Can a New York town ban its civilian employees from carrying their licensed firearms while on duty?

Plain-English summary

The Town of Irondequoit had civilian employees (not police officers, not peace officers) who held New York State "full carry" pistol licenses. The town asked whether it could prohibit them from possessing those firearms while on duty. The AG said yes.

The reasoning starts with the nature of a pistol license. The AG quoted Williams v Bratton for the principle that issuance of a license to carry a firearm is a privilege, not a right. An applicant must meet statutory requirements to qualify. Under Penal Law § 400.00(2)(f), a license to have and carry firearms concealed, without regard to employment or place of possession, may be issued only upon a showing of "proper cause." That license is what the town's employees held.

Even a "proper cause" license is not unlimited. O'Connor v Scarpino allows the licensing officer to condition the license on the specific proper cause that justified its issuance, such as hunting or target practice. The license does not entitle the holder to carry the firearm in all places and at all times.

Penal Law § 265.20(a)(3) makes a licensee possessing a firearm in accordance with the license exempt from the criminal possession charge under § 265.01(1). But that statutory exemption does not turn a license into an absolute right to carry. The AG drew a direct analogy to peace officers, who are similarly exempt from criminal possession under § 265.20(a)(1)(c) but who, the Third Department held in Salata v Tolman, can still be required by their employers to follow workplace rules about on-duty carrying.

Penal Law § 400.00(6) bars municipalities from regulating firearm licensing itself, but the AG concluded that a workplace prohibition on on-duty carrying is not licensing regulation. It is municipal-employer authority to set conditions of employment, similar to a village's right (recognized in Op Atty Gen (Inf) No. 89-75) to ban firearms inside village hall, including from licensed civilians.

The bottom line: a town acting as an employer can set workplace conditions, including a no-on-duty-firearm rule, even against employees with full carry licenses. The State exempts licensees from criminal liability; it does not exempt them from their boss's workplace rules.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Does a full-carry license guarantee on-duty possession?

No. Under the 1999 licensing provisions the AG analyzed, the license exempted possession in accordance with its terms from a criminal charge. The AG said it did not give the employee an absolute right to carry at all times against the town's workplace rule.

Does this apply to police officers?

The employees in the request were neither police officers nor peace officers, so the opinion does not decide a rule for police officers. It does cite decisions upholding employer rules that prohibited on-duty firearm possession by employees with peace officer status.

Could a private employer do the same thing?

The opinion addresses municipal employers. It says a municipality, like a private individual, may prohibit a person from entering its property with a firearm, but does not decide private employment policies.

What if the employee says the proper-cause license was issued specifically for workplace protection?

The opinion does not describe a license granted for workplace protection. It says licensing officers may condition a license on its specific proper cause and that such a license does not establish a right to carry at all times. It still concludes that the town may prohibit on-duty possession by these employees.

Can the municipality search employees to enforce the rule?

The opinion does not address employee searches or policy enforcement procedures.

Background and statutory framework

The cited Penal Law provisions criminalize certain firearm possession (§ 265.01) and exempt categories of licensed and authorized possession (§ 265.20). Penal Law § 400.00 governed the pistol licenses discussed in the opinion, and § 400.00(6) prohibited municipal regulation of firearm licensing.

The peace-officer analogy is doctrinally important. Peace officers are statutorily exempt from criminal possession charges but Salata v Tolman held that this exemption does not vest a right to carry; employer rules govern. The AG treated the proper-cause licensee on the same footing as the peace officer: statutory exemption from criminal possession is not the same as a substantive right to carry against employer rules.

Op Atty Gen (Inf) No. 89-75, cited in the opinion, allowed a village to ban firearms from village hall premises even against persons holding proper-cause licenses. The 1999 opinion extends that principle from premises rules to workplace rules covering municipal employees.

Citations

• Penal Law § 265.01(1) (criminal possession of firearm).
• Penal Law § 265.20 (exemptions from criminal possession; peace officers under (a)(1)(c), licensees under (a)(3)).
• Penal Law § 400.00 (pistol licensing scheme).
• Penal Law § 400.00(2)(f) (proper cause license to have and carry concealed).
• Penal Law § 400.00(6) (preemption of municipal regulation of licensing).
• Criminal Procedure Law § 2.10 (peace officer status).
• Williams v Bratton, 238 AD2d 269 (1st Dept 1997) (firearm license is privilege, not right).
• O'Connor v Scarpino, 83 NY2d 919 (1994) (licensing officer may condition proper-cause license).
• Salata v Tolman, 38 AD2d 991 (3d Dept 1972) (peace officers subject to employer rules about on-duty carrying).
• Op Atty Gen (Inf) No. 89-75 (village's proprietary authority to ban firearms in village hall).
• Op Atty Gen No. 82-F18 (employer rules on peace officer on-duty firearms).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_99-25_pw.pdf

Original opinion text

CRIMINAL PROCEDURE LAW § 2.10; PENAL LAW §§ 265.01(1), 265.20, 400.00. A municipality may prohibit its employees from carrying firearms while on duty. September 7, 1999

Michael A. Polozie, Esq.
Town Attorney
Town of Irondequoit
39 State Street, Suite 700
Rochester, NY 14614

Informal Opinion
No. 99-25

Dear Mr. Polozie:
You have asked whether the Town of Irondequoit may prohibit employees with firearm licenses from possessing firearms during their public employment. The employees are not police officers or peace officers. You informed us that the employees have "full carry" licenses. The issuance of a license to carry a firearm is a privilege, not a right. Williams v Bratton, 238 AD2d 269 (1st Dept 1997). An applicant must meet statutory requirements to qualify for a license. Id. There are several categories of licenses to possess firearms. The term "full carry" is not used in the statute. Penal Law § 400.00(2). The Town employees possess licenses under the authorization to "have [firearms] and carry [them] concealed, without regard to employment or place of possession, . . . when proper cause exists for the issuance thereof." Id.,
§ 400.00(2)(f). Therefore, a license in this category may be issued only upon a showing of "proper cause" (hereafter "proper cause license"). Generally, other categories include issuance of licenses to possess a firearm in a dwelling; in a place of business; and during certain employment. Id., § 400.00(2). We note that issuance of a "proper cause license" is subject to limitation. O'Connor v Scarpino, 83 NY2d 919 (1994). A licensing officer may condition licensure and, therefore, possession of the firearm upon the specific "proper cause," such as licensure for hunting and target practice. Id. Therefore, under section 400.00(2) of the Penal Law, a "proper cause license" does not establish a right for the licensee to possess the firearm at all times.

2
Possession of a firearm is a crime under section 265.01(1) of the Penal Law. A licensee possessing a firearm in accordance with the conditions of licensure is exempt from the charge of criminal possession of a firearm. Penal Law § 265.20(a)(3). Police officers, peace officers (some peace officers are required to be licensed [Criminal Procedure Law § 2.10]) and others are also exempt. Id., § 265.20. While State law exempts licensees from the charge of criminal possession of firearms, no State law establishes a right for persons with "proper cause licenses" to possess firearms at all times. In our view, the Town may prohibit employees with "proper cause licenses" from possessing firearms while on duty. In a prior opinion of this office, we concluded that a village, in its proprietary capacity, may prohibit a person with a "proper cause license" from entering the village hall in possession of a firearm. Op Atty Gen (Inf) No. 89-75. The village, in enacting the above regulation, acted in its proprietary capacity to safeguard property and persons. Id. Like any private individual, a municipality can prohibit a person from entering its property in possession of a firearm even if that person has a "proper cause license." Id. We found that such a regulation would not violate section 400.00(6) of the Penal Law, which prohibits a municipality from regulating the licensing of firearms. Id. Employer rules prohibiting on-duty possession of a firearm by an employee with peace officer status also have been upheld. Salata v Tolman, 38 AD2d 991 (3d Dept 1972); Op Atty Gen No. 82-F18. Peace officers, like licensees, are exempt from criminal penalties for possession of firearms (Penal Law
§ 265.20[a][1][c]) but have no absolute right to carry firearms and are bound by rules and regulations established by their employers. Id.
[T]his exemption cannot be construed as creating a vested right [to carry a firearm]. As employees . . . they are subject to and must abide by the rules and regulations resulting from the exercise of discretion
. . . [by their employer]. [Citations
omitted.] A rule regulating the carrying of firearms while on duty is a proper and lawful exercise of the authority of respondents. Salata v Tolman, supra, 38 AD2d 991. We conclude that a municipality may prohibit its employees from carrying firearms while on duty.

3
The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office. Very truly yours,

JAMES D. COLE
Assistant Attorney General
In Charge of Opinions