I can’t get my mind off a frightening incident on April 22nd at my local grocery store. It was the same day a shooter in a Waffle House in Tennessee killed four people.
A man in his mid-30’s, accompanied by a woman, entered the Store in Vancouver, Washington, at about 3:30 PM, just as I entered. He was carrying a large handgun on his right hip with his T-shirt tucked behind it to display it. It was prominent, and the way he wore it, he meant to catch the eye. It was rather disturbing: was he another shooter? Would the Store protect me through its security measures? Am I going to be shot as a bystander when this individual, who openly dares others with such display, decides to shoot someone he deems a threat? He continued past me, and I witnessed two shoppers also catch sight of the protruding weapon. I saw one clearly back away as she continued to stare at the gun. Another, who was African American, saw it and turned away from the pair’s direction. The man was white.
I walked by as the pair stopped, took a picture of the man with his gun and went to main office to inquire whether the Store Owner had a restrictive policy on open carry of guns in the private premises of the store.
The Assistant Store Manager stated the Store Owner does not have any policy about restricting guns in its stores. The ASM stated that, by the time we had spoken, three separate calls came to her that there was a shopper openly carrying a gun. I estimate it was about five (5) minutes from the time I saw the individual carrying the gun into the store to the time I spoke to the ASM, not a long interval, indeed. Furthermore, I would guess a number greater than three noticed the displayed weapon and did not call the main office.
A business owner bears a heightened liability under the business invitee rule to make the premises safe from known risks and latent risks. Furthermore, should any employee be killed or injured by such shooter, even more liability related Occupational Health and Safety laws, as well Worker’s Compensation, come to bear.
First, let me say my shopping experience was negatively impacted as I nor no one could be sure that this person carrying the weapon was not, himself, a potential shooter. Was he there to kill? Was there a vendetta about to be finalized? Was the woman perhaps, too, involved in some criminal act with the man?
I am a senior attorney and know that in the state of Washington, a person may legally open-carry in any place it is legal to possess a loaded handgun, as long as it does not manifest an intent to intimidate another or warrant alarm for the safety of other persons. Yet, this rule is the bare minimum of behavior. Furthermore, on private property, a store owner may restrict such use without violating any federal or state protections. Indeed, a business owner has multiple reasons to restrict open carry of dangerous weapons.
Compare “open carry” to “concealed weapon” in Washington
A concealed weapon permit requires a proper background check and vetting by local authorities. An openly carried weapon bears no such safeguards. Thus, even then a policy restricting “open carry” would at least move in the safer direction while permitting “concealed carry.”
Furthermore, with open carry laws, police may take such weapons (even though open carrying of firearms is not prohibited by law), as Washington police may temporarily seize guns from people a judge deems a threat to themselves or others. More so, law enforcement personnel may alert mental health professionals, who can determine if someone is a threat or needs involuntary treatment.
Store has a duty to keep premises safe for customers and employees
As the store became aware of this risk of potential but deadly harm, its liability manifestly increased as it took no steps to assure its business invitees or employees suffered no harm. Should there have been an incident, a court would ask if the premise’s owner took steps to limit both observable and latent risks to assure the premises were safe for the business invitee. Indeed, the ASM stated that as she had received three (3) calls, she alerted the store’s “Loss Prevention” staff to keep an eye on the two.
Is the Loss Prevention team a sufficient response to protect both customers and employees against a shooter? Is this protocol enough of a response to offset the legal risks? No, not even close. However, a complete ban or restriction as a policy would indeed offset the business owner’s legal risks.
Truly, as she spoke about the LP response, the ASM’s tone changed and she asked that I follow up by letter her know about any results I receive from my letter (this inquiry) to your office. I felt from our conversation she was highly concerned for her own safety at that stage in our discussion.
Consider, too, that as to employees, such policy (which is “no policy”) creates a hostile environment for its workers. (I’m delighted that where I work, no one is permitted to openly carry a weapon!). Thus, open carry is fine for the State, but not fine for a private owner who wants the public and its employees to trust it is creating a safe place to shop and to work.
Nothing the Store did in this situation assured its customers, employees and business distributors were safe from that the pair who freely and openly carried a large handgun. Did he have a balanced mind? What if they had walked in with shotguns or AR 15’s? Would there then exist a restrictive store policy or a “no policy” which invites risk?
Social and Market Implications, and Cost-Benefit
On a cost/benefit analysis, why does the Store Owner not have such a policy to restrict the open carry of dangerous weapons? Any gain for the few shoppers who wish to carry their weapons onto private property is offset and lost by the mounting legal risks associated with the business owner’s premises’ liability, as well as employees’ right for a safe working environment. Other market losses arise when other shoppers no longer feel safe and no longer purchase their goods at the Store.
Still, is the Store Owner just waiting for another mass shooting so it can be next in the long line of retail establisments where such violence takes place? Is the Store Owner falling behind other retailers in doing more than the minimum required by law? In this vein, there are other major retailers who are already asking customers not to bring their guns into such stores. Malls don’t permit open carry, neither do Panera Bread, Target, Starbucks, and more. Already, most employers don’t permit open carry at work.
Also, I showed the picture of the individual carrying the weapon to two store employees. I don’t doubt for a minute that if the picture were of an African-American carrying the same weapon that the store would have immediately called the police. I asked a Senior Store Clerk about this policy, and he replied that if the customer had a gun at least he could “protect us from a shooter.” I replied, “Unless he is the shooter, right?” His face grew blank.
Recent events call for new action
Don’t recent events in the news regarding mass shootings demonstrate the need for additional action on the part of responsible retailers? In response to the tragic events all across America, the Store Owner should take a hard look at its policies and procedures for firearm carry in its stores. Just complying with a minimum of behavior based upon local laws is not enough.