The gun behind the counter

At a Circle K convenience store, the clerk shot the suspected armed robber.

We expect to read the opposite story. Convenience stores can be dangerous places, especially for the people who work in them.

This happened a few weeks ago in Albuquerque in midafternoon. The suspect was wounded and is expected to recover; the clerk was not charged with any crime.

What was that clerk doing packing a gun?

The incident brought to mind a court case from 20 years ago in which Circle K clerk Paul Sedillo followed a shoplifter into the parking lot and was shot and killed. The Eldridge case (named for the mother of Sedillo’s daughter) raised the question of whether Circle K might be civilly liable outside of workers’ comp, whether the company was so greatly “at fault” that it might violate the “no fault” principle basic to the workers’ comp philosophy. It was a hot issue in the workers’ comp legal community, but the case was settled out of court so the question was not resolved.

Conventional wisdom is that employees should never be instructed to pursue armed robbers or shoplifters. Let them take the money and go. I heard that message in dozens of safety seminars and passed it on to small business owners in my own seminars.

Carlos Martinez, the employer’s attorney in that case, recalled that Sedillo went into the parking lot only to get the shoplifter’s license number.

Randi McGinn was the attorney for Eldridge and Sedillo’s daughter. She represented workers in several other convenience store cases, including another death case. When clerk Elizabeth Garcia was killed at a store in Hobbs, that triggered a round of activism and led to New Mexico adopting what McGinn told me are the strictest convenience store safety rules in the country.

The rules were adopted in 2005 by the state’s Occupational Health and Safety Bureau. Stores open during graveyard shift are required to have two clerks, a clerk and a security guard, or a bullet resistant enclosure for the clerk. The rules also require all-day continuous video surveillance and other features (see New Mexico Administrative Code

New Mexico gun laws do not contain any special provision for employees, regarding whether they may or may not carry firearms at work. The same laws and restrictions that apply to the public (too big a subject to discuss here) apply to employees.

The law is silent on whether employers can prohibit employees from bringing guns to work. According to the business and legal resources website, employers remain free to prohibit guns within the workplace, but, as in some other states, there’s an exception for the parking lot. An employee has the right to keep a gun locked in his own car in the parking lot (there are exceptions, and this is not legal advice).

I do not travel during graveyard shift hours, but I’m very grateful to stores that stay open all night and the brave clerks who staff them. To me they are unsung heroes. Those stores, with their bright lights and hot coffee, are a haven for lonely late-night travelers and may very well save lives by helping drivers stay awake and take a break.

If we have to pay a little more for that coffee or a microwave burrito to help provide for their safety, I’m for it. I hope there are methods less risky than guns.

A few days after the recent incident I stopped at another Circle K. I asked the clerk if he knew of any company policy regarding clerks having guns. He said he thought there was one but he had never seen it in writing. Then he told me, smiling, he had one behind the counter and would not hesitate to use it. A nearby customer said, “Good for you.”

Triple Spaced Again, © New Mexico News Services 2017

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