The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Court Upholds W. Va. Law Requiring Property Owners to Allow Guns Locked in Customer or Employee Cars in Parking Lot
From yesterday's decision by Judge John T. Copenhaver, Jr. (S.D. W. Va.) in W. Va. Coalition Against Domestic Violence, Inc. v. Morrisey; note that the court struck down two other provisions of the law, which I discuss in a separate post:
Previously, the BLPA [West Virginia's Business Liability Protection Act] allowed property owners to prohibit the open or concealed carry of a firearm anywhere on their properties …[:] "[A]ny owner, lessee or other person charged with the care, custody and control of real property may prohibit the carrying openly or concealing of any firearm or deadly weapon on property under his or her domain." …
In March 2018, the West Virginia Legislature enacted House Bill 4817 [the Parking Lot Amendments], which amended the BLPA to prohibit property owners from banning firearms in the parking lot areas of their properties …:
No owner, lessee, or other person charged with the care, custody, and control of real property may prohibit any customer, employee, or invitee from possessing any legally owned firearm, when the firearm is
- Lawfully possessed;
- Out of view;
- Locked inside or locked to a motor vehicle in a parking lot; and
- When the customer, employee, or invitee is lawfully allowed to be present in that area….
No owner, lessee, or other person charged with the care, custody, and control of real property may prohibit or attempt to prevent any customer, employee, or invitee from entering the parking lot of the person's place of business because the customer's, employee's, or invitee's motor vehicle contains a legal firearm being carried for lawful purposes that is out of view within the customer's, employee's, or invitee's motor vehicle….
The court will refer to [those provisions] collectively as the "No-Prohibition Provisions."
The BLPA also prohibits owners, lessees, and persons charged with the care, custody, and control of parking lots from "violat[ing] the privacy rights of a customer, employee, or invitee … [b]y conducting an actual search of a motor vehicle in a parking lot to ascertain the presence of a firearm within the vehicle[.]" The court will refer to this subsection as the "Search Provision." …
Finally, the "Employment Provision" … prohibits employers from conditioning employment on an employee's agreement to refrain from keeping a firearm locked in or locked to a vehicle in parking lot areas. {The Coalition does not challenge [a separate] subsection …, which prohibits employers from conditioning employment on "[t]he fact that an employee or prospective employee does or does not hold a [concealed carry license or provisional concealed carry license]."}
The court upheld the No-Prohibition Provisions:
[1.] The court held that, while the provisions restricted the challengers' property rights, those restrictions were constitutionally permissible. That seems consistent with the Supreme Court's precedents, especially PruneYard Shopping Center v. Robins (1980), which held that state decisions to require large privately-owned shopping centers to allow leafletters and signature gatherers didn't violate the owners' property rights.
[2.] The restrictions didn't violate members' constitutional freedom of association rights. The court relied here, I think correctly, on Rumsfeld v. FAIR (2006), which held that private universities' expressive association rights weren't violated by the requirement that they allow military recruiters on the same terms as other recruiters. (Note that, though the law in Rumsfeld was a spending condition, the Court expressly held that the law would have been constitutional even as a direct regulation.)
[3.] The restrictions didn't violate any right of personal security that the Constitution might protect. That too, I think, is correct, given the very narrow scope of any such general personal security right that the courts have recognized.
The court also upheld the Search Provision against a vagueness challenge, again correctly, I think. And it didn't discuss the Employment Provision separately, presumably because plaintiffs didn't articulate enough of a challenge to it.
