Once, I defended a Montana man charged with violating the Endangered Species Act for killing a grizzly bear in self-defense. Attacked while guarding his sheep, he wounded and later killed the bear. Federal lawyers prosecuted him for eight years seeking a $5,000 fine, but he never worried about the $225,000 in legal fees; my representation was pro bono.
After his exoneration, I read of a Wyoming hunter who, charged by a grizzly, put down his rifle and sought to repel the attack with bear spray. He was badly mauled and saved only because his hunting partner shot the grizzly dead. Later, I telephoned and asked why he had not used his rifle.
“I’d hear about your Montana client,” he replied, “and I did not want the feds coming after me.”
That hunter came to mind when I read about a Westminster woman whose case is now before the Colorado Supreme Court. In 2020, at the age of 72 and after 16 years clerking for Circle K Stores, she was discharged for her response when a customer, armed with two knives, demanded free cigarettes and stepped behind the counter toward her.
Circle K Stores said she violated its “Confront and Chase Policy.” Mary Ann Moreno says she was fired for defending herself when she feared death or serious bodily injury and sued in state court for wrongful discharge. After her suit was removed, by her employer, to federal court, but before the factual issue of why she was terminated was submitted to a jury, she sought an opinion from the Colorado Supreme Court.
Colorado, like most states, recognizes the common-law doctrine of at-will employment, which provides employees may be terminated for any reason or no reason whatsoever. One exception includes discharges contrary to the public interest, such as exercising a legally protected right. Of concern to Moreno is whether self-defense is a public interest exception in Colorado. Her request that the federal district court certify that question to Colorado’s highest court was denied; but the U.S. Court of Appeals for the Tenth Circuit reversed. Subsequently, the federal district court certified the question, which, on May 19, the Colorado Supreme Court accepted; briefings began this week.
A ruling from neighboring Utah foreshadows a possible outcome.
In 2015, in response to a certification from a Utah federal district court in a wrongful termination case akin to that of Moreno–a purported violation of the employer’s shoplifter policy—Utah’s Supreme Court recognized the self-defense exception: (1) “[T]he right of self-defense is enshrined” in Utah’s Constitution, statutes, and common law decision. (2) Self-defense “protects human life and deters crime, conferring substantial benefits on the public.” (3) “[T]he right of self-defense outweighs an employer‘s countervailing interests” if an employee, facing “imminent threat of serious bodily injury,” reasonably believes force is necessary and cannot withdraw.
Like Utah, Colorado’s Constitution enshrines, as the “Inalienable rights” of “all persons,” that of “defending their lives and liberties … and of seeking and obtaining their safety … .”
Thus, both embrace John Locke’s view that the right of self-defense is “inalienable” because it is “a natural right” and is “self-evident.” Moreover, the common law of both states is based upon the English common law, which, with its castle doctrine in the 17th Century, recognized the right of self-defense.
Today, Utah and Colorado have codified, or recognized by court rulings, the castle doctrine (right to use deadly force in one’s home), stand your ground (no duty to flee), and the right to defend others when facing death or serious bodily injury. Thus, Ms. Moreno should prevail.
What will Ms. Moreno’s employer–the nation’s largest company-owned convenience store chain, with locations in 48 states—argue when it files its brief next month? It should defend vigorously its current policy but eschew any desire to discharge employees for protecting their lives.
After all, citizens facing the threat of death or serious bodily harm, whether from four or two legged animals, have better things to worry about than whether their actions can get them sued or fired.
William Perry Pendley, a Wyoming attorney and Colorado-based, public-interest lawyer for three decades with victories at the Supreme Court of the United States, served in the Reagan administration and led the Bureau of Land Management for President Trump.
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