Bisnow: Real Estate Players Worry New York’s New Gun Laws Could Be Hard To Enforce

By: Miriam Hall and Ciara Long

July 14, 2022

 

New York state has rolled out new gun legislation, aimed at reinstating restrictions on weapons undone by a Supreme Court ruling last month. And while the laws outline protocols for business owners, city landlords are questioning how they will enforce them, police their buildings and keep workers and tenants safe.

 

The New York legislature passed the new laws on July 1.

 

“Even in normal times, even without guns, it’s extremely hard for a property owner or manager to enforce rules,” said Jay Martin, executive director of the Community Housing Improvement Program, a landlord group that represents around 4,000 multifamily owners across the five boroughs.

 

Amid ongoing angst about the city’s crime rates, New York this month passed a suite of new laws laying out property owners’ rights and responsibilities when it comes to guns in their buildings and establishments.

 

The bill was in response to a June 23 U.S. Supreme Court ruling that struck down the state’s requirement of a license to carry a concealed weapon in public. The New York legislature now restricts the carrying of concealed weapons in what are considered “sensitive locations.” It also establishes private property owners must “expressly” say if they will allow a person to possess a firearm, rifle or shotgun on their sites. Without a sign, concealed carry permit owners must assume guns are not allowed, under the law, per Politico.

 

Some landlords and real estate groups told Bisnow there is no need to make further changes to their operations and leases as a result of the state laws, while others are awaiting official guidance or still reviewing the impacts. Several industry groups have made formal arrangements, like the Hotel Association of New York City, which has decided all member hotels will ban guns.

 

But some who own and run buildings — and the lawyers who advise them — are anxious about how they will enforce rules to keep guns out.

 

CHIP’s Martin said they are still trying to understand exactly how this will impact multifamily owners.

 

“You’re putting a property owner in the position to basically police the building at that point, especially if it’s concealed,” he said. “Do you have a doorman patting people down? Do you have people go through a metal detector?”

 

 

Gov. Kathy Hochul delivers remarks at a meeting of the Interstate Task Force on Illegal Guns.

 

Many commercial buildings — which often already have rules in place regarding permitted objects and activities, in addition to security personnel — could provide a blueprint for residential landlords, Rosenberg & Estis attorney Alex Lycoyannis said.

 

But even in commercial properties, enforcement remains lax: Visitors to office buildings, for example, are rarely required to pass through metal detectors, and they are typically only asked for their names and who they are visiting.

 

Personnel in residential buildings are also concerned they may be tasked with heavier enforcement duties. A few years ago, Felix Figueroa, a doorman and concierge at 420 Riverside Drive and a shop steward at his local labor union SEIU 32BJ, had to call the police for help stopping someone attempting to force entry into the building.

 

“Tenants of the building are concerned that you may have someone coming in with a gun,” Figueroa said. “Some of my co-workers, we’ve been talking heavily for the past year or so about the violence of the guns that’s going on, and also how we’re in the front line in the lobby.”

 

Some building owners are concerned they may face liabilities for not enforcing New York’s gun restrictions on their premises, said Luise Barrack, also an attorney at Rosenberg & Estis.

 

“A lot of owners, particularly of residential buildings, are asking: How is this going to shake out? What’s my exposure, what’s my liability as an owner going to be?” Barrack said. “Do I have any obligation police or make sure that people that are carrying weapons have permits? I think the concern is that to the extent that an owner tries to restrict that, it’s likely to be unenforceable.”

 

Lieb at Law Managing Partner Andrew Lieb is advising landlords to amend leases to include a phrase prohibiting firearms — not because it’s necessarily an enforceable clause, but more because the lease may protect landlords if someone is shot in their building.

 

If someone is carrying a gun in an area where firearms are not permitted, Lieb told Bisnow, the individual is guilty of criminal possession of a weapon, unless there’s explicit signage stating that weapons are permitted. But enforcement — particularly of concealed weapons — still poses a practical challenge.

 

“I would imagine it the same way you would enforce someone bringing a crack pipe into their own unit,” Lieb said. “They’re not allowed to have the crack pipe in the common area, but if it slips out of their bag, they’re going to have a problem.”

 

Regardless of how effective language banning guns is, Lycoyannis expects to see landlords of all stripes, as well as condominium and co-op boards, begin introducing legal agreements with tenants that explicitly ban firearms on the premises. Yet lease language banning guns could land building owners in more hot water, potentially leading to expensive, lengthy legal battles.

 

Martin said some attorneys he’s asked about the subject believe introducing clauses into rental leases stating that no firearms are permitted should be relatively easy, as should evicting tenants who violate that agreement. Other attorneys have told Martin the opposite: If a landlord tried to evict a tenant for carrying a gun, the tenant could take the landlord to court — and potentially win, if the judge decides that the tenant is within their constitutional rights.

 

“It’s a private property, but it’s also where somebody lives and they have a lease to live there. So which right [supersedes] — the property owner’s right to enforce the law, or the tenant’s right?” Martin said. “In New York, that’s often a question that’s difficult to answer.”

 

There’s no way to predict how a judge might approach a theoretical case where a tenant is facing eviction for carrying a concealed firearm in building areas controlled by the landlord, like hallways, backyards or amenity spaces, according to attorney Lieb. A defendant with sufficient legal funds would be able to take a case all the way to the Supreme Court, potentially leading to a decision overturning Hochul’s new law.

 

But whether invoking constitutional rights would be an effective defense argument may depend on whether apartment buildings are classified as “sensitive places,” the legal term applied to spaces like schools and government buildings to restrict firearms.

 

Hochul’s law listed categories of sensitive places — ranging from libraries, public transport and places of worship to Times Square — may be where challenges to the law focus, according to one analysis by Duke University’s Center for Firearms Law. Apartment buildings don’t appear on the list, but Lieb believes the label may apply.

 

“I would gamble that an apartment building would probably qualify under a sensitive place much more than I would gamble places … like all education institutions, because it’s more limited,” Lieb said. “That can be overturned as well, we don’t know that answer.”

 

The new law will go into effect on Sept. 1 and is already facing lawsuits, with one filed just this week in federal court challenging the provision that requires business signage to welcome guns. Hochul has been adamant the law is watertight and was designed by the country’s “top legal minds” in order to withstand challenges.

 

Real estate attorneys told Bisnow many in the industry will be watching closely to see if further laws and guidance in how they operate their buildings are rolled out. All the while, however, New Yorkers’ anxieties about violent crime have been intensifying.

 

Gun violence and citywide shooting incidents have decreased by 24% from a year ago, according to New York City Police Department statistics released this week. But the overall crime index last month was up 31%, and a handful of high-profile incidents — including one gunman who opened fire on a rush hour subway train in Brooklyn in April, and one man who was killed by a gunman in the subway in a separate shooting in late May — have left fears running high.

 

“We don’t want a repeat of what happened in Las Vegas a few years ago, when a gunman holed himself up in a room and started killing people,” said Hotel Association of New York City CEO Vijay Dandapani of the decision to ban guns in hotels. “Our goal is to promote the security of the hotel and the city – there is a lot of violence going on.”

 

Robert Lee, who said he owns five small buildings in Brooklyn, said he is not entirely sure what he can and cannot do as a landlord.

 

“It’s just going to add more difficulty to a very overregulated and difficult situation that we presently have,” he said, adding he is concerned about insurance becoming more costly.

 

Lee is also worried about the nature of apartment living itself.

 

“Everyone is on top of each other … people — not many, but some — can get irate.”