In a remarkably interesting decision issued a few weeks back, a federal district court in Kentucky declined to dismiss a lawsuit for wrongful discharge based on Kentucky laws that forbid employers from taking adverse action against employees who store guns in their cars in the company’s lot. In Sheard v. Novo Nordisk, Inc., No. 3:20-CV-152-BJB (W.D. Ky. Mar. 31, 2022), the court framed the questions this way: “May a Kentucky employer fire someone for driving to work with a gun in the car? What if the employee didn’t actually have a firearm, but the employer acts on the mistaken belief that he does? And does a taser count as a firearm?” The case presents interesting questions about statutory interpretation as well as the scope of the Kentucky law empowering employees to retain their weapons, and it addresses Second Amendment questions to boot. It also adds new texture to the questions raised by legislatures’ privileging gun owners over property owners, something I tackle in my recent piece on gun rights outside the Constitution. (Unfortunately, I only came across the opinion on Westlaw and could not find a free version).
In February 2018, Kenneth Sheard’s employer, Novo Nordisk, fired him after he told his supervisor he was “packing” (in response to the supervisor’s expression of concern over Sheard’s safety and admonition that he should “be careful with the homeless in the area”). When Sheard made his comment about packing, the supervisor told Sheard that keeping a gun in his car violated company policy, and the company fired him without undertaking any investigation. “But it turns out Sheard was ‘packing’ a taser, not a traditional gun.”
Sheard sued, arguing that the firing violated two Kentucky statutes and was otherwise against public policy, including the policy he attributes to the Second Amendment and Kentucky’s constitutional analogue.
Sheard’s first statutory argument relied on Kentucky’s parking lot law. That law provides that “[n]o person, including but not limited to an employer, who is the owner, lessee, or occupant of real property shall prohibit any person who is legally entitled to possess a firearm from possessing a firearm, part of a firearm, ammunition, or ammunition component in a vehicle on the property.” It also makes an employer who violates the section “liable in civil damages” and provides that “[a]n employee may seek and the court shall grant an injunction against an employer who is violating the provisions of this section when it is found that the employee is in compliance with the provisions of this section.”
The court easily dismissed this first argument. It did so for the simple reason that Sheard did not allege that he kept the weapon in his car on Novo’s property, “[a]nd without that essential factual allegation connecting Novo’s firing of Sheard with the presence of Sheard’s vehicle on the employer’s property, the claim fails as a matter of law.”
Sheard’s next argument relied on Kentucky’s general concealed carry statute, which has a remarkably curious provision that is much broader that Kentucky’s parking lot law. It provides that:
A loaded or unloaded firearm or other deadly weapon shall not be deemed concealed on or about the person if it is located in any enclosed container, compartment, or storage space installed as original equipment in a motor vehicle by its manufacturer, including but not limited to a glove compartment, center console, or seat pocket, regardless of whether said enclosed container, storage space, or compartment is locked, unlocked, or does not have a locking mechanism. No person or organization, public or private, shall prohibit a person from keeping a loaded or unloaded firearm or ammunition, or both, or other deadly weapon in a vehicle in accordance with the provisions of this subsection. Any attempt by a person or organization, public or private, to violate the provisions of this subsection may be the subject of an action for appropriate relief or for damages in a Circuit Court or District Court of competent jurisdiction. This subsection shall not apply to any person prohibited from possessing a firearm pursuant to [Kentucky law].
On this claim, the court found Sheard stated a plausible enough claim to defeat dismissal. It noted that, as the Kentucky Supreme Court has observed, although the statute is located in Kentucky’s criminal code, this provision provides a civil cause of action against “any person or organization” who not just successfully violates the section but “attempts” to do so. Thus, if Novo tried to keep Sheard from possessing a “firearm . . . or other deadly weapon” in his car, the company would be liable for damages.
To answer that question, the court first had to ask whether a taser qualifies as a “firearm.” Kentucky law defines a firearm as a weapon that “expel[s] a projectile by the action of an explosive.” Because a taser uses “compressed gas, not exploding gunpowder” it does not count as a firearm. Interestingly, the court rejected Sheard’s contention that of course the parking lot law should be read to include tasers because it protects more dangerous weapons—firearms. In fact, the court noted, “courts and legislatures regularly distinguish between guns and other weapons.” It highlighted, “the Firearms Owners’ Protection Act, for example, which regulates guns but says nothing of other weapons like knives, num-chucks, or missiles.” (Eric Ruben has a terrific article, The Law of The Gun, that argues this gun-centricity in court cases skews Second Amendment doctrine.)
That does not fully answer Sheard’s second claim because the statute extends to other “deadly weapons.” Unfortunately for Sheard, “[t]he Kentucky Court of Appeals has rejected this very argument” in holding that tasers are not deadly weapons. The court also cites several dictionaries to support the point, concluding that “an instrument that isn’t designed or intended (or certain or likely) to bring about death isn’t a ‘deadly weapon.’”
The upshot is that a taser is neither a firearm nor other deadly weapon covered by the statute. Yet the court noted that the statute goes further still: it creates liability for one who attempts to violate the statute. Even though Novo was wrong about Sheard possessing a gun, that may not absolve it. Thus, as the court asked, “[d]oes Novo’s mistake of fact about Sheard’s weapon preclude civil liability for an attempt to violate the statute?” No, concluded the court.
The irony is obvious. Novo acted in response to gun possession, which is protected by state law though disallowed by company policy. But thanks to an apparent miscommunication, it responded to taser possession, which isn’t protected by state law and (as far as we know) allowed by company policy. But this mistaken attempt does not obviously preclude liability. Certainly Novo hasn’t yet pointed to any law or precedent that would override the statutory text. Based on the pleadings, therefore, Novo attempted to violate Sheard’s rights under KRS § 527.020(8). So the Court cannot dismiss Sheard’s second claim.
Finally, Sheard claimed that, although he was an at-will employee, Novo could not fire him for reasons that violate public policy, like possessing a weapon in his car. Under Kentucky law, the public-policy exception that would create wrongful discharge is narrow. The Kentucky Supreme Court has rejected federal constitutional rights as grounds for a public-policy exception, so the Second Amendment is out. Plus, “[t]he lack of state action in this tort case renders the federal constitutional protection inapposite.” The same conclusion dooms reliance on the state constitutional right to keep and bear arms. But the concealed carry statute’s protection for guns in cars provides a basis for the wrongful discharge claim to proceed. “Though Sheard’s weapon—a taser—is neither a ‘firearm’ nor ‘deadly weapon,’ KRS § 527.020(8) prohibits actual and attempted violations of the statute. And that mistaken termination would appear to violate this substantive guarantee of Kentucky’s code.”