Recently there has been much debate about the right of self defense versus the rights of property owners. The debate hinges on whose rights are superior, the right of the individual to protect their own lives and personal safety, by carrying a concealed firearm for self defense under the authority of a concealed firearms permit that is specifically valid "without restriction," or the right of a property owner to arbitrarily impose their will or values on another individual, such as to deny one the means to defend themselves, when such imposition may well endanger the life or personal safety of that individual by disarming them.
The current statutes and case law in Utah and elsewhere are very clear on this point. A private citizen is not justified in and cannot use or threaten deadly force to enforce a mere property right. You can't attack someone with a knife for walking across you lawn. You can't beat a person with a baseball bat for shoplifting or taking your purse from your desk drawer. You can't use threaten to use a gun to stop someone from breaking into your unoccupied car. You can't collect the rent on or evict someone from property you own at gunpoint.
Those rights which attach to or extend from ownership or control of mere real or personal property do not allow a private citizen to endanger the life or physical safety of another person. Property rights are therefore by statute and legal precedence both inferior to and subordinate to the individual right to protect one's life and personal safety. By logical extension, one cannot prohibit or otherwise limit any individual's ready access to a lawful means of exercising that right of self-defense based on any property right. This is particularly evident when such exercise of the right of self-defense is done both lawfully and under the authority of a state-issued permit, declared valid without restriction throughout the state, to carry a concealed firearm.
While the lawyers and lobbyists on both sides argue endlessly about how many statutory angels can dance on the head of a legal pin, (and charge their clients hundreds of dollars an hour to do so) the issue seems crystal clear to most other common folk of reasonable intelligence, and is also a textbook case of property rights verses fundamental human and constitutional rights.
To help further clarify and settle this argument, let's go find a legal textbook full of textbook cases. In short, let's look at a typical first year law school text on property law. Our text for today is Survey of Property Law by Ralph E. Boyer, Professor of Law at the University of Miami. The text reviewed is the third edition, published by the West Publishing Company of St. Paul, Minnesota, one of the nation's largest publishers of legal texts and reports. The book is even dedicated to first year law students, so it should be understandable to even the most practiced of attorneys and liberal of lobbyists.
In Chapter 13, the issue of "nuisance" is discussed in depth. The area of nuisance law deals with the issues of trespass, peace of mind and enjoyment of real property. It is the basis of the legal arguments put forth by those opposed to your right to have a firearm available to defend yourself or for any other lawful purposes.
The text includes specific points of law described as "Legal Gems," and states that:
So, based on the above legal criteria, the otherwise lawful physical presence or actions of an individual, who just happens to legally possess or be lawfully carrying a concealed firearm under the authority of a state-issued permit that is specifically valid "without restriction," must by their presence or actions create a substantial and unreasonable interference with the owner's use of enjoyment of his property, and the permittee's behavior must be intentional and unreasonable, or negligent, reckless, wanton or unusually dangerous, and such behavior is the immediate cause of the interference.
In order to secure such a concealed firearms permit, the permittee must demonstrate to the state, by their entire life experience that they are responsible and prudent individuals, with no history of violence, substance abuse, moral turpitude or other objective factors which would lead a reasonable person to conclude they would pose a threat to themselves, others or the community as a whole. They demonstrate and are certified by the state that they are familiar with the laws regarding the use of force by a private citizen and with the safe handling of their firearm.
In short, by the permittee having been issued a permit to carry a concealed firearm, the state is in essence certifying that the permittee has never exhibited behavior that could be considered by a reasonable person to be negligent, reckless, wanton, or unusually dangerous. Further, because the average adult faces a roughly 70% probability of being a victim of a violent crime sometime in their life, and because the presence and immediate possession of a firearm is proven to be the most effective means of defending oneself from such an assault, such firearms possession, is on its objective face, a prudent, reasonable and responsible act of self defense by an adult individual.
In short, there can be no clearly demonstrated basis for concern, and by the legal criteria and definition cited, no cause or legal standing for a property owner to limit the lawful possession of a firearm by, or the otherwise lawful presence of an armed individual on his property.
Ah, you say. I don't like guns. I have a fear of firearms. They will go off by themselves. Some concealed firearm permit holder will "go postal" in my store. As such, I don't want them on my property.
In order for a private nuisance to be valid, it must pass the "reasonable person" test. In short, would the actual, objective facts of the situation lead a reasonable person of average experience and intelligence to believe that a behavior is a nuisance. Our text clearly states that "An interference with the use and enjoyment of land which is offensive only to the hypersensitive person in not a nuisance." Clearly, based on the experience of several years and several tens of thousands of Utah permit holders carrying firearms "without restriction," and without any demonstrated pattern of "negligent, reckless, wanton or unusually hazardous" behavior, any reasonable person, upon reviewing the objective facts of the situation, could only conclude that there is no issue of endangerment that would meet the legal criteria for denying the lawful access or presence of an individual lawfully possessing or carrying a concealed firearm under the authority of a valid concealed firearm permit.
Oh, you say. Tradition and common law state that I can do anything I want on my property. Sorry, Charlie....read on.
Our legal text discusses just such a matter, in this case a landowner building a "spite wall" which serves no other useful purpose than to be an expression of his ill will and malice. According to the traditional legal and common law view, one may do as one pleases on their own property.
Our text pops that balloon. "Most modern states, however, and the Restatement of Torts, take the view that the law does not protect a landowner in building on his land for the sole purpose of gratifying his ill will against his neighbor." The text continues to state that, " Where the defendant's (the landowner-Ed.) conduct is motivated solely by malice, his use cannot be found to be reasonable."
So that's it in a nutshell. There appears, based on our layman's reading of both the Utah State Code and a simple, first year legal textbook on property law, that there are no legal grounds for a cause of action, and therefore, no basis for denying the otherwise legal and lawful access to and presence on property, based solely on that individual's lawful possession of a firearm or his or her carrying of a concealed firearm under the authority of a valid concealed firearm permit.
Let's be honest. Legal opinions are like backsides. Every lawyer has one. Most of them stink. But here we have state statute, case law and a clear, textbook case in which malice, ill-will and overt discrimination on the part of a property owner against otherwise lawful behavior appears to have no basis or standing as a legal cause of action.
That's something for you to consider next time someone tries to deny your otherwise lawful access to property. Your right to protect yourself doesn't start or end at a property line, and is not subject to the whims of some landlord. It's a right that the Founding Fathers, in their great wisdom, declared "should not be infringed."
If you wish to be added to or taken off the GOUtah!
list, please send an e-mail to email@example.com or send a FAX to (801) 944-9937 asking to be added to or removed from the GOUtah! list.
If you wish to forward or share this copyrighted information with others, you are welcome to do so, on the condition that you pass along the entire document intact and unmodified, and that GOUtah! is clearly indicated as the original source of the material.
Return to GOUtah! Home Page
Return to GOUtah! White Papers Index