I'm not quite sure what to make of the 2001 West Virginia decision recognizing a self-defense exception to employment at will that co-blogger David K. discussed on Saturday. But I wonder if the scope of the decision isn't narrower than most commenters seem to assume. The Court's decision answered a federal district court's request to resolve a question of West Virginia law, but it did not actually apply its doctrine to any set of facts. So the Court did not decide that the 7-11 employee couldn't be fired, or even that he acted in self-defense; it only created a legal framework for deciding when an employee's conduct taken in self-defense could be used as a basis for firing him in an employment-at-will context.

  How often will the West Virginia decision make a difference? I'm no expert in such things, but my sense is, "not very often." Self-defense is a well-known concept in criminal law, and the West Virginia case appears to incorporate that criminal law standard. But self-defense is also a limited right, and not the kind of thing that is likely to lead to an employee being fired. Consider an example. Imagine that 7-11 has a policy that employees are not allowed to carry guns, but an employee does so anyway. A robber attempts to rob the store, and the 7-11 employee pulls out his gun and scares off the robber. The employee is fired by 7-11 for carrying the gun in violation of 7-11 policy. What result?

  I'm not entirely sure, but my best guess is that the firing would be proper under the West Virgina case. (FWIW, I looked for cases interpreting the West Virginia case since it was decided in 2001, but didn't find any.) "Self-defense" is used in criminal law to mean a defense to an affirmative act like an assault or homicide, not to a continuous course of conduct. Even then, it normally requires an immediate threat. As a result, a 7-11 employee who carries a gun at work would not seem to have a "self-defense" justification for carrying the gun as a matter of criminal law. (I realize that this does not match a layman's understanding of what it means to take an act in self-defense, but that's the law for you.) While the employee may have showed the gun to ward off the robber, he presumably would be fired for carrying a gun generally, not for showing it at the moment of the attempted robbery. And as best I can tell, self-defense would not apply to that.

  I'll open this up for comments. As always, civil and respectful comments only. Oh, and please note that none of this is intended to be a normative argument. I am trying to make a purely descriptive claim about the state of the law, not to argue that this law is good or bad.