EMP attorney Kim Sutter addresses gun control in community associations at national CAI Law Seminar

Eads Murray & Pugh attorney Kim Sutter was one of approximately 80 speakers at the 38th Annual Community Association Law Seminar held Jan. 18-21 in Las Vegas, NV.  Association attorneys and community experts from throughout the United States attended the four-day seminar, which is presented annually by the Community Associations Institute’s (CAI) College of Community Association Lawyers (CCAL).

Sutter spoke on a four-attorney panel that addressed whether associations can regulate gun possession in their communities, as well as the potential legal issues that might accompany attempts to do so.  Her companion panelists were association attorney Robin Strohm of Columbus, Ohio, and CCAL Fellows Joseph Adams from Florida and Marc Markel from Texas.

The 90-minute session included discussion of the Second Amendment to the United States Constitution and a survey of gun control laws in several states, as well as the nation’s current political climate and differing views on gun control generally.  Sutter’s presentation centered primarily on gun control laws in Indiana, including in-depth discussion of the controversial “Caste Doctrine,” which permits use of deadly force with no duty to retreat, so long as the person is trying to prevent or end an attack on the home or property.  According to Sutter, Indiana has some of the most pro-gun laws in the nation, which would make it challenging for associations to regulate possession.

The panelists agreed that due to constitutional protections, it would be difficult, if not impossible, for associations to prohibit ownership or gun possession within an individual’s home.  Whether homeowners associations and condominium associations can regulate possession in common areas is a more open-ended question.  There is little to no case law lending guidance on whether such regulations would be enforceable, the panelists said.  However, they indicated that associations might be able to adopt an amendment to their covenants or rules and regulations applicable to gun possession, just as they would rules applicable to meeting rooms, clubhouses and swimming pools. To this end, associations may be entitled to establish rules prohibiting open carry or discharge within the common areas.  The panelists said that such rules and covenant amendments would likely enforceable if done properly.  Nevertheless, care must be taken to ensure that the restrictions do not infringe upon constitutional rights or contradict state and/or federal law.  For instance, if an association rule contradicted an owner’s constitutional rights or state law, the rule would be invalidated.

During her presentation, Sutter noted additional concerns regarding enforceability of gun control regulations.  While such policies may be enforceable if adopted and worded properly, monitoring and enforcing those rules could create significant administrative burdens and safety risks for board members, association personnel and property managers. Given Indiana’s broad protections for gun owners and the likelihood of owners bringing legal challenges to restrictions on their right to carry firearms, associations may conclude that policing gun possession is not worth the effort and potential legal costs.

An additional question raised by the panelists was whether an association might be assuming a duty of care to protect against gun violence by adopting gun regulations or covenants.  For example, if gun-related violence occurred in association-owned common area, would the association’s potential liability be heightened since a community rule was in place prohibiting possession?  That question and others are yet unanswered but must be considered by associations before taking action to regulate guns.  Furthermore, gun control is a polarizing issue, and associations should be prepared for potential legal fall-out and political dissension in their communities if they go down this road.  To the extent that associations wish to enact gun regulations in their communities, they should do so under the advice of an experienced attorney.

Sutter joined Eads Murray & Pugh in February 2016 and has more than 12 years of experience as a homeowners association and condominium attorney.  She is just the fifth attorney from the State of Indiana to be selected as a speaker at the prestigious CAI Law Seminar.  Eads Murray & Pugh attorneys Tom Murray and Greg Chandler spoke at the seminar in prior years.