Stennis Institute of Government

A recent 10th Circuit decision from Oklahoma, Maldonado v. City of Altus, 433 F. 3d 1294 (10th Cir. 2006), has created a split in the federal circuit courts over whether workplace policies which require employees to speak only English in the workplace violate prohibitions on race or national origin discrimination.  Altus, Oklahoma, had a policy requiring municipal employees to speak only English.  A group of Hispanic employees in Altus charged that the policy created a hostile work environment, violating Titles VI and VII as well as 42 USC 1983.  The facts in the case, as developed, reveal that each plaintiff was bi-lingual.

Previous cases considered an English-only policy such as the one in Altus as one which, if violated, indicated the employee’s disregard of an employer’s order (insubordination, a disciplinary offense).  In other words, the cases were viewed from a ”labor and employment law” perspective.  The Maldonado court held that the presence of the policy alone could create or contribute to a hostile work environment.  By doing so it recognized a legal theory in which Courts could view these policies from a Title VII perspective, rather than an employment perspective. 

The questions the Court considered are these:  Is there a legitimate purpose to require Hispanics to refrain from speaking Spanish?  Or could the policy be construed as an expression of hostility against Hispanics?  In considering the rationale posited by employers, the Court said “the less the apparent justification for mandating English, the more reasonable it is to infer hostility toward employees whose ethnic group or nationality favors another langauge.” Because this case was heard by the 10th Circuit on an appeal by Maldonado and others from a summary judgment granted in favor of the City of Altus, this decision is not the end of the litigation.  Summary judgment (which the United States District Court granted in favor of Altus and its English-only policy) is granted only when a Court finds that there is no dispute as to any material fact and that the movant (in this case, Altus) is entitled to a judgment as a matter of law.  The 10th Circuit, in reversing the summary judgment order, found that there were questions of law and fact which were unresolved and thus summary judgment was inappropriate. 

Specifically, the 10th Circuit remanded to the United States District Court for a consideration facts and the fleshing out of law as it relates to the facts with emphasis on (1) disparate impact and disparate treatment under Title VII; (2) intentional discrimination under 42 USC 1981; and (3) denial of equal protection under 42 USC 1983.  But sending the case back to the United States District Court for further consideration will not necessarily end the litigation.  One of the few circumstances that will cause the United States Supreme Court to consider an appeal by writ of certiorari is when there is a split in the circuits on a particular legal question.

This is not the end of English-only policy debates which center around Title VI claims.  It merely heralds the beginnings.

Mississippi is one of 15 states with a “Castle Doctrine” law, the euphemistic term for a law that expands an individual’s right to defend himself in his residence — his “castle” — to a much broader scope of turf.  In addition to his home, a Mississippian can defend himself at his work-place or place of business, or his occupied vehicle.

For years, people knew they had a right to use deadly force if they felt threatened with bodily harm in their own residences — hence the old “admonition” about dragging the dead body into the residence after it had been slain elsewhere and before calling the law.  Carried over to the colonies from the English Common Law, where a man’s home was his castle and a place to enjoy protection, an individual could protect himself with deadly force within his home, but in other places — under a threat of bodily harm, he had the duty to retreat. 

Now the ability to use deadly force when one is threatened with bodily harm outside  of one’s castle is ok here in Mississippi, as well as in Alabama, Arkansas,  Arizona, Florida, Georgia, Idaho, Indiana, Kentucky, Louisiana, Michigan, Missouri, Oklahoma, South Carolina and South Dakota.  In fact, in Mississippi, Senate Bill 2426, signed into law in March of this year, if someone breaks into your home, your occupied vehicle or your place of business or work environment, you may presume that he is there to do bodily harm and may therefore use any necessary force against him, including deadly force.  This is consistent with Mississippi’s “stand your ground” principal, which has been applied by various state courts in Mississippi since the late 19th century. 

Less euphemistically, these laws are referred to as “Stand Your Ground” laws (the National Rifle Association’s moniker) or “Shoot First” laws (the moniker of the anti-hand gun lobby).  And to date, Mississippians cannot see an appreciable difference as a result of the enactment, which was effective July 1.  That is to be expected. It is to be expected because city and county law enforcement and city and county prosecutors are the first team on the interpretation/application of the “castle law” doctrine in your city or county. 

While the law enforcement officer will gather evidence about shootings that may fall under the purview of Senate Bill 2426, the prosecutor will be left with the decision of whether or not to prosecute. Most of us have been taught from childhood that there is a “duty to retreat” when one’s life is imperiled, not to shoot first.  But now, with the new laws on the books in Mississippi and other states, many Americans — not to mention professional prosecutors — are realizing that someone entering your residence (occupied vehicle or place of business) is presumed to be up to no good.  This law can save you from being prosecuted for causing death or injury to another, specifically another who was entering your residence or other protected locale. 

While there is little but anecdotal data from states which have passed similar laws, Florida, the first state to pass this type of law, has noted that shootings which are cloaked in the “robe of self defense” because the shooting was of one presumed to be up to no good are subject to greater scrutiny by prosecutors, resulting in delayed indictments and fewer individual being prosecuted, despite death or injury resulting from the shootings.

Mississippi’s official state website, in short-handing what Senate Bill 2426 accomplished, indicates that the bill creates a presumption of the right  to use defensive force and immunity  from civil liability for actions taken when a person feels threatened by an intruder to the home, place of business or employment, or occupied vehicle.  The right to use defensive force means that a resulting injury to such an intruder will not be a crime; the immunity from civil liability means that the intruder or his family cannot sue the protected individual in tort to recover from the injuries that the intruder sustained at the hands of the protected individual during the course of the intrusion.

Is this good or bad?  Neither, really.  It is a well reasoned law.  It requires, however, that we all behave as reasoned individuals.  [This begs the question about the need for the law — if we are, after all, a group of reasoned individuals walking around, but that is an issue for another day.]  And it requires our prosecutors to reason carefully with each incident brought to their attention in order to keep the spirit as well as the letter of the law and, at the same time, keep a lid on vigilantism.

Currently eight additional states (Colorado, Kansas, Minnesota, North Dakota, Ohio, Pennsylvania, Tennessee and Virginia) are considering adoption of a version of the “castle doctrine” law.