Making Sense of a Senseless Act: The Newtown Tragedy and Uncomfortable Questions to Come

By Frank A. Lombardi, Esq.

It’s been two months since the tragic shooting at Shady Hook in Newtown, Conn., and I’m still processing this.  I don’t know whether this was a result of a failed gun control policy, underfunded mental health policies, or an increasingly violent society.  What I am certain of is that whatever comes of this, the matter will hit close to home for people living in community associations. If, by raising questions, the dialogue continues and leads to a safer environment for all of us, especially children, then we can hopefully move forward.

For now, though, as a condominium law practitioner, I can anticipate key questions we will need to deal with:

  • Can we limit or ban guns in condominiums?
  • Can or must the association protect its members from unit owners with mental or emotional health issues who could be considered “dangerous” but may not in fact be dangerous?

Related to the above, it’s important to address the following concerns:  

Regulations within Common Elements and Limited Common Elements
Let’s say a particular condominium is situated in an area containing acres of woods or contains storage sheds or standalone garages. In all three cases, if those areas were defined as either common elements or limited common elements, the association would have manifest authority to ban the possession, storage, or discharge of any kind of firearm, pistols or even AK-47 automatic weapons. The authority is typically found in either the declaration or bylaws with provisions to the effect that the executive board has authority to operate the common elements in express language, or, if not, by reference to the applicable provisions of the Rhode Island Condominium Act.

The relevant provision within the Act is 34-36.1-3.02 (a) expressly provides that the association may:

(6) Regulate the use, maintenance, repair, replacement and operation of common elements.

The bylaws typically give the governing body of the association, such as the board of directors or executive board, the authority to make rules and regulations. If the language banning either the storage or discharge of firearms on the common elements and limited common elements is not in the documents as originally drafted, then these boards would have the ability to institute the ban prospectively. In certain instances, as in a case where the existing rule permitting firearms is in the declaration or bylaws and not in the rules section, the unit owners may need to vote to amend the rule or institute the ban. The approval may vary from 51% to 67% or more. But what if many unit owners are responsible gun owners? Good luck getting such a ban passed.

Further, what if a unit owner or a member of his family has a mental or emotional condition, which in certain instances could render him “dangerous” to other unit owners? Suppose that the unit owner commits acts on the common elements or limited common elements that harm or threaten imminent harm to other unit owners. In other words, suppose the shooter in Newtown lived in a condominium community, and the board had reason to believe he had dangerous tendencies. What steps should it take? Neighboring unit owners and friends who bring up these issues risk ostracizing themselves and their friends. So, behaviors that could foreshadow future dangerous acts may be swept under the rug to keep the peace.

But what of those who choose to confront the situation? The governing documents and section 3.02 of the Act permit the association to seek injunctive relief in court or to fine persons who unreasonably interfere with another unit owner’s use and enjoyment of the property. But who decides whether a person entering the clubhouse “packing” a gun poses an unreasonable risk? What if a person with emotional problems starts yelling wildly? Is that nuisance a bona fide threat? What can and should a board do in this case? What rules could be put in place that would be fair to everyone?

Regulations within the Units
Though we are social animals, when it comes to living space, we crave our privacy. Nobody is going to tell us what to do or how to behave in our units, including possessing guns and firepower. Look at the problems facing boards attempting to regulate smoking in units. And nobody is going to tell us how to raise our children, especially those with mental or emotional issues. Moving into a condominium setting, in which we give up a portion of our privacy, presents unique challenges. Given the close proximity of each individual in stacked or side-by side units, does the governing board have a right to ban guns in a unit?  Does it have a right to ban automatic weapons? Who decides which unit owner or use is more dangerous — a World War II veteran who maintains an extensive collection of antique guns never before fired but who lives with a child who has opposite defiance syndrome, or the local minister who is a gun enthusiast and enjoys firing his automatic weapons for fun on weekends? Who decides?

Sure, the board can ban the storage of ammunition and fireworks, but guns are funny devices — they do not spontaneously combust; it takes a human operator to make them dangerous. What we are really talking about here is the opportunity to fire them that is dangerous. Will the board have the ability to regulate that opportunity?

Since we live in a society with a legal system that respects due process, regulation simply based on opportunity alone, with no prior bad act, may be difficult to implement, let alone enforce. That reality, coupled with the ingrained notion of privacy rights within the confines of one’s own home, makes it easy to see the quandary boards will face.

Since we live in a society with a legal system that respects due process, regulation simply based on opportunity alone, with no prior bad act, may be difficult to implement, let alone enforce. That reality, coupled with the ingrained notion of privacy rights within the confines of one’s own home, makes it easy to see the quandary boards will face.

What if a board is asked to ban guns by a majority of the membership?

With this request, whether or not they wish to move forward on the ban, are they nonetheless on notice of a potentially dangerous condition, much like a store manager would be deemed to be on notice when a customer tells him, “There’s a spill in aisle 8 that is making things slippery.”  Similar to the store that may be exposed to liability should someone fall and get injured, could an association be exposed to liability because it may have been warned of a potentially dangerous condition? Take it another step: Suppose during the debate over the ban, the board determines that some unit owners have automatic weapons in their homes and are away travelling. If a teenage neighbor breaks in and gets wounded or worse, could the association be liable for failing to warn all of its unit owners of a potentially dangerous condition? In this litigious climate, it’s not hard to imagine that scenario.

So, can, or should, the board at least attempt a full or partial ban on automatic weapons within a unit? If a neighboring unit owner or a board believes that they or the association is being threatened, then, as with acts on the common elements, there are anti-nuisance provisions available in the governing documents and the Act that they may rely on to attempt the ban of guns. For instance, the catchall provision of association powers, 34-36.1-3.02 (a) permits the board to:

17. “Exercise any other powers necessary and proper for the governance and operation of the Association.”

Regulations at Annual Meetings
How do future boards treat “disruptive” unit owners at annual meetings? Must they hire police or private security? Must they have them removed?

There are real cases of shootings at annual meetings. Do boards owe a duty to the other unit owners to provide a safe meeting environment? Who decides whether the unit owner is, in fact, disruptive, or is it just a case of politics as usual? In past cases and future cases, my advice to boards will be the same — if they reasonably feel unsafe, they should have a police officer present. The above statutory regulation will support the expense.

As in most instances, the tools may be there, but there may need to be an association-wide “gut check” to muster the courage to implement those tools to effect real change, or at least move closer to a fair and reasonable regulation of guns and a realistic and humane policy of governing emotionally and mentally ill individuals for their benefit and those living with or around them as well.  As we have seen, the cost of doing nothing is unacceptably high to our country’s innocent people, especially our children.

Association boards must anticipate and address troubling issues such as those raised here.  For counsel on how to deal with these and related issues, please contact us.