Posted by Orin Kerr:
Comment on Firings for Self-Defense:
http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118694907
I'm not quite sure what to make of the 2001 [1]West Virginia decision
recognizing a self-defense exception to employment at will that
co-blogger David K. [2]discussed on Saturday. But I wonder if the
scope of the decision isn't narrower than most commenters seem to
assume. The Court's decision answers a federal district court's
request to resolve a question of West Virginia law, but it does not
actually apply its doctrine to any set of facts. So the Court did not
decide that the 7-11 employee couldn't be fired, or even that he acted
in self-defense; it only created a legal framework for deciding when
an employee's conduct taken in self-defense could be used as a basis
for firing him in an employment-at-will context.
How often will the West Virginia decision make a difference? I'm no
expert in such things, but sense is, "not very often." Self-defense is
a well-known concept in criminal law, and the West Virginia case
appears to incorporate that criminal law standard. But self-defense is
also a limited right, and not the kind of thing that is likely to lead
to an employee being fired. Consider an example. Imagine that 7-11 has
a policy that employees are not allowed to carry guns, but an employee
does so anyway. A robber attempts to rob the store, and the 7-11
employee pulls out his gun and scares off the robber. The employee is
fired by 7-11 for carrying the gun in violation of 7-11 policy. What
result?
I'm not entirely sure, but my best guess is that the firing would be
proper under the West Virgina case. (FWIW, I looked for cases
interpreting the West Virginia case since it was decided in 2001, but
didn't find any.) "Self-defense" is used in criminal law to mean a
defense to an affirmative act like an assault or homicide, not to a
continuous course of conduct. Even then, it normally requires an
immediate threat. As a result, a 7-11 employee who carries a gun at
work would not seem to have a "self-defense" justification for
carrying the gun as a matter of criminal law. (I realize that this
does not match a layman's understanding of what it means to take an
act in self-defense, but that's the law for you.) While the employee
may have showed the gun to ward off the robber, he presumably would be
fired for carrying a gun generally, not for showing it at the moment
of the attempted robbery. And as best I can tell, self-defense would
not apply to that.
I'll open this up for comments. As always, civil and respectful
comments only.
References
1. http://www.state.wv.us/wvsca/docs/fall01/29564.htm
2. http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118499071
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