Jan 18

Can Employees Stick to Their Guns?

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California employees might have the right to bring their guns to work.

California employees might have the right to bring their guns to work.

The recent terrorist attack in San Bernardino and other high-profile mass shootings have ignited more mass hysteria about guns and more calls for gun control legislation. But many employees are coming to believe that real gun control means using both hands. Instead of letting themselves become sitting ducks for the next “active shooter,” many employees – particularly taxi drivers, for whom the risk of homicide for cab drivers is 21 to 33 times higher than for other employees – are asking whether they can carry handguns.1 In California, the answer to that question depends on whether an employee’s workplace is a “place of business.”

Aiming to Please: Carrying a Handgun in a Fixed “Place of Business”

If you own a fixed of place business and want to keep a gun in the office, say hello to your little friend: California law.

If you own a fixed place of business and want to keep a gun in the office, say hello to your little friend: California law.

California law allows just about any law-abiding citizen or lawful resident to carry a handgun (openly or concealed) anywhere within his “place of business.”2 But “place of business” doesn’t mean “place of employment.”3 One’s place of employment isn’t his place of business, unless he has both: (1) the right to exclude others from using the property; and (2) the right to control activities occurring on the property.4 Thus, a convenience store owner has a right to keep a gun behind the counter because he has a possessory interest in the store. But a convenience store clerk doesn’t have a right to bring a gun onto the premises without the owner’s permission.5

Even if an employer bans guns from the workplace, he’ll have a hard time enforcing it. Generally, an employer can’t search an employee’s office or desk (even if it’s company property) unless: (1) the employer has reasonable grounds for suspecting that the search will uncover evidence of work-related misconduct or that the search is necessary for a non-investigatory, work-related purpose (e.g., retrieving a file); and (2) the scope of the search is reasonably related to the objective of the search and not excessively intrusive in light of the nature of the misconduct. Thus, an employer can’t arbitrarily search his employees’ offices or desks for guns as a “precaution.”

The physical search of an employee’s personal property is even harder to justify. Unsurprisingly, California isn’t among those states that prevent a private sector employer from banning employees from bringing guns into the company parking lot. But an employer still can’t physically search an employee’s car without his consent.6 The employer may, however, visually inspect any car in his parking lot, though that usually won’t locate a gun.7 California law generally prohibits a person from transporting a handgun, loaded or unloaded, unless he keeps it in a locked container (not the glove box or center console) or the trunk.8

Have Gun, Will Travel? Carrying a Handgun in a Mobile “Place of Business”

In California, you can have a gun in your car if that's your place of business.

In California, you can keep a gun in your car if that’s your place of business.

The Court of Appeal has gone back and forth about whether a taxi cab falls into the “place of business” exception. In People v. Marotta, 128 Cal.App.3d Supp. 1 (1981), the Court of Appeal reversed a cabbie’s conviction for carrying a concealed weapon and other gun crimes after he admitted to having a loaded handgun on the floorboard of his taxi. The Court held that a taxi was “as much a place of business as a store in a fixed location” because the taxi wasn’t merely a means of transportation for the cabbie. Thus, Marotta stands for the proposition that a motorist can have a gun in his car if he has no other business location but his car.

The Court of Appeal reached a different outcome four years later. In People v. Wooten, 168 Cal.App.3d 168, 173 (1985), the Court declined to extend the “place of business” exception to a bounty hunter who had been convicted of possessing a loaded gun in his glove compartment. The Court criticized Marotta’s broad interpretation of a “place of business,” limiting the term to its “natural meaning” of a “fixed location.” In any case, the Court noted that Marotta was “readily distinguishable” because a cabbie, unlike a bounty hunter, had to do business in his cab. The Court reasoned that any criminal could frustrate the law by claiming to be a traveling salesman.

The cabbie’s right to keep a gun in his cab wouldn’t mean much if he had to keep it in a locked container or the trunk. Fortunately, even the California Legislature isn’t so anti-gun that it expects him to unlock a container during a stick-up. Thus, the cabbie can still keep his gun under the seat, at least as long as Marotta’s holding that a cab is a “place of business” remains good law.9 But he’d better have good aim: California law prohibits a driver from willfully and maliciously firing a gun from his car at anyone other than his passenger.10 Similarly, a driver can’t shoot at any game bird or animal (including a marine mammal) from his vehicle.11

  1. Occupational Safety & Health Admin. OSHA Fact Sheet: Preventing Violence Against Taxi and For-Hire Drivers (April 2010). 

  2. Pen. Code §§25605(a), 26035. 

  3. See, e.g., Pen. Code §26150(a)(3)(referring to a person’s “place of business or employment”). 

  4. People v. Barela, 234 Cal.App.3d 15, 20 (1991). 

  5. Pen. Code §26035. 

  6. Greenberg v. Alta Healthcare Sys., LLC, 2004 WL 859185 (Cal. App. 2004). 

  7. Salazar v. Golden State Warriors, 2000 WL 246586, at *2 (N.D. Cal. 2000). 

  8. Pen. Code §26389. 

  9. Id

  10. Pen. Code §21600(c). 

  11. Fish & Game Code §3002. 

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.