June 13, 2005

WV SC and Self-Defense

I wasn't going to blog on the 2001 ruling from the West Virginia Supreme Court in Feliciano v. West Virginia that held that the self-defensive acts of a 7-11 employee against an armed robber (he grabbed the gun from her and held her until police arrived) were a potential exception to his at-will employment status (meaning he couldn't be fired for violating 7-11's policy on robbery) - while still affirming that 7-11 could argue its side on the effects of self-defense versus cooperation - but Professor Bainbridge's post strenuously against and Instapundit's brief post apparently in favor make me want to explain to all what I think.

First of all, I disagree with both ProfBainbridge and the WV Supreme Court. Aside from Bainbridge's strange dislike for firearms (the same tool that freed and protected this country from all manner of ills) and from his assertion on the negative economic effects of this particular at-will exception, I basically agree with him. I don't think that self-defense would act as an at-will exception on more than rare occasions, since it would require a) a robbery, b) an act of self-defense, c) a company policy or action resulting from the act of self-defense, and d) an employee who wants to fight the termination or punishment. I'd imagine the confluence of those things is pretty rare. That said, to my mind the West Virginia decision clearly violates property rights.

Let's identify the principles here. Does an employee have the right to self-defense? Yes, as does any other person. Does an employer have the right to set and enforce policies? Yes, that's part of the property right. Does an employer have the right to fire at-will employees for any reason? Yes, again that's a natural part of property.

The employee has the right to self-defense because he's a living person. The employer has the right to set and enforce policies and to fire at-will employees at will because without these rights it could not be said to truly own its property (the maintenance of property is an inseparable part of owning property).

The result should be obvious, given these principles: the employee had a right to exercise self-defense and the employer had a right to punish him for it. He had the right to protect himself in the manner he did (grabbing the gun while the robber was distracted) because he could reasonably believe it saved lives and property. The employer had the right to fire him for disobeying their wishes about how robberies of their property should be handled, because they are not obligated to retain his services.

Therefore, the employee should not be prosecuted by the authorities, as are some people who defend themselves, and the employer should not be forced to retain the employee's services. But I must strenuously disagree with Professor Bainbridge's tone. Aside from an unwarranted hostility toward gun owners, who he seems to blame for the connection even though (as he notes) the employee in connection merely wrested the gun away from the robber, he links self-defense to the Second Amendment. The Second Amendment is the teeth of the right to self-defense and the right to life, but it doesn't actually secure that right.

It's the difference between having a right to own a car and having the right to travel. The Second Amendment lets you keep and bear the arms that are so necessary to protecting your life, but the actual right to life and thus to self-defense stem from Amendment V, Amendment IX and Amendment XIV. Five and Fourteen guarantee the right to life explicitly (which necessarily includes self-defense) and Nine protects it as one of the unenumerated but still perfectly legitimate rights.

Aside from that, I have to emphasize that Professor Bainbridge's tone seems totally hostile to the idea of self-defense. I don't object to his legal reasoning, just to his strangely impassioned view that somehow one must be crazy to defend himself. I would be surprised if he took the same view of our soldiers fighting the Japanese or the British, but the right of countries to self-defense is based entirely on the right of individuals to defend themselves. If people can't defend themselves, then nations oughtn't - and we would be better left to letting Japan take what it would of our Pacific islands or letting the British do as they would with our merchant fleets and colonial governments.

The right to self-defense is the single most important right any human can have. If you cannot morally or practically defend yourself then your rights are at beast endangered and at worst horribly abused. But the right to self-defense isn't a trump card over the liberty of others. Thus, the employee had a right to protect himself, but 7-11 had the right to fire him at any time for any reason regardless of his self-defensiveness.

The unimpeachable right of the employee to defend himself doesn't relate to or override the liberty of the employer to fire him.

Of course, Orin Kerr ably points out that the ruling merely created a balanced framework for the issue, and that they allowed the employers to argue, against the employee, that they have a sufficient interest in prohibiting the act for which the employee was terminated. So ultimately most of the controversy over this is overblown. Of course, I still maintain that it infringes on the legitimate property rights of the employer (particularly to setting its own rules for the defense of its own property) to prevent them from firing an at-will employee.


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October 24, 2005 10:39 PM  

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