Increased Risks for Everyone
By William J. Everett, Esq., and Anna L. Yunker, Esq.; Everett & VanderWiel PLLP
Date: June 2019
The past decade has witnessed increased ease in obtaining permits to carry handguns and the ready availability of electronic stun devices (which include Tasers) and pepper spray in civilian markets. Public-sector employees may view these developments as signaling greater societal acceptance of arming oneself as a response to potential violence. But it is far from clear that granting authority to civilian employees to carry weapons on the job would keep them any safer, and the liability risks of allowing an armed civilian workforce are significant.
Although Minnesota Statutes Section 626.84, Subdivision 2 prohibits public employees who are not law enforcement or county attorneys from carrying firearms while in the performance of their official duties, the law is silent with respect to other items often used by individuals for self-protection, such as electronic stun guns and pepper spray. The employer’s obligation to ensure the safety of its employees and the employee’s appetite to protect him- or herself might result in an alliance that presents great risk to both.
Increased Liability Risks
Even though law enforcement officers receive extensive and ongoing training in the use of force, the lawsuits against them remain a costly burden on government organizations and the taxpayers who support them. Civilian government workers, as compared to their law enforcement counterparts, have very limited legal authority to use force. They may only do so in response to a present threatened crime against them or the person of another,i and then only if there are no reasonable alternatives to avoiding a physical confrontation.ii
Although a civilian employee’s authority to use force is narrow and limited, the employer’s responsibility is broad. Employers are responsible for the actions of their employees so long as the actions are within the course and scope of employment,iii and are not so unimaginable as to make it seem unfair to allocate the risk to part of the employer’s cost of doing business.iv
As the Minnesota Supreme Court explained, “[A]n employer is vicariously liable for an employee’s intentional tortious acts when: 1) the tort is related to the employee’s duties; and 2) the tort occurs within work-related limits of time and place.”v
Using this test, Minnesota courts have held employers responsible for a surprising array of employee conduct, even though such conduct was prohibited. Employers, for instance, have been held legally responsible for the actions of: 1) a group home counselor’s sexual assault of a resident, even though the conduct was a felony;vi 2) a therapist’s abuse of a patient, even though such conduct was “absolutely forbidden”;vii and 3) an on-duty police chief’s actions in intentionally setting fire to a building.viii
If an employer allows its employees to carry weapons on the job, there is a foreseeable risk that employees will use them. Legally, this is likely sufficient to make the employer vicariously responsible for any misuse or mishaps that result.
Self-defense Is a Mindset, Not a Tool
Individuals often associate carrying a weapon with self-defense and point to law enforcement as the example. The role of law enforcement is unique. They are required not only to protect themselves but to protect others as well.
Although law enforcement personnel may rely on weapons or combat skills as a means of protecting themselves, their training emphasizes threat awareness and mitigation as the first line of defense. This is not just a philosophy; it is a precept borne out by research demonstrating that assaults can occur with such speed as to leave even highly trained officers with no opportunity to respond effectively.ix Accordingly, current police training places a premium on early threat detection and mitigation over physical conflict.
Many aspects of this training are fully applicable to civilian employees:
- Use pre-event information to assess risk. Consider with whom you will be dealing, why you will be dealing with that person, and how that person has responded to authority figures in the past.
- Respond with adequate resources to keep everyone safe. If pre-event information signals danger, then respond with resources who are trained, equipped and legally authorized to manage any threats potentially anticipated.
- Always keep open the option of disengagement. “Disengagement” simply means getting out of a situation that is heading in a bad direction. To keep the option open, always know your escape route and never let a would-be assailant block your path of egress.
- Listen to your feelings. The brain (amygdala) is constantly monitoring all incoming sensory information for danger signals and may cause you to “feel” fear before you are consciously aware of the reason. Your brain may be noticing a person’s rigid posture, manner of speech and facial expressions, but the only means it has of telling you this quickly is to send a pit into your stomach and increase your pulse and respiration. Use your fear wisely and disengage if possible.
The risk of violence against government employees is complicated. Allowing civilian employees to have weapons on the job may seem like a “logical” solution, but there are no grounds for believing it would be an effective answer or that it would stack up against the significant legal risks.
Effectively detecting and mitigating threats in the workplace requires constant attention and deliberative efforts to avoid putting oneself in harm’s way. But as in many endeavors, an ounce of prevention is worth a pound of cure. Teaching employees to avoid risks through threat detection and mitigation may be a better answer than focusing on the use of a weapon once a risk has materialized.