February 23, 2007 Gun bill pits property rights against Second Amendment
guarantees
Senators debating a gun bill on Thursday agreed on at least one thing: It's
a big deal.
The legislation would allow someone to have a gun in a vehicle while on
someone else's property, even if the property owner otherwise bans firearms.
It passed its first Senate vote 22-7. It must pass one more vote before
going to the state House of Representatives.
The beneficiaries would be people "who want to have the means of
self-protection" while driving to or from work or around town, said Sen.
Mark Madsen, R-Eagle Mountain and the bill's sponsor.
They would have to be able to possess a firearm legally. The gun would have
to be out of sight and either inside a locked container or behind locked car
doors.
"You would never be in a position where you would have to dump your means of
self-protection in a ditch before you pulled into your parking stall and
went to work," Madsen said.
Nor would people have to leave their guns at home because they weren't
allowed to have them in an employee parking lot: "It is patently unfair to
have an employment policy affect employees when they are far beyond the
workplace, and make them vulnerable and impact their lives in this way."
There's another concern in this debate, other senators noted -- the rights
of property owners.
Property owners currently can allow firearms on their property if they
choose, said Sen. Ross Romero, D-Salt Lake City.
"This basically says to employers, private employers ... 'You have to allow
guns on our properties,' " he said. "I just don't think that has any place
compared against the property rights of the employer."
The Utah Legislature debated this subject in 2004, and there was a court
case decided that year as well. Legislators and justices came down on the
side of property owners having the right to restrict firearm possession.
Sen. Greg Bell, R-Fruit Heights, wondered if Madsen's bill chipped away at
that right.
"I fear we are seeing what incrementalism can do to a long-standing
agreement," Bell said. "This is a direct frontal assault on our policy.
"This is a big deal."
Madsen said his bill represented a compromise.
"Property rights are important. But property rights are not absolute and
unlimited, and they have to be balanced," he said -- and people have private
property rights within their vehicles, too.
"Without this, an employer can effectively disarm an individual," said Sen.
Allen Christensen, R-North Ogden. "I will not let my Second Amendment rights
be encroached upon and taken away one more increment by an employer."
SB 78, Protection of Constitutionally Guaranteed Activities in Certain
Private Venues, Sen. Mark Madsen, R-Eagle Mountain
Prohibits a private property owner from banning legal firearms and religious
items that are in a person's car.
This story appeared in The Daily Herald on page A7.
http://www.heraldextra.com/content/view/211390/4/
----- Original Message -----
From: <[EMAIL PROTECTED]>
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Sent: Thursday, February 22, 2007 3:01 PM
Subject: Firearmsregprof Digest, Vol 39, Issue 10
Message: 2
Date: Thu, 22 Feb 2007 11:51:08 -0800
From: "Volokh, Eugene" <[EMAIL PROTECTED]>
Subject: Employee Gun Possession (Outside Employer Property)
Presumptively Protected Against Employer Retaliation?
To: "List Firearms Reg" <[email protected]>
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http://volokh.com/archives/archive_2007_02_18-2007_02_24.shtml#1172173543
[Eugene Volokh, February 22, 2007 at 2:45pm
<http://volokh.com/archives/archive_2007_02_18-2007_02_24.shtml#1172173543>
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Employee Gun Possession (Outside Employer Property) Presumptively
Protected Against Employer Retaliation?
Private employers are, in nearly all states, presumptively free to fire
employees for any reason or no reason at all. There are quite a few
statutory limits on this (such as bans on discrimination based on race,
sex, and the like), and of course this rule can be changed by contract,
whether individual employment contract, union contract, or academic tenure
contract. Many states have also recognized judge-made rules of
"termination in violation of public policy," for instance when an employer
fires an employee for performing jury duty, alerting authorities to
employer violations of safety regulations, or doing other things. Some
courts have looked to state constitutional protections as sources of such
"public policy." Thus, even when the state constitution only prohibits
government suppression of certain conduct, state courts may use this (but
certainly do not always us ethis) as a guide for fashioning similar
common-law prohibitions on private employer conduct. The rules var!
y from state to state, and they can be trumped by state statute, since
these are just common-law rules (even when inspired by the state
constitution), not constitutional mandates. Still, they are potentially
quite important.
A federal district court has just applied this principle to hold that
Ohioans -- even ones employed by private employers -- are presumptively
protected from being fired for off-employer-property (and presumably
off-duty and lawful) possession of guns. The case is Plona v. UPS
<http://volokh.com/files/plona.pdf> , 2007 WL 509747 (N.D. Ohio Feb. 13):
Plona, an Ohio resident, was employed by UPS at a facility in Cleveland,
Ohio.... Plona ... was terminated in April 2006, allegedly because UPS
discovered that Plona had a handgun in his vehicle while at work. Plona
alleges that he had the handgun, which was disassembled and unloaded, and
locked in his car in a public-access parking lot used by both UPS
employees like Plona and non-employees/customers of UPS. On the day of his
termination, UPS announced that law enforcement would be conducting a
routine search of all persons and property on UPS premises for contraband.
When Plona informed law enforcement about the handgun locked in his car,
and the handgun was then discovered, he was terminated....
[T]he court proceeds on the facts alleged in the complaint and all
inferences drawn in Plona's favor, meaning that the court presumes for the
purposes of this motion that the parking lot where Plona's car was parked
was not UPS company property....
Plona has made one claim in his complaint against UPS, for wrongful
termination in violation of Ohio public policy. That claim, under Ohio
common law, has four elements: (1) that a clear public policy existed and
was manifested in the federal or state constitution, statute or
administrative regulation, or in the common law (the "clarity" element);
(2) that terminating employees under the alleged circumstances would
jeopardize the public policy (the "jeopardy" element); (3) that the
termination was motivated by conduct related to the public policy (the
"causation" element); and (4) that the employer lacked overriding
legitimate business reasons for termination (the "overriding
justification" element).... The first two elements -- clarity and
jeopardy -- are questions of law, to be determined by the court..
In this case, the claimed source of the "clear" public policy is the Ohio
constitution, Article I, Section 4, which states that "[t]he people have
the right to bear arms for their defense and security ..." Plona asserts
that Ohio has a clear public policy, as stated by its constitution,
permitting its citizens to bear arms and that allowing UPS to terminate
him for possessing an unloaded, disassembled firearm off of company
property would jeopardize that public policy.... The court finds that the
public policy of Ohio permitting citizens to bear arms, as stated in
Article I, Section 4 of the Ohio constitution, is clear enough to form the
basis of a wrongful termination claim.
As far as the court could determine, only one court has previously
addressed whether the right to bear arms, as enshrined in Article I,
Section 4 of the Ohio constitution, can serve as the basis for a wrongful
termination in violation of public policy claim. Petrovski v. Fed. Express
Corp., 210 F.Supp.2d 943, 948-49 (N.D.Ohio 2002). However, the plaintiff
in Petrovski was not terminated for possession of a firearm, just for
"conversations concerning firearms." Therefore, while the court in
Petrovski addressed the question before this court, it did so only in
dicta, as it was not faced with the situation of actual firearm possession
as in this case....
Burdens on employees while at work do not jeopardize their rights; they
are instead permissible limits on the rights enshrined in the Ohio
constitution. See, e.g., Ohio Rev.Code ยง 2923.126(C) (permitting a private
employer to prohibit firearms on company property).
On the other hand, punishing employees for exercising constitutional
rights while outside the workplace jeopardizes public policy to a much
greater degree.... Permitting UPS to terminate Plona for possession of a
firearm off of company property would be no different than permitting UPS
to terminate Plona for possessing a firearm at his residence. And allowing
an employer to terminate an employee for exercising a clearly established
constitutional right jeopardizes that right, even if no state action is
involved.
Therefore, because the court presumes that Plona's possession of handgun
was not on UPS property, and UPS did not have a policy prohibiting Plona
from possessing a firearm at that location, the court shall deny UPS's
motion to dismiss. However, the court will allow the parties to revisit
this issue after discovery, on summary judgment, if necessary....
Note that this is only presumptive protection -- in some situations, an
employer might still argue that it has an "overriding legitimate business
reason[]" for the termination. Note also that this is just one district
court; it's not clear whether this view will be upheld on appeal, or
accepted by Ohio state courts (which are the ultimate arbiters of Ohio
law, and which treat federal decisions of Ohio law as at most persuasive,
not binding, precedent). Still, it struck me as worth noting, especially
since similar arguments could be made in the many other states
<http://www.trolp.org/main_pgs/issues/v11n1/Volokh.pdf> that have
individual right-to-bear-arms provisions in their state constitutions.
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