Lawletter Vol. 51, No. 4
Nadine Roddy—Senior Attorney
In a matter of first impression, the Colorado Supreme Court has recognized a self-defense public policy exception to the at-will employment doctrine. Moreno v. Circle K Stores, Inc., 591 P.3d 46 (Colo. 2026).
The plaintiff in Moreno was a 72-year-old woman who had been working at her employer’s convenience store. A customer approached the register holding several items, including two hunting knives. He placed the knives on the counter and told her to get him a pack of cigarettes. The employee retrieved a pack from the display case behind her and began to ring up the sale. The customer said something to the effect of, “[J]ust give them to me for free.” When the employee refused, the customer picked up the knives and walked around the counter toward the employee, cornering her. She twice told the customer, “[D]on't come back here.” Undeterred, and with knives in hand, he continued to approach; Moreno then extended her arms to protect herself. The customer then grabbed the pack of cigarettes and ran out of the store. He was subsequently arrested, and ultimately pleaded guilty to menacing with a deadly weapon.
The store discharged Moreno for violating its “Don't Chase or Confront” policy, which instructs employees not to “confront[,] follow, pursue, track, chase, fight[,] or follow” any customer suspected of shoplifting. Moreno then brought suit in state court, claiming that she had been wrongfully discharged in violation of Colorado public policy because she had been exercising her right to self-defense. After the store removed the case to federal court and moved for summary judgment, the federal court certified the following question: “Does Colorado law recognize a public-policy exception to the at-will employment doctrine that allows an employee to bring a wrongful termination claim in the event the employee is terminated for actions taken in self-defense?”
The Colorado Supreme Court answered the question in the affirmative. In a 1992 decision, the court had identified a number of circumstances under which an at-will employee may assert a public-policy wrongful discharge claim: if the employee was terminated for (1) refusing to engage in an illegal act, (2) performing a public duty, or (3) exercising an important job-related right or privilege. To serve as the basis for such a claim, the right must be clearly expressed, sufficiently public, and granted to workers. Martin Marietta Corp. v. Lorenz, 823 P.2d 100 (Colo. 1992). The certified question in this case required the court to decide whether the right to self-defense, established by § 18-1-704 of the Colorado Revised Statutes and/or by Article II, § 3, of the Colorado Constitution, met this test. The court first determined that both the statute and the constitutional provision clearly expressed the boundaries and extent of the right to self-defense, based on their explicit language and the extensive and well-defined body of case law regarding self-defense. Next, the court decided that the right to self-defense is inherently a public right, rather than an individual proprietary right, because it is “an essential, inalienable right guaranteed to all people.” Finally, the court concluded that the right to self-defense, as expressed by both the statute and the constitutional provision, is a right that is job-related—insofar as the need to exercise the right to defend oneself from an unprovoked attack can occur anywhere, including at work.
The court cautioned that the scope of this exception to at-will employment is narrow. It is limited, importantly, to self-defense as an essential, inalienable right. And, critically, the exception applies only when an employee lawfully exercises the right in response to an unprovoked attack at work. Further, the certified question asked the court only to answer whether an exception exists; the court was not called on to decide whether the employer's policy barred its employees from acting in self-defense, or whether the policy simply prohibited employees from confronting shoplifters.
The Utah Supreme Court has previously recognized the same public policy basis for the tort of wrongful discharge. Ray v. Wal-Mart Stores, Inc., 359 P.3d 614 (Utah 2015). The court identified state constitutional provisions recognizing that (1) all men have the inherent and inalienable right to enjoy and defend their lives, and (2) stating that the individual right of the people to keep and bear arms for security and defense of self shall not be infringed, together with the state’s “Stand Your Ground” statute, as the sources of the “clear and substantial public policy of allowing individuals to protect themselves and others from imminent harm.”
