Ray vs. Wal Mart Stores


By C.E. Alexander

Twenty million customers will visit a Walmart today, and one million Walmart employees will show up for work. Statistically speaking, these 21 million people own about 21 million guns. Enough of them brandish their weapons—and the results are so combustive—that the world’s largest retailer has been forced to write a de-escalation clause into their national theft prevention policy:

If the Suspect is believed to possess a weapon, the Suspect must not be approached. If during an approach or investigation, it becomes apparent that the Suspect has a weapon or brandishes or threatens use of a weapon, all associates must disengage from the situation, withdraw to a safe position, and contact law enforcement.

If at any point the Suspect or any other involved becomes violent, disengage from the confrontation, withdraw to a safe position and contact law enforcement.

There is ample room for interpretation here, and plenty of opportunity to review general, interstate company policy through the lens of specific state law. Recently the Utah Supreme Court accepted one such opportunity: on January 13, 2011, Utah-based Walmart employees Shawn Ray, Lori Poulsen and Gabriel Stewart escorted customer Trent Longton to one of the store’s small Asset Protection Offices. They rightly suspected of Longton of shoplifting but–after he produced the stolen merchandise–Longton also produced a gun. The confrontation turned physical as the three pinned the customer to a wall and pried the weapon from his hand. A week later the store terminated the three employees for “Inability to Perform Job,” although it is beyond dispute that they were fired for not adhering to the company’s de-escalation policy. (Walmart claims that employees responsible for similar physical confrontations are often found in compliance with the disengagement policy, proof that the company performs due diligence in reviewing these events on a case-by-case basis. But more than anything it poses the question: how much violence are these stores experiencing?)

What complicates the case is Utah’s right-to-work law, as well as its stand-your-ground principle. With few exceptions, Utah employers may terminate employees without establishing a cause: that is the company’s right according to state law. Yet one of the four legal exceptions to this is the termination of an employee who was otherwise “exercising a right or legal privilege.” Ray, Poulsen and Stewart claim they were doing exactly that when they pinned Longton to the wall, since the Asset Protection Office was too small from which to disengage or withdraw to a safe position. Their state-guaranteed right to stand their ground legally protects them from being terminated for not de-escalating.

It is unbelievable that the retailer fired them in the first place. It is furthermore difficult to accept that the case has found its way to a state supreme court. But most of all, it is nearly impossible to set aside the idea of taking a bullet and possibly dying for a Walmart job. Yet again, the company’s policy in general makes perfect sense: given Walmart’s reach and the prevalence of guns and knives in the U.S., the retailer believes management’s best solution is to phone the authorities when a customer brandishes a weapon. The alternative could lead to a shoot-out, for which employees are not trained and which could lead to other customers, other employees, the shoplifter and members of the general public being shot. As potential shoppers, we should feel grateful for Walmart’s disengagement policy, and no policy is meaningful without enforcement. That is as close to a defense of Walmart’s decision as you will read on this website.

The oral arguments are fascinating. Yes, listening to legal hearings can be like dropping a contact lens: only the slightest detail comes into view, and only if you know right where to look. But the full running time is just under an hour, and most of arguments are macro in scale. The Plaintiff’s attorney distills the matter to the right-to-work versus the right to self-defense, both of which Utah recognizes as legal rights but, at least in a legal sense, one of which will necessarily trump the other. The supreme court justices reminded her that there are several methods of self-defense, some of which constitute disengagement, others of which are more aggressive. To insist that Walmart’s anti-engagement policy is in itself a rejection of the right to self-defense is unfair.

The defendant’s counsel fell into a pretty tight loop, saying repeatedly that Walmart was only asserting the right to make final judgments on events that occur on company property. She warned that adding an overbroad self-defense exception to the state’s right-to-work doctrine will result in her client and other businesses being plagued with that many more lawsuits (again, it boggles the mind that so much violence occurs in Walmarts, but perhaps it should not). Ultimately she stepped into a trap of her own making, wrongly insisting that no hypothetical existed in which a retail employee could avoid being shot without facing possible disciplinary action. It contradicted one of her earlier points and might be flatly unconstitutional. To say nothing of wrongheaded; terrible PR.

Given only the bench’s relative hostility to each side, it seems that Ray et. al. had the more sympathetic argument. But I am far from a law scholar, and law is the other theater of the unexpected. We will have to wait and see.

C.E. Alexander—as is his legal right and his right according to Amazon policy—recently offered his short story Book of Constants as a free download. Limited time only, void where prohibited, some exclusions apply.

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