Update on AOL anti-gun action

[Car Knocker]

http://www.sltrib.com/2004/Feb/02032004/business/135156.asp

Justices weigh case of pair fired for gun handling


By Bob Mims
The Salt Lake Tribune

Do an employer's property rights trump the constitutional right to bear arms when it comes to workers transferring guns between their vehicles in a publicly accessible parking lot?

That question and others related to the September 2000 firing of three America Online Inc. employees in Ogden were taken under advisement by the Utah Supreme Court following oral arguments Monday.

At issue is an appeal by former AOL employees Paul Carlson, Luke Hansen and Jason Melling to a 2nd District Court ruling that upheld their terminations for violating company policy against possession of firearms on AOL's property.

The three had sued AOL, claiming their dismissals were improper because the company's anti-weapons policy, in application to the parking lot, violated gun-possession rights guaranteed by the Utah Constitution.

AOL attorney Gregory Stevens told Utah's justices that while the parking lot outside the company's Ogden offices is open to the public, AOL had leased 350 spaces specifically for its use. The nation's leading Internet service provider was therefore within its rights to extend the no-firearms policy of its building to its portion of the parking lot, Stevens said.

"These employees were making use of an easement in this case [that was] completely revocable at the will of AOL," he argued. "[The gun restrictions] help protect AOL in its efforts to provide a safe workplace."

James Vilos, representing the fired trio, agreed property owners have the right under state law to restrict firearms within their buildings. However, extending that policy to employees' private cars, parked in a publicly accessible parking lot, is unconstitutional, he added.

"The right to defend one's life is the first right," Vilos added. "[It is] so fundamental that there is no question of its importance to the public good."

However, Chief Justice Christine Durham noted that businesses are allowed to restrict another constitutional right -- free speech -- on their property.

Company policies restricting comments relating to race, gender and sexual preference are common in many businesses, yet are not considered unconstitutional, she explained.

"Are you asking us to rank the constitutional rights?" she asked. "Aren't they [appellants] really being fired for failure to comply . . . with conditions employers imposed on them?"

"This is a public parking lot, for crying out loud," Vilos said, noting customers parking at grocery stores and malls are not prohibited from keeping guns in their cars.

"There are probably people [who have gun in their cars] in the courthouse parking lot, just 150 feet away," he said.

In the case of Carlson, Hansen and Melling, pink slips came after AOL managers learned they had transferred guns between their vehicles in the parking lot in preparation for after-work plans to target shoot.

They sued, citing their 2nd Amendment right to bear arms, a right mirrored in the Utah Constitution. In February 2002, Judge Roger Dutson ruled that AOL had the right to impose firearms restrictions in the company's "exclusive, marked stalls."

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[Mulliga]

Well, I never use AOHell so I'm good. Who the heck would fire three people over something like that? Either there's more reasons for the firing that aren't being disclosed or there's a real hoplophobe in their ranks.

 

[Hkmp5sd]

Hate to say it, but I agree with this decision. If AOL owns the property, they can restrict the rights of employees on that property. If you know your company has this policy, don't walk around the parking lot, moving guns from one vehicle to another in public view.

The company I work for has a similar policy against having guns on their property. Fortunately, both them and the employees have enough common sense to simply keep the guns out of view on their property. They don't push the no-gun policy and we don't walk around the parking lot playing with our guns. I have bought guns from other employees and moved them between vehicles, but without flaunting it to everyone in sight.

 

[Car Knocker]

Hkmp5sd,

The article clearly says:

the parking lot outside the company's Ogden offices is open to the public, AOL had leased 350 spaces specifically for its use.

AOL DOES NOT own the lot, it is a public lot. Any non-AOL employee can park in the lot and transfer any legal weapon from vehicle to vehicle, and that includes machine guns! If the employees had moved from the leased spaces to non-leased spaces in the same lot, there would have been nothing AOL could have done.

The question is whether AOL has this kind of control over leased spaces in a public lot.

 

[Spot77]

Sorry Car Knocker, you're wrong, AND you're right. As a leaseholder, AOL has an intangible interest in the property, which by real estate law grants them temporary ownership. Unless those 350 spaces were marked as "AOL ONLY" then AOL has an interest in ANY of the 350 spaces that their employees choose to use. Doesn't matter if there is 5,000 spaces there; it matters which 250 the AOL employees are using at any given time.

Sort of like when you buy or lease a condo; you also have part ownership in the common ares of the condo building, like hallways, steps, vestibules, etc. But you can't claim, "This 6 inches of this 3rd step in hallway C is mine".


Real Estate is very multi-layered with different degrees of ownership.


Now...of course I think this situation sucks as much as the next guy, but I agree that AOL was within it's legal right to fire these guys

 

[Harold Mayo]

I'll be a simple man here...

There is no question of AOL's rights as a leaseholder. AOL effectively owns the leased spaces unless there's some clause in the lease or in the state's laws that makes exception.

What gets me, pure and simple, is that the managers responsible would be so petty as to even CARE what the employees are doing. Yeah, it's just me and my gun-totin' ways, but it's ridiculous to me that employees would be terminated over something like that.:banghead:

 

[Car Knocker]

Spot77,

Last sentence of article:

"exclusive, marked stalls."

 

[bountyhunter]

Hate to say it, but I agree with this decision. If AOL owns the property, they can restrict the rights of employees on that property.

AOL has no choice but to enforce the rule. If somebody came to work and went postal with a gun on their property, AOL would be legally liable if it could be shown they were allowing employees to keep guns in their cars on AOL property.

 

[Hkmp5sd]

Car Knocker,

The company I work for also has its parking lot open to the public. Anyone can pull in and park there. In fact, the land is actually owned by the city. Since I work for them, if I choose to park there, I have to obey their rules. They also require stickers on the cars of employees so they can identify them. If a common citizen pulls in, they can park with no problem. If I park there without the sticker, they can and will tow my vehicle. If a common citizen parks in the lot with a rifle in the back window, there is little the company can do. If I do the same, they can fire me.

Fortunately, we simply adopt a don't ask, don't tell policy and don't get into a fight with each other over it.

Besides, you can win the battle and lose the war. If these guys had managed to have won the decision, what do you think their logevity at AOL would have been after all of the negative publicity they caused?

 

[Smurfslayer]

I am loathe to do this without enough knowledge of law and case history, however, a lot will hinge on whether or not the parking lot is deemed a "Public place'. Regardless of the lease, think of it this way - if you were stark naked, would you be arrested for public indecency (whatever the state law is) in this place? If the answer is yes, then there is no issue of private property to be asserted by the company. All of this depends on how the couts in UT have ruled on similar law. Each state is different, and some are more abusive than others. Even though AOhelL may have a valid lease, if they did not post or gate their property, the court could rule it a public conveyance, and not subject to the AOhelL policies. Would AOhelL also say that everyone on that parking lot is not entitled to free speech and while they're at it, as a condition of parking there they've consented to be searched at AOhelL's discretion ? certainly not.
This is far from a strong case of AOhelL, but certainlly no gimme for the fomer AOhelLers...

 

[Harold Mayo]

If somebody came to work and went postal with a gun on their property, AOL would be legally liable if it could be shown they were allowing employees to keep guns in their cars on AOL property.

Do they? That's how the lawyers would play it out and that's the way that common thinking in most corporations goes right now, but....


What about this scenario?

A state which recognizes the right of a citizen to defend themselves either has a provision for CCW or just allows it but a business goes out of it's way to ensure that employees are unarmed on it's grounds. Let's even go so far as to say that an employee with legal "permission" (in quotation marks because I hate saying that word in regard to bearing of arms) to carry a weapon is disciplined for being caught with one on his (or her) person while on company property but is not terminated. Said employee ceases to carry concealed for fear of being caught again and terminated for a second offense...perhaps a provision for continued employment is even being subjected to a check at random if a manager wishes. Later, another employee or an outsider comes in and kills several employees, our hero (or heroine) included. Video evidence clearly shows that the employee who had previously been armed had a very good chance to stop the attacker if only he/she had been armed (assume that the attacker had his back to the employee while shooting someone else for a prolonged period of time). What then? What liability would be on the company at that point? Wrongful death lawsuits from all of the families involved? Has anything like this ever been brought up in court?

Oddly enough, my own company has implemented a "no weapons" policy on company grounds, designated security personnel being exempt, with the passage (however long delayed) of the Missouri CCW law (my own part of the company is located in Arkansas, which already has a CCW law). My own life as recently been threatened by a local man living near the business. Since I am in charge of the facility, I suppose that I can designate myself as security personnel if I desire (I hereby do so ) and I really don't worry all that much about the "restriction" but the scenario is a valid one.

What happens in the above situation? Anyone know of any cases like this?

 

[Car Knocker]

Hkmp5sd

I certainly agree that their long-term prospects at AOL wouldn't be very great if they did win the appeal. I KNOW I wouldn't make any bets on their reaching retirement age there.

 

[Bill Hook]

I'm not making many bets on AOL in general. I use them, but only because I have a long-standing e-mail with them and am too lazy to change providers and get an aol e-mail only account instead. One of these days, bye-bye AOL.

 

[Standing Wolf]

Either there's more reasons for the firing that aren't being disclosed or there's a real hoplophobe in their ranks.

A.O.L. has practiced egregious anti-Second Amendment bigotry a long, long time.

As far as I'm concerned, my inherent human right to defend my life trumps corporate property rights.

 

[Car Knocker]

Ok, here's another view:

http://deseretnews.com/dn/view2/1,4382,590040566,00.html?textfield=AOL


Can firm bar guns if left in vehicle?
By Doug Smeath
Deseret Morning News

An employer has the right to tell workers not to bring guns to work, but the Utah Supreme Court must now decide whether that includes parking at work and leaving a gun in your car.
The high court heard arguments Monday in a case questioning whether America Online was out of line when it fired three employees for possessing guns in a parking lot at the company's Ogden call center.
Attorneys for the fired employees said workers having guns in the parking lot is a "contrived burden" on the employer. They suggested that any number of people in the courtroom Monday morning may have had guns in their cars as arguments were heard and that it was creating no interference with courtroom procedures. The same would be true of guns in AOL's parking lot, they said.
But AOL's attorneys told the justices the employees violated their contractual agreement that they would not bring guns to work. They said signs posted at the door told employees guns were off limits, including in the parking lot.
They said the constitutional right to bear arms is no more infringed by the prohibition than the right to free speech is when employers disallow certain kinds of expression at work.
But the employees' attorneys said the right to bear arms is a fundamental right. Justices responded by asking the attorneys whether it was more fundamental and important a right than the right to free speech.
AOL fired Luke Hansen, Paul Carlson and Jason Melling on Sept. 14, 2000, when they transferred two pistols and two rifles among their vehicles in AOL's leased parking lot. The men were preparing for target practice at a private shooting range after work. The three sued for wrongful termination.
Several business organizations have filed friend-of-the-court briefs in the case, including the Society for Human Resource Management, the Salt Lake Chamber of Commerce, the Ogden and Weber Chamber of Commerce, the Employers Council, the Utah Hospitals and Health Systems Association, the Utah Restaurant Association and the Gun Violence Prevention Center of Utah.
Mike O'Brien, the attorney who represents the Society for Human Resource Management, said the society's involvement indicates a position in favor of employers' rights, not a pro- or anti-gun sentiment.
"It reflects a pragmatic recognition that each individual employer is in the best position to analyze its own business needs, safety and security requirements, property needs, employee morale issues, company culture, collective needs and other factors that must be considered when deciding whether or not to ban or allow guns on the employer's premises," he said.
The court has taken the case under advisement and will release an opinion at an undetermined later date.



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E-mail: [email protected]

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NOTE: To those folks that think this is a pretty clear-cut issue involing property rights, please remember that the USC could have just refused to hear this case, thus letting the lower court ruling stand. There must be some compelling issue that has garnered the attention of the court.

 

[Spot77]

Spot77,

Last sentence of article:



quote:
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"exclusive, marked stalls."
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Yeah...must've missed that

But that goes to prove my point even more; AOL has property rights in those spaces.......and it gives credit to your idea that they should've just driven to the "Non-AOL" part of the lot.

I really do hope these guys win; however if this were Maryland they'd be done, filleted, and digested already.

Oh the complelling issue that got the court's attention? Perhaps the idiocy of the whole thing? Luckily some courts do see through black and white issues....