Constitutional right to self-defense limits government employer’s right to fire employee for defending himself

So holds last week’s decision in Madziva v. Philadelphia Housing Auth. (Pa. Commw. Ct. May 12, 2014), just posted on Westlaw Friday:

Appellant [Simbarashe Madziva] worked for PHA as an asset property manager from January 2009 until his last day of work on December 5, 2011. According to the complaint, in August 2011, a PHA resident entered a PHA office and loudly demanded a housing transfer. Appellant was in the back office when the resident arrived, but after hearing her loud demands, he entered the front office. Appellant attempted to calm down the resident and assist her with a transfer.

Unsatisfied with Appellant’s response, the resident grabbed Appellant and dug her nails into his waist. The resident’s young son also began hitting Appellant. Appellant responded by breaking the resident’s grip and freeing himself from her grasp. The resident then left the office returning shortly with PHA police officers.

The police officers interviewed those present, and they asked Appellant if he wished to press charges, which he declined to do because his injuries were minor. The police investigation concluded Appellant did not commit any wrongdoing.

Five weeks after the incident, PHA suspended Appellant without pay for 10 days and recommended termination for fighting in violation of PHA’s human resource manual. The manual strictly prohibits any form of fighting including in self-defense and provides for termination for a violation.

Appellant requested a hearing to challenge his termination. In November 2011, PHA held a short hearing at which Appellant and his supervisor, who was not present for the incident, testified. Appellant testified he acted non-violently to free himself from his attacker. He also requested a copy of the PHA police investigation report, which PHA denied.

In December 2011, the PHA hearing officer issued a decision upholding the termination of Appellant’s employment. The hearing officer concluded fighting was an infraction warranting termination and the PHA human resource manual provides whether the employee was the aggressor or acting in self-defense makes no difference in the determination.

Because the PHA police investigation report stated there was punching and shoving between Appellant and the resident, the hearing officer concluded the suspension and termination must be upheld. PHA then issued a final notice of termination from employment….

A. Rights to Self–Defense, Substantive Due Process

1. Contentions

Appellant asserts the right of self-defense and the right of substantive due process, which is necessary here to protect his self-defense interest, are constitutionally protected liberty interests. He claims these rights emanate from Article 1, Section 1 of the Pennsylvania Constitution, which provides:

All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

Also, Appellant relies on language in Commonwealth v. Brown, 8 Pa. Super. 339 (1898), especially the following quotation (referencing the right to acquire, possess and protect property, including the right to make reasonable contracts):

The word ‘liberty’ as used in these constitutional declarations means more than freedom of locomotion. It includes and comprehends among other things freedom of speech, the right of self defense against unlawful violence, the right to live and work where he will, to earn his livelihood in any lawful calling, to pursue any lawful trade or avocation, and to freely buy and sell as others may….

We agree with Appellant that he enjoyed a constitutional liberty interest in defending himself from unlawful violence, regardless of whether he had a property interest in his at-will employment. Moreover, this liberty interest is reflected in a public policy permitting use of force in self-defense in various circumstances, both criminal and civil. According to these authorities, the liberty interest in self-defense against unlawful violence has limitations.

We also agree that the liberty interest of self-defense against unlawful violence is broader than, and not dependent on, a right to bear arms…. Considering the foregoing, Appellant satisfied the necessary foundation for pleading a cause of action …. To the extent that the respected trial court decided otherwise, it fell into error. Accordingly, we must reverse and remand….

This fits well with existing, though little-known, precedent on the constitutional right to defense of self (and of property); this right is expressly recognized in the constitutions of 21 states, and could be argued to be implicitly recognized under the U.S. Constitution as well.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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