Firearms – Can They be Banned in Apartment Communities?

      In my role as a consultant, I have been asked a number of times whether or not guns can be banned at apartment communities. The answer may well depend on the state in which the community is located, but the discussion usually begins with a reference to the Second Amendment to the United States Constitution. The Second Amendment states, “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

      The most recent Second Amendment case decided by the Supreme Court was District of Columbia v. Heller. This case examined the question of whether an individual has the right to keep and bear arms apart from or unconnected to militia service. On a 5-4 vote, the Court held that an individual has the right to possess firearms for lawful use – such as self-defense – in their homes. The Court struck down the part of the D.C. law requiring that lawfully owned guns in a home be locked, unloaded, and disassembled. However, the Court ruled that some gun control laws are permitted. For example, (1) prohibition of concealed weapons; (2) gun possession by felons or the mentally ill; (3) guns in certain areas, such as schools or government buildings; (4) requirements for the sale of guns; (5) the banning of dangerous or unusual weapons; and (6) the regulating of storage to prevent accidents.

      Even though they receive federal funds, most HUD-assisted properties are privately owned. Privately owned properties have control over their own property without restriction (as long as federal law – such as fair housing law – is not violated). This includes owners who accept Housing Choice Vouchers. However, there have been cases where residents of Public Housing Agency owned properties have successfully sued for the right to own and keep a gun in their apartments. In the 2014 case, Doe v. The Wilmington Housing Authority, Delaware’s Supreme Court ruled in favor of a resident’s right to possess a gun in his unit but upheld a ban in the public areas of the site. Essentially, the Court held that common areas are distinct from apartments and can be regulated by the PHA.

      Individual landlords should consider a number of issues before deciding whether to ban guns at an apartment community.

1. Check State Gun Laws: In many states, the law provides that private entities are permitted to ban guns on their sites. If your state has an open carry policy and you decide to ban guns from your property, you may be required to post a sign for residents and visitors stating that guns are prohibited on the property. Whether required to post such signage or not, if you want to ban guns, it is recommended that such signage be posted. In order for messaging on the sign to be considered enforceable, the signage must follow the requirements specific to your state laws, if applicable, regarding the language, font size, duration of display, etc.
2. Modify Leases & House Rules: Language should be added to leases and house rules that spells out weapons restrictions, and for existing residents, post notices for at least 30-days. After that, incorporate the policy into the house rules. For sites that allow gun ownership in the unit, include language that requires gun owners to comply with federal and state laws, prohibits weapons in common areas, and stipulates that weapons and ammunition must be in a locked case when being transported. If you want a total ban on guns, consider adapting the following language:
   1. Tenant agrees not to display, use, or possess, or allow members of Tenant’s household or guests to display, use, or possess any firearms (operable or inoperable), or other offensive weapons as defined by Federal Law and the laws and courts of the State of _______________ anywhere in the unit or elsewhere on the property.
3. Talk to your insurance broker: If you deny an individual the right to keep a gun and then the person is harmed and did not have the ability to protect him or herself, you could be sued. Similarly, you could also be sued if a person has a gun and its accidentally discharged, or if another tenant’s gun causes harm to a neighbor. While such suits generally are not successful, these issues should be discussed with your insurance agent.
4. Include employees in your policy: If you have an employee who legally either has a gun or wants to carry a gun onsite for the protection of the community, he or she must be trained and insured, and specific rules must be in place. I strongly recommend that employees be bound by the same gun policy as residents and visitors but check with your attorney regarding state laws – some of which allow individuals to keep their guns locked in their car.
5. Enforce the policy: Whatever policy you ultimately adopt – apply it consistently and to not make exceptions, unless required to do so by law (e.g., you will almost certainly be required to permit law enforcement officers to keep their weapons on site).