As I’m sure many of you are aware, Wisconsin has a new Carrying Concealed Weapon (CCW) law.  Wisconsin Act 35 was signed into law on July 8, 2011 and took effect on November 1, 2011.

Since the new law was published, I have received several calls from landlords and property management companies asking me how this new law will affect them.  Since the question has come up repeatedly I thought I would do a post on it.

If you have any questions about the CCW law generally the best resource I can direct you is a document that was published by the Wisconsin Department of Justice in August 1, 2011 entitled “Wisconsin’s New Carrying Concealed Weapon Law: Questions and Answers”   If you are interested in learning how the new law applies to employers generally (not just landlords) you should read Petrie & Stocking’s Talking Workplace Law Blog posts on the subject here and here.

The Basics:

1.   The law allows individuals to carry a concealed weapon upon their person in most locations as long as they have applied for and received a permit to do so.

2.  The types of weapon that can be carried include: handguns, an electric weapon as defined in Wis. Stat. § 941.295(1c)(a), a billy club, and a knife other than a switchblade.  See Wis. Stats. § 175.60(1)(j). A handgun does NOT include a machine gun, short barreled rifle or short barreled shotgun.  See Wis. Stat. § 175.60(1)(bm)

2.   The law provides immunity to owners of property who do not prohibit the carrying of concealed weapons on their property.  So if you allow concealed carry on your property by others you will not be held liable for any consequences arising from that decision.  Wis. Stat. § 175.60(21)(b).

3.   The law also permits owners to prohibit persons from carrying concealed weapons on their property.

4.   Prohibiting concealed carry on your property strips you of the immunity mentioned above.

5.   If you wish to prohibit concealed carry on your property you must post signs that are (a) at least 5 inches by 7 inches, (b) state that concealed weapons are not allowed in the building or on the premises, (c) specify the area where the prohibition applies if the prohibition only applies to a portion of the property, (d) place the signs on or near all entrances to the building.

So How Does The New Law Affect Landlords?:

An owner of rental property must decide whether or not they wish to prohibit the carrying of concealed weapons in their rental property and on the property grounds.  Second, if they do wish to prohibit concealed carry they must determine if the prohibition will apply to the entire building or just certain portions of the building.  Third, they must post the required signage.

If you prohibit concealed carry in your rental property, and proper notice has been posted, then it is against the law for anyone to enter, or remain in the common areas of the building or on the grounds of the building after being asked to leave, while carrying a concealed weapon.

IT IS IMPORTANT TO NOTE that Wisconsin’s new CCW law does not address a tenant’s right to keep a weapon in his/her rental unit.  The CCW law only deals with carrying a concealed weapon in public places such as the common areas of the apartment building.  So even if the landlord posts signs preventing concealed carry in the apartment building, that does not prevent a tenant from keeping a weapon in his/her unit.  A tenant has the right to keep a weapon in his/her rental unit just the same as a homeowner has the right to keep a weapon in his/her single family home.  So if a landlord does not want a tenant to be able to keep a weapon in their rental unit than such language must be included in the tenant’s rental agreement.

Also, even if a landlord prohibits concealed carry in the rental property, that prohibition does not apply to the apartment’s parking lots.  A tenant is  allowed to keep a weapon in his/her vehicle if parked in the apartment complex’s parking lot.

Many Unanswered Questions:

Wisconsin’s new CCW law leaves many questions unanswered.

One question that immediately came to my mind is what will happen in those situations in which a landlord prohibits concealed carry in the apartment complex but has failed to include a lease provision prohibiting a tenant from keeping a weapon in the tenant’s rental unit?  The tenant has a right to keep a gun in his rental unit but how can he get the gun to and from his unit without violating the CCW prohibition since, depending on the layout of the apartment complex, the tenant will have to walk through a common area such as a hallway or lobby?  Which “right” trumps in this situation?

Taking a more broad perspective of the law, there are even more important questions that remain unanswered, such as:

-   How broad will the immunity provided under the new law extend?

-  If a landlord decides to prohibit concealed carry in his rental property is he opening himself up to increased liability exposure?

-  If a landlord prohibits concealed carry in his rental properties, does s/he now have a broader duty to protect his tenants or their visitors from someone that may enter the rental property with a weapon and ignores the CCW prohibitied posting?  Does the landlord have an obligation to actively attempt to enforce his no CCW policy?  If so, how should he enforce it?  Does he have to post an employee at every entrance to ask people who enter if they are “packing heat”?  Does he have to frisk people upon entering the apartment building?  If a tenant is injured by another person who ignores the CCW prohibited sign will the landlord be liable to the tenant?

We will not learn the answers to these questions until the DOJ provides additional guidance or until lawsuits are filed, trial court and juries make decisions, and appellate courts either affirm the trial court’s decision or not.

For additional factual scenarios and unanswered questions raised by Wisconsin’s new CCW law I reccomend a magazine article entitled “Concealed Weapons Questions and Answers” written by Attorney Josh Johanningmeier published in the Wisconsin Independant Agent magazine.

 

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