RSA 159:26 Revisited: Can Local Governments, Acting as Employers, Prohibit Employees From Possessing Firearms in the Workplace?

In 2003, the New Hampshire Legislature enacted RSA 159:26, a law that reserved to the State the exclusive ability to regulate matters concerning firearms, firearm components, and knives. The statute stripped local governments of the ability to enact “municipal ordinances and regulations” relative to, among other things, the possession of firearms. The law rendered null and void any existing local regulations that preceded its adoption. But does RSA 159:26 prevent local governments, acting in their capacity as employers, from adopting workplace rules and policies that prohibit employees from possessing firearms while on duty?

At present, this remains an unresolved question. The New Hampshire courts have not had the opportunity to address this issue and the legislative history does not provide definitive guidance. As a result, municipal lawyers have generally opined that local governments should not adopt rules restricting employees from carrying firearms. However, all New Hampshire employers are obligated to provide employees with a safe workplace and to implement and enforce reasonable and necessary safety rules. There are obvious situations where carrying a loaded firearm seems inherently unsafe, such as while fighting fires or operating a jackhammer. If RSA 159:26 was intended to preempt a local government’s ability to have workplace policies concerning firearms, then a town would be unable to determine the type and number of firearms carried by its police officers. An inability to control how police officers are armed would have a detrimental impact on operational issues, including training and tactics. Was RSA 159:26 preemption intended to be this broad?

RSA 159:26 provides that:

[N]o ordinance or regulation of a political subdivision may regulate the sale, purchase, ownership, use, possession, transportation, licensing, permitting, taxation, or other matter pertaining to firearms, firearms components, ammunition, or firearms supplies in the state.

It is clear that RSA 159:26, by its plain terms, constitutes an express preemption by the state of the regulation of firearms and a prohibition against local regulation. But can a work rule be distinguished from an “ordinance or regulation”? It is at least arguable that a personnel policy enacted by a local government can be distinguished from an ordinance or regulation subject to RSA 159:26. Unlike ordinances and regulations, internal personnel policies are established by local governments acting in their capacity as employers, not in a governmental capacity, Unlike ordinances and regulations, personnel policies do not carry the force of law and are not subject to the enforcement through the court system under RSA 502-A:11-a.

As a general matter, municipal regulations and ordinances are laws of general application within the community. In contrast, workplace rules are, by definition, of limited application, in that they affect only employees, not persons or businesses located in the community.

Other state supreme courts have agreed with this analysis under similar statutory schemes. Like New Hampshire, the State of Washington’s firearms regulation statute provided that:

The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including … possession … Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law and are consistent with this chapter…. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.

Upon review of the discharge of a public employee for violating an internal policy related to the possession of firearms, the Washington Supreme Court held:

that the Legislature…sought to eliminate a multiplicity of local laws relating to firearms and to advance uniformity in criminal firearms regulation. The Legislature did not intend to interfere with public employers in establishing workplace rules. The “laws and ordinances” preempted are laws of application to the general public, not internal rules. Cherry v. Municipality of Metropolitan Seattle, 116 Wn.2d 794 (Wash. 1991).

Similarly, the Oregon Supreme Court has held that a school district’s internal employment policy was not in conflict with a state statute vesting the state legislature with sole authority to regulate firearms. The Oregon Court held that such internal personnel policies are not the types of local regulation that the statute was intended to preempt. Doe v. Medford School Dist. 549C, 221 P.3d 787, 799 (Ore. 2009).

These cases are consistent with the general understanding that, while public employees maintain their constitutional rights at work, a public employer has the power to manage or limit those rights to the extent it is pertinent to the employee/employer relationship. For example,

[w]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Garcetti v. Ceballos, 547 U.S. 410 (2006). See also RSA 98-E:1.

There are certainly circumstances where public employers and employees have agreed that firearms are not appropriate in the workplace and have agreed that possession of a firearm while at work would be treated as a terminable offense. A local government might also determine that it does not want certain vendors, such as sports referees, carrying weapons It is difficult to conceive that by prohibiting local “ordinances and regulations” concerning firearms, the legislature intended to compromise a local government’s freedom to enter into contractual relationships or collective bargaining agreements.

These are issues that will require clarification by the legislature or courts. Until they are resolved, local governments should consider adopting reasonable workplace rules that are necessary to provide their employees with safe work environments. While the potential remains for any such rules to be legally challenged, local governments might sleep better knowing they have taken reasonable measures to protect employee safety.