US Pharm. 2014;39(10):48-50.
Pharmacy robberies are at an all-time high.1 And pharmacists who attempt to defend themselves have been shot and killed during armed robberies.2 It appears that drug addicts and other criminals have opted to bypass stealing cash from liquor stores, gas stations, and banks in order to pay for street drugs in favor of taking their unlawful behavior directly to the pharmacy to obtain controlled substances. Pharmacists are responding to threats of violence in a variety of ways, including arming themselves with weapons as a means of self-defense. The question is whether this strategy is a good one and, more important, whether employers support the notion of self-defense.
Robbery is defined as the taking of money or goods in the possession of another by force or intimidation.3 Burglary, on the other hand, is defined as breaking and entering into a dwelling during a trespass with the intent to take possession of property belonging to another.4 While theft by burglary of pharmacies is also on a steep increase compared to past years, it is robbery that most concerns pharmacists. Understandably, they fear for their own lives and those of other employees during an armed robbery. Self-defense is the justifiable right to use reasonable force in defending one’s own self or others to prevent an impending injury.5
If a pharmacist is threatened with a gun by a robber who demands the inventory of a controlled substance, such as oxycodone (OxyContin), does the pharmacist have the right to draw a gun and defend himself or herself from the threat of harm? Does it make a difference if the pharmacist is employed by a corporation that has a policy against the carrying of firearms on its premises? Most significantly, can the employee pharmacist be fired for using self-defense by means of a gun when threatened by an armed robber? A recent case from the state of Michigan puts these questions into perspective and provides, at least, partial answers.6
Facts of the Case
Jeremy Hoven had been a Michigan-licensed pharmacist since 1999 and a full-time employee of Walgreens since 2006. In 2007, he was held up at gunpoint in the pharmacy. Following this incident, he asked the employer to install extra security precautions, including a panic button. Walgreens refused to implement the requested precautions. In 2008, Hoven obtained a state-issued concealed weapons permit. At that point, he began carrying his gun to work.6
On May 8, 2011 (Mother’s Day), at about 4:30 am, the Walgreens pharmacy in Benton Harbor, Michigan, where Hoven worked, was held up by two masked and armed gunmen. The robbers entered the store from the front, pointing their guns at one of the clerks. They took a manager hostage, dragging him through the aisles at gunpoint.7 Seeing what was going on from his vantage point in the pharmacy, Hoven called 911. Seconds later, Hoven saw another employee being held by one of the gunmen. Seeing the pharmacist, this robber jumped over the pharmacy counter, aimed his gun at Hoven, and pulled the trigger. Three times he attempted to shoot the pharmacist, but his gun would not fire. Hoven retreated from his position, pulled out his own gun, and began firing. He fired his gun three times. The would-be robbers fled the scene in panic. Although no one was hurt during the attempted robbery, Hoven stated that he feared for his life.
The incident was captured on footage from the pharmacy’s security cameras. Township police lieutenant Delman Lange, after reviewing surveillance video, told the local paper, “If it was me, I would have done the same thing.”8
Five days later, Walgreens supervisors informed Hoven that he had violated the store’s “nonescalation policy” as well as a policy against carrying firearms in the workplace. Hoven was told that he had the choice to resign or be terminated. After refusing to resign, he was fired effective May 13, 2011.6
Hoven claimed that in all of the years he had worked for Walgreens, he was never advised of, given a copy of, or even heard of any such thing as a nonescalation policy. In a statement to the media, a Walgreens spokesperson stated that the company stands behind its decision and said that its policies are designed for the safety of its customers and employees and are “endorsed by law enforcement.”6
In a civil case for wrongful termination filed in the Michigan circuit court, Hoven claimed he was fired in violation of a public policy grounded in state law that permits individuals to defend themselves and others from the imminent threat of violence by using a gun to ward off the peril. Walgreens responded first by removing the case to a federal district court, as it had the right to do. The trial court dismissed the case on the pleadings, without trial, on the basis that Hoven could not identify the source of any public policy that would afford him the relief sought.9 In other words, Hoven failed to state a claim that would entitle him to damages for wrongful termination.
Court of Appeals Decision
Walgreens did not argue that Hoven was fired for violation of its nonescalation policy or policy against carrying firearms on its premises. Instead, it claimed Hoven was an “at-will” employee who could be terminated at any time for any reason or no reason at all.10 Walgreens also argued that Hoven failed to identify any legitimate public policy that would have prevented his firing.
As a procedural issue, the federal courts were obligated to follow Michigan law on the subject of public policies against termination of an at-will employee for carrying and using a firearm in self-defense. Because Michigan courts have not decided the issue, the federal court was relegated to predicting how the state courts would rule on the issue if it confronted it.11
Hoven did not dispute the fact that he was an at-will employee who could be fired for any reason that does not violate a well-defined public policy.12 However, he argued that his termination violated a series of public policies. State court decisions indicate that a termination violates public policy when: “1) the employee is discharged in violation of an explicit legislative statement prohibiting discharge of employees who act in accordance with a statutory right or duty; 2) the employee is discharged for the failure or refusal to violate the law in the course of employment; or 3) the employee is discharged for exercising a right conferred by a well-established legislative enactment.”13
Hoven claimed several sources of law supported his public policy argument against his termination from employment. The court determined that Hoven’s claims did not fit into the first two exceptions enumerated under Michigan law. The district court granted Walgreens’ motion for judgment on the pleadings because none of the public policy sources that Hoven identified in his complaint confer a right on Hoven that was violated by his termination.
The right to bear arms under the Second Amendment to the U.S. Constitution cannot be used as a public policy exception for an employee of a private employer.14 Similarly, the Michigan Self-Defense Act does not confer a general right to engage in self-defense.15 None of the other claims Hoven made stood up to the court’s scrutiny.
The court then looked at a case in which an employee was fired for failing a drug test required by his employer (Walmart) when marijuana was discovered in a urine sample.16 The employee claimed he never came to work “high” and that he had a right to use marijuana because he possessed a state-issued medical marijuana card for treatment of chronic pain and other symptoms. He claimed that the enacting statute allowing him to use marijuana created a public policy exception to the at-will employment doctrine. The statute states, in part, that “a qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege…for the medical use of marihuana [sic] in accordance with this act.”17
The court in this particular case concluded that the statute does not impose restrictions on private employers and only protects against state action. Thus, the employer had the right to fire its at-will employee, and the marijuana statute did not create a public policy exception.16
The court analogized the marijuana case to the one at hand and determined that its precedential value weighed against Hoven. Thus, the court upheld dismissal of Hoven’s claim for wrongful discharge.6,9
In another case, a court held that there is no public policy exception to the at-will doctrine when a FedEx employee was fired for carrying a gun in the glove box of a company-owned vehicle.18 The company had a well-defined policy against possessing firearms in or on company property. Citing the case at hand, that court stated: “The facts of Hoven highlight the delicate nature of the balancing act between an individual’s right of self-defense and an employer’s right to control his workplace. Although the gun arguably saved the employee’s life, that same gun cost the employee his job.” As in Hoven, that court also determined that the FedEx employee was not wrongfully terminated and dismissed the complaint.18
The crux of this decision is that at-will employees of private employers that have a no-weapons policy can be terminated for self-defense even when the employee is under imminent threat of great bodily harm. Employers have the right to prohibit firearms on their premises and, at least under Michigan law, there is no exception for self-defense.
This is not to say that pharmacists cannot generally exercise the right of self-defense with a gun or by other means. Pharmacists have shot and killed robbers without legal repercussions.19 But employers have a superseding right to ban arms from the workplace. In addition, because most pharmacists are at-will employees, they can be terminated at any time for any reason or no reason at all.
The best option for an employee pharmacist is to determine what the employer’s policy is with regard to firearms and follow those dictates. Otherwise, carrying a gun at the workplace, even with the best intentions for self-defense or the defense of others, could result in the loss of a job.
1. Oppmann P. Addicts putting pharmacies under siege. CNN. June 3, 2011. www.cnn.com/2011/HEALTH/06/03/drugstore.robberies. Accessed July 6, 2014.
2. Hulette E. Police: slain Va. Beach pharmacist also pulled gun. Virginian-Pilot. May 31, 2014. http://hamptonroads.com/2014/05/police-slain-va-beach-pharmacist-also-pulled-gun. Accessed July 14, 2014.
3. Robbery. Legal dictionary. Free Dictionary. http://legal-dictionary.thefreedictionary.com/robbery. Accessed July 6, 2014.
4. Burglary. Legal dictionary. Free Dictionary. http://legal-dictionary.thefreedictionary.com/burglary. Accessed July 6, 2014.
5. Self-defense. Legal dictionary. Free Dictionary. http://legal-dictionary.thefreedictionary.com/Self-Defense. Accessed July 6, 2014.
6. Hoven v. Walgreen Co., Slip Op No. 13-1011 (June 2, 2014), 6th Cir. www.ca6.uscourts.gov/opinions.pdf/14a0115p-06.pdf. Accessed July 6, 2014.
7. Attempted robbery caught on tape ends with firing of store employee. KTRE. 2011. www.ktre.com/story/15441411/attempted-robbery-caught-on-tape-ends-with-firing-of-store-employee. Accessed July 6, 2014.
8. Eger C. Federal court upholds firing of pharmacist over defensive gun use in robbery (video). Guns. June 13, 2014. www.guns.com/2014/06/13/federal-court-upholds-firing-of-pharmacist-over-defensive-gun-use-in-robbery-video/. Accessed July 7, 2014.
9. Hoven v. Walgreen Co., 2012 U.S. Dist Lexis 171629. Lexis Advance. https://advance.lexis.com. Accessed July 14, 2014.
10. Lytle v. Malady, 579 NW2d 906, 910 (Mich 1998).
11. Combs v. Int’l Ins Co., 354 Fd 568, 577 (6th Cir 2004).
12. Suchodolski v. Michigan Consol Gas Co., 316 NW2d 710, 711 (Mich 1982).
13. McNeil v. Charlevoix Cnty, 772 NW2d 18, 24 (Mich 2009).
14. Prysak v. R.L. Polk Co., 483 NW2d 629 (Mich Ct App 1992).
15. Mich Comp Law (MCL) §§ 780.951 and 780.971. Presumption Regarding Self-Defense and Self-Defense Act of 2006. http://legislature.mi.gov/doc.aspx?mcl-780-951. Accessed July 14, 2014.
16. Casias v. Wal-Mart Stores, Inc, 695 F3d 428 (6th Cir 2012).
17. MCL § 333.26424(a). Michigan Medical Marihuana Act of 2008. http://legislature.mi.gov/doc.aspx?mcl-333-26424. Accessed July 14, 2014.
18. Stewart v. FedEx Express and Federal Express Corp, 2014 Pa Dist & Cnty Lexis 68. Lexis Advance. https://advance.lexis.com. Accessed July 14, 2014.
19. Reed E. Drug addict pulls gun in pharmacy—gets shot! BuzzPo. May 25, 2014. http://buzzpo.com/drug-addict-pulls-gun-pharmacy-gets-shot/. Accessed July 14, 2014.
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