June 12, 2012
Public Policy Pistols
A number of us were startled by the recent Kentucky Supreme Court decision overturning summary judgment granted to the University of Kentucky in an action brought by a former employee fired for possessing a semiautomatic pistol in his locked car, parked on University property.
The opinion generated ideological criticism from Professor Bainbridge ("Cases like this illustrate that both right and left are willing to throw at-will employment under the bus to advance policy goals." In contrast, I think at-will employment . . . is a crucial social policy that deserves better from those of us on the right who respect free enterprise and free markets."), but I find it more interesting as an exercise in applying relatively well-established public policy tort principles to a unusual setting.
In Mitchell v. University of Kentucky, 2012 Ky. LEXIS 47 (April 26, 2012), the employee's gun possession violated University rules, but the plaintiff alleged that firing him for that reason would violate the state’s public policy in favor of the right to bear arms, and the state supreme court agreed.
Of course, the University of Kentucky is a state institution, which means that state constitutional constraints would apply and there is a right to bear arms in the state constitution. But the court did not approach the case as a straightforward violation of constitutional rights. Rather, it looked to Kentucky’s “narrow public policy exception” to the at-will doctrine, thereby suggesting that its holding was applicable to private employers as well. To the extent that a public policy claim against a private employer could be predicated on constitutional protections designed to constrain the government, the decision would be radical. Indeed, the Sixth Circuit came out the other way on this precise point in 2009 where the right at issue was found in the Ohio’s state constitution instead of statutes. Plona v. United Parcel Service, Inc., 558 F.3d 478 (6th Cir. 2009), upheld summary judgment for UPS, finding that the public policy barring state interference with the right to bear arms was inapplicable to a private employer; in fact, the Ohio legislature had affirmed the right of most private employment to prohibit firearms on their premises or property.
Back to Mitchell. By invoking the canon of avoidance, the Mitchell court looked to Kentucky statutes rather than the state constitution, and that required sorting through a several laws pointing in different directions. A criminal statute barring carrying of a concealed weapon contained exceptions from its prohibitions, one of which stated that no “person or organization shall prohibit a person from keeping a firearm . . . in a glove compartment of a vehicle…,” and authorized an action to enforce it. That would seem to have resolved the case, except for a fact dispute as to whether Mitchell kept the weapon in his armrest. Kentucky’s legislature might have been a tad over-precise to achieve what were apparently its goals.
Not to worry, however. Another statute dealt with concealed carry licenses, and Mitchell possessed such a license. Although still another enactment authorized colleges and universities to control deadly weapons on their property, it was subject to an exception for licensed concealed carriers, and the provision governing such licenses also barred any “person or organization” from prohibiting a licensed person from keeping a firearm “in his or her vehicle.” No picky limitation to glove compartments here! And yet a third statute specifically barred an employer (as opposed to a person or institution) from firing an employee who possesses a firearm in a vehicle on the employer’s premises.
The court did recognize a tension between the provision authorizing universities to control weapons on their property and the other statutes, but, in light of the license law’s command to liberally construe the right to bear arms and the legislature’s policy in favor of safeguarding weapons in vehicles, the court held that the licensed concealed carrier’s rights prevailed. A concurrence reluctantly agreed.
The decision is interesting in a number of respects. First, given the statutory authorizations of a civil action, it’s not so clear why anyone worried about fitting this case within the state’s public policy jurisprudence. We don’t usually view statutes expressly granting rights to employees as generating common law public policy claims.
Second, while it’s hard to disagree, given the various (if not necessarily consistent) enactments, that the Kentucky legislature meant to generally preserve the right of individuals to keep firearms in their cars, there was also a statute that allowed colleges and universities to restrict that very right. The court’s resolution of the tension seems questionable.
Third, Mitchell illustrates that, when a state has not clearly addressed the question of the right of employers (public or private) to control arms in their workplaces, more general statutory approval of the right to bear arms might trigger public policy protection for armed employees.
Thanks to my research assistant, Justine Abrams, for her help on this.
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This outcome seems suprising too for the posture of the public policy. My impression from most jurisdictions is that the public policy must essentially mandate the behavior the employee engaged in--not simply prohibit it. And so terminating someone for engaging in conduct that public policy allows or even promotes short of requiring is not enough to give rise to the tort action. Maybe the jury service cases are promotion of public policy kinds of cases, but those seem more tied to the function of the courts and something of an exception to the general rule, since courts generally protect court processes above all else. Does this mean that in Kentucky, essentially all constitutional provisions and maybe even a lot of statutory protections that aren't rights-creating suddenly limit employer discretion? Can employers terminate employees for what they say if there's a right to free speech? Can they penalize them for off-duty conduct any more if there's a right to privacy?
Posted by: Marcia | Jun 12, 2012 7:29:54 AM
As proof of the lengths to which my mind will wander to avoid writing on a deadline I offer this wayward thought: perhaps union organizers should keep loaded firearms in their vehicles at all times so that when they are fired for union activity (an action courts don't seem to analyze so closely these days) they can generate interesting mixed motive cases by alleging they were REALLY fired for having a firearm locked in their cars. The possibilities seem endless. . .
Posted by: Michael Duff | Jun 13, 2012 7:52:57 AM
I could have so much fun with Michael's proposal, but it'd be like shooting fish in a barrel. ;-)
Posted by: James Young | Jun 13, 2012 5:42:08 PM
See Kessler v. Equity Mgmt., Inc., 82 Md. App. 577, 572 A.2d 1144 (1990).
Posted by: Julie Martin-Korb | Jun 16, 2012 12:24:30 PM