Sound Off: Pharmacists and Guns
Created 02.08.12 by Peter Cohron, BSPharm, JD
Editor’s Note: This is the first installment of SDN’s new opinion column, “Sound Off.” If you are interested in submitting a column for publication, please visit the SDN Help Center to send a message to our Editor in Chief.
By now, most of the pharmacy world is aware of the circumstances under which a major pharmacy chain pharmacist was fired following a robbery at his Michigan pharmacy.
When a gunman jumped the prescription counter, the pharmacist responded by attempting to call 911. The gunman then jerked the trigger of his gun “several times” (at least twice on the video of the incident). Pharmacist responded by pulling his own gun and firing at the would-be robber. No one was hit, no one was hurt, and the gunman ran away.
The pharmacy chain fired pharmacist a few days later. First, the company stated that pharmacist violated the company’s non-escalation policy. Second, he was fired for bringing a gun to work against company policy.
Between 2006 and 2010, armed robberies have increased 81%. In the pharmacy setting, many of these armed robbers are “high” on abused medications and their actions are unpredictable, putting pharmacists at substantially increased risk of robbery and injury.
This article seeks to examine both policies and determine whether 1) the company’s policies are correct, and then 2) whether that pharmacist’s actions were justifiable or not.
The Non-Escalation Policy
The pharmacy chain’s policy towards pharmacy robberies is to give the robber what he wants and to do nothing else. Don’t argue with the robber, don’t pursue the robber, don’t fight the robber, don’t even call the police until the pharmacy staff is sure that the robber is out of the store. The goal of this non-escalation policy, quite laudably, is to protect the lives of the pharmacy staff and others in the store. This is an admirable goal and this author cannot see a better overall policy for this environment.
Still, it must be conceded that even the best policy cannot cover every situation. And in this situation, the pharmacy chain’s policy failed. A non-escalation policy pre-supposes that the robber has intent to rob without doing harm. In the best scenario, the robber comes to the counter and demands controlled substances, possibly showing or claiming the existence of a threatening weapon. The pharmacist may be frightened but is not physically close to the robber, who is mostly calm but demanding. Cooperation by the pharmacy staff gets the robber what he wants, who then leaves.
In this incident, however, what happened is outside of those parameters. The first failure of the policy is that it assumes that pharmacists and staff will react and respond calmly. How and why does the pharmacy chain expect this? Other than a reminder once or twice a year that this is the company policy, the pharmacy staff has no training in these situations and how to respond. Yes, it would be hard to come up with a proper training scenario that would cover all contingencies. Any decent course would also require a fair amount of time to review and practice responses. Sports teams do not play without hours of practice and preparation. The armed forces do not perform an operation without days or weeks of training. Lawyers practice opening statements and closing arguments repeatedly. Doctors look over x-rays and scans and practice before complicated surgeries. But pharmacy chains are not going to spend the money or time to do this; it is not cost effective.
Therefore, this chain pharmacy is wrong to blame employees who respond however they respond in a dangerous surprise situation. Their supposition that employees would either remain calm and cool or be unable to respond, frozen by the threat or surprise(the startle reflex) is based on the long-standing belief that this is the usual response for people in these situations. According to this dated theory, the release of oxytocin—the body’s response to a sudden situation– in the brain would cause the heart rate to increase in response to the threat but the individual would freeze in his position. However, recent thinking and analysis contends that this release of oxytocin is just as likely to create an active response, the best example being that of a mother instantly and aggressively protecting her young. That employees may respond by a protective defensive move or an aggressive move against the threat is just as likely to occur as freezing in place, if not more likely. All the more so when there is a lack of training to ignore the response. See for example, Boo! Culture, Experience and the Startle Reflex, by Ronald Simons, and Nerve: Poise Under Pressure, Serenity Under Stress…, by Taylor Clark.
And that is what happened. Again outside the parameters of the pharmacy chain’s best-case scenario, these gunmen jumped the counter and held their guns out in a threatening manner. The pharmacist’s response of reaching for the telephone to call 911 was as natural a response as could be expected. When the robbers escalated the situation by attempting to fire their guns, there can no reasonable or unreasonable assumption that pharmacist should have responded other than aggressively to protect himself.
Another factor to consider here is that this pharmacist had been robbed before. It is possible that the earlier incident caused him to suffer, to some degree, Post Traumatic Stress Disorder (PTSD). “Those with PTSD may react on instinct or impulse to any sudden threat. Their responses may be extreme.” Criminal Behavior and PTSD: An Analysis. The article goes on to state that “When reminded of a trauma, those with PTSD have high levels of distress. This is likely to affect their judgment and make them less able to use reason in their responses.” So, even if the pharmacist responded without using proper judgment, which this article does not claim, his actions are excusable because of the previous robbery he was subjected to. Here again, the fault of how this robbery unfolded must lie squarely with the pharmacy chain, since it was aware that he had had such a previous experience. The company should have moved him to another shift or another store, made changes in the layout of the pharmacy to more properly protect the pharmacy personnel, or they should have been prepared for whatever outcome resulted from a repeat experience.
Guns in the Workplace
While the law is rarely settled in one specific area, statutes, regulations, ordinances, etc all generally support the right of an employer to ban employees from bringing guns to work. However, this right seems to be eroding. Several states have passed laws that now allow employees to bring guns onto their employer’s property so long as the guns are left in their automobiles and are reasonably secured. While a seemingly small step, the move is being hailed as a major advance for gun rights. The issue of the Second Amendment right to bear arms and employer rights, the most important aspect of this case, continues to be explored by both sides.
Additionally, the 1970 Occupational Health and Safety Act is affecting the ability of employees to bring guns into the actual workplace itself. This federal law requires employers to lessen hazards in the workplace that could lead to death or serious bodily harm. Where an employer fails to make reasonable steps, the right to ban guns is substantially negated.
And this fits the above described situation. This pharmacy and pharmacist had been robbed only a few months before. Yet, the pharmacy chain’s determination following that event was to do nothing. In other pharmacies, this company has ordered all access except one drop-off/pick-up window closed and that space was fitted with a removable obstacle with only a slot for the passage of medicine and payment. Had this been done, these robbers could not have jumped the counter and shoved guns in the pharmacist’s face.
On the issue of a no-guns policy, the pharmacy chain falls back on the argument that the innocent could be injured or killed. In reality, this likelihood is near zero. Robbers almost always come to pharmacies at extremely slow periods to avoid being there when other customers are around. I am aware of an attempt to rob a pharmacy a few months ago that was aborted when the would-be robber saw a line at the prescription counter. Refusing an employee the right to protect himself based on this argument is fallacious.
The question arises, though: did the pharmacy chain have a right to terminate an employee who disobeyed a company policy? The answer is short and succinct. Here, the pharmacist faced a dilemma of following a company policy versus self-protection in a dangerous environment. Protection of self is an essential part of the Second Amendment right to bear arms, and court cases almost always come down on the side of the person seeking to protect himself. Thus, it can be said that when this pharmacist brought the gun to work, he lacked the requisite intent to disobey the policy; he simply chose to protect himself.
I conclude that both policies used as a basis to terminate this pharmacist are wrong and therefore his termination was unwarranted and unjustified.
One note here: though the incident described above happened at a specific pharmacy chain, it should be noted that all the major chains have the same non-escalation and no-gun policies. This article and the conclusions drawn are aimed at all entities with this policy in place.
About the Author: Peter P. Cohron, BSPharm, JD, ia a 1980 graduate of the University of Kentucky College of Pharmacy and a 1993 graduate of the UK College of Law. He is a practicing pharmacist with 30+ years of experience, mainly retail, and has been a practicing attorney for more than 17 years, focusing his practice on pharmacy-related issues and estate planning.