The Colorado Supreme Court recognized on Monday that there is a right to self-defense in the workplace for which employers may not terminate workers so long as they lawfully exercise that right.

The court’s majority in the 5-2 decision cautioned that its holding was narrow, but that the history and importance of self-defense meant the right does not disappear “simply because a person enters the workplace.”

“The employment relationship should not be used to strip workers of the ordinary legal privileges every person possesses. The right to self-defense has never been cabined by role or location,” wrote Justice Maria E. Berkenkotter in the June 15 opinion. “It is a unique, essential, and inalienable right that exists for workers, students, retirees, and the unemployed alike. It allows people to protect themselves in their homes, schools, houses of worship, and workplaces under very specifically defined circumstances.”

Chief Justice Monica M. Márquez dissented, disagreeing that private employers must recognize the right to self-defense. She also questioned whether the right was job-related.

“Although the majority acknowledges that rights conferred by the constitution constrain only state action, its reasoning means that after today, a private employer may not lawfully terminate an at-will employee for conduct related to the exercise of any inalienable constitutional right — even if the employee’s conduct plainly violates the employer’s policies,” Márquez wrote for herself and Justice William W. Hood III.

The lawsuit by Mary Ann Moreno against her former employer, convenience store operator Circle K, reached the state’s highest court in an unusual way. Moreno is litigating in federal court for wrongful termination, but her claim hinges upon whether Colorado law protects an employee from being fired for using self-defense in the workplace.

While U.S. District Court Judge Nina Y. Wang acknowledged she had the power to interpret unclear legal terrain, she felt “most comfortable” with Colorado’s highest court defining the limits of state law. Last year, Wang asked the Supreme Court to step in, reasoning that if no right to self-defense existed for the workplace, Moreno’s case would likely not reach a jury.

Moreno was behind the register at a Westminster Circle K store when a man holding two hunting knives asked if she could give him cigarettes for free. In Moreno’s telling of the October 2020 encounter, the robber attacked her while she was trapped behind the counter, prompting her to defend herself. In the process, she made contact with her assailant.

After reviewing the security footage, Circle K managers did not believe Moreno acted in self-defense. Instead, she stepped toward the shoplifter and briefly grabbed his arm and shirt as he reached for the merchandise. Those actions violated the company’s “Don’t Chase or Confront” policy for shoplifters, leading to Circle K terminating her employment.

Moreno alleged Circle K terminated her in violation of Colorado’s public policy — namely, the state’s recognition of a right to self-defense. Initially, Wang sided with Circle K, finding that Colorado law did not support the idea that an at-will employee may not be fired for exercising self-defense in the workplace.

After the Denver-based federal appeals court returned the case to Wang for a second look, she believed jurors could find that Moreno was using self-defense. However, if they did, it raised the question Wang initially attempted to answer: Does Colorado law prohibit employers from firing someone for using self-defense in the workplace?

Moreno asked her to invite the state Supreme Court to answer the question using a process known as “certification.” Wang agreed to certify the question.

Moreno’s attorneys argued Colorado’s constitutional right to self-defense should naturally extend to workplaces, especially considering recent mass shootings at schools, movie theaters, supermarkets and nightclubs.

“Where I’m really struggling is to find a clear legislative expression of public policy that ties this right to self-defense to your right as an employee,” said Márquez during oral arguments. “I imagine Circle K would say that’s the whole reason we want our employees not to engage: We want them to disengage and to stay away from these types of confrontations.”

Thomas W. Carroll, representing Circle K, maintained that employers should have the ability to impose limits on an employee’s exercise of self-defense in the absence of any clear state policy. He argued that any recognition of self-defense in the workplace should include a duty to retreat and not cover an employee’s defense of a third party or of property.

“We don’t need people jumping from behind the counter to stop someone from stealing a six-pack of beer,” he said.

Berkenkotter emphasized in the majority opinion that the court was not deciding whether Moreno’s actions constituted self-defense, or even whether Circle K’s policy prohibited her from using self-defense. Instead, the majority found that Colorado’s recognition of a right to self-defense from pre-statehood days, combined with its impact, means Colorado employers are prohibited from discharging employees who exercise it lawfully.

“It makes no sense to suggest that everyone has an inalienable right to defend themselves if faced with imminent danger, unless they are at work,” wrote Berkenkotter. “Rather, the right follows the employee from home to work and back and everywhere in between.”

Márquez, in dissent, argued that Circle K’s policy does not prohibit employees from using self-defense. She further suggested that employees who exercise other constitutional rights in violation of workplace policies — for example, brandishing a concealed weapon at a shoplifter — cannot be terminated under the majority’s logic.

“I also fear that the practical implications of today’s ruling will tie employers’ hands and ultimately undermine workplace safety,” she wrote.

The case is Moreno v. Circle K Stores, Inc.