Administration and Leadership, Exclusives, Operations, Top Story

Pro Bono: ‘Guns-at-Work’ Laws Raise Legal Issues for EMS Agencies

The Virginia state senate has passed a bill that would allow EMS personnel and firefighters to carry concealed weapons in the course of their duties, provided they’re approved to do so by their EMS or fire chief. The bill would also require an EMS agency or fire department to put in place a written policy regarding “best practices in carrying a concealed handgun.”

JEMS: Bill to Arm Firefighters, Medics Passes in Virginia Senate

The proposed legislation—Senate Bill 1012—passed the senate by a small margin and heads to the Virginia House of Delegates where it’s expected to be defeated, likely also by a slim margin. But regardless of the chances of SB 1012 becoming law in Virginia, judging by the passionate reactions on social media and elsewhere the issue of arming EMS responders continues as a topic of conversation nationally in the EMS profession.

It’s important to note that the proposed Virginia legislation would not grant an automatic legal right for EMS providers and firefighters to carry concealed weapons. That would depend upon approval by the EMS chief or fire chief of the agency for which the responder works. In essence, the Virginia legislation would transfer the responsibility for decision-making on carrying firearms and “best practices” policies to individual EMS agencies.

Agencies in All States Should Address

This means EMS agencies in Virginia—and indeed in all states—should consider the best way to address the issue of carrying firearms in the workplace by their employees or volunteers, because ultimately this presents an issue that leaders of EMS agencies will have to address.

First and foremost, before implementing any policy, your agency must look at your state’s concealed weapons laws. Some laws specify whether employers can prohibit or must permit employees to carry permitted concealed weapons while on duty.

JEMS: Virginia Firefighter Opposes Concealed Weapon Bill

In general, most state laws permit the employer to restrict or prohibit the carrying of concealed weapons on duty. Some state laws, however, provide that the employee must be allowed to keep their concealed weapons in their cars, even if parked on the employer’s property, and even if they use their personal vehicles for work. In any event, it’s important that any policy regarding concealed weapons in the workplace be consistent with the conceal/carry laws in effect in your state, county and/or city.

Second, check your state’s EMS laws, regulations and policies to see if they address the carrying of weapons by EMS personnel or on board an ambulance. For instance, in some states, EMS-specific laws or regulations prohibit the carrying of weapons on board an ambulance and prohibit EMS personnel from carrying them. These specific laws regulating ambulance services and EMS agencies would likely supersede any general conceal/carry laws. If your state has such a law or regulation, then the EMS agency’s policy, which must be enforced, should be rather simple: no firearms are permitted to be carried on duty by your personnel or brought on board your ambulances.

It should be noted that some employees who wish to carry guns in states where EMS personnel are prohibited from doing so while on duty may raise Second Amendment objections, asserting that it’s their “Constitutional right” to carry guns anywhere and anytime they please. This is simply not true. There are no cases interpreting the Second Amendment to allow an employee to disregard an employer’s work rules or restrictions on account of the protections afforded by the Second Amendment. And most states with so-called “guns-at-work” laws clearly permit the employer to restrict carrying guns while on the job.

Put another way, if an employee carried a weapon while on duty or while in a company’s ambulance, in violation of that company’s policy and/or in violation of state law, that company would be well within its rights to discipline or dismiss that employee, and the Second Amendment would offer no protection to the employee in such a case.

After considering your state’s laws on the subject, if there’s no outright prohibition on carrying guns in the workplace by EMS providers, your agency then has to evaluate the merits of permitting your personnel to carry concealed weapons on duty. Although reports of assaults on EMS personnel are certainly not rare, the use or threat of deadly force against EMS providers is, thankfully, rare.

When it comes to the threats posed by patients, EMS personnel are trained in how to respond to violent patients, including in some cases the use of physical and chemical restraints, and the interaction with law enforcement to neutralize threats and make the scene safe.
Generally, applicable standards of care regarding the management of difficult or violent patients don’t include the use of firearms to threaten or subdue a patient, or the use of deadly force by EMS providers. In other words, an EMS provider, and therefore the EMS agency, could very well be found to be negligent when personal injury or death results from the use of a firearm carried by an EMS provider on duty. That liability could arise when that harm or those injuries are suffered by a patient, a bystander or anyone else injured by the provider’s firearm—regardless of who ended up firing it.

And, of course, there’s always a threat that a weapon will end up being used against the EMS providers themselves, particularly since EMS providers may not be able to guard or secure their weapons at all times due to the normal distractions that come with providing patient care.

Of course, EMS personnel can be trained in proper concealment and in techniques to minimize the chances of having their weapon taken from them, and retention holsters can aid in securing weapons. But it should be remembered that law enforcement officers are trained and equipped in this fashion, and, sadly, far too many have their weapons used against them. And the chances of an EMS provider’s weapon being used against EMS providers are non-existent when that weapon is not present.

Any EMS agency that decides to explore the carrying of concealed weapons by their personnel must also consider a host of other issues, such as:

  • What type of weapons may or may not be carried?
  • How does the EMS agency ensure that the personnel have appropriate permits and verify that they are kept current?
  • How does the agency verify the training that the personnel have received on the use of firearms and ensure continued proficiency in the use of the weapon?
  • How does the agency verify that the weapons are in proper working order?
  • How and where are the weapons secured when personnel must remove them for operational or patient care purposes?

Conclusion

The carrying of concealed weapons by on-duty EMS personnel—if it’s allowed at all—must be done only after careful consideration of your state firearms laws, EMS regulations, immunity statutes, and training and safety concerns. EMS standards of care don’t include the use of firearms when providing patient care, so unless state law grants specific immunity for their use, bear in mind that your agency may be opening itself up for more liability than it bargained for in the event that injuries or deaths are caused by a weapon carried by on-duty EMS personnel.