Concealed carry and large apartment buildings

[bob]

carry v. transport: unloaded and encased is transport, not carry, as defined by the FCCA, IIRC. Carry is on or about the body, loaded or unloaded. A very specific meaning for the general term "carry", and in the context of FCCA and FOID, the meaning that must be applied to that activity.

 

what section of the FCCA is that to be found in?

[Dr. Rat]

 

 

Thats one perspective. Another is that I'm simply pointing out that the chances of a properly concealed weapon in the common area of a posted apartment building is pretty much zero. There is a difference between a technical violation of the law and a charge. The reality is that, in this situation, the overwhelmingly likely outcome of an overwhelmingly unlikely discovery is a civil dispute between a lessor and a lessee. From that point people can make whatever decisions they choose to about the level of risk they're willing to endure. My sentiments might well be clear here, perhaps more so given that I don't try to hide my contempt for both foolish laws and the endemically corrupt legislators who want to saddle us with rules they've no intention of following, but pointing out the futility of a bad law isn't the same as advocating it's disregard.

 

My point of view is that one of the strongest factors we have in our favor is being able to make the argument that we are law-abiding citizens. Once we begin encouraging people to violate the law, no matter how much we disagree with it, we lose the ability to take that moral high ground and make that generalization to our cause. We aren't talking about a "technical violation" that doesn't violate the intent of the law. This isn't about a civil dispute with a landlord, it's about a violation of the criminal code. We can debate about whether it's a "foolish" or "bad" law, but it is the law. I think you're mistaken in suggesting that landlords that decide to post won't vigorously prosecute violators and people will be arrested, convicted, fined, and in Cook probably jailed, for violating it.

[kevinmcc]

I'm not a lawyer, but this how I see this situation.

 

Are the lobby, hallways, elevator, stairs, etc... are they not public right of ways?

 

How else do people enter and exit their apartments?

 

Only difference between a sidewalk, a balcony sidewalk, or hallway is if the walkway is inside or outside.

 

I do not believe a no carry signs can apply to public right of ways, but would apply to areas where the management of the complex would conduct business, such as private offices.

[Dr. Rat]

Well, we'll just have to agree to disagree. You do not have a constitutional right to carry a firearm on private property. Period. And the state has been involved in enforcing laws protecting property rights forever - think criminal trespass statutes. Furthermore, any lease or HOA agreement entered into by a party is done voluntarily and any perceived grievances are easily remedied. I just don't see a court ruling against the property owners in this case.

 

I agree, which is what trespass laws are for. Creating a new law with an extra special criminal penalty for the exercise of an unpopular constitutional right is a different story, however. You're free to not invite me onto your property, you're free to ask me to leave, you're free to set whatever terms you want to for my occupation of your land or business, and there ought to be a consequence if I violate any of those decisions. That consequence, however, is already well established in the law. The issue here is if the state can create a substantial special penalty for a trespass that arises from what is an otherwise lawful activity.

 

 

It’s important to note that the FCCA calls for the same penalty for a first violation as does a criminal trespass charge. The FCCA violation does allow the state to increase the penalties and suspend or revoke the CCL for subsequent violations. I assume it was the desire to dissuade violators from becoming repeat offenders that led to the new penalty.

[Indigo]

carry v. transport: unloaded and encased is transport, not carry, as defined by the FCCA, IIRC. Carry is on or about the body, loaded or unloaded. A very specific meaning for the general term "carry", and in the context of FCCA and FOID, the meaning that must be applied to that activity.

 

what section of the FCCA is that to be found in?

 

(430 ILCS 66/5)

Sec. 5. Definitions. As used in this Act:

"Applicant" means a person who is applying for a license to carry a concealed firearm under this Act.

"Board" means the Concealed Carry Licensing Review Board.

"Concealed firearm" means a loaded or unloaded handgun carried on or about a person completely or mostly concealed from view of the public or on or about a person within a vehicle.

 

http://www.isp.state.il.us/docs/ptfire.pdf

 

Commonly Asked Questions on

Transporting Firearms

 

Answers provided to the following questions are meant only to give general guidance regarding transporting

firearms and ammunition. The answers do not and are not meant to replace statutory language.

 

How can I legally transport a firearm on my person or in my vehicle?

Three statutory codes regulate the possession, transfer, and transportation of firearms — the Criminal Code,

the Wildlife Code, and the Firearm Owner’s Identification Act.

Under Unlawful Use of Weapons (UUW) in the Criminal Code, persons who have been issued a valid FOID

card may transport a firearm anywhere in their vehicle or on their person as long as the firearm is unloaded and

enclosed in a case, firearm carrying box, shipping box, or other container. Firearms that are not immediately

accessible or are broken down in a non-functioning state may also be carried or transported under the Criminal

Code. The Wildlife Code, however, is more restrictive. It requires that all firearms transported in or on any

vehicle be unloaded and in a case.

Because of this, it is recommended that, in order to be in compliance with all statutes, all firearms be

transported:

1. Unloaded and,

2. Enclosed in a case, and

3. By persons who have a valid FOID card.

[Dr. Rat]

I'm not a lawyer, but this how I see this situation.

 

Are the lobby, hallways, elevator, stairs, etc... are they not public right of ways?

 

How else do people enter and exit their apartments?

 

Only difference between a sidewalk, a balcony sidewalk, or hallway is if the walkway is inside or outside.

 

I do not believe a no carry signs can apply to public right of ways, but would apply to areas where the management of the complex would conduct business, such as private offices.

 

But an elevator or a lobby isn't a public right of way. They're common areas on private property. The owner usually only allows people access to them under certain conditions. Similarly, the sidewalks on private property are different from public sidewalks.

[chislinger]

My opinion is if a landlord prohibits firearms in a residential building and you do indeed possess a firearm in your rental home in that building your landlord can evict you, but it cannot rise to a criminal matter since there is a Constitutional right to possess firearms in the home. You are also allowed to transport firearms to your home under the law, if not by your lease conditions.

 

eta: IOW the landlord can take civil actions against you, but the state cannot initiate criminal actions against you.

[bob]

carry v. transport: unloaded and encased is transport, not carry, as defined by the FCCA, IIRC. Carry is on or about the body, loaded or unloaded. A very specific meaning for the general term "carry", and in the context of FCCA and FOID, the meaning that must be applied to that activity.

 

what section of the FCCA is that to be found in?

 

(430 ILCS 66/5)

Sec. 5. Definitions. As used in this Act:

"Applicant" means a person who is applying for a license to carry a concealed firearm under this Act.

"Board" means the Concealed Carry Licensing Review Board.

"Concealed firearm" means a loaded or unloaded handgun carried on or about a person completely or mostly concealed from view of the public or on or about a person within a vehicle.

 

http://www.isp.state...docs/ptfire.pdf

 

 

 

the ISP pamphlet has no force of law at all, and the definition of a concealed firearm found in the FCCA is not a definition of carry versus transport.

 

incidentally, the on or about language is interesting in itself.given where it came from.

[chislinger]

at all, and the definition of a concealed firearm found in the FCCA is not a defintion of carry versus transport.

You do not lose your right to transport a firearm just because you have a FOID or FCCL.

[Dr. Rat]

My opinion is if a landlord prohibits firearms in a residential building and you do indeed possess a firearm in your rental home in that building your landlord can evict you, but it cannot rise to a criminal matter since there is a Constitutional right to possess firearms in the home. You are also allowed to transport firearms to your home under the law, if not by your lease conditions.

 

eta: IOW the landlord can take civil actions against you, but the state cannot initiate criminal actions against you.

 

That sounds about right. It would probably just be considered a violation of the lease. CC in posted common areas would be a criminal violation though, but like you say, transport would not - if there's still a legal distinction between the two.

[23657Resident]

Well, we'll just have to agree to disagree. You do not have a constitutional right to carry a firearm on private property. Period. And the state has been involved in enforcing laws protecting property rights forever - think criminal trespass statutes. Furthermore, any lease or HOA agreement entered into by a party is done voluntarily and any perceived grievances are easily remedied. I just don't see a court ruling against the property owners in this case.

 

I agree, which is what trespass laws are for. Creating a new law with an extra special criminal penalty for the exercise of an unpopular constitutional right is a different story, however. You're free to not invite me onto your property, you're free to ask me to leave, you're free to set whatever terms you want to for my occupation of your land or business, and there ought to be a consequence if I violate any of those decisions. That consequence, however, is already well established in the law. The issue here is if the state can create a substantial special penalty for a trespass that arises from what is an otherwise lawful activity.

 

This becomes doubly concerning when we talk about ingress and egress or residential leasing. Barring a building I live in with a relatively small number of units (I think its six, its been awhile since I last worked in the industry), I can't refuse to rent to interracial couples, single men, or unwed mothers. I can't subtly ban children by saying that strollers cannot be used in common areas, thus making it impossible for a renter with kids to easily access the property they're renting. I can't even refuse to allow a disabled person to install substantial modifications. Still, none of these are really direct comparisons because guns are basically the only area where this kind of dispute is potentially criminal rather than civil. I'll be happy to talk about landlord rights when the state isn't using landlords as a proxy in their battle to intimidate and discourage the exercise of an enumerated right.

 

http://www.mentalmagma.com/wp-content/uploads/2008/10/winner.jpg

[mqqn]

Hi Bob -

 

Can you please post the citation from the statute that supports the above statement?

 

Thanks -

 

mqqn

 

That is what the law as written actually says.

 

(a) A licensee under this Act shall not knowingly carry a firearm on or into:

 

It says nothing about loaded, unloaded, cased, or even that it is concealed. It just says firearm. That means all firearms, including long guns because that is what the law as written actually says.

 

Now, it does seem a little absurd, but that is what it says and until the legislature changes it or the courts say it can't be enforced that is what the law actually is.

 

Hi Bob -

 

I have read the rest of this thread - but simply, carry is not transport.

 

best

 

mqqn

[kevinmcc]

I'm not a lawyer, but this how I see this situation.

 

Are the lobby, hallways, elevator, stairs, etc... are they not public right of ways?

 

How else do people enter and exit their apartments?

 

Only difference between a sidewalk, a balcony sidewalk, or hallway is if the walkway is inside or outside.

 

I do not believe a no carry signs can apply to public right of ways, but would apply to areas where the management of the complex would conduct business, such as private offices.

 

But an elevator or a lobby isn't a public right of way. They're common areas on private property. The owner usually only allows people access to them under certain conditions. Similarly, the sidewalks on private property are different from public sidewalks.

 

If you have to enter and exit through the lobby, use the elevator, and walk down the hallway to get to and from your apartment, then those common areas are also a public right of way.

 

Laundry rooms, dining halls, storage rooms, etc.. are also common areas, but would not be a public right of way.

 

Same with sidewalks, even on private property, need to go to and from your apartment off the property, it is a public right of way.

 

Other walkways such as to a pool in a common area would not be a public right of way.

[RoadyRunner]

Rights of way (often easements) override private property rights.

[Dr. Rat]

I'm not a lawyer, but this how I see this situation.

 

Are the lobby, hallways, elevator, stairs, etc... are they not public right of ways?

 

How else do people enter and exit their apartments?

 

Only difference between a sidewalk, a balcony sidewalk, or hallway is if the walkway is inside or outside.

 

I do not believe a no carry signs can apply to public right of ways, but would apply to areas where the management of the complex would conduct business, such as private offices.

 

But an elevator or a lobby isn't a public right of way. They're common areas on private property. The owner usually only allows people access to them under certain conditions. Similarly, the sidewalks on private property are different from public sidewalks.

 

If you have to enter and exit through the lobby, use the elevator, and walk down the hallway to get to and from your apartment, then those common areas are also a public right of way.

 

Same with sidewalks, even on private property, need to go to and from your apartment off the property, it is a public right of way.

 

Other walkways such as to a pool in a common area would not be a public right of way.

 

They aren't though. If a lobby or hallway is a "public right of way", how could a landlord lock the front door to the building or restrict access to just tenants? If you set up camp on the sidewalk going into the apartment building, the landlord can have you arrested for "criminal trespass on land" in Illinois, right? There's nothing "public" about these areas. They are private property and your use of them is governed by whatever is in your lease. I have no legal right to wander the halls of your apartment building and my being there is at the discretion of the landlord. Renting an apartment is not like owning a house.

[asfried1]

If I ever own an apartment building, I will post signs prohibiting liberals from talking about politics in the common walkways and spaces (especially the laundry). I will then call the police and have them charged with trespassing if they disobey.

[DoktorPaimon]

My point of view is that one of the strongest factors we have in our favor is being able to make the argument that we are law-abiding citizens. Once we begin encouraging people to violate the law, no matter how much we disagree with it, we lose the ability to take that moral high ground and make that generalization to our cause. We aren't talking about a "technical violation" that doesn't violate the intent of the law. This isn't about a civil dispute with a landlord, it's about a violation of the criminal code. We can debate about whether it's a "foolish" or "bad" law, but it is the law. I think you're mistaken in suggesting that landlords that decide to post won't vigorously prosecute violators and people will be arrested, convicted, fined, and in Cook probably jailed, for violating it.

 

I disagree, strongly. We've been pretty successful in the courts and legislature so far with our white hats, yes, but not everyone is temperamentally suited to sitting back and tolerating grave, malicious, intentional violations of their rights. Some of us are happy to wear those white hats forever, but I can't really bring myself to criticize people who look more to Stonewall than Selma when choosing how to respond to overt oppression. Heck, a strong argument could be made that some civil rights movements have taken advantage of some aspects within their respective communities playing bad cop to help the good cops gain traction. The distinction between dealing with King's nonviolence or X's "by any means necessary" comes to mind.

 

My point about a lack of prosecutions is a largely practical one. Cops aren't going to be camping out in lobbys downtown searching upper class apartment dwellers without probable cause as they leave for work in the morning. Stop-and-frisk might fly where the police have the luxury of dealing with the poor and the powerless, but in a loop high rise you're dealing with the kinds of folk who will have lawyers and phone calls. No cop is going to go out of his way to be that false positive and no boss is going to be on the hook for ordering it. That means that any enforcement of common area prohibitions is going to have to be by the book, no matter how much a landlord might want aggressive enforcement. That means man-with-a-gun calls. The problem you have with a call, though, is response time. Say I have a concealed weapon in a lobby but I'm printing and the cops get called by a security guard who recognizes me: how are they going to respond before I'm in my apartment? How are they going to prove that what the guard saw was a pistol? If I'm leaving my house, how are they going to find me on a busy street? A security guard isn't going to detain someone they think has a gun while they're leaving. How are they going to prove that I was carrying and not transporting? Barring an officer who happens to be in the lobby at the exact time I'm leaving while I'm concealing poorly, an arrest simply isn't likely. That makes it a tenant dispute no matter how aggressive a given landlord or miniature mayor might be.

 

I get that some people want to follow the letter of the law and play nice, I really do. I understand the logic that might make rational people who are otherwise hostile to oppressive regulations feel that following the law is the right strategy (I tend to fall into that camp myself). That said, I also understand the logic of people who have decided they're going to accept a little bit of risk in exchange for a lot of security. I respect that. If I'm being honest with myself I'm even a little envious of the courage. We live in a nation founded by folks who decided to start shooting the legitimate agents of a legitimate government because they felt it had overstepped it's rightful authority. Our heroes were, by definition, criminals. They won and wrote the Second Amendment with the understanding that one of the basic rights of men is to kill their leaders if they become tyrants. I have a lot of trouble believing they'd have an ethical objection to carrying a pistol in a lobby because enough bribe recipients elected officials said you couldn't.

 

It’s important to note that the FCCA calls for the same penalty for a first violation as does a criminal trespass charge. The FCCA violation does allow the state to increase the penalties and suspend or revoke the CCL for subsequent violations. I assume it was the desire to dissuade violators from becoming repeat offenders that led to the new penalty.

 

But thats not quite true. The penalty might be the same, but what triggers it is not. 720 ILCS 5/21-3 requires individual notice (rather than to a class of people) if someone is to be excluded, or a generally posted notice that an area isn't public and explicitly states :

For purposes of item (1) of this subsection, this Section shall not apply to being in a building which is open to the public while the building is open to the public during its normal hours of operation; nor shall this Section apply to a person who enters a public building under the reasonable belief that the building is still open to the public.

 

The FCCL makes guns a special case, open to special enforcement. This is important because it tells us something about the underlying intent of the law. If the law merely wanted to protect the rights of private property owners, it could easily have had a provision for allowing owners to ask someone to leave and then have legal remedies show up. This would have protected both owners and folks who might have missed a sign in good faith. Plenty of state have tried this. Instead, the law creates a special case which is likely to lead to large areas being off-limits to people who choose to exercise a fundamental right. This might have been mitigated if the law had some means of ensuring that businesses who choose to make patrons less safe by posting offset that risk through additional security or, in it's absence, liability. Several states have tried this, as well. Illinois' decision, on the other hand, appears tailored to make carrying difficult. It is dressing up harassment as a defense of property rights.

 

We know that politicians lie as a matter of course. That means the only way we have of knowing what they meant to do was looking at what any reasonable person could predict would be the outcome. The outcome of this posting scheme is that less people will carry. I'm not a lawyer so I don't know how that will fare in court. I do know that even if it gets my obedience it won't get my respect.

[23657Resident]

They aren't though. If a lobby or hallway is a "public right of way", how could a landlord lock the front door to the building or restrict access to just tenants? If you set up camp on the sidewalk going into the apartment building, the landlord can have you arrested for "criminal trespass on land" in Illinois, right? There's nothing "public" about these areas. They are private property and your use of them is governed by whatever is in your lease. I have no legal right to wander the halls of your apartment building and my being there is at the discretion of the landlord. Renting an apartment is not like owning a house.

 

I honestly don't claim to understand all of this from a technical legal standpoint but it's very clear to me that the rights of private property owners are not abslute. Governments, acting for the public, have long exercised powers that may affect individual property owners’ use of their land, including the power to tax private property, take property under eminent domain (with compensation), and establish rules with the policing power to enforce them.

 

My opinion; a person's ability to take concealed firearms onto private property they may be leasing or renting, despite the wishes of who owns that property will become a public right. Otherwise, concealed carry (and the 2nd admendment) are meaningless in a urban/suburban environment. I will concede that you are correct and there is no public right of way; someone will violate this portion of the FCCL Act and be prosecuted for it. That first prosecution will be challenged, possibly all the way to SCOTUS.

 

A 4x6 sign put up by a private owner the day before, will instantly make someone a criminal the day after. Unless the legislature submits and passes a bill to resolve this issue, this type of violation is inevitable.

 

[wishbone]

" Sec. 24-1. Unlawful Use of Weapons.

(a) A person commits the offense of unlawful use of weapons when

he knowingly:

 

(4) Carries or possesses in any vehicle or concealed on or about his

person except when on his land or in his own abode, legal dwelling,

or fixed place of business,..."

 

Now look at the address on your drivers license, or your FOIA card, or your soon to be received concealed carry license. That address is your legal dwelling. You cannot be charged with unlawful use of a weapon for carrying a concealed weapon there. So if the building owner posts your apartment building as a prohibited area that prohibition would operate as to anyone for whom that building is not his/her legal dwelling (me for instance), but not for anyone for whom it is their legal dwelling (ie: you) .

[Dr. Rat]

" Sec. 24-1. Unlawful Use of Weapons.

(a) A person commits the offense of unlawful use of weapons when

he knowingly:

 

(4) Carries or possesses in any vehicle or concealed on or about his

person except when on his land or in his own abode, legal dwelling,

or fixed place of business,..."

 

Now look at the address on your drivers license, or your FOIA card, or your soon to be received concealed carry license. That address is your legal dwelling. You cannot be charged with unlawful use of a weapon for carrying a concealed weapon there. So if the building owner posts your apartment building as a prohibited area that prohibition would operate as to anyone for whom that building is not his/her legal dwelling (me for instance), but not for anyone for whom it is their legal dwelling (ie: you) .

 

That's UUW - we're talking about the FCCA here.

[Lou]

This article was in the Chicago Tribune today and deals with condos, but it is worth reading as an "expert" opinion:

 

Q: Now that the Illinois legislature has adopted the Firearm Concealed Carry Act, can condominium buildings prohibit guns in all common elements?

 

A: The Illinois Firearm Concealed Carry Act allows licensed individuals to carry a firearm unless prohibited by statute, or by a property owner pursuant to the Concealed Carry Act, and keep a firearm in their car or home. A condominium board cannot adopt rules and regulations inconsistent with Illinois law.

In the context of a condominium association, if unit owners are entitled to keep a firearm in their car and/or their unit, they must be allowed to carry such a firearm from their home to their car without interference. Therefore, the board may not prohibit firearms from being carried through the common-element parking area, lobby or common-element hallways.

Still, a board could adopt rules prohibiting firearms in common-element recreational facilities, the management office, board meetings and the like.

 

http://www.chicagotribune.com/classified/realestate/ct-mre-0302-condo-adviser-20140228,0,3058240.column

[23657Resident]

Suntimes article on the subject...

 

 

Some of that pain is bound to surface in apartment buildings, where the constitutional right to bear arms is going to run smack into a building owner’s property rights — without a lot of guidance from the conceal carry law.

 

Jessica Ryan, an attorney with Kovitz Shifrin Nesbit, told workshop attendees that it will require litigation to resolve many of the issues raised by the new law, including the most basic — whether tenants have the right to keep handguns in their apartments.

 

Gun rights proponents are taking the position that landlords can’t stop apartment dwellers from keeping a gun for self-defense, the same as for homeowners.

 

“They cannot keep it out of a person’s dwelling,” said Rep. Brandon Phelps (D-Harrisburg), citing the 2008 U.S. Supreme Court ruling in District of Columbia v. Heller.

 

But in a written analysis circulated at the workshop, Ryan said the general consensus is that a rental property can prohibit concealed firearms anywhere on the property, including individual apartments, if the lease contains specific language to that effect.

 

Conceal carry law leaves landlords without much ammunition: Brown