Last week, the Utah Supreme Court held, allowed the matter of Shawn H. Ray et al v. Wal-Mart Stores, Inc. to proceed. That’s news because under Utah law the right of self-defense trumps an employer’s right to terminate at-will employees in situations where “an employee reasonably believes that force is necessary to defend against an imminent threat of serious bodily harm and the employee has no opportunity to withdraw.” . . .

Two of the plaintiffs, Derek Holt and Eric Hunter, had been employed by Walmart’s West Valley City, Utah store in the asset protection team. They were terminated for violating Walmart’s policy AP-09, which governed interactions with persons suspected of theft:

If the Suspect is believed to possess a weapon, the Suspect must not be approached. If during an approach or investigation, it becomes apparent that the Suspect has a weapon or brandishes or threatens use of a weapon, all associates must disengage from the situation, withdraw to a safe position, and contact law enforcement.

If at any point the Suspect or any other [sic] involved becomes violent, disengage from the confrontation, withdraw to a safe position and contact law enforcement

The facts behind their termination were:

Mr. Holt and Mr. Hunter confronted a shoplifter. When t shoplifter tried to run away, they grabbed her arms. During the ensuing struggle, the shoplifter pulled out a small pocketknife and shouted that she was going to stab [Holt and Hunter] if they did not let go. [They] maintained their hold, however, and a customer helped pry the knife out of the shoplifter’s hand.

As a result of their efforts, Holt and Hunter were fired by Walmart for violating the policy mentioned above.

Nice, eh?

Shawn Ray, Lori Poulsen, and Gabriel Stewart were employed at Walmart’s Layton, Utah store. The events surrounding their termination were even more spine-chilling. Ray and Poulsen had “escorted” a customer who was attempting to steal a laptop computer by concealing it in his pants, to the store’s Asset Protection office, where they were joined by Stewart. The customer disgorged the laptop and, according to the employees, went for his heater, announcing, “I have something I shouldn’t have. Don’t make me do this!”

Ms. Poulsen noticed the customer had a gun and yelled “Gun! Hand!” The customer rushed towards the door but then turned and shoved Mr. Stewart against the wall and pressed the gun to his back. A skirmish resulted, and the Walmart employees managed to remove the gun from the customer’s hands and force him to the ground. Ultimately, Mr. Ray, Ms. Poulsen, and Mr. Stewart were all fired following the incident for violating Policy AP-09.

Apparently, even having an attacker pressing the gun into your back didn’t justify violation of policy AP-09 to Walmart. (To be fair, Walmart claims that the alleged thief merely ‘transferred’ a gun from his back pocket to his coat pocket, when a ‘struggle ensued’. I’m not sure that makes their case significantly stronger, all things considered.)

The employees filed a civil suit in the federal district court for Utah, claiming wrongful termination. Like most Walmart employees (indeed, like most employees in America) they had been employed on an “at-will” basis, meaning that their employer could cashier them at any time, for almost any reason.

There are a few constraints on this (discussed at UCLA Professor Eugene Volokh’s blog here,) but the one we’re most interested in is the tort of “wrongful termination in violation of public policy”. In other words, “even an at-will employee may not be fired if her termination would violate certain public policies.” The Beehive State supreme court has held in the past that there are four categories of public policies that are eligible for consideration under this exception:

(i)[r]efusing to commit an illegal or wrongful act, such as refusing to violate the antitrust laws;
(ii) performing a public obligation, such as accepting jury duty;
(iii) exercising a legal right or privilege, such as filing a workers’ compensation claim; or
(iv) reporting to a public authority criminal activity of the employer.

In this case, the plaintiffs argued that their right to self-defense was (in the Court’s words,) a legal right that was “so substantial and fundamental that there can be virtually no question as to [its] importance to the public good.” (citation omitted)

The Utah Supreme Court agreed. It noted that there were substantial protections in Utah law establishing the right to self defense, starting with Article I, Section 1 of the Utah Constitution (“All men have the inherent and inalienable right to enjoy and defend their lives and liberties,”) about which the Court held “there is simply no way to read the text as establishing a right of self-defense at an individual‘s home or in public, but not at his or her place of business.”

The Court also favorably referenced Article I, section 6, which states: “The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed….”

In support of its position, the Court also cited various Utah statutes and common law decisions — including the state’s “stand your ground” law — holding that these pro-self-defense laws cumulatively reflect a public policy favoring the right of self-defense.

Walmart had tried argued that the Utah Constitution’s provisions concerning the right to self-defense limited the government’s ability to infringe the civil rights of Utahans, but the Supreme Court wasn’t having it. At-will employment was a doctrine created by common law, the Court held, and thus it was within the power of the Court to determine exceptions to it.

Some thoughts on this matter:

(1) This case isn’t over, of course: the wrongful termination action will now proceed in federal court. The feds only kicked it over to Utah to make this determination; even though it’s a federal action, they’ll be applying Utah law. Now the ball is back and their court, and the cases will proceed to trial.

(2) I’ve always felt conflicted about laws that override the right to private property. On a basic level, a property owner ought to be able to set the terms by which people can access that property, but for a variety of reasons (some good, some bad,) we as a society are apparently okay with the idea that there are some exceptions to that. Further, for most people, the employer-employee relationship is one of unequal negotiating power. Although it appeals to my inner libertarian to want to wish away unnecessary regulations, given the very real economic hardships likely faced by these former employees, and the alleged threats of death or grievous bodily injury they encountered in the course of their jobs, it’s hard for me to argue that the employer’s property rights should carry the day here.

(3) None of the plaintiffs in this matter appear to have been terminated while carrying a concealed firearm in violation of a “no weapons” policy. In fact, there was an earlier case — Hansen v. America Online Inc. in which the Utah Court upheld a lower court’s dismissal of a wrongful termination action brought by former employees who had been observed on security cameras transferring guns into a car in a company parking lot prior to going to a shooting range after work. The Walmart court specifically cited that case as well, so it doesn’t look like Utah’s judiciary will be revisiting that decision anytime soon.

That said, going forward, the right of an employee to defend himself in the face of a threat can trump the right of a corporation to fire its employees for violating its anti-self-defense workplace policies in Utah. That’s at least a small step forward.

 

DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice in any matter, you are strongly urged to hire and consult your own counsel. This post is entirely my own, and does not represent the positions, opinions, or strategies of my firm or clients.

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80 Responses to Utah Supremes: Right to Self-Defense Trumps Employers’ Rights

  1. wow what a disgusting scenario. i hope this plays out well. it would be nice to send a message to the corporations that the people still matter.

  2. For corporations the main concern is reducing their liability. They already reduced their liability towards employees enough so as to not pay if anything happens to their employees so their main concern now is reducing liability toward customers. Walmart would rather have an employee killed than a liability lawsuit and that’s really the main story here. For big companies policies are more important than common sense because money is more important than human life.

  3. For corporations the main concern is reducing their liability. They already reduced their liability towards employees enough so as to not pay if anything happens to their employees so their main concern now is reducing liability toward customers. Walmart would rather have an employee killed than a liability lawsuit and that’s really the main story here. For big companies policies are more important than common sense because money is more important than human life, which creates some ridiculous meetings and talks with managers. For some reason people think these companies care about your safety, they just care whether or not you can sue when something goes wrong, making it all the more important to carry and take care of yourself.

    • Then WM should consider the liability of letting an armed criminal walk through their store. That woman cuts someone or that man shoots somebody after the employees “disengage” and you’re moving to Lawsuit City.

      • Interesting. So to sum up:

        A Second Amendment proponent is someone who believes it’s irrational to hold an inanimate object, like a firearm, responsible for the illegal actions of an individual; but that it’s rational to hold an inanimate and intangible entity, like a corporation, responsible for the illegal actions of an individual.

        Curious, that.

        • Corporations are made up of people. Policies are written by people. Give me a call the next time a gun writes a policy or files a lawsuit.

        • But that’s not the law. A corporation is its own legal entity. Individuals may tend to it, but it’s still a separate entity by desire and design.

          Nevertheless, the fact remains that neither the corporation, nor its flesh and blood shareholders, are the ones conducting spree shootings. The spree shooters are, and that’s the direct cause of death and injury.

          You’re holding a corporation’s ideas responsible for an actual person’s actions. How is that different from holding NRA, GOA, 2AF, TTAG, et. al. and their ideas responsible for an actual spree shooter’s actions, as the antis want?

        • That’s a clever bait and switch; first you start of by comparing a cooperation to a tangible object (a firearm) and then when your idea was refuted as absurd you back off to pro-gun organizations like the NRA, pretending never to have completely changed your argument.

        • Kelo? There’s no bait and no switch. There’s barely been an addressing of my argument, let alone a refuting of it.

          I only pointed out the inconsistency of people who say don’t blame the gun, blame the shooter, but who then turn around and blame a corporation instead of the shooter.

          Whether it’s a gun, a corporation, a blog or a nonprofit advocacy group, the unifying trait is that none of them provided the volition to conduct a spree shooting. Only the shooter did, which some people on both sides expediently ignore because it frustrates their overall goals. That’s not my problem. It’s theirs.

          I’m sorry you don’t understand. However, lack of reading comprehension on your part does not evince a logical flaw or debating trick on my part.

        • Jonathan – Houston, no one is holding walmart responsible for the criminal activity. They are holding them responsible for now allowing employees the ability to defend themselves without punishment.

          Additionally, how can a corporation on one hand claim to be a non-person entity and therefore not responsible for the safety of the employees in lieu of allowing employees to defend themselves, yet claim private property rights, which is guaranteed only to individuals, not non-person entities, to use as a means by which to disarm their employees? In other words, how can they have the rights of an individual without the responsibility of an individual? If someone breaks into my house and you try to defend yourself, but I stop you physically or by coercion (which is what walmart is doing by firing people), and you get injured, I am liable and can be sued. Especially, if I was negligent in securing your safety, which walmart would be failing to do even if they have security guards because as a walmart employee a security guard can’t posses a firearm and must run away from criminals, as per their policy.

      • Walmart has no obligation to keep everyone safe from everyone else. If a crazy comes in and injures or kills someone Walmart has no liability, the store is just the venue in that case, just like a car manufacturer or gun manufacturer is not liable for what is done with their products by an end-user. If an employee accidentally injures or kills someone during an incident while on duty Walmart now has liability and will be held accountable. So it’s easy to see why Walmart’s policy is to disarm employees and do nothing to keep anyone safe. Does it make sense? Not to a reasonable person, but it’s right out of corporate policy 101.

        • They do, at least, leave customers the heck alone, indiciating that they aren’t anti-gun, so much, as worried about liability.

    • This is like the national pizza chains firing employees who survived a robbery by using a legally carried gun. The local Mom and Pop stores almost never take that tack. Why? WHO is going to invest 500 billable hours to sue a corner store?

    • Exactly. The CEO’s of these places would come down to the store and kill an employee themselves if they thought it would save the company a dollar.

    • “or big companies policies are more important than common sense because money is more important than human life”

      Says the guy who drives around town at speeds not less than 20 mph, in a vehicle weighing not more than 4,000 lbs.

      Face it: we could end 99% of traffic fatalities tomorrow if we wanted. Just build the cars heavier at 10,000 lbs. and with over engineered reinforcements, then install governors keeping top speeds under 20 mph.

      Would that inconvenience society? Impose massive costs on the economy? Of course it would. That’s the trade-off we make between money, efficiencies and lives, injuries.

      It’s simple economics and no different from any of the innumerable other decisions and trade-offs we make daily, including the risks/rewards of carrying a self-defense firearm.

      “Companies” are legal entities. Behind them are just other human beings not unlike yourself. How about you lead by example: YOU volunteer to pay higher prices to cover legal liabilities that arise when policies you object to are abandoned. Likewise, YOU reimburse shareholders for the resulting stock price declines.

      It’s easy to play Mr. Moral Superiority from the sidelines, when it isn’t your money at stake. After all, we all have courage enough to withstand the tragedies that befall others.

  4. Your private property rights end when you open it up to the public. As a public business there are a tun of anti discrimination regulations regarding who I must allow on to the property, this is no different. Once a property is open to the public I have to allow the entire public on to the property. If I’m unable to serve a customer because of sudden lack of resources, that is a different matter, but I can’t bar them from the property.

    • What exactly does open to the public mean? If you open a business you automatically lose your property rights? How is that just?

      • It isn’t, but it’s the latest thing here in gun rights land, certain zealots who only care about one of many rights being in favor of *compelling* businesses to let one walk onto their premises with a gun. Who gives a crap about someone else’s property rights, when I wanna carry my gun?

        • Real, inherent rights trump artificial, invented rights. The right to real estate is an artificial, invented right.

          If your real estate is one that invites the public to enter, as customers or whatever, there is no right to tell the members of the public that they have to leave certain rights at the door.

        • @Roymond,

          We had this conversation on the other thread.

          As I recall, you claimed that real estate was somehow different from a bicycle, because a bicycle had to be produced by someone, who then properly owned it, whereas real estate was simply “found” not produced. (Or words to that effect)

          I pointed out that a *shop* was built by someone, and therefore he had every bit as much right to control it, by your criteria as a bicycle, including denying you the use of it, and you never responded.

          You simply came over here and repeated your same line of bullshit, that a man gives up his right to control his property as soon as he opens his doors.

      • If your business produces widgets behind closed doors and ships them to a retailer, you can lock the doors and bar everyone. If your business sells burgers to the public, you must admit the public, you don’t get to pick and choose. Not so difficult, if you don’t like it don’t pretend to serve the public.

    • I’m afraid this may be a popular sentiment (and then only when applied to certain people), but it is not true. You may deny service to anyone not in a protected class.

      • Given the way the federal government especially has been treating the PotG over the last generation-plus, we certainly OUGHT to be a protected class!

        • yeah, instead of fighting to FIX the ORIGINAL error, let’s perpetuate it, use it…and thus give up our moral right to complain about it.

    • You are saying that the cost of making a living comes at that of surrendering your rights.

      If a business owner gives up private property rights as a matter of course, it follows logically that employees surrender their rights as well. After all, what is an employee but the smallest small business owner possible, in the business of selling nothing more or less than their labor.

      You might believe that, but I personally think that private property rights are the most important, maybe the only rights that matter. The right to self defense follows from the idea that your body, and mind, are your property, so do the rights of religion and speech, privacy, association, free movement, etc. Why is it logical, or even morally acceptable, for business owners not to be allowed to exclude those they wish not to serve? Is it not equally logical that individuals should not be able to exclude businesses they wish not to associate with from their job search?

    • Absolutely. It goes beyond any constitutionally protected, civil or even human right. it’s a universal and natural right. Every living thing has it. Even plants and bacteria have defense mechanisms. If they didn’t, they’d be extinct. As most have.

      Extinction is the rule. Survival is the exception.

    • Perhaps, but if it’s your right to exercise, then it’s also your right to waive, n’est-ce pas?

      People contract to waive and grant and exercise rights every day. As long as it’s mutual and force/fraud-free among parties able to provide legitimate consent (i.e., adults of sound mind), then what’s the problem? I see none.

      Let would-be employees and shoppers alike decide for themselves whether to agree to Walmart’s offer of employment and shopping experience under these terms.

      Don’t like it? Disagree with the offer? That’s fine. Then don’t waive your rights, just go work and shop somewhere else and exercise your rights there. This is Walmart’s property and they make the rules, just as you do in your own home.

      • The crucial aspect of rights is that they cannot be waived, nor superseded.

        They may be exercised or not exercised, but to suggest the waiver of rights is to imply that they are not, in fact, rights,

        To put it another way, you are trying (through either careless thinking or malice, I don’t know which) to conflate privileges (driving, doing business at a given establishment, etc.) with rights. This is a common tactic among gun grabbers and the advocates of totalitarian statism, who wish to create a public narrative that these ‘inalienable rights’ are in fact simply a stronger kind of privilege, of which a common man can be deprived at any point “for good enough a reason”.

        This is purely an ends-justify-the-means manner of thinking which places expedience (often political) above the principles which underpin a healthy and liberated society.

        • Wrong. You can waive your rights. If you want to split hairs and call it an agreement not to exercise your rights, then fine, whatever gets you through the night.

          The fact remains that your rights are not permament, as you claim. They can be forfeited, as when you lose your right to life or liberty for having committed a serious crime. They can be waived, as when you give a child up for adoption. They can be acquired, as when you purchase property. This tenet is long, long settled philosophy. I’m not going to debate a bedrock principle just because playing word games is your only and desperate retreat.

          I didn’t read the read the rest of your pathetic spiel, because it flows from a flagrantly false premise, as well as your having disrespected me by calling me careless and/or malicious. You’ve done no serious thinking about this topic and you haven’t earned the right to discuss it with me. Good day, sir.

      • Jonathan,

        As long as it’s mutual and force/fraud-free among parties able to provide legitimate consent (i.e., adults of sound mind), then what’s the problem? I see none.

        Let would-be employees and shoppers alike decide for themselves whether to agree to Walmart’s offer of employment and shopping experience under these terms.

        Don’t like it? Disagree with the offer? That’s fine. Then don’t waive your rights, just go work and shop somewhere else and exercise your rights there.

        The problem here is that many “agreements”, while being force/fraud free, are still not “free” agreements. This is getting into the idea of “fairness”, treating everyone as equals, and taking advantage of someone’s desperate situation. As a result, there are plenty of situations where a person is effectively under duress, but not force or fraud, and enters into “agreements” because they believe that they have no other choice. Such an “agreement”, we could argue, is really not an “agreement” at all. I believe the legal terms involve concepts such as “meeting of the minds” and a contract “negotiated at arms length”.

        Unfortunately, I am pressed for time today so I cannot expound any further and I’ll have to leave it at that.

        • A valid point, but inapplicable here. Meeting of the minds refers to a mutual understanding among the parties of the contract as to the terms of the contract.

          I offer to buy your car for a “thousand dollars.” You may not be pleased and may cry foul when I show up with one thousand Canadian or Australian dollars, which are worth roughly 70 U.S. cents each, and demand the keys. That contract is invalid because there was no meeting of the minds, no clear understanding as to what EXACTLY was to be paid for the car.

          That doesn’t apply here because it’s abundantly clear to an employment applicant that he is applying for employment and will be provided with employment policies to follow. Likewise, a shopper knows full well that he’s entering the store as a shopper and that’s the extent of the agreement.

          Fairness of a contract, even freely entered into, is also a valid point, but also inapplicable here. It isn’t the courts’ or our jobs to scrutinize every agreement for fairness. Some people outmaneuver others because they’re more savvy. Some people are thoughtless and make agreements promiscuously. Some people are just stupid and that can’t be fixed.

          A contract’s terms would truly have to shock the conscience before being declared null, even if freely entered into. That’s a tiny, tiny sliver of territory, however. Over indulging in rescuing people from their own imprudence opens up society to far greater ills than a bad deal here and there.

          Neverthless, wherever there’s a Walmart, there are other employers and other retailers. Alternatives are plentiful such that agreeing to shop/work in the gun free zone doesn’t even raise the conscience’s eyebrows, let alone shock it. Nor does it even approach the threshold of duress.

      • “This is Walmart’s property and they make the rules, just as you do in your own home.”

        The ultimate statist argument!

        Besides that, it’s fallacious to compare business property to one’s home; they are two entirely different kinds of property.

        • Wait, YOU want to manipulate the levers of government, backed by law and men with guns, to dictate to Walmart what conduct Walmart permits on Walmart’s own property among its consenting employees and customers…….and I’M the statist? Riiiigghhttt…….

          I don’t think that word means what you think it means.

          As for a store being different from your home, that’s an artificial distinction, imposed by actual statists, ones who want to dictate people’s conduct among consenting adults. The proof? The same statists who dictate that establishments be non-smoking, are now coming after smokers in their own homes and dictating their own homes be non-smoking, too!

        • Real estate as private property is a statist invention. The privileges — not rights — it affords are entirely a statist structure. Second, corporations are a statist invention, a way the wealthy use to avoid responsibility for their individual actions.

          So yes, you defending the statist privileges of a statist entity make you a statist. Only a statist could content that my personal inherent rights can be set aside by the confluence of such inanimate objects.

        • Rights to property, whether personal or real estate, are not a statist invention. They predate the state.

        • So I will ask you again, Roymond… as I understand it your theory (I’m being charitable with that word) is that real estate is not property because no one made it.

          Walmart is a building (root word: build) on a patch of real estate. By what theory do you deny them control over that building? Or their parking lot (again, built by people)? Their rights to such, even by your misbegotten theory, should be as secure as your right to your bicycle.

        • I’m not denying them control over the building, I’m denying them control over my person.

          They can either let the public in, or not. To pick and choose among the public is a form of tyranny, because to deny the rights of any is to deny the rights of all.

          If they want only certain people in, they should switch to a membership system where only paid-up card-carrying members are allowed in.

        • So let’s see here. On one occasion, when I maintained it was their property right that allowed them to bar whoever they would, you responded that real estate wasn’t real property. I’ve pointed out the problem with that, now you deny that that was ever your rationale, and you fall back to simply asserting it’s somehow a violation of your rights if a property owner won’t either let absolutely everyone onto his property, or no one.

          Your logic is stretching very thin here. I suspect if you go off and think about it, and do some navel gazing, your real problem is you can’t get these people to do what YOU want them to do, which is let you prance around on their property on your terms rather than theirs, and you just hate it when “the man” doesn’t give you what you want just because you want it.

          If you want to be free, you must respect other peoples’ freedom, and that includes their freedom of association.

        • I don’t want to go on Walmart’s property at all. But I do want them to respect inherent rights. Real estate as private property is not an inherent right; there is no logical connection between that and self-ownership. So real estate rights cannot trump inherent rights.

          Nor can “building rights” trump inherent rights, unless I’m dragging a gun on their floor. My gun is on my person, and they do not own my person.

          And for them to say I cannot come on their property armed is to say I can only come on if I accept the status of a slave, since it is free people who bear arms. There is no right at all to tell someone else, under any circumstances, that they must assume the status of a slave. So either they allow the public on, or they allow only owners on.

        • I don’t want to go on Walmart’s property at all.

          Just to clarify: Walmart in fact actually has no problem with customers carrying on their property. I’m talking about the general case of a hoplophobic shithead of a business owner posting his property.

          But I do want them to respect inherent rights. Real estate as private property is not an inherent right; there is no logical connection between that and self-ownership. So real estate rights cannot trump inherent rights. Nor can “building rights” trump inherent rights, unless I’m dragging a gun on their floor. My gun is on my person, and they do not own my person.

          There you go with that distinction between an “inherent” right and “property” or “building” rights. Property such as buildings is the fruit of someone’s labor, purchased with part of his life. It’s also necessary to sustain life. The rights are quite solidly connected, there are of one piece, each depends on the other.

          My gun is on my person, and they do not own my person.

          You’re right, they don’t. They own the space you’re occupying though, and as such they can ask you to leave.

          See the problem is, you persist in seeing this as “disarming” you, because you’re entitled to be there, when the truth of the matter is you aren’t entitled to be there, being there is a privilege, not a right, and they can set conditions on your presence. They are not trying to take your gun away, they’re asking you not to bring it onto their property.

          And for them to say I cannot come on their property armed is to say I can only come on if I accept the status of a slave, since it is free people who bear arms.

          What a drama queen. No slave can just pick up, cross a property line, and become free. No, a slave is compelled and cannot change his own status without the permission of his owner. You, on the other hand, can step outside the building and resume carrying, and shed that one particular characteristic of slavery. The business owner, on the other hand, would be forced to take certain actions if you had your way, he’d be forced to tolerate the presence of people on his property, that he paid for ultimately with his irreplaceable time and labor. In your system he’d be far more of a slave than you would be under one that respects property rights.

          There is no right at all to tell someone else, under any circumstances, that they must assume the status of a slave.

          True enough. Even leaving aside that it’s not the status of a slave (just one characteristic of one), you are in fact being given a choice. You don’t HAVE to be in the hoplophobic shithead’s business. There’s no “must” about it. They’re not sticking a gun to your head, taking your gun away, and declaring that they own you.

          So either they allow the public on, or they allow only owners on.

          Even if it were true that he would be making you a slave by asking you not to bring your gun onto his property, that doesn’t support the conclusion that he must therefore open the property up to everyone or no one. The two propositions are completely disconnected from each other, other than you’re obviously trying to backfill with specious logic to get the answer you want. You want the so-called right to go where you’re not welcome, and you’re willing to claim not being able to do so amounts to slavery. Oh, puhleeeze.

        • I used to think as you do, but following the logic of self-ownership convinced me otherwise.

          BTW, I have yet to ever encounter a business that was built by the owner’s own labor. For the most part, they’re built by the money of people who don’t lift a finger to earn it.

        • “. . . you aren’t entitled to be there, being there is a privilege, not a right, and they can set conditions on your presence.”
          Is this necessarily so? What would be our conclusion if the privileges bestowed/withheld by a proprietor conflicted with some value upon which our society held dear?

          America wrestled with this problem in the era leading up to-and-including the Civil Rights struggle of the 1960s. Somehow, the Congress and courts and eventually the people came to reject discrimination in the context of a “public accommodation”.

          Let’s step back a few decades and look at voter registration and balloting were issues of discrimination in the South. I trust we all hold dear the right of a citizen to vote notwithstanding race. Southern segregationists maintained white-minority control by discriminating against blacks who dared to register, especially if they were seen to have voted. The customary means of extortion was to threaten any black’s life or limbs if his name appeared on the voter rolls.

          No suppose – as a thought experiment – that Federal force precluded physical threats as a means to control black voting. Southern merchants might have used their proprietary rights to exclude black registered voters from their shops. O’l Joe had been welcome in the Feed & Grain for years, until the day after his name appeared on the voter rolls. And so with Tom and Dick and Harry. Word gets around that – if you are black – and you register to vote, then you will have to travel to a distant town to buy your provisions. That form of discrimination would be just enough to keep blacks from voting.

          What shall we make of this? Does the proprietor’s sacred right to exclude anyone from his property for ANY reason whatsoever trump the right of a citizen to vote? Is a property right sacred while the right to vote is profane?

          How about inter-racial relationships? O’l Joe was welcome in the Feed & Grain until he started dating a white girl; or married her.

          How about expressing political views? O’l Joe was welcome, until he started supporting candidates who advocated for de-segrigation of schools?

          Either property rights are absolutely sacred; or, they are not. If they are absolutely sacred then no claim of urgent necessity could trump proprietary claims. The only doctor for miles around could refuse to render medical aid to an injured black man because he registered to vote. Likewise, he could refuse to deliver a white woman’s baby because she married a black man. There would be no scenario whereby we would feel compunction about a refusal of service, sale of goods or presence on private property due to any sentiment held by the proprietor.

          Conversely, if property rights were not more sacred than any other right recognized by our society, then we couldn’t just so swiftly to any particular conclusion. Once a competing right comes into contention with proprietary rights we have to struggle with the conflicting principles and consequences of their application.

          Suppose an utterly fantastic scenario. Carol Bowne, lately of NJ, was granted a carry permit. A hoplophobe green-grocer takes notice of her holding a permit. Notwithstanding that she has an order of protection against an ex, he will not tolerate her presence in his shop. She may – or may not – carry her gun concealed when she attempts to enter his shop. He refuses her admittance because she might be lawfully armed and he lacks the means to ensure that she is not carrying concealed. Ms. Bowne is reduced to buying her provisions at a more distant and less secure venue where she is further exposed to an inevitable attack. Where do our sentiments run in such a case? To the hoplophobe?

        • Good thought experiments.

          Personal rights, as in rights applying to one’s person, have to come first; otherwise they can be maneuvered into uselessness. And that’s why one’s home is different than one’s business: home is personal.

          Heck, there are even thieves who recognize this; it’s not uncommon for someone caught in burglary of a store to despise someone caught burglarizing a home.

  5. The first example may not hold up since it appears the employees violated company policy from the start of the encounter. The second example appears to be a much stronger case since the employees had a justifiable fear of injury or death. If an employer has no legal accountability to employees who are injured or killed because they obeyed a company directive to abstain from any violence, even in lawful self-defense, and if that company cannot be held liable when it fires any employee for violating this policy under those same circumstances, then it follows that all other natural and Constitutional rights are subject to forfeiture at the whim of an employer. An employees right to free speech, association, private property, and religion, could all be threatened while at work, even if they are not being exercised at the time. And who is to say the employer could not extend his reach outside the place of employment. If he learned an employee supported a cause or political candidate of whom he did not approve, how would an employee defend himself from threats of termination? The employer is not a lord, and the employee is not a serf. In order to prevent such a condition from arising, there must be a degree of accountability shared by both parties.

    • I disagree.
      If they grabbed her AFTER she brandished the pocket knife, it may be a violation of policy.
      But, that is not what happened. She was being detained, then pulled a knife and threatened them. If the employees let her go, they are both close enough to a person armed with a knife to be attacked, and they no longer have any control over her ability to use that knife. They would be at the mercy of her deciding to actually flee, rather than strike out, and since more than one employee had her detained, the employees would have to attempt the very difficult task of letting her go at the same exact time.
      If one lets go first, the chances of the other employee getting attacked with the knife are substantially increased.

      • EDIT: Not necessarily with regard to religion, of course…and perhaps not association. But freedom of speech? Not so much.

  6. I think Walmart has a difficult case to argue here. At issue is the policy and if it can even be followed DURING an altercation.

    The policy states that the employee has to retreat and call the cops. But, what if there is no opportunity for that? In at least one of those cases, it looks like the employees were DOING THEIR JOB (which directly puts them into situations that might involve physical altercations) and it became defense of self with no real opportunity to “retreat.”

    Let’s also turn this around the other way: Say a Loss Prevention Officer refuses to ‘demand’ a suspect accompany him to the LP Office or refuses to go hands on to escort a suspect. What if shoplifters increase in effectiveness because LPO’s refuse to risk being fired for DOING THEIR JOB? Will Walmart then fire them for letting too many shoplifters just go out the door?

    I think this kind of policy, or at least as it is being applied here, creates a no-win situation for the employee. THAT might be the basis rationally fighting against the rights of the property owner / employer in THIS case…a person has to know the ground rules to play by them.

    • A similar situation exists in law (as opposed to walmart’s policy). Supposedly I can detain someone if I catch him in commission of a crime (citizens’ arrest), even, conceivably, holding them at gunpoint, but I cannot do anything at all to prevent his escape.

      • That would totally be up to your particular state’s penal laws; like “Escape” is a Class A Misdemeanor here in Texas under TXPC § 38.06 (or a Felony if the arrest is for a felony offense or it causes serious bodily injury), while TXPC § 9.51(b) states specifically:

        “A person other than a peace officer (or one acting at his direction) is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to make or assist in making a lawful arrest, or to prevent or assist in preventing escape after lawful arrest if, before using force, the actor manifests his purpose to and the reason for the arrest or reasonably believes his purpose and the reason are already known by or cannot reasonably be made known to the person to be arrested.”

        Obviously, YMMV.

        • Texas has very good laws on when one may use force to stop a crime. Perhaps the best laws in the US.

          But even here, what are you allowed to do to prevent “escape”? It’s a class A misdemeanor. Whoop tee doo. If you’re holding someone for attempted murder, he has every reason to try to escape. If he fails, he has attempted murder plus some piddling misdemeanor, instead of attempted murder. Big whoop. If he succeeds, he (thinks he) might get away with the attempted murder entirely. That’s an attractive tradeoff in his mind.

          What are YOU allowed to do to prevent his escape? Shoot him if necessary?

  7. Utah Supremes: Right to Self-Defense Trumps Employers’ Rights…..as well it should in every case.

    The employers property rights stop at my well being, always. There was a time I felt less strongly about this, but the craven and cowardly response of most large corporations who willingly put their employees lives on the line disgusts me. This is especially true of those who think providing some minimal life insurance as part of the compensation agreement somehow absolves them of their policies that put their employees in danger with no chance or tools to protect themselves.

    • Exactly.

      For an entity to claim the authority to tell me I cannot even carry with me, let alone use, my chosen means to protect myself, is to claim ownership over me, because they are claiming the power to decide what my life is worth under their authority. It matters not whether that entity is government or business or religion or whatever; to tell me I may not defend myself is to declare me slave.

        • You ignore the “why” of them telling me I may not come on their property: because they believe that my life is not worth defending.

          That’s what it boils down to: anyone, for any reason, demanding that someone else disarm, is declaring that that someone’s life is not worth defending. It doesn’t matter if it’s the government, or a corporation, or a church, or whatever. The claim that those who own a piece of property may dictate my exercise of my inherent rights are making a claim of ownership over my person when I step on that property.

          And that is the ultimate statist argument. Under it, you would have to concede that the government can legitimately demand your disarmament if you are on any sort of government-owned property — and since under the doctrine of eminent domain the government actually owns all the area inside its borders, then you have conceded that the government may legitimately disarm you everywhere.

          Abortion advocates have one thing right: no one but the individual has authority over that individual’s body. So long as my gun is on my body, no one can require me to disarm.

        • You ignore the “why” of them telling me I may not come on their property: because they believe that my life is not worth defending.

          Utterly irrelevant. It doesn’t matter WHY they don’t want you on their property. They don’t. So keep the hell off.

          That’s what it boils down to: anyone, for any reason, demanding that someone else disarm, is declaring that that someone’s life is not worth defending.

          Uh, no. They’re not demanding you disarm, they are demanding you keep off their property. They can’t make you disarm, they can make you stay out. Only if they could force you to be on their property AND simltaneously require your gun not to be there, are you being compelled to disarm. Instead, you have the choice to remain armed. Just not on their property.

          It doesn’t matter if it’s the government, or a corporation, or a church, or whatever. The claim that those who own a piece of property may dictate my exercise of my inherent rights are making a claim of ownership over my person when I step on that property.

          Actually it DOES matter if it’s the government, since the government can actually require you to be in certain locations. That would be odious, but it has nothing to do with business owners.

          And that is the ultimate statist argument. Under it, you would have to concede that the government can legitimately demand your disarmament if you are on any sort of government-owned property — and since under the doctrine of eminent domain the government actually owns all the area inside its borders, then you have conceded that the government may legitimately disarm you everywhere.

          Um, no. Because the government CAN force you onto its property, it may NOT require you to disarm, A business CANNOT force you onto its property, therefore it MAY (if the owner is a dickhead) require you to disarm as a condition of entering–because you have the option to say “No, I think I’ll go somewhere else.”

          Abortion advocates have one thing right: no one but the individual has authority over that individual’s body. So long as my gun is on my body, no one can require me to disarm.

          They can require you to leave. What you don’t seem to understand is, you don’t have the right to just go anywhere you want. You need the permission, either implicit, or explicit, of a private property owner to be on his property (or in his building). He can deny it because you have a gun, or because he doesn’t like your whiny, entitled attitude, or because your breath reeks of anchovies. Don’t like the terms he imposes? Don’t go there then. You keep your gun, he keeps his property right.

          No rights conflict whatsoever, because there is no right to be on someone else’s property. It’s a privilege.

  8. A friend of mine got fired from a job because when he was in Mexico on business travel, his driver crashed the car. He did not get hurt but the driver was seriously hurt.
    Did nothing wrong. But still got fired.

  9. The inherent right to property, or any other of the rights idetentified and defined by Locke, et. al, is useless without the inherent right to life and its corollary inherent right of self defense. You can own nothing and have rights to nothing if you’re dead.
    No employer should be allowed to disarm their employees, especially where they have no armed security.
    Unarmed security has another, more accurate name, “targets”.

  10. Congratulations to Walmart for continually striving to be the most hated company in America. Skipping over strong contenders for worst of the worst — like BP and Turing Pharmaceuticals, which just raised the price of their toxoplasmosis pill from $13.50 per dose to $750 per dose — won’t be easy, but I have great confidence in the Arkansas yahoos that run the business.

  11. I too am troubled by the potential for conflict between property rights vs. the right of self-defense, freedom of expression or religion or any other such right that might contend with property rights.

    Let’s begin from an assumption of deference given to property rights. Now, let’s look at the issue of slavery. To what extent did the slave-holder’s interest in property rights trump any interests whatsoever by other interested parties? Presumably, we could deeply discount any rights of the slave; but could we eliminate the slave’s right to life? Was the slave-owner entitled to a right-to-execute his slave at will? What about the authority of the rest of society to constrain maltreatment of slaves (or livestock or children)? If property rights are sacrosanct, could they be overturned by the Emancipation Proclamation or the 13A?

    Where enumerated rights are in conflict, how do we decide whether one trumps the other? Is it written somewhere that property rights trump all other rights? Is there some pecking order? Or, are we as a people left to our republican institutions to work-out the answers to these questions?

    Does employment-at-will allow employers unfettered discretion in contravention of all other public policy? E.g., suppose a waitress declines her boss’s proposal of marriage; she marries another. Does the employer have a proprietary right to fire the waitress for no reason other than her decision to marry someone else?

    Having fired the waitress, does the restaraunt owner have a proprietary right to refuse to serve her in his restaraunt?

    Whenever we find ourselves encroaching on any right we ought to hesitate to invite government to resolve a dispute. Nevertheless, governments are instituted among men to secure these rights; and, if government refuses to stand for a fair hearing on a less powerful person’s assertion of right in the face of a more powerful person’s counter-claim of right then government declines to rise to fulfill its purpose. At what juncture does such a government reduce to adjudicating merely that “might makes right”?

  12. Let us get back to the original matter at hand; Wal-Mart has determined some of their employees have broken a policy, and thus have fired them. Obviously Wal-Mart has taken the stance that their policies are blanket and have no room for deviation, regardless of the circumstances. All of the employees were threatened with bodily harm and/or a danger to their lives. They took action to defend themselves, and possibly others. Yet, rather than positive recognition for their bravery, Wal-Mart has chosen to chastise them by terminating their employment. This makes no sense on any level. When an organization becomes so callous as to favor their precious policies over the common sense of the safety and well being of their employees then that organization has seriously lost touch with the very foundation upon which it stands. You know, just like the government. But, this is no real surprise with Wal-Mart. The public has been made increasingly aware of what this retail giant has become – a monster that continues to grow while devouring its employees and suppliers. Yet, the American public continues to feed the monster, demanding more selection at lower prices. So, who will stand for those being devoured? No one. As long as we continue to get what we want. But the next time you read about someone defending themselves, whether they are being commended for it or facing criminal charges, remember these folks. They were doing right first by their employer in attempting to stop a shoplifter, then for themselves by defending themselves. And for their commendable actions they were terminated. To me this is deplorable.

  13. Apparently Walmart likes paying at least three employees in a store to prevent having it’s private property stolen – 3 x $30000 = $90,000 times the X factor of unemployement, SS, etc of 2.5 = $225,000 a year.

    I guess they get even more stolen from them without Asset Protection. IIRC I remember someone trying to steel a big screen TV last year locally, plus some others, amounted to @2,500. The average day’s theft equals over $600? They’re paying for security that much.

    They are paying to prevent people stealing stuff from them because they flung open the doors and invited them to come in and buy it. They made their business premises public – I don’t see Amazon doing that. So if it’s public, and anyone can wander in and try to steal stuff – why can’t employees carry concealed to protect themselves?

    Do jewelry stores in NYC tell their employees No Guns? Did one of the more renown shooters, writers, and CCW educators work in a jewelry store growing up? Yeah, Massad Ayoob.

    OF COURSE you should have the right to defend yourself when in the conduct of your job someone pulls a weapon out and threatens you with lethal force. Its a bit two faced for Walmart to fire employees who disarmed a lethal threat when they have a employee video on how to use guns and ammo in inventory to stop an active shooter. http://www.thetruthaboutguns.com/2015/04/foghorn/wal-mart-active-shooter-training-video-we-have-a-right-to-defend-ourselves/

    Property rights don’t trump life and death – if Walmart wants to hire security to act as instore cops, then getting into violent confrontations is going to happen, and NOT supporting their employees when it does means Walmart is shooting themselves in the foot with recruitment. Why work Asset Protection when the only Asset that Walmart will protect is the Corporate Board and Shareholders?

    This is why you should view Corporations as a bigger threat to the 2A than politicians – because they have influence even in pro gun states by disarming employees and firing them for exercising their 2A rights.

  14. This basically makes Loss Prevention a do-nothing job… The reports even refer to the thieves as “customers!”

    I have half a mind to apply for an LP job at Wal Mart simply because the policy negates actually doing the job… Just watch people steal and get paid. I’m cool with that because Wal Mart is dicksack anyway. I’ll be happy to take their money as they forbid me from doing the very job they hired me to do…

  15. Corporate property is not private property, because corporations are not people. They are government-chartered entities with no rights of their own.

    Laws must be passed to end their encroachment on individual rights.

    Kurt

  16. Libertarians ought to uphold any rights to life, property and liberty. Life listed before property.

    It’s hard for me to put myself in the mind of a business owner, since I’m not one, but I imagine my feelings would be the same; people should have the right to defend themselves on my property even if it infringes on my property rights.

  17. Sounds like a great reason NOT to go to work at Walmart. If you don’t like their policies then look somewhere else for work. Might be difficult to do that in an area where there aren’t that many jobs though. Guess eveyone has to make choices. Their employee self defense (or lack of really) policy is incredibly biased against the self protection of those employees though.

  18. It has been proven that Walmart is unsafe. Therefore we the people should carry our own firearms to protect ourselves from the ensuing violence of an unsafe shopping environment.
    No double standards put the DC politicians on Obamacare and SS.
    Thanks for your support and vote.Pass the word.
    mrpresident2016.com

  19. Here’s a thought experiment:

    An administration wants to prevent Americans from travelling with weapons of any kind. So for “reasons of public safety”, they use eminent domain to acquire possession of a one-foot wide strip of property along all county borders in the country. Then they sell that land to a corporation formed for the single purpose of maintaining clearly-marked borders.

    That corporation proceeds to declare that no one may cross their property while bearing weapons of any kind.

    Now, by the logic advanced here, Americans can no longer carry their guns from one county to the next — and it’s perfectly legitimate because it’s a corporation making the requirement to disarm.

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