May employer fire employee based on employee’s reasonable on-the-job armed self-defense?

No problem under Michigan law, the Sixth Circuit ruled today in Hoven v. Walgreen Co. (6th Cir. June 2, 2014).

A bit of background: Generally speaking, private employers may terminate their relationship with employees for any reason, or no reason at all — that’s the “employment at will” principle. Private employees may likewise terminate their relationship with their employers for any reason or no reason at all. (Note that government employers are indeed subject to constitutional constraints, though they might not be as bound by them as the government acting as sovereign.)

There are two main legal constraints on this. The first is contractual, for instance some sort of union contract or tenure contract. The second is statutory, such as bans on discrimination based on race, sex, religion and the like (including, in some states, sexual orientation and marital status), or less well-known statutes banning discrimination based on an employee’s vote, and in about half the states banning employer retaliation for certain kinds of employee speech and political activity. But if no such contract or statute is applicable, even conduct that is constitutionally protected against governmental retaliation — such as speech, political activity, off-the-job sexual activity, marital decisions, self-defense, and the like — are not protected against private employer retaliation.

There is, however, a third constraint, created by judges in many states: the tort of “wrongful termination in violation of public policy.” The Michigan formulation of this tort, which is similar to that in many other states, bars such termination when:

(1) the employee is discharged in violation of an explicit legislative statement prohibiting discharge of employees who act in accordance with a statutory right or duty;
(2) the employee is discharged for the failure or refusal to violate the law in the course of employment; or
(3) the employee is discharged for exercising a right conferred by a well-established legislative enactment.

The complicated category is category (3). There are lots of legal rights and privileges that don’t trigger that category — people have the right to speak, but, absent a statute, courts generally don’t bar employers from firing employees based on their speech. (There’s one exception, Novosel v. Nationwide Ins. Co. (3d Cir. 1983), but it hasn’t been followed.) Likewise, I know of no court that has concluded, absent a statutory ban on sexual orientation or marital status discrimination, that firing an employee based on the employee’s marriage or constitutionally protected private sexual activity is tortious. On the other hand, quite a few courts have indeed accepted category (3) as to the filing of workers’ compensation claims (which are claims against a government fund, though ones that affect the employer).

This brings us to self-defense (and in particular what I call “reasonable self-defense,” which would set aside situations where a judge or jury concludes that an employee wasn’t sufficiently threatened, could have avoided the problem without physical self-defense, used excessive force under the circumstances, and the like). Feliciano v. 7–Eleven, Inc. (W. Va. 2001) recognized “a substantial public policy exception to the at will employment doctrine whereby an employee may defend him/herself against lethal imminent danger,” though it noted that “an employer may rebut the presumption of a wrongful discharge based upon an employee’s exercise of his/her right to self-defense by demonstrating that it based the termination upon a plausible and legitimate business reason.” Cocchi v. Circuit City Stores, 2006 WL 870736 (N.D.Cal. Apr. 3, 2006), took a similar view. So did Gardner v. Loomis Armored Inc. (Wash. 1995), as to the defense of a third party. On the other hand, Johnson v. CVS Pharmacy, Inc., 2011 WL 4802952 (N.D. Cal. Oct. 11, 2011), Davis v. Stock Building Supply West, Inc., 2005 WL 1828735 (D. Utah July 29, 2005), Bagwell v. Peninsula Reg’l Med. Ctr. (Md. App. 1995), McLaughlin v. Barclays Am. Corp. (N.C. Ct. App. 1989), Scott v. Extracorporeal, Inc. (Pa. Super. Ct. 1988)), and now Hoven v. Walgreen Co. held that there was no common-law prohibition on employers’ discharging employees based on their lawful self-defense. More recently, the federal district court in Ray v. Wal-Mart Stores, Inc. (D. Utah Oct. 9, 2013) certified this question as to Utah state law to the Utah Supreme Court.

Here’s a sample of the Hoven reasoning on the matter (though the court goes into considerably more detail):

[T]he Self–Defense Act does not confer a right on the public to engage in self-defense. The right, if any, that is conferred is simply the right to present a defense in a criminal case, the elements of which a factfinder may or may not determine were satisfied. Moreover, … this statute does not apply to both civil and criminal cases. The fact that the statute immunizes an individual who meets its requirements from criminal consequences but not civil liability demonstrates that it does not confer an unlimited right to engage in self-defense — it only provides a potential defense to criminal prosecution by the state. Just as the constitutional [free speech] provisions that applied only against state action did not suffice as a basis for a public-policy claim against a private employer [citing an earlier Michigan state appellate precedent], neither does this law.

For a sample contrary view, see Feliciano (W. Va. 2001):

[T]he right to self-defense is so entrenched in the common law of this State that, some eighty years ago, this Court, while considering a defendant’s plea of self-defense, obviated the need for meaningful discussion thereof by remarking that “[t]he law of self-defense is so well understood and has been so many times laid down by prior decisions as to need no additional affirmation in this case.” Furthermore, we previously have recognized that the right to self-defense extends to one’s place of employment:

[i]n defending himself, his family or his property from the assault of an intruder, one is not limited to his immediate home or castle; his right to stand his ground in defense thereof without retreating extends to his place of business also and where it is necessary he may take the life of his assailant or intruder.

Syl. pt. 7, State v. Laura, 93 W.Va. 250, 116 S.E. 251 (1923). Hence, it goes without saying that an individual’s right to self-defense in West Virginia has been sufficiently established in and clarified by our State’s common law so as to render it a substantial public policy.

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. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit. Volokh is the author of the textbooks The First Amendment and Related Statutes (4th ed. 2011), The Religion Clauses and Related Statutes (2005), and Academic Legal Writing (4th ed. 2010), as well as over 70 law review articles. Volokh is also an Academic Affiliate for the Mayer Brown LLP law firm.
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