Conceal and Carry: Considerations for Municipalities

Municipal Law Alert, September 2011

This summer, Wisconsin passed Act 35 and became the 49th state to adopt some form of a concealed carry law. The legislation, which takes effect on November 1, 2011, has significant implications for Wisconsin municipalities.

Prior to the new law, Wisconsin prohibited individuals from carrying concealed weapons. The new law allows licensed individuals to carry a concealed weapon. Most individuals who are at least 21 years old (felons are generally not eligible) will be eligible to receive a permit to carry a concealed weapon. Once a permit is obtained, the permit holder may carry a concealed weapon anywhere in the state, except in schools, police stations, sheriff’s offices, prisons or jails, courthouses, government offices that have electronic screening devices and airports (but only beyond security checkpoints) and any portion of a building that is a municipal courtroom if court is in session. The above prohibitions do not apply to a weapon in a vehicle driven or parked in a parking facility located in a building that is used as, or any portion of which is used as, one of the locations that is the subject of the prohibition.

Thus, once the law takes effect on November 1, 2011, if the municipality has taken no action, licensed individuals may carry a concealed weapon in buildings owned or operated by the municipality. However, property owners, including municipalities, may choose to ban weapons in buildings they own or control.

Therefore, each municipality must make a decision: to ban weapons, to allow weapons, or to do nothing (which effectively allows weapons) in its municipal buildings. This is a threshold decision. If a municipality decides not to ban weapons in municipal buildings, no action is necessary. However, if a municipality decides that it is going to ban weapons in municipal buildings, some action must be taken.

In making this decision, it is advisable that consideration be given to the immunity provided by Act 35 if the municipality does not ban weapons in municipal buildings. Under the new law, a person that does not prohibit an individual from carrying a concealed weapon on property that the person owns or occupies is immune from any liability arising from its decision. Wis. Stat. § 175.60(21)(b) and (c). Thus, if the municipality does not ban weapons, it is immune from any liability arising from that decision.

If, however, the municipality decides to ban weapons, there are two categories of people to be concerned about: employees and visitors. First, employers may prohibit employees from carrying guns by adopting a policy. However, employers may not prohibit their employees from keeping a weapon in a vehicle in the parking lot.

The second group of individuals to consider is visitors. Obviously, this second group is not subject to a municipality’s employment policies. The only way to prohibit visitors from carrying weapons in municipal buildings is to provide the notice required under the new law. In order to give notice that weapons are banned, under Wis. Stat. § 943.13(1m)(c)4, a municipality must post a sign located in a prominent place near all of the entrances to the part of the building to which the restriction applies and where any individual entering the building can be reasonably expected to see the sign. The sign must state the restriction and be at least five inches by seven inches.

If the decision is made to ban weapons in municipal buildings, it makes sense to adopt a resolution or ordinance setting forth those restrictions. If such a resolution or ordinance is adopted, care should be taken to make sure it is narrowly tailored in order to avoid violating Wis. Stat. § 66.0409(2). You should consult with your municipality’s attorney to make sure your ordinance or resolution is compliant with Wisconsin law.

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