[Orin Kerr, June 13, 2005 at 4:35pm] Trackbacks
Comment on Firings for Self-Defense:
I'm not quite sure what to make of the 2001 West Virginia decision recognizing a self-defense exception to employment at will that co-blogger David K. discussed on Saturday. But I wonder if the scope of the decision isn't narrower than most commenters seem to assume. The Court's decision answered a federal district court's request to resolve a question of West Virginia law, but it did not actually apply its doctrine to any set of facts. So the Court did not decide that the 7-11 employee couldn't be fired, or even that he acted in self-defense; it only created a legal framework for deciding when an employee's conduct taken in self-defense could be used as a basis for firing him in an employment-at-will context.

  How often will the West Virginia decision make a difference? I'm no expert in such things, but my sense is, "not very often." Self-defense is a well-known concept in criminal law, and the West Virginia case appears to incorporate that criminal law standard. But self-defense is also a limited right, and not the kind of thing that is likely to lead to an employee being fired. Consider an example. Imagine that 7-11 has a policy that employees are not allowed to carry guns, but an employee does so anyway. A robber attempts to rob the store, and the 7-11 employee pulls out his gun and scares off the robber. The employee is fired by 7-11 for carrying the gun in violation of 7-11 policy. What result?

  I'm not entirely sure, but my best guess is that the firing would be proper under the West Virgina case. (FWIW, I looked for cases interpreting the West Virginia case since it was decided in 2001, but didn't find any.) "Self-defense" is used in criminal law to mean a defense to an affirmative act like an assault or homicide, not to a continuous course of conduct. Even then, it normally requires an immediate threat. As a result, a 7-11 employee who carries a gun at work would not seem to have a "self-defense" justification for carrying the gun as a matter of criminal law. (I realize that this does not match a layman's understanding of what it means to take an act in self-defense, but that's the law for you.) While the employee may have showed the gun to ward off the robber, he presumably would be fired for carrying a gun generally, not for showing it at the moment of the attempted robbery. And as best I can tell, self-defense would not apply to that.

  I'll open this up for comments. As always, civil and respectful comments only. Oh, and please note that none of this is intended to be a normative argument. I am trying to make a purely descriptive claim about the state of the law, not to argue that this law is good or bad.

Related Posts (on one page):

  1. Comment on Firings for Self-Defense:
  2. Firings for Self-Defense:
  3. W.V. Court Vindicates Self-defense Right for Employees:
Donald (www):
1. For what it's worth: the West Virginia Supreme Court (at least until quite recently) is an extremely pro-employee court.

2. The importance of the case has nothing to do with the right to self-defense. Instead, it is an important case in the context in which it was decided--employment law--for establishing a framework by which to determine whether a particular firing is barred by an as-yet unrecognized public policy.
6.13.2005 6:32pm
T. Gracchus (mail):
The initial report on VC and as picked up elsewhere were a bit misleading. The holding the West Virgnia Supreme Court seems to me very limited -- an employee actually exercsing a right to self-defense cannot for that reason alone be fired. The plaintiff in this case will not be protected. So all the court seems to have done is said that the plaintiff can put up self-defense as an explanation, and if there is no reasonable countervailing business explanation, plaintiff may not be fired. Unfortunately for the employee there is a compelling countervailing business reason: armed defense of stores results in more employee and by-stander injuries and death.
6.13.2005 7:16pm
John Jenkins (mail):
I think Orin Kerr's reading is correct. The court's ruling seems to indicate that an employee cannot be fired where the sole reason for the firing is the employee's act of self defense. Carrying a firearm is prohibited by nearly all service companies (I know, I used to be a retail manager before law school) for liability reasons. Failure to have and enforce such a policy could lead to liability if an employee injured someone with a weapon. The ruling of the W. Va. Supreme Court would not disturb such policies. A policy like the 7-11 policy-that you may not defend yourself-seems misguided at best and the W. Va. Supreme Court correctly (in my view) vindicated that right as a substantial public policy. One wonders, however, if that court would extend that to protect the employer for liability for injuries to the perpetrator or bystanders from the employee's actions.
6.13.2005 7:54pm
AppSocREs (mail):
I think the WV court decision is also important in a wider context. Generally speaking, courts have shown an alarming tendency to restrict the common law definition and justifications of self-defense. In the UK, the courts have essentially eliminated self-defense as a justification for defensive assault or battery even in the most threatening circumstances. A decade or so ago in the Peoples' Republic of Massachusetts (I love my State even when it is wrong, but it is mostly wrong these days!) the Supreme Judicial Court was headed in the same direction until the legisature fired a shot across its bow with a law allowing for the use of deadly force in a variety of self-defense situations. Under these circumstances it is noteworthy whenever any court maintains the common law doctrine of self-defense in any way.
6.13.2005 7:57pm
Troy Hinrichs (mail):
I think Orin's reading is also correct. When I lived in Texas, there was a similar case -- not at the court , but in the news where a female convenience store clerk and her boyfriend stopped a robbery. The store fired her and won the trial-level lawsuit since she and her boyfriend were on the security camera chatting for hours. Fired for -- allowing non-company personnel behind the counter. Self-defense was also against company policy and training, but she gave them the silver bullet they needed to fire her and make it stick.
6.13.2005 9:21pm
Textualist Law Student:
I think your argument might be too clever by half. While you could say that the employee was fired for his general possession of a gun, he of course will say that he was fired for the specific act of self-defense. In reality, both are right -- in fact, it strikes me that this is similar to, borrowing from a different employment law context, a Price Waterhouse situation involving the same decision defense: 7-11 could plausibly argue they would have fired the employee anyway, but there's no denying the proximate cause of the firing is the violation of the policy that was also an act of lawful self-defense.

So the question is what to do about that. I have to imagine the WV SC would respond that in such a mixed-motive situation, the strong public policy favoring self-defense requires protecting the employee. After all, but for the self-defense, 7-11 would never have discovered the general violation of its policy, and thus there would have been no discharge. Thus, to the extent this isn't perfectly analogous to a same-decision situation, it cuts in the favor of the employee: the ability to make the lawful discharge is inextricably intertwined with the protected activity, and thus there's no way to shield the protected activity without also shielding the previous violations of the policy.

On the other hand, it is an interesting question whether 7-11 could go and search the employee's desk the very next day, and if the employee still had the gun, fire him then (obvious parallels to retaliation claims come to mind).
6.13.2005 9:38pm
Tom952 (mail):
Suppose an employee of a company with a no-self-defense policy is killed on the job by a criminal during a robbery. The employee doesn't provoke the criminal. His job just put him in the wrong place at the wrong time. Would his survivors have a claim against the company for interfering with the employee's exercise of his constitutional right of self-defense, resulting in his death?
6.13.2005 10:09pm
Ken Willis (mail):
This is similar to carrying a firearm in a National Park. There is a federal regulation which prohibits carrying loaded firearms in National Parks, and a federal law against shooting bears in National Parks. But self-defense, if properly established, would be a defense to the violation of the federal statute, but not a defense to the violation of the Dept. of Interior regulation against carrying the firearm into the park.

7-11 has fired a lot of clerks for successfully defending against a robbery with a firearm, in violation of 7-11 policy. Perhaps that helps explain why they keep getting robbed. Most 7-11 employees just go quietly, glad to still be alive and figuring that the job is not worth fighting over anyway.
6.14.2005 1:20am
Brett Bellmore (mail):
The interesting question to my mind is, does 7-11's policy really reduce injuries and deaths during the course of robberies, or does it merely result in that level of injury and death being achieved at a higher level of robbery? Less violent robberies, but more of them, in other words. Are there convenience stores out there that follow the opposite policy, so that this could be established?
6.14.2005 6:16am
Andy Freeman (mail):
It wasn't the employee's gun - it was the robber's gun, so searching the employee's effects/work area wouldn't show that the employee violated company policy.

Note that the "don't resist" policy is pretty much guaranteed to get you killed if the robber is ordering you into the back room or a car. Why? Because they do that when they've already decided to kill you and are just arranging more favorable circumstances. You don't have anything to lose by fighting back then.

I find it interesting that some folks think that the fact that someone has told me that my life is worth less than $50 to them is evidence that said someone has my best interests at heart.
6.14.2005 12:20pm
TMarcell:
Kerr is correct in that carrying a firearm onto the employer's premises, whether it was used to thwart a robbery or not, would violate policy and find no cover under self-defense, but it seems that the company's standing policy of non-interference would per se limit, and therefore, violate public policy sef-defense claims.
But Textualist, you say,"After all, but for the self-defense, 7-11 would never have discovered the general violation of its policy, and thus there would have been no discharge."?
Isn't it possible that the employee could have mentioned this to another employee?
Be seen transferring the gun from his bag, clothes, etc. to the store's counter?
Mentioned his protecting the store to a customer who then could have reported it to management?
There are, clearly, a number of ways 7-11 could have discovered the violation of it's policy. But all this is irrelevant; you can't argue that there would be no violation if the company had never discovered it.
What is this, the Homer Simpson defense?
Marge: Homer, you promised you wouldn't keep a gun in the house!Homer:Yes, but only because I thought you'd never find out!
6.14.2005 2:40pm
Andy Freeman (mail):
> Isn't it possible that the employee could have mentioned this to another employee? Be seen transferring the gun from his bag, clothes, etc. to the store's counter? Mentioned his protecting the store to a customer who then could have reported it to management?

No. The gun that the employee used in this case was the robber's gun.
6.14.2005 3:02pm
Toby Marcell (mail):
Andy,
True, in the actual case, I was just referring to Kerr's hypo above:

Consider an example. Imagine that 7-11 has a policy that employees are not allowed to carry guns, but an employee does so anyway...
6.14.2005 3:20pm