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In a unique case that pits fear of workplace violence against the right to bear arms, Oklahoma businesses are challenging a new state law that permits employees to keep firearms in cars parked in company lots. The law’s opponents obtained a temporary restraining order preventing the legislation from taking effect on Nov. 1. The parties were back in the U.S. District Court for the Northern District of Oklahoma last week, when the judge said he would ask the state’s highest criminal court to decide whether the controversial law is a civil or criminal statute. Several companies doing business in Oklahoma have claimed that the new law violates employers’ property rights and due process rights, is unconstitutionally vague and is inconsistent with federal laws regulating firearms. Those businesses bar firearms from their properties. Whirlpool Corp. v. C. Brad Henry, No. 04-CV-820-H(J) (N.D. Okla.). Plaintiffs ConocoPhillips and the Williams Cos. assert that the statute impairs their ability to guarantee workplace safety by prohibiting weapons on their property. Tulsa’s police chief filed an affidavit in support, and the Oklahoma State Chamber of Commerce and Industry and Halliburton Co. submitted amicus briefs. ConocoPhillips and the Williams Cos. were originally intervenors in the litigation but last week became plaintiffs, replacing Whirlpool Corp., which abruptly dismissed its complaint. Whirlpool’s attorney, Kimberly Lambert Love of Boone, Smith, Davis, Hurst & Dickman in Tulsa, said: “Based on what the attorney general represented to the court, we believe we’ll be able to keep our policy in place and protect employees.” She would not elaborate. Steven A. Broussard, who is representing the new plaintiffs, said Whirlpool’s dismissal does not change his clients’ views. “We still think there is a real issue here and we need to pursue it,” said Broussard of Hall, Estill, Hardwick, Gable, Golden & Nelson in Tulsa. The law at issue, an amendment to Oklahoma’s Self-Defense Act of 1995, bars businesses from establishing any policy “that has the effect of prohibiting any person, except a convicted felon, from transporting and storing firearms in a locked vehicle on any property set aside for any vehicle.” Its sponsor, Representative Jerry Ellis, noted that about 90 percent of the state’s legislators supported the bill, as did Governor Brad Henry, who signed it on March 31. Ellis, who regularly carries guns in his car, said he wanted to protect “our constitutional right to transport and store a firearm in a locked vehicle.” He said his former employer, Weyerhaeuser Co., inspired him to draft the legislation. Weyerhaeuser used trained dogs to sniff vehicles in its parking lot in October 2002, and fired mill workers and contractors who violated its prohibition against guns and drugs on company property. Ellis said the incident occurred during deer season, but a Weyerhaeuser spokesman said the search was deliberately scheduled when only bow hunting was permitted. Ellis did not have a weapon in his vehicle at the time of the search. Before the legislation could take effect, opponents rushed to court to halt it. Noting that 77 percent of workplace homicides in 2002 and 2003 were committed with guns, Whirlpool argued that the new law conflicted with the federal Occupational Safety and Health Act, which requires business owners to provide a hazard-free workplace. The law was also attacked as unconstitutionally vague because it does not define “firearm” or “locked vehicle.” The Oklahoma Attorney General’s Office sought to have the suit dismissed, arguing that the defendants — the state’s governor and attorney general — enjoy 11th Amendment immunity from challenges in federal court. Neither defendant has the “power or duty to enforce the amended statue, which would allow jurisdiction over them,” Guy L. Hurst, chief of litigation for the attorney general’s office, wrote in a motion to dismiss. If businesses want to sue, he said, they must do it in state court. At last week’s hearing, U.S. Chief District Judge Sven Erik Holmes said he would ask Oklahoma’s Court of Criminal Appeals to determine whether the statute is criminal or civil. If it is deemed a civil statute, the state’s sovereign immunity argument would be more likely to prevail, Hurst said, and the matter would be hashed out in state court. If the law is found to be part of the state’s penal code — as the plaintiffs claim, citing its violation as a misdemeanor offense — the defendants are appropriate and the case would most likely proceed in federal court.

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