Help

Honorable Andy Gipson, Esq.

Office of the Attorney GeneralApril 21, 2017

2017 WL 2269812 (Miss.A.G.)
Office of the Attorney General
State of Mississippi
*1 Opinion No. 2017-00063
*1 April 21, 2017

Re: Request for Opinion on Gun Possession on Governmental Property

 
*1 Honorable Andy Gipson, Esq.
*1 Mississippi House of Representatives
*1 Post Office Box 1018
*1 Jackson, MS 39215-1018
Dear Representative Gipson:
*1 Attorney General Jim Hood has received your request for an official opinion and assigned it to me for research and response.
 
Background and Issue Presented
 
*1 Your letter states:
*1 I would appreciate your office providing an Attorney General's opinion in response to the following question. I have been advised by an employee of the Mississippi Department of Transportation (“MDOT”) that MDOT may have limited or attempted to limit the carrying of concealed firearms by holders of the enhanced license authorized under Miss. Code Ann. 97-37-7(2) which provides in pertinent part as follows:
*1 y(3)27 A person licensed under Section 45-9-101 to carry a concealed pistol, who has voluntarily completed an instructional course in the safe handling and use of firearms offered by an instructor certified by a nationally recognized organization that customarily offers firearms training, or by any other organization approved by the Department of Public Safety, shall also be authorized to carry weapons in courthouses except in courtrooms during a judicial proceeding, and any location listed in subsection (13) of Section 45-9-101, except any place of nuisance as defined in Section 95-3-1, any police, sheriff or highway patrol station or any detention facility, prison or jail ....
*1 The statute seems clearly to authorize the carrying of firearms by such enhanced license holders in MDOT facilities, as they are not prohibited locations. Additionally, the Mississippi Supreme Court last year in answering a certified question (see Swindol v. Aurora Flight Sciences Corporation, 2015-FC-01317-SCT) found an exception to the at-will employment doctrine where private employers may be found to impinge on employees' rights to possess or carry firearms. Presumably this principle would extend to state employees who hold the enhanced concealed carry license. Under current law, does the Mississippi Department of Transportation have any authority to limit the carrying of concealed firearms by holders of the enhanced concealed carry license 1) by the general public lawfully carrying firearms pursuant to Section 97-37-7(2) within MDOT facilities; or 2) by employees of MDOT lawfully carrying firearms pursuant to Section 97-37-7(2)?
 
Response and Legal Discussion
 
*1 It appears from your letter that the request involves past action of MDOT and their employees. Our opinions can neither validate nor invalidate past action, and, for this reason, we do not opine on past actions. Additionally, we do not opine as to the legal rights of private individuals. Individuals who violate firearm possession laws are potentially subject to criminal penalties, arrest or adverse employment decisions. Accordingly, private citizens should not rely on our opinions for legal advice since courts are neither bound by nor required to follow our opinions. We strongly encourage private citizens making decisions regarding the carrying of concealed weapons where the law is not clear to seek the advice of private counsel that can represent their personal interests.
*2 As first pointed out in our opinion to Cantrell in 2013, the Legislature adopted the enhanced permit scheme by way of a floor amendment to a bill in the 2012 session without the considered deliberation usually afforded through the committee process. The amendment, as adopted, created substantive law by way of a general negative reference to a previously existing statute. The result was and remains a confusing and contradictory set of statements. The law is even more complicated when considered in conjunction with other statutes governing the ability of counties and municipalities to regulate firearms on public property. Since enactment of this statute, various public officials have required over some 20 odd opinions from this office in an effort to assist them in understanding the law. In order to accurately reflect the complexity of the law as written and when applied to facts, these opinions are necessarily long, complex and laden with footnotes. It taxes the time and ability of good lawyers well versed in the subject matter to make some sense of the law as written. The inability of intelligent lay persons to make sense of it is evidenced by the number and nature of the requests this office receives, both in writing and by phone, for assistance in applying the law. The unclear state of the law makes enforcement thereof a dubious prospect for any prosecutor charged with proving that a defendant knowingly violated it. The following applies the statutes as written to your factual question.
*2 Question no. 1: Does MDOT have any authority “to limit the carrying of concealed firearms by holders of the enhanced concealed carry license 1) by the general public lawfully carrying firearms pursuant to Section 97-37-7(2) within MDOT facilities”?
*2 MDOT is a state agency. For reasons discussed both above and below, we can only answer this question generally. As a general matter, state agencies have the authority under certain conditions to limit the carrying of concealed weapons by enhanced license holders, regular license holders and unlicensed carriers.1 We answered this question with regard to regular (non-enhanced) license holders in MS AG Op., Hyde-Smith (Oct. 23, 2013) as follows:
*2 With regard to concealed weapons, your question is readily answerable by reference to Miss. Code Ann. Section 45-9-101(13) which states in relevant part:
*2 In addition to the places enumerated in this subsection, the carrying of a stun gun, concealed pistol or revolver may be disallowed in any place in the discretion of the person or entity exercising control over the physical location of such place by the placing of a written notice clearly readable at a distance of not less than ten (10) feet that the “carrying of a pistol or revolver is prohibited.”
*2 It is the opinion of this office that [a state agency] ... can disallow the carry of concealed weapons by concealed permit holders by following the notice provisions of Section 45-9-101(13). Thus, with regard to regular concealed carry permit holders, a public body can prohibit the concealed carrying of weapons in all locations by posting the signage referenced in Section 45-9-101, other signage that provides actual notice or otherwise providing actual notice to individuals. We note that disregard of such a sign or other notice would not be a concealed-weapons violation. Rather, depending on the facts, disregard of the sign could constitute a violation of Section 97-17-97 (trespass after warning), Section 97-17-93 (entry without permission) or other statutes.
*3 In regard to enhanced license holders, this office has opined:
*3 With regard to enhanced permit holders a municipality has limited authority to prohibit enhanced permit holders from entry into property owned or controlled by the municipality by posting the signage set out in Section 45-9-101(13). This authority is limited because enhanced permit holders are specifically authorized by Section 97-37-7(2) to carry “weapons” as follows:
*3 A person licensed under Section 45-9-101 to carry a concealed pistol [and who has also obtained an enhanced permit endorsement on his license] shall also be authorized to carry weapons in courthouses except in courtrooms during a judicial proceeding, and any location listed in subsection (13) of Section 45-9-101, except any place of nuisance as defined in Section 95-3-1, any police, sheriff or highway patrol station or any detention facility, prison or jail.
*3 Reading Section 97-37-7(2) in conjunction with Section 45-9-101(13), it is the opinion of this office that an enhanced permit holder can carry a stun gun or a concealed pistol or revolver (even where governmental entities have posted signage) in ... locations found in Section 45-9-101(13) ...
*3 MS AG Op., Trapp (Dec. 2, 2013). Condensed to its essence, our opinion with regard to enhanced license holders is that a state agency can prohibit such holders from carrying onto agency-controlled property so long as it is not a location listed in Section 45-9-101(13).2
*3 Your letter states that the statutes seem “clearly to authorize the carrying of firearms by ... enhanced license holders in MDOT facilities” because “they are not prohibited locations.” We understand your usage of “prohibited locations” to mean Section 45-9-101(13). The statement seems to contemplate that enhanced license holders have some greater right to carry in non-prohibited (i.e., locations not listed in Section 45-9-101(13)) locations than do regular license holders. Our opinion is that in locations that are not prohibited under Section 45-9-101(13), enhanced and regular licensed carriers have the same carry rights. Section 97-37-7(2), in authorizing enhanced licenses, states, “[a] person licensed under Section 45-9-101 ... who has ... completed [a] ... course ... shall also be authorized to carry weapons in ... any location listed in subsection (13) of Section 45-9-101.” Thus, the locations listed in Section 45-9-101(13) are the additional locations which are added to a regular license to make it an enhanced license. These additional locations are what differentiate an enhanced license from a regular license. If a Section 45-9-101(13) location is not involved, the rights of enhanced and regular license carriers are identical. If we assumed that all MDOT facilities were not locations listed in Section 45-9-101(13), then it would be our opinion that MDOT could, by signage alone, keep all concealed carriers off of its property. We, however, cannot conclude without further information whether all of MDOT's facilities are not listed in Section 45-9-101(13).
*4 With regard to MDOT, or any other facilities controlled3 by a state agency, there is no blanket answer to your question. Whether a person with an enhanced license can carry onto the property is dependent, at least in part, on whether it is a location identified under Section 45-9-101(13). If so, a state agency may not prohibit an enhanced license holder from carrying in the public areas of that location.4 If, however, the location is not listed in Section 45-9-101(13), a state agency that controls the property can prohibit both an enhanced and regular license holder by the posting of a sign pursuant to Section 45-9-101(13). Additionally, we cannot state whether a particular MDOT facility or building might constitute a “police, sheriff or highway patrol station or any detention facility, prison or jail.” (MDOT has certain law enforcement authority to enforce vehicle weights on highways.) If such were the case, then no enhanced, regular or unlicensed carrier could carry on the property. See Miss. Code Ann. Sec. 45-9-101(13); Miss. Code Ann. Sec. 97-37-7(2).
*4 Question no. 2: Does MDOT have any authority “to limit the carrying of concealed firearms by holders of the enhanced concealed carry license ... by employees of MDOT lawfully carrying firearms pursuant to Section 97-37-7(2)?
*4 It is the opinion of this office that state employers have the authority through employment policies and practices to limit the carrying of concealed firearms by employees with an enhanced license issued pursuant to Section 97-37-7(2). In MS AG Op., Cantrell (Oct. 1, 2013) this office opined that a “school board may establish employment policies and enter employment contracts which prohibit the carrying of concealed weapons by employees, even with enhanced carry certification.” See also, MS AG Op., Pennington (Mar. 1, 2013) (same); MS AG Op., Bounds, (Jan. 5, 2012)(IHL and universities may address the possession of firearms by employees by employment policies). We believe that a public employer's authority in this area extends to both enhanced and regular license holders.
*4 Your letter cites a recent Mississippi Supreme Court decision regarding possession of firearms in locked vehicles in parking lots that are provided by an employer. In finding an exception to the Mississippi employment-at-will doctrine and the existence of an action for wrongful termination, the Mississippi Supreme Court held:
*4 The Legislature has “independently declared” via Section 45-9-55 that terminating an employee for having a firearm inside his locked vehicle is ““legally impermissible.” As Swindol succinctly argued before the district court: “an employee is wrongfully discharged if terminated for an act specifically allowed by Mississippi law, the prohibition of which is specifically disallowed by ... statutory law.”
*4 Swindol v. Aurora Flight Scis. Corp., 194 So. 3d 847, 854 (Miss. 2016). The Swindol opinion relied on Section 45-9-55 and in particular subparagraph (1). Section 45-9-55 states, in relevant part:
*5 (1) Except as otherwise provided in subsection (2) of this section, a public or private employer may not establish, maintain, or enforce any policy or rule that has the effect of prohibiting a person from transporting or storing a firearm in a locked vehicle in any parking lot, parking garage, or other designated parking area.
*5 (2) A private employer may prohibit an employee from transporting or storing a firearm in a vehicle in a parking lot, parking garage, or other parking area the employer provides for employees to which access is restricted or limited through the use of a gate, security station or other means of restricting or limiting general public access onto the property.
*5 (3) This section shall not apply to vehicles owned or leased by an employer and used by the employee in the course of his business.
*5 (Emphasis added). Subparagraph (1) applies to both public and private employers and makes it unlawful to create a policy or rule that prohibits an employee from transporting or storing a firearm in a locked vehicle in an employer parking lot, garage or parking area. There is no law specifically prohibiting a public employer from prohibiting guns in the workplace. Our Supreme Court has previously upheld an employer's policy preventing the carrying of firearms to the workplace. So holding, the Court stated:
*5 The question now before the Court is whether taking a firearm to work in violation of company policy is a deliberate act which constitutes misconduct sufficient to disqualify a terminated employee from receiving unemployment benefits. We hold that it is. As a result we reverse the decision by the Adams County Circuit Court and reinstate order of the Mississippi Employment Security Commission's Board of Review.
*5 Mississippi Employment Sec. Comm'n v. Lee, 580 So. 2d 1227 (Miss. 1991).5 The Legislature in enacting Section 45-9-556 apparently understood employer-employee law to be that employers could limit firearms in the workplace and, thus, found it necessary to pass this law so that employers could not adopt such policies where it involved transporting or storing a firearm in a locked vehicle.7 The Legislature chose to draft this statute narrowly and to apply this prohibition against employment policies regarding firearms to a very narrow set of facts. Had the Legislature intended to prohibit all policies regarding firearms in the workplace, it could have chosen far different language.8 Moreover, subparagraph (3) seems to reaffirm the employer's right to prohibit an employee's possession of weapons by exempting from the statute's applicability a vehicle owned or leased by the employer and used in the course of business. It is the opinion of this office that the existence and application of Section 45-9-55 supports what this office understands to be the existing authority of employers to prohibit possession of firearms through policies and rules in the workplace.
*6 As with our answer to question one, we see no distinction in this area between the rights of an enhanced license holder versus those of a regular license holder. Because place of employment is not a location listed under Section 45-9-101(13), enhanced carriers would have no greater carry rights at their place of employment than a regular license holder. Moreover, as we noted in our Cantrell opinion, even an enhanced carrier cannot carry into locations in public buildings that are normally not open to the public. We opined as follows:
*6 Although an enhanced licensee may carry into the public areas of a school facility, the enhanced license does not authorize him to enter onto parts of property where the public is not generally allowed. As we have stated in previous opinions, even persons carrying a weapon with an enhanced permit may be barred from parts of a government-owned property listed in Section 45-9-101 (13) to which the public is normally not allowed. See MS AG Op., Bounds (Jan. 5, 2012) and MS AG Op., Johnson (Aug. 31, 2011).
*6 MS AG Op., Cantrell (Oct. 1, 2013). Many aspects of public employment occur in areas which are not open to the public, such that neither a regular or enhanced concealed carrier nor an open carrier is authorized to access those areas. The mere existence of a right to carry a weapon does not set the bounds to which that person may have access. The right to limit access to areas of even a publicly owned building seems to be a given under the law. The fact that a person holds a weapons license does not negate this right to limit access.9 Accordingly, it is the opinion of this office that employers10 may restrict the rights of employees to carry weapons through appropriate and reasonable employment policies with regard to the actual employment.11 Because concealed carry is not a constitutional right, impingement of constitutional rights by public entities12 restricting firearm possession by employees is not at issue.13
*6 We further note that the Legislature has restricted the open carry of firearms only on educational property. See Miss. Code Ann. Section 97-37-17. There are no statutes such as Section 45-9-101(13) or Section 97-37-7(2) that place any corresponding open carry restrictions on locations such as “police, sheriff or highway patrol stations or ... detention facilit[ies], prison[s] or jail[s].” Thus, the only authority a public employer has to prevent or regulate the carrying of weapons on such facilities is through employment policies and/or rules.
*6 If this office can be of further assistance, do not hesitate to contact us.
Sincerely,
*6 Jim Hood
*6 Attorney General
*6 By: Ricky G. Luke
*6 Assistant Attorney General

Footnotes

See Miss. Code Ann. Section 45-9-101 (24) (as amended)(authorizing concealed carry of firearms without a license).
The Trapp Opinion was written with regard to municipalities but as a general application of the statute. Municipalities no longer have the same sign posting authority as state entities because of amendments to Section 45-9-53. Pursuant to Section 45-9-54(4)(a) and (4)(b) municipalities are, in essence, allowed generally to post signs only with regard to Section 45-9-101(13) locations and in a more limited fashion in locations other than those identified in Section 45-9-101(13) and Section 45-9-53(1 )(f). MS AG Op., Broom (Feb. 6, 2015)(Other than locations “listed in Section 45-9-53(1 )(f) and Section 45-9-101(13), ... a county or municipality can only post signs prohibiting carrying of weapons by individuals who are otherwise illegally carrying either a concealed or openly carried weapon.”)
Whether a facility is leased could also affect the issue. See MS AG Op., Criswell (Dec. 5, 2016).
For example, an MDOT facility could, on occasion, be used as a polling place, meeting of a governmental body, or a meeting of a Legislative committee. A room in the MDOT headquarters building, at the Capitol, is regularly used for Commission meetings. At such times, enhanced license holders could enter regardless of posted signage.
When this case was decided at the trial court, Miss. Code Ann. Section 97-37-7(2) provided for a state-wide firearm permit to be issued to ““any person” who was not disqualified under subparagraphs 2(a) through (2)(i). The carry rights under the older statute appeared to be more expansive than even the current enhanced license.
Section 45-9-55 was added to the Mississippi Code in 2006.
At the time Section 45-9-55 was adopted in 2006, Section 97-37-1 already provided a legal right to possess a firearm in a vehicle. Miss. Code. Ann. Sec. 97-37-1 (as amended)(“It shall not be a violation of this section for any person over the age of eighteen (18) years to carry a firearm or deadly weapon concealed ... within any motor vehicle”)(emphasis added).
See Bru/ey v. Vill, Green Mgmt. Co., 592 F. Supp. 2d 1381, 1386-87 (M.D. Fla. 2008), aff'd sub nom. Bru/ey v. LBK, LP, 333 F. App'x 491 (11th Cir. 2009)(The fact that the Legislature passed a law applying to possession of weapons by employees in locked cars “evidences a strong intent not to create the exception” for a situation where an employee carried a firearm across company property).
The fact that a person holds a weapons license of any kind, as we noted in Cantrell, does not authorize that person to enter the classroom of a teacher or office of an administrator. Likewise, it is our opinion that a weapons license does not grant access to the office/non public work space of the Governor, Speaker of the House, President of the Senate, Justice of the Supreme Court, Attorney General or a mid or lower-level employee of state or local government.
As the law exists now, we see no distinction between public and private employers. Section 12 of the Mississippi Constitution authorizes the Legislature to completely “forbid carrying concealed weapons.” A “right” that can be completely denied in the unfettered discretion of the government is not a constitutional right. For this reason, we do not believe that “concealed carry” is a “constitutional right” under the Mississippi Constitution. See MS AG Op., Cantrell (Oct. 1, 2013)(“We note initially that the concealed carry of weapons, as opposed to the open carry of weapons, enjoys no constitutional protections.”); See District of Columbia v. Heller, 554 U.S. 570, 626 (2008)(“the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”); Therefore, questions regarding concealed carry of weapons under Mississippi law must be considered as statutory rights.
In a vein similar to employment policies, we note that the Legislature has restricted the rights of its members, employees and others to possess weapons in the Capitol. Rule 37 states, in part: “No member of the Senate or the House or other person, except an official duly authorized by law, shall carry or have on his or her person, concealed in whole or in part, any firearm while in the Capitol, except upon permission granted by a majority vote of the Senate or the House.”
Deprivation of constitutional rights is protected from governmental interference, not from private action. Florida Retail Fed'n, Inc. v. Attorney Gen. of Florida, 576 F. Supp. 2d 1281, 1295 (N.D. Fla. 2008)(“[T]he constitutional right to bear arms restricts the actions of only the federal or state governments or their political subdivisions, not private actors.”) (citing United States v. Jacobsen, 466 U.S. 109, 113-14, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)).
In any event, it is accepted that governmental employees may have to accept some restrictions on certain constitutional rights, including First Amendment political activity, as a requirement of employment. See Callahan v. Leake Cty. Democratic Exec. Comm., 773 So. 2d 938 (Miss. 2000); Bullock v. Mississippi Employment Sec. Comm'n, 697 So. 2d 1147 (Miss. 1997).
2017 WL 2269812 (Miss.A.G.)
End of Document