Oklahoma employers still can't ban guns in locked cars

Feb. 24, 2009
10th Circuit issues judgment on Oklahoma law

An Oklahoma law prohibiting employers from banning guns in workers' locked vehicles in company parking lots survived arguments that the statute constitutes an illegal taking of property and is pre-empted by the federal Occupational Health and Safety Act, said an Oklahoma City University School of Law professor.

Assistant OCU law professor Michael O'Shea researches and writes about the "confrontational" parts of the Bill of Rights, including the Second Amendment right to keep and bear arms, leading him to follow the Oklahoma gun-law case closely.

O'Shea said OSHA requires employers to furnish workers with a place of employment free from "recognized hazards" that are causing or likely to cause death or serious physical harm.

"The question was whether risk of gun violence in the workplace should be considered a recognized hazard, such that, to the extent the Oklahoma laws prevented an employer from preventing that hazard, that would be a kind of conflict that leads to federal pre-emption," he said.

A three-judge panel of the 10th U.S. Circuit Court of Appeals held Wednesday that the law is not pre-empted by the federal Occupational Health and Safety Act, reversing the decision of a federal district judge who permanently enjoined the law's enforcement.

"OSHA has not indicated in any way that employers should prohibit firearms from company parking lots," the Denver-based appeals court wrote.

Approved in 2004 and amended in 2005, the law was challenged by several Oklahoma businesses, including ConocoPhillips.

Numerous national organizations, from the National Rifle Association to the Brady Center to Prevent Gun Violence, filed amicus briefs on both sides of the issue.

The initial law was passed after several Whirlpool employees were fired for storing firearms in their vehicles in company parking lots.

O'Shea said the 10th Circuit decision leaves open the question of what would happen if OSHA changed its standards and expressly adopted a policy concerning the presence of firearms in cars on company property or otherwise.

Although the lower court reasoned that the law thwarts the overall purpose and objective of OSHA, the appeals court disagreed.

"The OSH Act is not meant to interfere 'with states' exercise of police powers to protect their citizens,'" the judges said, quoting from a previous decision from the 3rd Circuit.

O'Shea said the appellate judges noted numerous OSHA authorities and statements that discuss the issue of gun violence in the workplace, but that OSHA has declined to promulgate an official standard on whether employers should permit firearms on company property.

 O'Shea said the court found a good deal of authority suggesting that OSHA has been reluctant to regulate, and courts have been reluctant to find pre-emption, in areas dealing more generally with social policy and crime prevention, rather than specifically workplace-related conditions and hazards.

"The 10th Circuit viewed the Oklahoma law as an example of general regulation under the state's police power," he said. "So in the absence of clear congressional intent to pre-empt state law in that area, the 10th Circuit was not going to find preemption under the general duty clause (of OSHA). "

The lower court also held that the law is not an unconstitutional taking.

On that point, the two courts agree.

"Plaintiffs have not suffered an unconstitutional infringement of their property rights, but rather are required by the amendments to recognize a state-protected right of their employees," the appellate court said.

O'Shea said that in its takings-claim analysis, the 10th Circuit analogized the Oklahoma law to the 1980 U.S. Supreme Court decision in Pruneyard Shopping Center v. Robins. He said that in that case, under state free-speech rights, California authorized visitors to a privately owned shopping center to distribute political petitions.

"The Supreme Court rejected the argument that this was a compensable taking under the Takings Clause," O'Shea said.

The 10th Circuit suggested that, similarly to the free-speech-facilitating state law in Pruneyard, the Oklahoma law might be viewed as intended to expand or secure the individual right to bear arms for self-protection, O'Shea said.

The Second Amendment is not generally implicated by employer policies, O'Shea said, because like other provisions of the Bill of Rights, it only restricts government action, not action by private entities.   However, he said states can confer rights through state constitutional provisions or through legislation that go beyond the federal right, as in Pruneyard. O'Shea said he thinks that is what the court meant when it said one rational basis for the Oklahoma laws could be to expand or secure the right to bear arms.

The 10th Circuit panel also concurred with the district court that the Oklahoma law does not violate due process.

O'Shea said a few states have experimented with laws like Oklahoma's, permitting employees to store lawfully owned firearms in their locked cars at work, from the perspective that they secure their ability to carry firearms for protection while commuting to and from work.

He said a Florida federal district court largely rejected an OSHA pre-emption challenge to a similar law in that state, in Florida Retail Federation Inc. v. Attorney General of Florida.

Attorney General Drew Edmondson's office represented the state in seeking to have the Oklahoma law upheld.

"It was our opinion that the law is constitutional, and the court agreed with us," spokesman Charlie Price said.

O'Shea said he found it interesting that the state turned oral argument in defense of the law over to Charles Cooper, a Washington, D.C., attorney who filed an amicus brief on behalf of the National Rifle Association. He said Cooper was designated as a special assistant attorney general in the case.

O'Shea said the Cooper and Kirk law firm handles a lot of high-powered, often politically charged litigation in federal court.

ConocoPhillips was a key plaintiff in the case.

Spokesman Rich Johnson said the company is disappointed with the 10th Circuit ruling, but has not had time to determine how it will proceed.

"The safety of our employees is a top priority of ConocoPhillips," he said.

The Associated Press contributed to this story.