US Pharm. 2007:32(7):57-59.
you ever wondered what you would do if you were arrested for allegedly doing
something criminally wrong? Probably not. Getting arrested is not a scenario
most people think about in advance, especially upstanding citizens like
pharmacists and those who work in pharmacies. Sure, the thought is unpleasant,
but it might just be worth the effort. At least that is the suggestion offered
by a recent case involving a pharmacy intern who refused to leave his
employer's place of business when asked.
Facts of the Case
worked as a pharmacy intern for a chain community pharmacy located in
Minnesota. After about two weeks, the district manager of pharmacy operations
called the vice president of human resources seeking to meet with him and the
intern to discuss some "performance issues" that related to the intern's
refusal to fill a customer's prescription for oral contraceptives or to let
the customer speak to a pharmacist. The meeting occurred in January 2005 in
the vice president's office.
The intern (who is now a
pharmacist--more about this later) testified that he attended the meeting under
the assumption that he was going to receive a reasonable religious
accommodation, as he and the district manager had previously discussed. The
vice president testified that the purpose of the meeting was to terminate the
intern's employment because "he was in his probationary period and… we felt
that he was not meeting our standards and… his services were no longer needed."
The vice president, district
manager, and the intern talked about termination for a few minutes. The intern
wanted to continue the discussion, but the vice president informed him that
the meeting was over and asked him to leave. The vice president testified
that, "He got agitated and he had a notebook with him which he threw on the
floor and had some other items with him which he threw across the desk." When
the vice president was asked how this affected her, she stated, "It made me
nervous. I am not used to people reacting that way in my office," and "I was
concerned that… he would get more violent or agitated." The vice president
testified that she told him the discussion was over and he needed to leave.
She asked him several times to leave, but he continued to refuse until she
finally told him that, at this point, he was no longer welcome in her office
or in the building and that if he would not leave on his own, she would be
forced to call the police and have him escorted from the building.
some point, the district manager called for the security staff. A security
employee testified that he told the intern, "I understand that your employment
has been terminated…. The business has concluded here…. So, I need to ask you
to leave our premises." But the intern began to talk about his views on his
termination and his religious convictions. The security staff member told him,
"That is not my determination…. I am just in charge of security and I am to
inform you that since there is a termination and that the business is done,
that you need to leave the private property." The intern told the security
employee that he felt threatened by his language. The security employee then
told him, "We have private property here. There has been a termination. You
are no longer authorized to be on our property and I feel it is in your best
interest to leave peacefully." The intern claimed he had every right to be on
the property. Again, the security employee told the intern that if he refused
to leave peacefully, "We will have no other option but to notify the local
authorities to have them escort you from the property."
The intern still refused to
leave with the security employee, and the police were summoned. When they
arrived, the intern engaged in what the court called "passive resistance."
This meant that he refused to walk, stand, or move, and fell limp to the
floor. The officers handcuffed him, then carried and dragged him to the
elevator and then outside to the squad car. He was asked to stand because the
ground was covered with snow, salt, and sand (remember, this is in Minnesota
in January), but he refused, so they laid him on the ground while they opened
the squad car. The officers continued asking the intern to cooperate with
them; he remained limp. The security employee from the company helped the
police get the intern onto the floor of the squad car. Upon inquiry by the
police, the intern refused to provide any identification or other information.
In the police car on the way
to jail, the intern banged his head against the window and kicked the back
seat, causing the officer to stop and call for assistance. Several other
officers arrived to restrain the intern; five of them put the intern into a
Afterward, the intern said that he would stop resisting and would cooperate.
He was then fingerprinted and placed in a cell.
Trial Court and Appeal
As a result of
these incidents, the intern was criminally charged with three
misdemeanors--obstruction of legal process, trespass, and disorderly conduct. A
jury convicted him on all charges, and the district court sentenced him
The intern (now "defendant")
appealed his convictions to the Court of Appeals of Minnesota. The Minnesota
trespassing statute states: "A person who without a claim of right, refuses to
depart from the premises on demand of the lawful possessor" of property is
guilty of a misdemeanor.3
The court explained that the "claim of right" may be "a bona fide claim by the
defendant or expression of limited permission given the defendant by the
lawful possessor of the premises or someone authorized by the lawful possessor
to give such permission."
The defendant admitted that
the lawful possessor of the property demanded that he depart and that he
refused. He claimed that he did have a claim of right because the vice
president and the district manager agreed to discuss with him the reasons for
his termination, and he felt that he should be able to explain his civil
rights claim based on their failure to provide reasonable employment
accommodation. The appeals court stated that his "subjective reasons not
related to a claimed property right or permission are irrelevant and
immaterial to the issue of claim of right."4 The court went
on to explain that after he was fired, neither the reasons for the defendant's
termination nor his belief that the employer had failed to provide reasonable
employment accommodation pertains to any property right of the appellant or
any permission for him to remain on the owner's property. The vice president,
district manager, and the security employee all told him repeatedly to leave.
The vice president told him point blank, "You are no longer welcome in my
office or in the building and if you do not leave on your own, I will be
forced to call the… police and have you escorted from the building."
The appeals court concluded that this remark could not be construed as
permission for the defendant to remain on the property. Therefore, his
conviction on this count was proper.
Turning to the obstruction of
justice charge, the court noted that in Minnesota, a person who intentionally
"obstructs, resists, or interferes with a peace officer while the officer is
engaged in the performance of official duties" may be confined to prison.
5 In this case, the
"peace officer" are the police who interacted with the defendant. During the
trial, the defendant admitted that the police asked him to leave and he
refused. He stated: "I chose to allow them to take me away and they did
proceed to take me away," and said, "One of the officers… picked me up and I
allowed them to pick me up by their own force…. I remained limp." He did not
walk out when the officers gave him that chance. A police officer involved
with this milieu testified: "Instead of following normal escort routine, we
had to exert force that we would normally not have to exert if he was
complying." The officer also noted that five police officers had to be
"diverted from their regular duties" to assist with getting the defendant into
a hobble restraint after he began hitting his head against the side window and
kicking the back cage of the squad car. All of these facts supported the
obstruction of justice charge.
As to the claim that the
defendant was not guilty of disorderly conduct, the appeals court had no
trouble finding that the defendant was guilty based on the conduct discussed.
No one should
expect to get away with the behavior exhibited by this individual. No matter
how justified or righteous a cause someone wants to take on, the law will not
tolerate obstructive conduct. There is a saying used by lawyers that aptly
summarizes the findings of this case: "The law abhors self-help."
6That is what happened
here. This pharmacist did not want to participate in dispensing activities
involving any form of contraception, and when he could not get his way, he
went into an abusive and threatening mode that required police intervention.
No matter how vigorous one feels about their own moral rights or whether
contraception is unethical or should be illegal, there is no legal
justification for misusing your position and espousing your views from the
property of another. Or, as this case shows, if you want to stand by your
morality, there will be a price to pay in the form of consequences if you use
someone else's property to express your views, especially after being given
ample notice to vacate the premises. Remember this if you ever feel like
making a stand on an issue that makes you feel moral indignation. Also
remember that all of this applies to unruly customers and employees if you
find yourself being threatened. While this example involves only Minnesota
law, the principles are fairly similar throughout the country.
Generally speaking, one is
trespassing on property that they do not own when they have been warned not to
enter the premises. When a piece of land is not visibly occupied, notice is
usually provided by way of posted signs informing others that this is private
property and warning readers of the sign that they are not allowed to enter
unless they first obtain express advance permission. The signs must be of
reasonable size with a font size that can be read from a reasonable distance,
and the signs must be posted at reasonable intervals to inform folks
encountering the property to receive actual notice of the prohibition. The law
will presume that violators can read and understand English. Signage or
express written notice need not be provided when a property is obviously
developed, such as a private home or a commercial location. There are several
categories of people that the law uses to explain the extent that people may
enter such property.
As a general matter,
"invitees" are people who have an express or implied invitation to enter a
property. In a commercial establishment, invitees include business guests such
as customers that come into a pharmacy or other business. In normal
circumstances, landowners have the highest legal duty to invitees who could be
hurt by dangerous things located on the property. The owner of a property such
as this must repair or warn invitees of known dangerous conditions or dangers
that would be revealed after a reasonable inspection. In a few states, if
invitees are more than 50% responsible for causing their own injuries, the law
will relieve the landowner's liability. For purposes of the situation
discussed in the case at hand, it is important to know that an owner or land
or its agent, like the vice president or the manager of a community pharmacy,
has the right to revoke the invitee's status as a welcome guest by expressly
conveying to the guest that they are no longer welcome on the property and
that they must leave the premises.
At the heart of this case was
the legal status of the intern. He certainly had the right to come into the
building because he was expressly invited to do so. One might even
characterize the invitation as a command appearance. Just because he thought
he was invited for one purpose has no legal consequence when he found out that
his presumption was wrong. His invitation to appear in the vice president's
office was clearly and repeatedly revoked, after which he had no legal claim
to remain. In layman's terms, the invited guest became uninvited, a right that
all property owners possess. In the eyes of the law, the reason for revocation
of the invitation is not pertinent to the rights of the disinvited guest. Put
another way, there is no soap-box right to remain on a property and preach
your moral indignation as to how you are being treated.
One last thing: Remember in
the introductory comments that the intern eventually became a licensed
pharmacist? Next month, another case involving this same individual will be
reviewed examining the issues of religious objection by a pharmacist to
contraception and the extent that an employer must go to make a reasonable
accommodation to conscientious objection.
1. Minnesota vs.
Noesen, Slip Op No A06-624 (May 8, 2007), 2007 Minn. App. Unpub. LEXIS 428.
www.freepatentsonline.com/5482271.html for a description of this method of
controlling agitated individuals.
3. Minn. Stat. §
609.605, subd. 1(b)(3) (2004).
4. Quoting from
State v. Brechon, 352 N.W.2d 745, 750 (Minn. 1984).
5. Minn. Stat. §
609.50, subds. 1(2), 2(2) (2004).
6. See, for example,
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