into the private-landlord decision-making process on the issue, as has happened with Fair Housing issues like race, color, national origin, familial status, religion, gender, age, military status and Americans with disabilities.” Therefore, government assisted housing must respect a tenant’s constitutional right to bear a firearm. However, the housing authority can still prohibit firearms in common areas.
But non-governmental landlords, with no applicable state or local laws, have the right to do want they want on their own property regarding firearms. “So, a private landlord can say, ‘No guns in my apartments’ or any weapon possession in the rented apartment unit’. But a non-government tenant can also say, ‘Well, I have a constitutional right to a weapon to protect myself.’ However, that case has not been heard yet,” Dobbins said. He believes the issue will eventually be heard because “someone is going to finally get that case to the Supreme Court.”
The predicament for any landlord on this issue is this: ”If I allow firearms and someone on the property gets hurt, am I liable?” The answer is “Maybe.” And, “If I prohibit a tenant from having a firearm on the property and that tenant or his family, occupant or invitee is hurt; and had that tenant had a firearm, they may not have been hurt, am I liable?” Again, the answer is “maybe.” Every situation is fact-specific.
“From a practical point of view on the liability issue, let’s say a landlord says, ‘No guns in my apartments’ or ‘No weapons possession in the rented apartment unit.’ The tenant moves in and he wants to possess a weapon in the rented apartment unit but he decides to live there without possessing a weapon. Now somebody breaks into his home and kills his wife and his kids and he didn’t have a weapon to protect himself and his family. I don’t want to be that landlord who says ‘No guns in my apartments’ because I don’t want to get sued because I took that personal constitutional right away,” Dobbins said.
“The landlord is going to say, ‘He agreed to it and he moved in.’ Of course, the person who had their family killed is going to say, ‘Yeah, but I still had a right and you made me not have a gun and took away my Second Amendment constitutional rights to protect my family.’
“I don’t want to be that landlord,” Dobbins said. On the other side, if weapons are allowed on the property and someone gets killed or injured by a tenant intentionally, or even negligently, from a discharge of a weapon on the property, even while inside their own apartment unit, you know the attorney for the injured person is going to go after the deep pockets of the landlord, manager and their insurance money. By the way, you better check your insurance policy and find out what is and is not covered regarding this issue.
Saying no guns in my apartments is “an ugly Catch 22,” Dobbins said.
“It is possible that if a landlord has a no-weapons policy in the lease that the landlord will immediately become a target by a victim of a tenant shooting injury claiming the landlord should have known about the tenant’s possession of the weapon and should have taken steps to remedy the possession, although not at all practical. If there is no prohibition for tenants having weapons, then all tenants know of the ‘no-prohibition’ standard, and in my opinion, the risk to the landlord diminishes not just for injuries to others, but for constitutional claims.”
Issues on how ‘no guns in my apartments’ would be applied
“You run into a few issues in terms of how the prohibition can be applied in actual practice. For instance, where you have a law that says ‘landlords can prohibit gun possession in an apartment unit in a lease,’ well, how are you possibly going to enforce that? You don’t know what a tenant brings into the property,” Dobbins said.
“You don’t know what a tenant is going to have in their home. You don’t know if they have weapons in their apartment unit. You can’t really go in and inspect for weapons. If they have a safe, you can’t go look in the safe to see if they have weapons. Even if a state has a rule that says you can prohibit weapons, there’s no practical way to enforce that prohibition.
“The second issue then becomes really important: ‘Do you really want to be the case of first impression?’ Meaning, do you really want to be the landlord who takes on some attorney and a Second Amendments rights issue because the landlord says you can’t have a gun in your own apartment unit to protect yourself? We have all seen lately that mentally ill people, criminals, and terrorists can get guns. Look at Chicago, which arguably has the toughest gun laws in the U.S. Simply put, bad guys still get guns and cause havoc,” Dobbins said. No one is going to stop a mental ill person, or an evil person from bringing a gun anywhere.
“So, why should a private landlord have a such a prohibition where concerned tenants cannot possess a gun in their rented apartment unit? A private landlord does not want to become that trial case for a tenant who says, ‘Wait a second. I have a Second Amendment right to carry and to have weapons to protect myself and my family.’
“The landlord says, ‘Well, having a weapon on a private property is not a protected class like the protected classes listed above. Having a right to possess a weapon in one’s apartment unit is not a current enumerated protected class,” Dobbins said.
“But, I tend to disagree with those people who say it’s not a protected class, because it is clear that there is a constitutional “personal right” to bear arms – period. The protected classes in the housing arena listed above are all federal mandates. Well, an enumerated constitutional right in my mind is the same thing. A court case will determine that issue in a landlord-tenant relationship at some point.”
Let’s back up and look at the issue of no guns in my apartments
Dobbins suggested looking at two Second Amendment cases that he thinks make the tenant’s right to a weapon in the tenant’s apartment unit a personal right, and thus, a protected class.
“Here’s what we know. The federal government can impose some restrictions on gun possession. There have been a lot of debates over time as to what the Second Amendment means because it has a phrase in it regarding militias and it also talks about ‘the people’s right’ as opposed to a ‘person’s right.’ There’s been this idea that the ability or the right to bear arms is not a personal right. Rather, that it is a right of the people for a prepared militia.
“This issue came up in a case in the U.S. Supreme Court in 2008. It’s called the Heller Case. It dealt with individual rights to possess weapons. The Heller case made it very clear that there is an “individual right” to possess weapons as opposed to just a right of the people for the purposes of maintaining a militia,” Dobbins said.
“Heller goes on to say that the government can impose some possession restriction such as when dealing felons and the mentally ill. Such people have no personal rights because those rights are stripped for the mentally ill and felons. There still remained a question after Heller. The question after Heller was, ‘Well, that’s great, but what about the states? How does the federal law impact state laws on the subject?’
“In 2010, the McDonald case went before the Supreme Court and that dealt with the 14th Amendment, which forbids states from passing rules to the contrary of federal law. There were basically four elements in McDonald that they dealt with: whether there could be a state prohibition against handgun ownership, whether a state could force an annual gun registration and impose a fee for annual registration, whether it could be required that guns be registered prior to acquisition, and whether a gun could be forever unable to be registered if the registration lapsed. Those state laws were struck down in the McDonald case. Basically the opinion stated that the 14th Amendment applies as to the individual right to possess guns and that states cannot pass laws that infringe upon that federal constitutional right.
“So it seems to me that private landlords forbidding tenants from possessing firearms in their apartment unit could be successfully challenged based on the Second Amendment and Fourteenth Amendment, I think, because Heller and McDonald make possession of a weapon a personal right, which I think makes it a protected class,” Dobbins said.
“I guess the simple answer is in those six states that we mentioned … private landlords in those states can choose what they want to do, but when a private landlord chooses to ban tenants’ ability to possess a firearm in their apartment unit they face the ugly music of liability issues and constitutional infringement issues,” he said.
A proposed lease clause on how landlords might walk the fine line of dealing with tenants’ possession of guns in their apartment units and homes
Dobbins said he would propose the following lease clauses for landlords to consider.
- “This is a landlord-tenant relationship and the landlord has no control over your unit or the home. Tenant has sole control of the dwelling unit.
In a sad 2006 Kansas City case where a landlord rented a single-family home the lease agreement expressly gave the tenant the right to sole possession of the premises, prohibited any member of the household from engaging in any illegal activity on or near the premises, and prohibited the unlawful discharge or unauthorized possession of firearms, the tenant minor child accidentally discharged a loaded gun, killing a visitor. The tenant and the landlord were sued for damages. The court indicated that because there was a landlord-tenant relationship where the landlord had no control over the property, the landlord was found NOT liable. Thompson v. Tuggle, 183 S.W.3d 611 (Mo. App., 2006).
However, in a multifamily setting, when the landlord is aware of, or should be aware, that tenant has a weapon, and the tenant acts erratically, then the landlord must analyze the landlord’s duty to the tenants for reasonable safety and make a determination with its legal counsel if the tenant’s action make it foreseeable that the tenant may cause harm to another person on the property. If so, then the landlord must take reasonable steps to remedy the situation. Lozano v. Awi Mgmt. Corp. (Cal. App., 2016). When weapons are allowed on the premises, it is imperative that the landlord always monitor the property to see that the weapons are not misused, brandished, or unnecessarily displayed. Rosales v. Stewart, 169 Cal.Rptr. 660, 113 Cal.App.3d 130 (Cal. App., 1980).
- “If you have any firearms, you must keep your weapons inside your unit at all times and out of view of open windows and doors, absent legitimate self-defense or the defense of others.”
- “If you openly bring a firearm onto the common areas you will be evicted. You must keep your weapon to yourself, safely tucked away in the private confines of your apartment unit or home and not visible to other tenants, neighbors or staff.”
- “As a landlord, I say, ‘No weapons in the common area.’ This is something that I put in my leases and in my client leases. It provides reason, accountability and protections for the landlord, the tenants and staff. It’s a section called ‘Weapons’ for the lease and this is what it says:
“Weapons of any kind, including, but not limited to, dart guns, air guns, BB guns, slingshots, handguns, rifles, or any mechanism that could be used to propel an object that could cause harm to person or property, are not allowed in the common areas, are not allowed in the office, are not allowed anywhere on the premises outside of the actual unit, and are not allowed to be displayed, shown, exposed, demonstrated, or exhibited anywhere in the community premises, except in case of self-defense or the need for imminent and immediate protection of residents’ life or property, or for self-defense or immediate and imminent protection of resident, resident’s occupants, guests or invitees’ life, or property. If a resident desires to possess a legal weapon in resident’s unit, in that case the resident must safely and inconspicuously carry said legal weapon to and from the resident’s unit in a manner that resident ensures other residents and staff do not see said weapon. Illegal weapons are never allowed visibly on the property outside of the unit. If resident or resident’s occupants do possess a legal weapon in the unit, resident shall be responsible for the proper and safe possession, handling and storage of said weapon. Landlord is not and shall not be responsible in any way to resident, occupants, guests, or invitees for any accidental, negligent, or intentional act involving any weapon or discharge thereof on, near, or off the property.”
“That’s my clause,” Dobbins said. “It covers a lot of ground because I don’t want to take away tenants’ right under after the Heller and McDonald cases, yet we need to make sure that tenants understand, in the common areas especially, if they brandish or show a weapon they will be evicted. However, I do not think it is a good idea to take away a tenant’s right to possession in their own apartment unit or home. That is just how I personally look at it. Each private landlord has to make a decision on this subject based on an analysis of all the factors set forth in this article. I suggest you talk to your attorney and your insurance broker to make your own decision on the subject is sound,” Dobbins said.
What about restrictions on ammunition in apartments?
In addition to no guns in my apartments can the private sector and private landlords say you can only have so much ammunition? Or no ammunition at all?
“Yeah, private landlords can if they want to, but the same factors are at issue as for gun possession in a tenant-rented unit,” Dobbins said.
“Here’s another issue to think about. Let’s say a private landlord prohibits the possession of firearms and the private landlord calls their property now a ‘gun-free zone’ or a ‘weapon-free zone.’ In my mind, they’ve done exactly what the schools have done when you call a school a gun-free zone. You’ve just opened it up to the crazy people and you’ve said, ‘Hey, nobody here has weapons. Come over here and break in. Come over here and cause havoc to our property because no one is allowed to have weapons here and cannot defend themselves. Come in and steal from them, rob them, do whatever you want to do with them.’
“I think that sets a very bad precedent and as a premises-liability expert, I would say that by doing that you’ve now opened yourself up to say you called yourself a gun-free zone, when it is just not true. You’ve invited bad guys to your property and you intentionally, unknowingly maybe, but still intentionally put your residents at risk of harm. That’s how I look at it.
“Once you invade someone’s privacy in their home for their own protection and their own desires regarding the Second Amendment, now you’re creating some issues that you don’t really need to create. Even if a landlord has a prohibition for tenants regarding guns or ammo, it’s not going to stop someone from having weapons if they want them in their apartment unit. So why have the rule at all? Why take on extra liability and extra problems when we know that possessing a weapon in one’s apartment unit or home is practically unenforceable? A tenant should be able to possess a firearm if they want one, but if the tenant goes around bragging about it, or showing it off, that tenant needs to go.
“Now if a management company maintenance employee goes in and he sees a stockpile of ammunition or weapons, I would immediately contact the authorities and let them deal with it as they will,” Dobbins said.
Should property managers have guns?
Two property managers in Portland were shot by a tenant following an eviction. Should property managers have guns?
“Well, I think we’re getting into that debate a little bit with one of the remedies that’s been brought up about possibly arming teachers. For many years no in Israel the government trains and allows trained teachers to be armed. Israel has no problem with gun violence in schools because everyone knows the teachers are not only armed, but they’re trained.
“Now that’s something for management companies to decide because they’re put in bad situation, for example: ‘Okay, if my managers and staff have a weapon and they use it, am I going to be sued? If they don’t have a weapon and can’t use it, am I going to be sued?’ If they have a weapon and don’t use it, am I going to get sued? They’re in a real pickle because if they do allow staff to carry they need to make sure those staff members are very well-trained, use the weapon when they need to and don’t misuse that weapon. I do not know of any management company that wants to tackle that giant.”
“For me as a property owner I would not mandate my staff to possess weapons. However, I would not take my staff’s constitutional right to protection away either. If the staff lawfully carries a concealed weapon, that is their choice. However, I would not want them to carry openly. Again, you have to decide as a landlord how to handle this issue after consultation with your attorney and your insurance carrier.”
Summary Of No Guns In My Apartments
“There’s something to the deterrent factor, whether you have a liberal slant on guns or a conservative slant on guns. The facts are the facts,” Dobbins said.
“We just have to deal with them in a practical way. There are no easy answers to what private landlords should do about whether or not they allow their tenants to possess a legal firearm in their own apartment unit or home in the face of constitutional rights, liability issues, insurance coverage and individual feelings about weapon possession. But, it is an issue that needs deep thought and consultation with professionals.
“I think we need to take the most practical approaches we can for all of these issues, having something in our lease that says, ‘keep your weapons inside’ and ‘if you bring a weapon in the common area we’re going to evict you.’ Or, ‘no weapon possession allowed period’ and ‘if we learn you possess a weapon on the property, we are going to evict you.’ Whatever your choice, make sure that it is in writing and cannot be misunderstood. Have something in your lease on the subject and make it crystal clear.”