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Thursday, May 7, 2009

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It was a five-year-long battle, but Oklahoma gun owners emerged victorious.

On Feb. 18, 2009, the United States Court of Appeals for the Tenth Circuit ruled that a statute passed by the state legislature allowing employees to keep firearms locked in vehicles on company property--therefore giving citizens the means to protect themselves while traveling to and from work--is not preempted by federal workplace regulations. Nor does it violate employer rights to regulate what can and cannot be brought onto property that companies have designated a parking area.

It was a decision a long time coming, and at the cost of nearly a dozen workers’ jobs.

“We’re very pleased that the statute was upheld,” Oklahoma Attorney General Drew Edmondson, a defendant in the case along with Oklahoma

Gov. Brad Henry, said. “It was very helpful language the court provided in the ruling, and we’re proud of the work we were able to accomplish with the NRA.”

In the end, it was a question of whether the statute signed into law in Oklahoma in 2004, demanding workers be allowed to stow firearms in locked vehicles on company property, passed muster under the Occupational Safety and Health Act.

With NRA attorneys helping to argue the case, and a letter from the Occupational Safety and Health Administration (OSHA) itself stating an opinion that Oklahoma’s “parking lot” law was not preempted by federal law, the appeals court ruled that the amendment would stand.

“After the case was appealed to the Court of Appeals for the Tenth Circuit, we began working with Attorney General Edmondson and lawyers in his office to assist in the defense of the statute,” NRA outside attorney Chuck Cooper said. “On behalf of the NRA, I and my colleagues prepared an amicus brief arguing that the Oklahoma statute was not in conflict with OSHA’s workplace safety regulations. As the case made its way to the Court of Appeals, Attorney General Edmondson invited me, on behalf of the state of Oklahoma, to present oral argument to the court, and in order to represent the state of Oklahoma I was made a special assistant attorney general.”

A victory for Oklahoma workers and those in other states, yes; but also a warning that, with an anti-gun administration already amassing soldiers for a fight against the Second Amendment (his appointments ranging from hardened gun-haters like Chief of Staff Rahm Emanuel, Attorney General Eric Holder and Secretary of State Hillary Clinton to Secretary of Education Arne Duncan, White House “Regulatory Czar” Cass Sunstein and “Drug Czar” Gil Kerlikowske), OSHA could soon feel intense pressure to unequivocally ban firearms from workplaces. That would place in jeopardy not only Oklahoma’s law, but similar “parking lot” statutes passed in 10 others states as well as bills pending in a handful of others.

With an administration eager to unleash a host of gun-ban measures upon the American people, don’t doubt for a second that the next workplace shooting, however rare such tragedies are, will give the Obama administration cause to demand that the Second Amendment freedoms of law-abiding workers be further squelched, regardless of the impotence of such measures in reducing violent crime.

“The Obama administration is making sweeping changes throughout the federal bureaucracy, and we are very concerned that the new leadership at OSHA may be asked by the anti-gunners to change its standards to include firearms as a workplace hazard,” Cooper said. “Rest assured that the NRA’s expert lobbyists are alert to this threat and will do everything in their power to prevent it from occurring.

It was March 2004 when the Oklahoma legislature passed, and Gov. Brad Henry signed, an amendment to the Oklahoma Self Defense Act stating:

“No person, property owner, tenant, employer or business entity shall be permitted to establish any policy or rule that has the effect of prohibiting any person, except for a convicted felon, from transporting and storing firearms in a locked vehicle on company property set aside for any vehicle.”

This amendment to Oklahoma law was introduced and subsequently passed by an overwhelming margin--133 of 137 of the state’s legislators voting in favor--after a dozen individuals were fired from their jobs at a Weyerhaeuser paper mill in the southeast part of the state. There, where deer hunting is an age-old pastime and many employees work in agriculture on the side, management canvassed the parking lot with trained dogs, ostensibly looking for drugs, though the canines “hit” on the terminated employees’ vehicles because guns were inside. Several had worked there for over 20 years.

So state Rep. Jerry Ellis, whose home-town, Valiant, is where the paper mill employees were fired, introduced the bill to protect the right of employees to carry firearms to and from work … in short, allowing them to keep firearms in their locked vehicles on company property.

Shortly thereafter, 97 percent of Oklahoma legislators voted in favor of the amendment, and it appeared the regulations were set to take effect.

Soon, though, corporate interests--including entities such as Whirlpool and Conoco-Phillips--became troubled about their grip on their employees’ actions.

Besides, the Brady Campaign warned of doom should guns be allowed in yet another setting, though their presence in nearly every setting in the U.S. has proven beneficial.

Unfortunately, the Brady Campaign’s shrill warnings that such a law would promote workplace violence spurred several Oklahoma companies to contest the law in court.

And so the battle began.

One day before the law was to take effect, several companies with a presence in Oklahoma, including Whirlpool and Conoco-Phillips, asked the federal court for the northern district of Oklahoma for an injunction blocking the new law from being enforced.

The plaintiffs opposed the amendment allowing workers to keep firearms locked in their vehicles on company property because, they claimed, the statute was, “1) unconstitutionally vague; 2) an unconstitutional taking of private property, as well as a violation of plaintiffs’ due process right to exclude others from their property; and 3) preempted by various federal statutes,” (namely, the OSH Act).

For three years, the Oklahoma “parking lot” amendment stagnated under a restraining order while the case wound through the courts. During that time, the NRA called for a boycott of Whirlpool (which eventually dropped out of the case) and Conoco-Phillips, while also rallying around the gun owners who were fired from the Weyerhaeuser paper mill.

Also during this time, the NRA filed an amicus (friend of the court) brief in support of the Oklahoma parking lot statute, while the Brady Campaign sided with the interests of big business over individual safety and freedoms.

In 2005, the Oklahoma Legislature, hoping to calm the fears of the business community in the state, revisited the “parking lot” regulations and amended the law to specifically shield employers from any damages. The amendment made them immune to lawsuits related to the misuse of any firearm lawfully stored in an employer parking lot.

Not placated, the plaintiffs continued ahead with their lawsuit.

In 2007, the United States District Court for the Northern District of Oklahoma ruled against the plaintiffs on their first three arguments--that the law was unconstitutionally vague, a taking of private property or a violation of due process rights--but did rule that the OSH Act’s “general duty clause” preempted the Oklahoma statute. That clause requires employers to provide a safe workplace.

THE UNFORTUNATE EIGHT Though the United States Court of Appeals for the Tenth Circuit allowed to stand the Oklahoma law protecting employees’ right to store firearms in locked cars in employer parking lots, a ruling by the same court three years earlier wasn’t good news for a handful of Oklahoma gun owners.

On Feb. 13, 2006, the Tenth Circuit Court of Appeals ruled against eight defendants who filed a wrongful termination suit against Weyerhaeuser after they were fired for storing firearms in their vehicles on company property.

It was the firing of these individuals that led state Sen. Jerry Ellis to introduce the “parking lot” amendment that the appeals court upheld as constitutional.
The court ruled that, since the amendments were not in place at the time the employees were fired, their argument that they were wrongfully terminated had no basis.

PRAISING ARIZONA In March, the Arizona House of Representatives Judiciary Committee voted 6-2 in support of legislation like that in Oklahoma that would allow employees to store firearms in locked vehicles while parked in employer parking lots.

The bill now goes to the full House for a vote.

NRA Board member Todd Rathner told the Arizona Business Gazette that those employees who can legally carry a gun are denied that right at work. “[T]hey’re not able to exercise that right if they carry a gun from their home to their place of work,” Rathner noted. “People should have the right to privacy in their own vehicle. If they want to keep their firearm there, they should be able to do that."

Arizona Chamber of Commerce and Industry representative Marc Osborn warned that Second Amendment freedoms need to be suspended because, “We’re in an economic crisis,” and “sometimes (workers) may snap.”

But state Rep. Cecil Ash noted that when a worker at an RV park he owned was killed by a former employee, “I remember wishing … that I had a gun in my vehicle and many other of my employees had had guns in their vehicles.” He summed up: “I think this actually makes employment sites safer.”

So Oklahoma Gov. Henry and Attorney General Edmondson appealed the case to the United States Court of Appeals for the Tenth Circuit.

With NRA attorney Chuck Cooper helping Edmondson to argue the case--specifically, to ask that the appeals court overturn the ruling that the OSH Act’s general duty clause conflicts with the worker protection law--the setting was moved to a federal courthouse in Denver.

Of particular note during the appeals process was a letter to state Sen. Ellis from Acting Assistant Secretary of Labor Thomas Stohler, head of OSHA at the end of the Bush administration, that buttressed the state’s case.

“I was pleasantly surprised when (Stohler) wrote a letter on Jan. 16, 2009,” Cooper said, “stating that it was OSHA’s position that the general duty clause of the Occupational Safety and Health Act does not pre-empt the Oklahoma statute …

“This letter, of course, confirmed the legal position we were then arguing to the Tenth Circuit, and the court made reference to it in its opinion adopting our position,” Cooper said.

Indeed, on Feb. 18, 2009, Tenth Circuit Court of Appeals Judges Paul Kelly, Bobby Baldock and Michael McConnell reversed the ruling of the District Court. The appellate decision allowed the Oklahoma parking lot statute to stand.

In considering the district court’s ruling that OSHA standards preempt the Oklahoma statutes, the court of appeals ruled, “We disagree …

“OSHA has not indicated in any way that employers should prohibit firearms from company parking lots. … In fact, OSHA declined a request to promulgate a standard banning firearms from the workplace. … In declining this request, OSHA stressed reliance on its voluntary guidelines and deference ‘to other federal, state and local law-enforcement agencies to regulate workplace homicides.’” (Emphasis in the original.)

As is to be expected, many in the popular media cast derision on the appeals court decision, claiming that the current economic climate (which has resulted in many layoffs) is reason to keep guns away from the workplace.

But as Edmondson notes, “This argument goes both ways.

“This makes the position of our office and the NRA even more salient,” he said. “With people upset due to the economic crisis, it’s an even more important time for people to be able to protect themselves.”

Still, any high-profile workplace shooting will surely find some urging OSHA to rescind the right of workers to protect themselves on the way to and from work.

The time is now for all gun owners to unite and resist such threats, and this includes supporting the NRA.

With additional reporting by Managing Editor Gina Schmidt



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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.