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Screen Shot 2016-03-31 at 9.50.36 AM

Mississippi is a hire- or fire-at-will state. Employers or employees may terminate their relationship at will, for any or no reason. There are very few exceptions to this legal doctrine, all of which must be codified by the state legislature. The Magnolia State legislature decreed that an employer may not fire an employee for storing his or her firearms in their locked vehicle on company property. Aurora Flight Sciences Corporation ignored the state law . . .

and fired Robert Swindol, for bringing a firearm to work. Mr. Swindol sued, and lost. The case was appealed to the Fifth Circuit. The Fifth Circuit noted that the company violated Mississippi Code Section 45-9-55(1), which provides:

(1) Except as otherwise provided in subsection (2) of this section, a public or private employer may not establish, maintain, or enforce any policy or rule that has the effect of prohibiting a person from transporting or storing a firearm in a locked vehicle in any parking lot, parking garage, or other designated parking area . . .

It also is “undisputed that Aurora had a firearms policy that is inconsistent with [Section 45-9-55].”

As there was no case law on the subject in Mississippi, the Fifth Circuit referred the case to the Mississippi Supreme Court. That court found that the legislature was empowered to protect the individuals exercise of Second Amendment rights. The Court also found that the Constitution and statutes of Mississippi protected the right to keep and bear arms, including within a persons’ vehicle on private property. In conclusion, the Court wrote:

 While Mississippi is an at-will employment state, that doctrine is not absolute. This Court repeatedly has stated that the doctrine must yield to express legislative action and/or prohibitions found in federal or state law. We find that such “express legislative action” and “state law prohibitions” exist here. We also find that Subsection (5) does not protect Aurora from liability under the facts of this case. As such, we answer the certified question affirmatively.

While seemingly obvious and incremental, the case adds to the growing number of cases that find that state governments have solid and presumtive reasons for protecting their residents’ right to keep and bear arms.

©2016 by Dean Weingarten: Permission to share is granted when this notice and link are included.
Link to Gun Watch

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  1. Makes sense to me. Bad enough telling employees that they can’t carry a gun at work, but in some places a rule prohibiting them from bringing a gun in their car is effectively disarming them entirely on the way to and from work.

    • I believe companies in MS can still prohibit guns in vehicles if the parking area is closed to the public. Public parking areas can not be Constitution free zones however.

      My magnolia state makes me proud every once and a while.

    • While forcing the individual to ABANDON their firearm in an unsecured storage location (an auto).

      Pathetic that such a code is even needed to point out the obvious that no person/organization can deprive an individual of their 2nd without due process of law.

      • My job doesn’t allow carry onto the property, but it has a private parking lot and a secure lockup for firearms that you bring. Surprisingly consistent about it too. Of course, being in AZ, legally they have to.

  2. Let the wailing of anti-gun bigots and the torrential flood of liberal tears commence. Our second amendment rights are civil rights, it is time the courts acknowledged and upheld them. I see the day coming when I can sue a business for discrimination on the basis of gender, race, religion, sexual preference or armed status. No more back of the bus or “you can not get on the bus” for us. What was Alinsky said about forcing your opposition to live up to their own rules?

    • Just FYI, the authority to prohibit discrimination on the basis of other traits that you have listed doesn’t come directly from the Constitution, and no court has ever ruled that it does (which makes perfect sense – Constitution defines and limits the power of governments, not private individuals). All existing protected classes are defined by laws, as enacted by Congress – Civil Rights Act etc.

      So no court will recognize being armed as a protected class when dealing with private businesses, unless and until Congress enacts a law making it such.

  3. We have thet here in florida. Except on college campuses for some reason. Colleges and universities ignore this law andnget away with it.

  4. What I would like to know is how the original court found him guilty in such a clear cut case and how to get the original judge off the bench since he clearly does not have an understanding of law.

    • I agree. Though, without having any quote from the defense attorney, or transcript of the trial, it’s possible the judge was unaware of the code.
      Just playing devils advocate for a moment…

        • Wrong. It is the lawyer’s job to bring the relevant law to the judge’s attention. and if the lawyer doesn’t raise it, the issue is waived, particularly in a civil action.

          Anyway, you assume too much. The judge probably concluded simply that in an at-will state, the employer had the right to terminate the employee with or without cause., and that the statute was therefore irrelevant to the employer’s superior power to use its property and to set employee rules as it saw fit.

      • If ignorance of the law is not a legal defense for defendants, neither should it be for judges. Surely the judge has clerks who can do this research for him.

        • Also wrong. but I understand the sentiment. This was a civil case in a federal district court in which the court was asked to decide an issue of both state and federal law. I suggest you go down to your local law library and ask to look at the annotated state and federal cases; they fill a wall. And then there are walls upon walls of the cases construing this that or the other provisions of these statutes, along with common law. there is no many alive–ar that will ever be alive–that will ever know everything that is in there, separate and apart from the fact that it changes constantly. Finally, as far as I know, the presumption to which you refer applies to the criminal code–you are assumed to know what is wrong. There is

    • Sorry, Rabbi, try again. The trial court did not find him “guilty” as It was not a criminal case. Rather, the fired employee sued his employer in Federal District Court contending that he had been wrongfully terminated. For the rest, see my other comment.

  5. For the umpteenth time: private property rights and the right to keep and bear arms do not conflict. A property owner’s enforcement of private property rights toward an individual on said property begin and end with trespass of that individual.

    • But in this case, the private property owner cannot charge him with trespass can they? That would be the equivalent of firing him.

      Also, I’m not sure a private property owner’s rights of enforcement begin with trepass. Enforcement can take many forms, one of them is the trepass route involving the authorities, but that’s the result if other enforcement methods fail. The other methods do not have to involve the authorities for the owner to still be exercising their private property rights.

    • I think that your pronouncement may conflict with developing law that treats employment premises as “quasi-public” places that are subject to the decrees of public policy. Moreover, I suspect that we will see a distinction develop between employer parking lots as “quasi public” versus the actual work area/building as subject to private rules and enforcement through job action. To put it simply, employees will be allowed to lock their guns in their cars but the employer may lawfully preclude them from being arms inside the building. Just as it is in Mississippi.

    • Indeed, 2A is not really relevant here. But the state has enacted a law giving a certain amount of RKBA protection to individuals wrt employers – and it is entirely within the constitutional power of states to enact such laws.

  6. This wasn’t a 2A decision, it was a decision on whether property rights trumped the powers of the state legislature. Predictably, the court ruled in favor of the state.

    You can call it a 2A suit when the employee wins on the basis that the employer violated his constitutional rights, not when the employer violates a law.

    • But the law in question was about possession of a firearm…in a vehicle…expressly in contravention of the wishes of the property owner.

      It is at least related to a 2A (or the MS version of it) case. Being at-will, if he had been fired for having a lollipop in his car, there would have been nothing he could do (I’m assuming MS does not have a lollipop equivalent to 45-9-55.

      In short, without the specific protection of the firearm possession in Statute, he’d have been SOL. This ruling hardened a law protecting the same fundamental right the 2A protects.

      • I think FedUp’s analysis is correct: this employee was protected by a specific state statute, and it really doesn’t matter if it was to keep a gun in his car or a lollipop. This was not a case in which it was argued that the 2A trumped the employer’s policy, but rather that the state statute did. I doubt the 2A was raised or argued as a basis for reversal.

        • But the specific statute mentioned firearms, not lollipops. That’s the point.

          The thing is, and this is just a guess on my part, but 45-9-55 seems to me is in place to protect MS’s version of 2A in their State Constitution.

          That is, rather than leaving it open to interpretation, the legislature codified “This is an example of RTKBA that is explicitly protected.” There is no such similar statute for lollipops.

  7. Not seeing why liberty-loving folks are happy to see the state expanding its power to tell a person what to do with his own private property. The Second Amendment is there to protect me against the government, not against private parties operating withiin their own sphere of authority. And yes, that means I am supposed to be free to “discriminate” against whoever I feel like “discriminating” against within the sphere of my own property.

    • “And yes, that means I am supposed to be free to “discriminate” against whoever I feel like “discriminating” against within the sphere of my own property.”

      Last I checked, the 2A was a civil right.

      How is that different than a sign on private property announcing ‘No Coloreds’?

    • See Evan’s remark below.

      Why would one property owner’s “property rights” be held superior to the owner of the car’s “property rights?”

      The State obviously held firearm possession as a sort of ‘special case’ where protection of THAT right trumped a property owner to assert his “property rights” over the “property rights” of the firearm possessor.

      Whew. That’s a mouthful.

      Point is…in this case, .gov is doing it’s true proper job: protecting individual rights. There is no reason the employer can or should have ANY say whatsoever over what private property anyone, including employees, have in their private automobile (which the courts have long held to be somewhat akin to an extension of one’s home).

      To further make this point, there is no infringement on the property rights of the employer for an item stored in a car. They are not losing any functional control of their property. They are not being denied anything…well, except for “control” of another man’s property…which is, and should be, illegal.

      • Sorry Junior, utter nonsense. As I stated above, FedUp had it right; this was an issue of a state statute governing the use of property trumping a private employment policy, something not terribly out of the norm when you think of all the zoning laws, building, plumbing, and fire codes, nuisance statutes, environmental protection laws, ADA rules, and so on and so forth. The case had ZERO to do with civil rights, and moreover, the Second Amendment does not fall within the express scope of the civil rights anti-discrimination statutes.Last but centrally and critically, the Second Amendment is only a guarantee against government interference, not private interference. You, as a private citizen, cannot sue me, another private citizen, for refusing to allow you to carry a gun on my property without my permission.

        • Okay, Mark, since you keep asserting this, can you address specifically why the Court decision specifically mentioned the part of the statute that mentions, firearms then?

          I think you are not reading the actual decision commentary. Or, perhaps you can mention another case in MS law where a lower court’s decision regarding a “firing” was overruled based on any other piece of property in the car.

          I’ll quote the bit from the above blurb:

          “It also is “undisputed that Aurora had a firearms policy that is inconsistent with [Section 45-9-55].””

          It sure looks to little old dumb me that the court is specifically addressing the case because a firearm is the piece of property under discussion.

          Prove me wrong with something actually said by the court, not just opinion about what it’s about. I could well be wrong, and welcome correction, but I’m stating more than just my OPINION; at least I’m referencing something the court actually said was used in their decision.

    • Because screw businesses. They don’t act like private individuals, they act like little governments. Screw ’em.

    • Actually, you have no property rights. That’s a total myth. Ever since the government starting taxing private property, it ceased being private property. You now simply buy land that you must also rent from the government. Don’t believe me? Stop paying your property taxes and see what happens.

  8. OK, great for Mississippi employees. But by the same logic that supports the Mississippi Supreme court’s determination, a state could pass a law doing just the opposite–banning the private possession of firearms on business premises, and that law could be held to trump the business owner’s right to allow people to possess weapons. How about them apples?

      • And not only Federal 2A, but also, as referenced in the article MS’s OWN 2A-like protection it the STATE Constitution.

        45-9-55 is an affirmation that “property rights” laws can’t trump the State affirmed RKMBA. Firearms is specifically mentioned in that statute, not general property or any other privately owned specific item.

        I think there are indeed some rotten apples …

      • Such a law would be in contradiction of MS’s own Constitution:

        The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons.
        — Section 12, Article 3, Mississippi Constitution of 1890

        45-9-55 affirms this article. The law you suggest would contradict it.

        That’s not saying it couldn’t happen, of course. But, there’s “the difference” you say does not exist.

        In other words, there is not only ONE (Section 12, Article 3) but TWO (45-9-55) codified protections to KABA in MS, and the court ruled Aurora was in direction violation of the second of those.

        If the legislature passed the law you suggest, THEN the two contradicting laws (your hypothetical law and the State Constitution) would get to duke it out for supremacy. But, that’s going to be EVEN HARDER with the existence of both 45-9-55 AND this decision, so yeah…a win for RKBA in MS whether you see it or not.

  9. Couple of things…how did the Aurora know about the gun in the vehicle?
    I fail to see how Aurora suffered injury as a result of a gun being locked in a vehicle.
    I also understand its Aurora’s property and they’re should be free to do as they like -including closing their doors if no guns is that important to them. I wouldn’t fault them on bit if they did it. All it takes is an evaluation of what their company priorities are all about.

    • The “injury” to Aurora, and the reason for such rules, is the fear (risk) that a terminated (or upset) employee will go out to his vehicle to get a firearm, and then return to the building with mayhem ensuing. Eliminating the firearms eliminates, or seriously reduces the potential harm of an employee going postal. Employers feel that they have a duty to protect their employees from such a risk, but no duty to the employee once the employee leaves the premises.

      • So I understand clearly…Aurora has fear because an employee has a firearm in his car. Aurora justifies this fear by a hypothetical scenario of what the employee might do with the gun if he is fired. So Aurora’s plan is to then fire the employee with the gun in his car because he may “then return to the building with mayhem ensuing.”
        “Employers feel that they have a duty to protect their employees”
        Employers seem to lose that “feeling” of having a duty to protect their employees once an incident occurs and the injured employee takes the employer to court for damages. I guess feelings can change.
        Employers might do well to protect their employees by not disarming them and let the law deal with the people that harm others.

  10. I stopped parking in the parking garage at work due to the (typically un-occupied) guard shack at the entrance plopping it right under subsection 2 of the state statute. And for those of you crying over private property rights of the employer, until the business supplies a bodyguard to accompany me on my commute it doesn’t have the right to disarm me when locking a firearm in my personal conveyance in an open lot resolves the problem. Forbidding such is just supercilious.

    Of course, it would be preferable for them to get on the individual liberty bandwagon and allow me to walk that 200 feet to the building armed, as we just had a robbery at the side door a few months ago around the time I report for work. But we’re getting there. De facto constitutional carry has already passed the House and Senate via the Church Protection Act, and once the House approves a beneficial senatorial amendment it will be on our gun-friendly governor’s desk very, very shortly….

  11. I wish the military would get around to letting members carry weapons in POVs instead of disarming us on the way to/from work. The area outside the front gate of many installations is kinda trashy.

  12. The Kentucky constitution extends your house property rights to your car. Just as you don’t need a permit to keep guns in your house, you don’t need to have a permit to keep and travel with guns in the car glove box. Parking lot parking with gun locked inside, no problem.

  13. The Kentucky constitution extends your house property rights to your car. Just as you don’t need a permit to keep guns in your house, you don’t need to have a permit to keep and travel with guns in the car glove box. Parking lot parking with gun locked inside, no problem.

    Civil rights are growing fast in the south.

  14. Years ago I was at an outfit that banned guns in the car. I would park in another company’s lot next door when I went trap shooting after work. Maybe the other company had a policy for their workers but I wasn’t one of them.
    This was a solution because my company couldn’t search my car off their property and the other company didn’t have a right to force me to open my car. Customers were not bound by these rules and Pennsylvania didn’t have a rule they could use.

    You have to research Their options to find your own. If you are willing to park off site they can’t disarmed you driving home or coming to work.

  15. So I have to leave my firearm locked in the car, fine and we’ll use that as the basis for the next point:

    Cars never get broken into or stolen, do they?

    Which leads to Criminals get guns by stealing them.

    Why would a criminal ‘grab’ an open carriers firearm when all they have to do is head out to the parking lot with a slim-jim?

    It is a bit of a round-about way of getting there but get there we do with the hoplophobes complaining about the criminals getting guns while creating the very situations that give the criminals opportunities to get guns.

  16. In Missouri, the list of “prohibited places” where one cannot carry a concealed firearm (even with a permit), is followed by a statute that states, “the carrying of concealed firearms in a vehicle on the premises is not a criminal offense so long as the firearm is not brandished.”

    The list has 17 places on it. MO Revised Statutes Chapter 571.107

  17. Your car = your propertie no point of any right on my propertie in an parking point in my view !
    Same if you ride an mountainbike and not goes off ^^
    I would go farther and say nobody should ban firearms ore any other art of tools as an knife on your person if an propertie owner have not an right to discriminated blacks and other minorities !
    Wheres an anti discrimination act 4 gun owners if this exist for minoritties as blacks, gays and genders as women ?

  18. To the question of if this violates the property owners rights, I would submit it does not. Your automobile is a mobile extension of your private property and the contents are your private property. By giving you employment and free access to parking they are giving permission to park your property there and would be much like having a mobile home on a rented lot. You personal property rights extend from your permanent dwelling to your mobile dwelling such as an automobile. If a firearm is locked in your automobile, then it actually never is on company property it remains on what is legally your private property.

  19. I just wish PA would enact a similar law so my stupid utility company employer could stop legally disarming me. My town isn’t too bad, most of the shootings are criminal-on-criminal, but I still feel better with some iron in my waistband. And I don’t know how the guys who work in Reading do it. No way I’d be working in some of those neighborhoods without a gun.

  20. I live in the state of Connecticut, I am employed by the state as well. We are not allowed to have on our person or in our personal vehicles any firearm or ammunition. We were read a memorandum about the rule and told to sign an acknowledgement… penalty for violating the rule is immediate dismissal….

  21. This is another reason Right-to-work law is a very bad idea. It gives an employer too much power over the labor force than is required.

    An option would be for the employer to be bound by law for reasons such as this one (even though that is clearly in the law already, it seems to not have been clear enough for the employer) but maintain the right of the worker to terminate their employment with a company for any reason.

    This would give more power to the worker, similar to the power of the consumer today, in choosing where they work. Employers would need to make their benefits more competitive and attractive to potential employees, just like their products are competitive on the consumer market. The better the benefits, the more prospective employees they would get, which would stimulate the economy of that area with smarter workers and more consumer products from the employer.

    The only reason this hasn’t happened is because of the cost cutting measures used by companies in order to maximize profits, which contributes to poorer quality products for about the same or slightly less than before. It’s a toxic formula which stifles growth in the long run for a quick buck.


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