Posted on 12/11/2004 6:07:04 AM PST by Mr. Mojo
Gun-toting, tough-talking, and anti-establishment to his muddy boot straps, Larry Mullens is an Oklahoman "good ole boy" personified.
He is also fast becoming a classic American folk hero as he takes centre stage in a revolt of gun owners that is reverberating in boardrooms across the United States. The son of one of the last of the old-style Wild West ranchers, he first fired a gun as a boy.
Now he carries his trusty Winchester in his pick-up on his way to work at a sawmill in case he comes across a coyote, a wild dog or even a wolf attacking his small herd of steers. Last year he lost five calves to wild dogs.
So it was perhaps not surprising that he was enraged when his previous employer fired him for breaking company security rules that banned guns from the company car park after they found a .38 pistol stashed behind the seat of his pick-up.
No one could have predicted that two years later he and his backers would claim an extraordinary revenge - a law allowing employees to keep guns in locked cars on company property.
Just two days after a gunman jumped on to a stage in Columbus, Ohio, and shot dead a heavy metal guitarist and three others before himself being shot dead, it might seem surprising to hear that elsewhere a state is extending gun owners' rights.
But in Oklahoma, as across much of rural America, gun control is seen as the work of naive and meddling minds.
"Having a gun is no different from having a hammer. It is just a tool," said Jerry Ellis, a Democratic representative in the state legislature who drafted and pushed through the law.
"Here, gun control is when you hit what you shoot at."
The passage of the law resounded like one of Larry Mullens's Winchester rifle shots through the boardrooms of America.
In recent years companies have been implementing anti-gun policies in an attempt to cut down on violence at the work place.
Now they fear the Oklahoman ruling will encourage the powerful gun lobby all over America to try to roll back the reforms.
Paul Viollis, the president of Risk Control Strategies, is appalled at the new law. Every week there are 17 murders at the work place across America, and most of them involve guns, he says.
"It's the most irresponsible piece of legislation I've seen in my 25 years in the business," he said. "I would invite anyone who'd allow people to bring firearms to work to write the first death notice.
"The argument that emp-loyees should be allowed to bring firearms to work because they'll be locked in the car is so absurd it barely merits a response."
Several companies are trying to block the law. Two days before it was due to come into force last month, a judge granted a temporary restraining order preventing it from taking effect. The next hearing is on Tuesday.
But the firms are fighting on unfavourable terrain. Contrary to the widespread impression that the nation is polarised between gun-loving Republicans and more liberal Democrats, in the heartland gun control spans party lines. The law passed unanimously in Oklahoma's Senate and by 92 votes to four in the House.
Mike Wilt, a Republican, voted against the law, not on security grounds but because he believes the state should not dictate gun policies to property owners. "Here in Oklahoma the issue of guns is not a wedge issue," he said. "We all go hunting together and we all tend to have the same beliefs."
Two weeks ago one of the principal plaintiffs, Whirlpool, a prominent supplier of white goods, withdrew from the case. It said it was satisfied that its ban on guns on its property was not affected. The gun lobby suspects that the decision had more to do with talk of a boycott of the firm.
Nowhere do feelings run more strongly than in Valliant, a small town where, on Oct 1, 2002, at the Weyerhaeuser paper mill, the row began.
Mr Mullens was one of four on-site employees who were sacked after guns were found in their vehicles in contravention of a new company ruling. They are convinced it was just an excuse to lay off workers and insist they did not know about the new security laws.
The firm, which is locked in litigation with the fired employees, rejects the charges and says everyone knew it had a zero-tolerance approach to security. "You don't need a gun to be safe at Weyerhaeuser," said Jim Keller, the firm's senior vice-president. "Safety is our number one priority.
"It's more important to tell someone they don't have a job than to have to tell a family that their loved one is not coming home from work. This is about safety; it's not about guns."
But the people of Valliant, where the high school closes down during the prime week in the deer-hunting season to allow pupils to shoot, will not be easily assuaged.
James Burrell, an assistant at the local gun shop, said: "Most people around here think the new law is already a right."
Mr Mullens has now found a new job, where his employer is less pernickety.
"People tell me to 'stick to my guns' because they are all carrying one too," he said. "The bottom line is that it is our constitutional right to have a gun in the car."
Your car is permitted on the property owner's property pursuant your abiding by his rules of access, and not carrying a gun on to his property.
The moment that you cross his property line carrying a gun IN YOUR CAR, you are in violation of his rules of access, and you can be forcibly removed.
Don't believe me?
Stop a cop anywhere and ask them.
By the way your pants and your socks and your underwear are your property as well...do you believe that you can stash a gun in your pants, your socks, or your underwear and enter a property where guns are not allowed?
Ask a cop.
Dear Dead Corpse,
Well, if we went back to a previous time, you might find that employers had even more rights than they have now. If we went back to times before, say, the Warren Court, you'd find that employment at-will was pretty much straight up the law of the land. Employers could, and did, effect far more onerous burdens on their employees then than they are able today.
The fact is that it is the mitigation of employment at-will doctrine that even makes something like this a question. The basic idea of, "You, the employee, don't have to put up with the employer's rules, but he, the employer doesn't have to employ you if you don't want to put up with it," was a much more absolute doctrine.
Employment at-will meant that each party was free to end the employment relationship, for any reason, at any time, without obligation to the other.
As well, prior to the first part of the last century, there weren't overtime laws or minimum wage laws, etc.
The government HAS passed many laws that interfere with the contractual relationship between employer and employee. Many, many people believed that many of these laws, at the time they were passed, were unconstitutional, especially for the federal government to pass.
Are those the sorts of things that you're looking to roll back?
sitetest
Dear spunkets,
Ultimately, the argument concerning the part of the US code you cite, I think, fails.
Here's why: First, it's a criminal statute, thus not accessible directly by the employees affected. Only the government may prosecute.
But second, it assumes that rights are being denied without due process. That begs the question of the whole debate.
But if rights were being denied, then the employees would have a cause for civil litigation. Without Title 18 of the US code. Just walk into court, allege a tort based on denial of rights, allege the harm is having been fired, walk out with backpay, reinstatement, legal fees, and maybe even some punitive damages, depending on how egregious the violation.
But no one is suing under that theory, because, frankly, no one is forcing them to do anything. If you don't want to work for the folks, don't work for them.
Companies have been promulgating these rules, quite successfully from what I gathered from my business and employment law class, and the courts are quite pleased with them. Even in this case, the fired employees are claiming only that they did not have sufficient notice of the policy, not that the company had no right to enforce it.
sitetest
Dear spunkets,
The real question is, if a company has, say, 500 employees, and they're allowed to bring firearms to work, and folks do, and someone goes "postal," can a plaintiff's lawyer persuade a civil jury whether that result was foreseeable?
In fact, that is the question that drives these policies. There are many juries that can be persuaded that this is the case.
If the company then prevents anyone from bringing a firearm to work, even to the point of not permitting them on the premises, even in the parking lot, the company can say that it took every reasonable action to prevent the otherwise foreseeable event that someone might go nuts, bring their gun to work, and shoot the place up.
Whether you think that is a reasonable conclusion or not, or whether I think it is a reasonable conclusion or not, really doesn't matter.
The likelihood that I would ever be asked to serve on a jury is very low.
sitetest
Luis, althought I agree with you, I should point out that asking the police (or a prosecutor) for a legal opinion is a very bad idea. First off, the police are under no obligation whatsoever to be honest. Second, their understanding of the details of the law is oftentimes somewhat vague.
The best thing to do is to ask a private attorney after paying a retainer fee - that way, at least you can sue them for malpractice after putting their advice into practice blows up in your face.
Has "going postal" become otherwise forseeable at all times?
In general, there's no obligation to protect against unreasonable, unforseen threats - an employer in Michigan doesn't have to provide for earthquake protection for its employees while on the job.
Dear Chemist_Geek,
I think that plaintiffs in a case like this would make the argument that if you freely permit firearms into the workplace, given enough folks in the workplace, it is foreseeable that someone might lose it and "go postal," if for no other reason than - IT HAPPENS.
Whether I personally would accept the argument, heck, whether I could even adequately MAKE the argument (I'm not sure I could), is irrelevant.
I'm sure that, say, John Edwards would do a fine job with the argument, and given 12 dunces, could secure an eight figure verdict.
As a business owner, that's the question I ask - not whether something is right or wrong, but how well I'd be able to defend it in court.
sitetest
That's correct - you have to pay attention only to your fiduciary responsibility to the company, and enacting or failing to enact certain HR policies is begging for trouble.
That's why I posited the if-prosecutorial discretion. Otherwise it's an outline for cause in the suit-your tort claim.
" no one is forcing them to do anything. If you don't want to work for the folks, don't work for them."
The assumption is that the party(ies) desired, needed and rely upon the continued employment relationship. THe demand for search was accompanied by the threat of firing.
"Companies have been promulgating these rules, quite successfully from what I gathered from my business and employment law class, and the courts are quite pleased with them. Even in this case, the fired employees are claiming only that they did not have sufficient notice of the policy, not that the company had no right to enforce it."
I don't believe it, as I have outlined. The excesses have all involved workplace/space rules and business related rules.
"The real question is, if a company has, say, 500 employees, and they're allowed to bring firearms to work, and folks do, and someone goes "postal," can a plaintiff's lawyer persuade a civil jury whether that result was foreseeable?
The phrase "bring firearms to work" is too vague. The firearms are not in the workspace, or within any reasonable jurisdiction of the employer. Firearms contained within the employee's vehicle are just as accessable as postal tools as the one's he maintains in his house. In fact the postal would do better with the vehicle itself, loaded with fuel.
The employer can't simply break into the employee's car, that is at minimum breaking and entering and destruction of property. He must mount an extortion to do it. That highlights the fact that the employee's car is not the employer's property and he has no right to enter it, without mounting the extortion.
"There are many juries that can be persuaded that this is the case."
Sure. There are also many juries that would not.
"If the company then prevents anyone from bringing a firearm to work, even to the point of not permitting them on the premises, even in the parking lot, the company can say that it took every reasonable action to prevent the otherwise foreseeable event that someone might go nuts, bring their gun to work, and shoot the place up."
It's either a Free country, or it's not. The employee's property contained in the car is not a nuisance, nor is it reasonable to consider employees as criminal thugs. The fact is that all of the postal events I can recall occured after the employee was fired and returned at a later time. None were perpetrated by otherwise happy workers that were concerned with doing their job.
"Whether you think that is a reasonable conclusion or not, or whether I think it is a reasonable conclusion or not, really doesn't matter."
This is FR and we discuss these things. My sentiments and thoughts have also gone to appropriate places off site. I see this as a back door gun grab and attack on both rights and Freedom. See, there's no real, effective effort to ensure workplace safety against the threat of postal types, just harassment and deamonization of gun owners. The bozos even link firearms with drugs at every opportunity.
The same is not true of a vehicle. There are very specific requirements to keep a firearm in one's vehicle in Michigan. (It must be unloaded, encased, and locked in the trunk or otherwise inaccessible or remote from the driver and occupants, unless it is a handgun AND there is a valid Concealed Pistols License holder in the vehicle or is the owner of the vehicle and it is unoccupied.)
Clearly, the inside of a vehicle is not "private property" in the same way that the inside of a home is.
The homeowner is not allowed to fix his own toilet, or hot water heater in some jurisdictions. "His" home must conform to their specs. Same goes for the employer's premises.
Dear spunkets,
"I don't believe it, as I have outlined. The excesses have all involved workplace/space rules and business related rules."
I'm not sure what it is you don't believe, and I'm not sure to what excesses you're referring. Please clarify. Thanks.
"The phrase 'bring firearms to work' is too vague. The firearms are not in the workspace, or within any reasonable jurisdiction of the employer. Firearms contained within the employee's vehicle are just as accessable as postal tools as the one's he maintains in his house."
I don't agree with this. I have employees come to my office who live 20 minutes, 30 minutes, in one case, 90 minutes from my place of business. But it is about a 30 second walk to the parking lot from my front door.
If someone gets very upset, the roundtrip to car and back, with the firearm in tow, might take nearly two minutes.
The trip home and back will take 40 minutes to several hours.
Lots of folks don't cool off in a ocuple of minutes. A much higher percentage of folks, initially bent on destruction, will cool off with a wait of 40 minutes to several hours.
As well, if someone shouts, "I'm going to kill you!" and goes to their car in the parking lot, the individual will return before any of us get through to 911 and get the police over to our premises.
If someone shouts, "I'm going to kill you!" and then leaves the premises to go home, the authorities can be involved before the individual returns.
But another more basic problem is this: I at least have an argument that I can regulate what does and doesn't come on to my property. I can't regulate what stays outside my property.
I can say, "You can't bring your gun on my land, period."
I can't say, "You can't have your gun on your land."
I can say, "If you insist on keeping a gun in your car, you can't bring it onto my property."
I can't say, "I forbid you to have a gun in your car when you are not on my property."
Thus, even if what you said was true, it wouldn't matter. I can regulate what happens on my property, but not off it.
"The employer can't simply break into the employee's car, that is at minimum breaking and entering and destruction of property. He must mount an extortion to do it. That highlights the fact that the employee's car is not the employer's property and he has no right to enter it, without mounting the extortion."
It's only an extortion if the employer is denying the employee's rights. You're begging the question. I haven't yet seen why anyone has a right to bring something on my property just because they keep it in their car.
I have a relatively-broad right to tell you that you may not bring something on my property, period. Even if you keep it in your car. Why? Because it's my property!
If I tell you, "I think you have a gun in your car - move it off my land." and you refuse, I can have your car removed without your permission, and at your cost.
Thus, because you have no right to put something on my property that I forbid, I can't be extorting you to forego that right.
"It's either a Free country, or it's not."
Indeed, that's the case. And the property owner isn't trying to infringe on the freedom of the vehicle owner. The property owner is merely asserting his own preference as to how he wishes to regulate his own property. He may make a rule that no one may park on his property. He may make a rule that one may park a domestically-made vehicle on his property, but not a foreign-made vehicle. He may make a rule that no one may park a red car on his property, or a car with more than a quarter tank of gas.
He may make a rule that one may park a vehicle that has no firearms, but not a vehicle that has firearms.
It's his property, either this is a free country or it isn't.
The individual who does not wish to abide by the property owner's rule does not have to. He merely needs to avoid parking on the property owner's property.
"The employee's property contained in the car is not a nuisance,..."
For purposes of determining what will and won't come on his land, it is the property owner who gets decide what is or isn't a nuisance. I would prefer that the state stay out of the property owner's decision to the degree possible.
"... nor is it reasonable to consider employees as criminal thugs."
I don't know why, if it's a free country, that the property owner is required to justify as reasonable his reasons for who and what he permits on his property, to his employees, to the courts, to the legislature, or to anyone else.
"This is FR and we discuss these things."
That's true, but I haven't offered any opinion on what I think should be, only what the law is. Others have stated that the law is as they think it should be. Only with that have I voiced disagreement.
Even you have advanced, seemingly as fact, a novel legal theory, which doesn't seem to have been actually ever successfully tried in court. If you want to say, "Gee, I think it would be a good idea if someone brought something based on Title 18, Section 241 or 242," that would be one thing.
But the way you presented it, it seemed as if you believed it was an objectively established fact. Yet, I have been unable to uncover a single use of it in this kind of case.
Furthermore, even though you assert it, it seems to beg the question of whether or not a right is actually violated in prohibiting firearms from company parking lots. Thus, in spite of your assertion, it doesn't seem that it even is a whole and complete, workable theory.
So, sure, we discuss things at FR. But the law is still the law, at least for now.
And as the law stands, unless a state legislature says otherwise, a company may forbid individuals from parking their cars on company property if those cars have firearms within them. Furthermore, because it is not a violation of rights to so forbid this, it is not then an extortion to coerce someone to forego his (non-existent) rights to have a gun on one's property by requiring submission to a search of one's car to ascertain that no firearm is present.
In order to prove extortion, I think you first have to prove that you have the right to bring a firearm onto my property even though I have forbidden it.
sitetest
Dear jonestown,
"You are required to be 'reasonable' because in our Constitutional Republic you are obligated to obey our basic rule of law."
Nope. Only coercive governments insist that you must observe their version of what is "reasonable" on your own property.
As long as I am not extremely UNreasonable (I'm not burning down my house, to the extreme danger of my neighbors, I'm not setting off explosives, again, to the extreme danger of my neighbors, I'm not dumping raw sewage into the creek that runs through my yard, into my neighbor's yard), I shouldn't have to justify actions on my own property as being "reasonable" in your sight, the legislature's sight, the court's sight, or anyone else's.
It is this view that means I must act "reasonably" that has given us coercive environmental laws that forbid me from filling in a puddle on my property, or from cutting down dead trees without the county's permission.
It is this view that means I must act "reasonably" that has given the government all manner of unreasonable say in how I use my property, or regulate my business.
It is this view that means I must act "reasonably" if a disabled person applies for work at my company, forcing me to make all "reasonable" accommodations for them, even if I must initially spend tens of thousands of dollars to do it, and then thousands of dollars per year to maintain the accommodation.
It is this view that means I must act "reasonably" and be able to prove that I have not discriminated against minorities if I violate the EEOC's "Four Fifths" rule regarding disparate impact. It is this view that means I must act "reasonably" and not use any test of intelligence or skill that would create this disparate impact, unless I can prove in a court of law that my test "reasonably" tests the actual required skills for the actual position.
"It is against the clear 'public policy' of the 2nd Amendment to unreasonably require your employees to strip their vehicle of arms before parking in the lot provided them.
"The Oklahoma Legislature agreed."
I believe it is within the authority of the Oklahoma legislature to have passed this law.
But that means that without it, companies were legally entitled to prevent folks from having guns in their cars, on company grounds.
And I would prefer that legislatures spend less time telling property owners and business owners how to regulate their property and run their businesses.
I think that is a conservative position.
sitetest
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