Parking-Lot Laws: An Assault on Private- Property Rights and Workplace Safety

AuthorStefanie L. Steines
PositionJ.D. Candidate, The University of Iowa College of Law
Pages04

J.D. Candidate, The University of Iowa College of Law, 2008; M.P.H., Johns Hopkins Bloomberg School of Public Health, 2005; B.A., Luther College, 2001.

Page 1173

"For all its talk about defending civil rights, the NRA has little respect for any rights that might be in tension with pervasive and unaccountable ownership and use of firearms. The danger of this vision is not so much that it will lead to more violence, but that it brings us closer to a society where everyone is armed and nobody is really free." 1

I Introduction

Workplace homicides are the fourth-leading cause of work-related deaths and the second-leading cause of deaths among women in the workplace.2 Workplace homicides accounted for nine percent of all workplace fatalities in 2006.3 Eighty-one percent of these homicides were committed with a firearm.4 In 2006, ninety people suffered firearm-related injuries in their workplaces.5

The effects of workplace violence on businesses and their employees are far-reaching and include physical and psychological harm; losses to property and productivity; increased security, workers' compensation, and litigation costs; and decreased employee morale.6 According to the National Safe Workplace Institute, workplace violence cost employers $4.2 billion in Page 1174 missed days of work and legal fees in 1992.7 From 1992 to 2001, workplace homicides cost society an estimated $6.5 billion.8

Although there is no single cause of workplace violence, forty-six percent of employees attribute such violence to the availability of firearms.9In fact, businesses that allow firearms are five to seven times more likely to have a homicide occur on the premises than those that ban firearms.10Accordingly, approximately two-thirds of employers have violence- prevention policies that address the presence of firearms at work.11 Many businesses ban firearms from their properties altogether.12

In response to the increasing number of businesses that ban firearms from their premises, the National Rifle Association ("NRA") is pushing state legislatures to pass laws that prohibit property owners from banning firearms from their parking lots.13 Oklahoma became the first state to pass such a law by adding new sections to the Oklahoma Self-Defense Act and the Oklahoma Firearms Act on March 31, 2004.14 The amended sections state:

No person, property owner, tenant, employer, or business entity shall maintain, establish, or enforce any policy or rule that has the Page 1175 effect of prohibiting any person, except a convicted felon, from transporting and storing firearms in a locked motor vehicle, or from transporting and storing firearms locked in or locked to a motor vehicle on any property set aside for any motor vehicle.15

Part II of this Note explains the impetus behind the Oklahoma legislature's decision to pass such a "parking-lot law."16 While other states have followed Oklahoma's lead in passing such laws, a number of national and Oklahoma-based companies have challenged the Oklahoma law's constitutionality.17 In response to these challenges, on October 4, 2007, the U.S. District Court for the Northern District of Oklahoma issued an order in ConocoPhillips Co. v. Henry permanently enjoining the enforcement of the law against employers.18

Part III of this Note analyzes the merits behind the ConocoPhillips plaintiffs' claims that the Oklahoma parking-lot law violates both the Due Process Clauses of the Fourteenth Amendments and the Takings Clause of the Fifth Amendment.19 While ultimately rejecting the plaintiffs' due-process Page 1176 claim, this Note concludes that parking-lot laws effect a "taking" without just compensation in violation of the Fifth Amendment.

Part IV discusses the policy implications of parking-lot laws. Both proponents and opponents of the laws allege that their respective positions enhance employee and customer safety. This Note concludes, however, that the arguments set forth by parking-lot-law opponents are more convincing than those of their proponents. Further, despite a recent amendment that portends to immunize property owners from liability, employers may still face liability for possible injuries or deaths arising from state parking-lot laws. Employers also will likely face increased security-related costs in order to protect their employees and customers adequately from the consequences of such laws. Finally, parking-lot laws may constrain both employee satisfaction and work productivity. Because of the safety hazards and the additional burdens imposed upon employers, this Note concludes that state legislatures should not pass parking-lot laws.

II Background
A The Consequences Of Shall-Issue-Concealed-Carry Laws

With the advent of shall-issue-concealed-carry laws, also known as carrying-concealed-weapons laws ("CCW laws"), many employers and gun- control advocates argue that employers must ban firearms from their property in order to provide for a safe workplace environment.20 CCW laws require that the state "shall" issue a concealed-handgun-carry permit to individuals who meet certain state and federal requirements, including "being above a minimum age, passing a background check and, in some states, passing a safety class or test."21 In 1987, Florida became the first state Page 1177 to pass a CCW law;22 since then, thirty-four states have followed suit.23 Two states, Alaska and Vermont, do not require a permit to carry a concealed handgun.24 The remaining fourteen states either prohibit individuals from carrying concealed guns or grant law-enforcement officials the discretion to issue such permits.25

Thus, businesses located within shall-issue states must adopt explicit gun-free policies in order to help prevent individuals from bringing firearms onto their properties.26 These businesses must effectively publicize their policies-by posting signs, for example-to encourage employees and customers to abide by the ban.27 Businesses may also "refuse entry or bring a criminal trespass action against anyone who violates" their policies.28 Some businesses have gone so far as to fire employees who have violated their gun- free policies.

Some such terminated employees have attempted to challenge their employers' gun-free policies that led to their firings.29 In Hansen v. America Online, Inc., America Online ("AOL") fired three at-will employees after a security camera recorded them in the act of transferring their guns between two employees' cars.30 The employees filed suit against AOL, alleging wrongful termination on the ground that "their possession of firearms on the AOL parking lot was protected by a clear and substantial public policy."31 Page 1178 The Supreme Court of Utah rejected the employees' public-policy argument, stating that "[o]ne statutory provision among the corps of firearms laws offers more than ample evidence that . . . the right of an employee to keep and bear arms cannot supplant the right of an employer to regulate the possession of firearms by employees within the workplace environment."32

Similarly, in Oklahoma in 2002, Weyerhaeuser Corporation fired several employees for storing guns in their vehicles on the company parking lot in violation of Weyerhaeuser's gun-free policy.33 After Weyerhaeuser became suspicious that employees were using drugs, Weyerhaeuser arranged for a search of its parking lot.34 In the process of the search, dogs alerted security to the presence of guns.35 Weyerhaeuser subsequently fired all employees it found to have firearms in their vehicles.36

Eight of the terminated employees filed a lawsuit against Weyerhaeuser.37 On appeal, the employees alleged that the pre-2004 version of the Oklahoma Self-Defense Act conflicted with Oklahoma's constitutional right to bear arms and that Weyerhaeuser wrongfully discharged them in violation of public policy.38 The Tenth Circuit affirmed the district court's grant of summary judgment for Weyerhaeuser in each action.39 Rejecting the plaintiffs' wrongful-discharge claim, the court reasoned:

While the Oklahoma courts have not addressed the precise question of whether there is a clear and compelling public policy involving the right to bear arms, such that an at-will employee may not be terminated when he exercises that right, we are confident that those courts would not embrace that view. . . . [B]oth the Oklahoma Constitution and the Oklahoma courts recognize that the right to bear arms is not unlimited, and, indeed, may be regulated.40

In 2004, in response to Weyerhaeuser's termination of these employees, the Oklahoma legislature amended the Oklahoma Self-Defense Act and Page 1179 Oklahoma Firearms Act to prohibit property owners from banning firearms from parking lots.41

B Conocophillips Co. v. Henry

The governor of Oklahoma signed the parking-lot bill into law on March 31, 2004.42 The law was scheduled to go into effect on November 1, 2004;43 however, on October 27, 2004, several national and Oklahoma-based companies filed a lawsuit seeking to enjoin the enforcement of the law.44 On October 29, 2004, the U.S. District Court for the Northern District of Oklahoma granted the plaintiffs' motion for a temporary restraining order prohibiting the law from...

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