Opinion

ConocoPhillips Co. v. Henry

520 F. Supp. 2d 1282
2005 CCH OSHD 32,914
26 I.E.R. Cas. (BNA) 1205
21 OSHC (BNA) 2241
2007 U.S. Dist. LEXIS 74508

Court: District Court, N.D. Oklahoma
Filed: Oct 4, 2007
Status: Published
Author: Kern
On the bench: Terence Kern
Cited by: 6 cases
Authority: More cited than 55.8%

finding that plaintiffs’ deprivation of its right to exclude others from its property was a sufficient injury to confer it with standing on its takings claim and substantive due-process claim

How later courts described this case

finding that plaintiffs’ deprivation of its right to exclude others from its property was a sufficient injury to confer it with standing on its takings claim and substantive due-process claim
holding that there could be no takings clause violation where plaintiffs failed to allege that they suffered economic harm

Written by the judges who cited it.

The opinion

OPINION AND ORDER

TERENCE KERN, District Judge.

Before the Court are Defendants’ Objections to Jurisdiction and Motion to Dismiss Temporary Restraining Order (Docs. 91 and 92); Plaintiff ConocoPhillips Company’s Motion and Brief in Support of Request for Permanent Injunctive and Declaratory Relief (Doc. 93); and Intervenors Norris, DP Manufacturing, Inc., Tulsa Winch, Inc., Auto Crane Company, and Ramsey Winch, Ine.’s Motion and Brief in Support of Request for Permanent Injunctive and Declaratory Relief (Doc. 94). Also before the Court are briefs of

amici curiae. Amicus

briefs were filed on behalf of Plaintiffs by Securitas Security Services, USA (“Security Services”); Halliburton Energy Services, Inc. (“Halliburton”); and the Oklahoma State Chamber of Commerce (the “State Chamber”).

Amicus

briefs were filed on behalf of Defendants by the National Rifle Association (“NRA”) and various Oklahoma citizens.

I. Introduction

At issue in this litigation are two Oklahoma laws that make it a crime for any “person, property owner, tenant, employer, or business entity to

maintain,

establish,

or enforce

any policy or rule that has the effect of prohibiting any person, except a convicted felon, from transporting and storing firearms in a locked

motor

vehicle,

or from transporting and storing firearms locked in or locked to a motor vehicle

on any property set aside for any

motor

vehicle.”

See

Okla. Stat. tit. 21, §§ 1289 .7a; 1290.22(B).

Generally, the challenged laws grant Oklahoma citizens the right to transport and store firearms in their locked vehicles on private property, even when a private property owner would like to prevent them from doing so. These laws are referred to by their opponents as “forced entry” laws because they force a private property owner to allow entry of firearms onto their property.

In contrast,

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they are referred to by their proponents as laws that protect an individual’s right to transport firearms.

In this lawsuit, corporations with policies prohibiting firearms on company property have brought a preenforcement challenge to the laws pursuant to 28 U.S.C. § 1331 , 42 U.S.C. § 1983 , 28 U.S.C. § 2201 , and the Supremacy Clause, arguing that the laws violate the U.S. and Oklahoma Constitutions and seeking declaratory and injunctive relief preventing their enforcement. This Court is the first to address the constitutionality of these types of laws.

A. Parties

Plaintiff ConocoPhillips Company (“ConocoPhillips”) is a Delaware corporation “that operates buildings and facilities [in the Northern District of Oklahoma] that are held open to ConocoPhillips’ employees, customers, vendors, and other visitors for the purpose of conducting company business.” (Compl. in Intervention ¶ 6.)

In addition to the buildings themselves, ConocoPhillips “owns and controls numerous parking lots in this district.”

(Id.)

ConocoPhillips has a policy that prohibits possession of firearms on property owned or controlled by the company, including all parking facilities.

(Id.

¶ 10.) The policy provides:

The use or possession of contraband is prohibited on Company property. The use or possession of contraband is also prohibited with respect to employees, who, although not on Company property, are on Company business. For purposes of this policy, contraband includes, but is not limited to: Firearms, including shotguns, rifles, handguns (including those legally possessed) ... or any other object, which in the judgment of the Company, may be considered a weapon or firearm, and for which no exceptions apply....

(Id.

at Ex. B.) ConocoPhillips alleges that, in response to the challenged laws, it has been forced to begin the process of changing its policies to avoid liability for noncompliance.

(Id.

¶ 10.)

Intervening Plaintiffs Norris, a Dover Resources Company (“Norris”), DP Manufacturing, Inc. (“DP”), and Tulsa Winch, Inc. (“Tulsa Winch”) are corporations with substantial business operations in Okla

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homa. (Compl. of Norris, DP, and Tulsa Winch ¶¶ 11-16, Ex. B to Mot. to Intervene as Additional Pis.) These businesses, like ConocoPhillips, have established and enforced policies prohibiting employees from possessing weapons on company property, including parking lots.

(See id.

¶¶ 17-18 ;

see also

Norris Policy, Ex. A to Mot. to Intervene as Additional Pis.) Intervening Plaintiffs Ramsey Winch, Inc. (“Ramsey Winch”) and Auto Crane Company (“Auto Crane”) are also employers that do business and own property in Oklahoma and that have policies prohibiting firearms on their business premises. (Compl. of Ramsey Winch and Auto Crane ¶ 8, attached as Ex. B to Mot. to Intervene as Add’l Pis.;

see also

Auto Crane Weapons Policy, attached as Ex. A. to Mot. to Intervene as Add! Pis.) Norris, DP, Tulsa Winch, Ramsey Winch, and Auto Crane are collectively referred to as Intervening Plaintiffs.

Defendants are C. Brad Henry, Governor of the State of Oklahoma (“Governor Henry”), and W.A. Drew Edmondson, Attorney General of the State of Oklahoma (“Attorney General Edmondson”) (collectively “Defendants”). Governor Henry is sued in his official capacity based on his duty to faithfully execute the laws of Oklahoma.

See

Okla. Const, art. 6, § 8. Attorney General Edmondson is sued in his official capacity based on his duty to prosecute and defend all actions and proceedings, civil and criminal, in which the State is an interested party.

See

Okla. Stat. tit. 74, § 18b.

(See

ConocoPhillips Compl. in Intervention ¶¶ 3, 4.)

B. The OFA and OSDA

One of the challenged laws is contained in the Oklahoma Firearms Act of 1971, Okla. Stat. tit. 21, § 1289.1

et seq.

(“OFA”). The legislative findings supporting the OFA state that “[the OFA] is necessary for the safe and lawful use of firearms to curb and prevent crime wherein weapons are used by enacting legislation having the purpose of controlling the use of firearms, and of prevention of their use, without unnecessarily denying their lawful use in defense of life, home and property ... including their use and transportation for lawful purposes.” Okla. Stat. tit. 21, § I289.2.

The other challenged law is contained in the Oklahoma Self-Defense Act of 1995, Okla. Stat. tit. 21, § 1290.1

et seq.

(“OSDA”). The general purpose of the OSDA is to set forth exceptions to the Oklahoma law prohibiting the carrying of “concealed handguns.”

See

Okla. Stat. tit. 21, § 1290.4 .

The OFA and OSDA are both contained in Title 21 of the Oklahoma Statutes, which is the criminal code.

1. 2004 Amendments to OFA and OSDA

On March 31, 2004, Governor Henry signed into law House Bill 2122,

see

KB. 2122, 49th Leg., 2d Reg. Sess. (Okla.2004),

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which added the following section to the OFA:

PROHIBITING PERSONS FROM TRANSPORTING, STORING FIREARMS IN LOCKED VEHICLE UNLAWFUL

No person, property owner, tenant, employer, or business entity shall be permitted to establish any policy or rule 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.

Okla. Stat. tit. 21, § 1289 .7a (Supp.2004) (amended 2005). Section 1289.7a immediately follows Section 1289.7, which is entitled “Firearms in Motor Vehicles-Exceptions.”

See

Oicla. Stat. tit. 21, § 1289.7. Section 1289.7 provides that any person except a convicted felon may transport in a motor vehicle an “open and unloaded” rifle, shotgun, or pistol.

Id.

In addition to amending the OFA, House Bill 2122 also amended a provision of the OSDA entitled “Business Owner’s Rights” by adding a new subsection (B).

See

Okla. Stat. tit. 21, § 1290.22 (B). Subsection (B) sets forth an “exception” to a property owner’s general right to control the possession of weapons on his property. Section 1290.22 provides:

BUSINESS OWNER’S RIGHTS

A. Except as provided in subsection B of this section, nothing contained in any provision of the Oklahoma Self-Defense Act, Section 1290.1 et seq. of this title, shall be construed to limit, restrict or prohibit in any manner the existing rights of any person, property owner, tenant, employer, or business entity to control the possession of weapons on any property owned or controlled by the person or business entity.

B. No person, property owner, tenant, employer, or business entity shall be permitted to establish any policy or rule 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.

Okla. Stat. tit. 21, § 1290.22 (Supp.2004) (footnote added). The relief originally sought in this lawsuit was to enjoin enforcement of the 2004 Amendments to the OFA and OSDA.

2. 2005 Amendments to OFA

On June 9, 2005, while this lawsuit was pending. Governor Henry signed into law House Bill 1243, see H.B. 1243, 50th Leg., 1st Reg. Sess. (Okla.2005), which revised § 3289.7a. These revisions provide:

PROHIBITING PERSONS FROM TRANSPORTING, STORING FIREARMS IN LOCKED VEHICLE UNLAWFUL

No person, property owner, tenant, employer, or business entity shall mam

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tain,

establish,

or enforce

any policy or rule that has the effect of prohibiting any person, except a convicted felon, from transporting and storing firearms in a locked

motor

vehicle,

or from transporting and storing firearms locked in or locked to a motor vehicle

on any property set aside for any motor vehicle.

B. No person, property owner, tenant, employer, or business entity shall be liable in any civil action for occurrences which result from the storing of firearms in a locked motor vehicle on any property set aside for any motor vehicle, unless the person, property owner, tenant, employer, or owner of the business commits a criminal act involving the use of the firearms. The provisions of this subsection shall not apply to claims pursuant to the Workers’ Compensation Act.

C. An individual may bring a civil action to enforce this section. If a plaintiff prevails in a civil action related to the personnel manual against a person, property owner, tenant, employer or business for a violation of this section, the court shall award actual damages, enjoin further violations of this section, and award court costs and attorney fees to the prevailing plaintiff.

used in this section, “motor vehicle” means any automobile, truck, minivan, sports utility vehicle, motorcycle, motor scooter, and any other vehicle required to be registered under the Oklahoma Vehicle License and Registration Act.

Id.

§ 1289.7a (Supp.2005).

According to Defendants, the 2005 revisions were passed, at least in part, to clarify portions of § 1289.7a that had been challenged during this litigation as unconstitutionally vague.

(See

Defs.’ Obj. to Jurisdiction and Mot. to Dismiss TRO 4-5.) In addition, according to a report of the Oklahoma House of Representatives Media Division, the addition of subsection (B) to § 1289.7a was an attempt to “remove the liability concerns cited by businesses.”

See

Oklahoma House of Representatives Media Division,

Legislature Approves Gun Owner Protections

(May 27, 2005),

available at

htttp://www.lsb.state.ok.us/HOUSE/news 7632.html. The bill passed in 2005, amending § 1289.7a of the OFA, did not make any revisions to § 1290.22 of the OSDA.

The Court will refer to all above-described amendments to the OFA and OSDA as the “Amendments.” Where necessary for clarification, the Court will refer to the amendments passed to both the OFA and OSDA in 2004 as the “2004 Amendments” and will refer to the revisions made to § 1289.7a of the OFA as the “2005 Amendments.” Collectively, the Amendments force Plaintiffs to allow employees and other guests to store and transport various types of unloaded and loaded firearms in their vehicles on Plaintiffs’ private property, The types of firearms that may be present in the vehicles, and whether they may be loaded are unloaded, depends on whether the individual has a concealed weapons license under the OSDA or is governed by the more general OFA.

3. Events Leading to Original Drafting of the Amendments

An Oklahoma attorney named Lawrence A.G. Johnson (“Johnson”) drafted

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§ 1290.22(B) of the OSDA in recognition of the “continuous problem [that] arises relative to the conflict [that] lawabiding gun owners have regarding the exercise of their right to transport firearms to and from work and park in the employer’s parking lot.” (Aff. of Author of Subject Statute ¶ 1.) Johnson drafted this law and submitted it to the Oklahoma Legislature after several Oklahoma employees were discharged for keeping firearms in their vehicles on their employers’ parking lots, in violation of those employers’ policies.

(Id.

¶¶ 2-3.)

According to Johnson, it was his intent to draft a “‘public polie/ statement [so] that discharges [based on transporting firearms in vehicles on company property] would be a termination in violation of public policy and not to draft a criminal statute.”

(Id.

¶ 3.) Therefore, Johnson was the original drafter of the language that now appears in § 1290.22(B) and that first appeared in § 1289.7a, although § 1289.7a was revised in 2005 by the Oklahoma Legislature.

C. Procedural History of the Litigation

On October 27, 2004, before the 2004 Amendments were to take effect, Whirlpool filed a Complaint and Motion for a Temporary Restraining Order and/or a Preliminary Injunction, seeking to enjoin Defendants from enforcing the 2004 Amendments. In its motion, Whirlpool argued the Amendments must be enjoined because they (1) deprived Whirlpool of its fundamental right to exclude individuals who possess firearms from its property; (2) were unconstitutionally vague, and (3) were in conflict with and preempted by the Occupational Safety and Health Act of 1970 (“OSH Act”), 29 U.S.C. §§ 651-678 . On October 29, 2Q04, Defendants filed a Special Appearance and Motion to Dismiss Complaint for Lack of Jurisdiction. De

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fendants asserted Eleventh Amendment immunity and argued that the

Ex Parte Young

doctrine, which allows suit against government officials in certain circumstances, did not apply because Governor Henry and Attorney General Edmondson lacked a sufficient “enforcement connection” to the Amendments.

On October 29, 2004, the Honorable Sven Erik Holmes held a hearing on Whirlpool’s motion. As an initial matter, Judge Holmes denied Defendants’ motion to dismiss, citing the case of

Craig v. Boren,

429 U.S. 190 , 97 S.Ct. 451 , 50 L.Ed.2d 397 (1976), in which the Governor of the State of Oklahoma was the defendant in a challenge to the constitutionality of an Oklahoma statute.

(See

TRO Hr’g Tr. 4, Oct. 29, 2004.) Judge Holmes concluded that “the appropriate vehicle by which to challenge the constitutionality of a state statute is to name the chief law enforcement officer of the state, who is the governor, as well as to identify the attorney general.”

(Id.

at 37.)

As to the constitutional challenge to the 2004 Amendments, Judge Holmes focused on Whirlpool’s third argument related to conflict preemption. However, Judge Holmes did not limit his discussion to whether the Amendments were preempted by the OSH Act. Judge Holmes discussed conflict preemption in broader terms and raised the potentially preemptive effect of numerous federal laws.

(See id.

28-34;

see also

ConocoPhillips’ Add’l Br. on Preemption Issues 3 (“At the hearing, the Court also raised the issue of conflict preemption, far more broadly than had Whirlpool, which had limited its arguments in that regard to the OSH Act’s general duty clause.”)). For example, Judge Holmes raised the issue of whether the Amendments prevented an Oklahoma principal from prohibiting guns in a high school parking lot, in direct violation of the Federal Gun Free School Zones Act (“FGFSZA”), 18 U.S.C. § 922 (q)(2)(A), and Defendants conceded that the Amendments had such an effect.

(See

TRO Hr’g Tr. 33, Oct. 29, 2004.) At the conclusion of the hearing, Judge Holmes granted the TRO:

[T]he Court finds that there is a clear basis, even in a cursory review of federal law, that would form the basis for conflict preemption. The United States Congress and agencies of the United States have duly enacted federal laws that clearly address the subject matter of this statute and do so with express prohibitions on how that statute — on whether and to what extent this statute could stand in the face of those prohibitions.

(Id.

at 34-35.) Thus, Judge Holmes granted the TRO based on the Amendments’ conflict with numerous federal laws and what he referred to as the doctrine of “complete preemption.”

(See id.

at 32 & 34.) Judge Holmes then set a hearing regarding the issuance of a preliminary injunction and directed the parties “to prepare and submit what the parties believe to be an exhaustive and comprehensive statement of all of the federal, state, and local ordinances which may be impacted by a facial reading of this statute.”

(Id.

at 34-35.) Judge Holmes ordered the parties to prepare a form of order memorializing the ruling, which was entered on November 3, 2004. In this Order, Judge Holmes found that Whirlpool had a “substantial likelihood of prevailing on the merits regarding its arguments on conflict preemption and constitutional vagueness and overbreadth” and enjoined enforcement of the 2004 Amendments.

(See

Order, Nov. 3, 2004.)

On November 4, 2004, Judge Holmes held a hearing to address preliminary injunctive relief. Judge Holmes first allowed Defendants to present arguments on

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their Supplemental Brief to Special Appearance and Motion to Dismiss Complaint for Lack of Jurisdiction, wherein Defendants again asserted sovereign immunity and raised, for the first time, improper venue in the Northern District of Oklahoma.

(See

Prelim. Inj. Hr’g Tr. 5-19, Nov. 4, 2004.) At the conclusion of arguments, Judge Holmes denied the motion to dismiss for lack of subject matter jurisdiction and denied the motion to dismiss as to improper venue.

(Id.

at 23.)

As to the substantive constitutionality of the 2004 Amendments, Judge Holmes again focused on the preemption challenge. Judge Holmes concluded, based on the appendices of federal statutes provided by the parties, that there existed “some 25 different federal laws that deal with firearms that potentially are implicated by this.”

(Id.

at 32.) Specifically, Judge Holmes observed that the 2004 Amendments would prohibit policies disallowing guns in the parking lots of federal facilities or courthouses; in veterans affairs facilities; in Department of Interior (“DOI”) facilities, including DOI-funded Indian schools; and in explosives facilities, all in violation of federal law.

(See id.

at 30-32 .) Counsel for Defendants did not deny the 2004 Amendments would have these effects and did not wish to defend the constitutionality of the laws. Instead, even after Judge Holmes’ second denial of their motion to dismiss based on sovereign immunity, Defendants wished to “stand on [their] Eleventh Amendment argument.”

(Id.

at 34;

see also Cienega Gardens,

331 F.3d at 1338 (reasoning, under “character of the governmental intrusion” prong of the

Penn Central

inquiry, that federal regulation forcing property owners to allow holdover tenants is in the nature of physical taking because the regulation impacted their right to exclude and resulted in a forced physical invasion).

Second, the type of invasion “forced” upon Plaintiff involves the transportation and storage of firearms in vehicles on company parking lots, which, in these Plaintiffs’ opinions, is a potentially dangerous activity.

(See, e.g.,

Aff. of James Snyder, Mot. for TRO and/or Prelim. Inj. Relief, Ex. B ¶ 7.) Under Oklahoma law, the types of firearms that Plaintiffs must allow on their corporate property include loaded concealed handguns (if the individual has a concealed weapons license); clip and magazine loaded rifles and shotguns; and unloaded pistols, rifles, and shotguns. All types of unloaded firearms may be in the immediate vicinity of ammunition.

See supra

Part I.B. The Amendments place no restrictions on the number of firearms allowed. Thus, the Amendments force a significant physical invasion of unwanted firearms and ammunition on private property.

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Even in the

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context, the Court was unable to locate any cases discussing the constitutionality of a “forced” activity that involves potential danger to the property owner and/or danger to invited guests of the property owner. However, the invasion is highly distinguishable from the more innocuous character of the government intrusion at issue in other “temporary” physical invasion cases. For example, in

PruneYard,

wherein the property owner sought to exclude individuals engaging in peaceful distribution of leaflets on his business premises, the Supreme Court stated that those engaging in the unwanted activity on the shopping center’s property “were orderly, and they limited their activity to the common areas of the shopping center. In these circumstances, the fact that they may have ‘physically invaded’ appellants’ property cannot be viewed as determinative.”

PruneYard,

447 U.S. at 85 , 100 S.Ct. 2035 . Regardless of one’s view of the importance of the right to bear arms, it cannot be disputed that forcing a property owner to allow loaded and unloaded firearms on his private property is more onerous than allowing the peaceful distribution of leaflets on his property.

See id.

It is also more onerous than allowing entry of a government inspector to periodically enter one’s property over a five-month period for the purpose of conducting owl surveys.

See Boise Cascade,

296 F.3d at 1357 . For similar reasons, in considering “the liberty interest of the private property owner” that is at stake in this case,

see Cienega Gardens,

331 F.3d at 1337-38 , Plaintiffs’ liberty interest in excluding firearms from their business premises is significantly more compelling than liberty interests in excluding activities perceived by the landowner to cause a threat to safety. Plaintiffs’ liberty interest in this case is therefore more likely to outweigh the “Government’s need to protect the public interest through imposition” of the Amendments.

See id.; see also

Raneta Lawson Mack,

This Gun For Hire: Concealed Weapons Legislation in the Workplace and Beyond,

30 Creighton L.Rev. 285, 306 (1997) [hereinafter

“Gun for Hire

”] (presenting argument that “carrying concealed weapons, even lawfully, presents the likelihood of increased physical violence and endangerment above and beyond the concerns typically contemplated in First Amendment cases”).

Third, the “invaders” in this case are engaging in the right to bear arms, which under Oklahoma law is “is not absolute, but remains subject to reasonable regulation under the State’s police power.”

See Bastible,

437 F.3d at 1006 . Thus, the nature of the invasive activity does not receive the same level of protection as, for example, the exercise of a fundamental right.

See Gun for Hire, supra,

at 306 (arguing that “excluding citizens who lawfully carry concealed weapons from private property does not present the controversial dichotomy of exercising fundamental rights versus private property interests”).

Fourth, the Amendments do not allow a mechanism whereby Plaintiffs can control or minimize the unwanted invasion. In

PruneYard ,

for example, the Supreme Court reasoned that the shopping center could “restrict expressive activity by adopting time, place, and manner regulations that will minimize any interference with its commercial functions.”

Prune-Yard,

447 U.S. at 83 , 100 S.Ct. 2035 . Plaintiffs in this case wish to prohibit unauthorized firearms altogether on their property, but there is nothing similar to a “time, place, and manner” exception to the Amendments. Although Plaintiffs could adopt new policies that disallowed firearms in compliance with the Amendments,

i.e.,

that prohibit firearms in places other than locked vehicles, this does little to reduce

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the dangers sought to be avoided by Plaintiffs’ policies. As stated by Mr. Snyder: “ConocoPhillips believes this commitment to safety also includes excluding individuals from its parking lots when the individuals in question possess firearms in their vehicles — regardless of whether the vehicle is locked. ConocoPhillips considers its parking lots an integral part of its workplace, as employees are frequently found in the parking lots during breaks and lunch periods.”

(See

Aff. of James Snyder, Mot. for TRO and/or Prelim. Inj. Relief, Ex. B ¶ 7.) As more fully explained in the Court’s discussion of OSH Act preemption,

see infra

Part V.D, the Court agrees with Plaintiffs that limiting firearms to vehicles does little to control the dangers Plaintiffs’ policies seek to prevent.

Finally, the “regulation” of private property occasioned by the Amendments is in the form of a criminal sanction. A criminal law quells all opportunity to seek compensation for the deprivation of property rights or to experiment with the imposition of new policies that could maximize Plaintiffs’ right to exclude. Instead, Plaintiffs must, out of a fear of criminal liability, cease all attempts to exclude others engaging in the unwanted activity of transporting and storing firearms on company property. Although no cases were found addressing a similar type of law— one that criminalizes the exercise of the right to exclude — the criminal nature of the restriction renders the burden more severe for purposes of a takings analysis.

One aspect of the “character of the governmental intrusion” prong does not weigh in favor of Plaintiffs — namely, whether the Amendments force Plaintiffs to “bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”

See Cienega Gardens,

331 F.3d at 1340 (quotation omitted). In

Cienega Gardens ,

the court reasoned that the “character of government intrusion” prong weighed in favor of the property owners because the regulation accomplished its stated purpose of assisting those in need of low-income housing by placing a “disproportionate burden” on a few private property owners rather than burdening society as a whole.

See id.

at 1338-39 (“Unquestionably, Congress acted for a public purpose (to benefit a certain group of people in need of low-cost housing), but just as clearly, the expense was placed disproportionately on a few private property owners.”). The court reasoned that this kind of “expense-shifting to a few persons” amounted to a taking requiring just compensation.

Id.

The text of § 1289.7a of the OFA, as it existed in 2004 and as it was amended in 2005, extends its prohibition to policies or rules enacted by “person[s], property owner[s], tenant[s], employer[s], [and] business entities].”

See

Okla. Stat. tit. 21, § 1289 .7a. The text of § 1290.22(B) of the OSDA also extends its prohibition to policies or rules enacted by “person[s], property owner[s], tenant[s], employees], [and] business entities].”

See id.

§ 1290.22. Thus, assuming the objective of the Amendments is to protect public safety and deter crime (as discussed in more detail

infra

Part IV), the burden imposed on property rights to further these objectives is applied to various types of private property owners, including persons, tenants, employers, and business entities. Plaintiffs are therefore not singled out unfairly to bear the burden of accomplishing the regulatory objectives.

In sum, the Court finds the “character of the governmental intrusion” to be se

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vere because the Amendments eliminate Plaintiffs’ right to exclude perceived danger from their corporate property. Plaintiffs have presented evidence that they wish to exclude firearms because they increase the risk of harm and violent occurrences on Plaintiffs’ business premises. The Court finds the character of the governmental intrusion distinguishable from that at issue in

PruneYard ,

because, in

PruneYard ,

the physical invasion involved First Amendment expression that posed no danger to the shopping center or its patrons and the shopping center was able to impose time, place, and manner restrictions to mitigate the unwanted effects of the activities.

In contrast, the Amendments require allowance of an activity that Plaintiffs find repugnant to the use and enjoyment of their business property. Further, the Amendments not only “regulate” Plaintiffs’ policies of excluding firearms from their company premises, they criminalize them. This leaves Plaintiffs in the position of exposing their employees to potential danger or violating a criminal law. On balance, the Court concludes that the “character of the government intrusion” weighs strongly in favor of Plaintiffs.

2. Economic Harm/Interference with Investment-Backed Expectations

With respect to the economic harm prong, the Federal Circuit has stated: “What has evolved in the case law is a threshold requirement that plaintiffs show ‘serious financial loss’ from the regulatory imposition in order to merit compensation.’ ”

Cienega Gardens,

331 F.3d at 1340 (citations omitted);

Hendler,

952 F.2d at 1373 (discussing difficulty of applying

Penn Central

test but concluding that “at bottom what emerges is at least the basic notion that the government, under the guise of regulation, cannot take from a property owner the core economic value of the property, leaving the owner with a mere shell of shambled expectations”). The Supreme Court has stated that the

Penn Central

inquiry turns in large part on the “magnitude of a regulation’s economic harm.”

See Lingle,

544 U.S. at 539 , 125 S.Ct. 2074 . Thus, economic loss seems to be a requirement of a

Penn Central

taking rather than merely one factor in the analysis. Indeed, the ultimate goal of a takings analysis is not to determine whether the government has the right to take the property at all but instead to determine what compensation is due in the event of a taking.

See id.

at 537 , 125 S.Ct. 2074 (explaining that Takings Clause “is designed not to limit the governmental interference with property rights

per se,

but rather to secure compensation in the event of otherwise proper interference amounting to a taking”).

In this case, Plaintiffs have not made any allegations or presented any evidence of economic harm or interference with their investment-backed expectations.

The Court is not aware of any case outside the

per se

context finding a regulatory taking in the absence of some allegation or showing of economic harm or interference

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with investment-backed expectations.

Based on the Court’s research, precedent does not support a finding that the “character of the governmental intrusion” prong can overcome the absence of economic harm or some interference with investment-backed expectations. Thus, although the Court has significant concerns about the character of the governmental intrusion, the Court cannot conclude that the Amendments result in a

Penn Central

taking because Plaintiffs do not allege the Amendments have lowered their property-value, hindered their ability to make profits, or otherwise caused them any economic harm.

See Keystone Bituminous Coal Ass’n,

480 U.S. at 495 , 107 S.Ct. 1232 (finding that challengers faced an “uphill battle” in making a facial challenge to a regulation because they had not claimed, at that stage in the case, that the act made it “commercially impracticable for them to continue mining their bituminous coal interests in western Pennsylvania”);

Prune-Yard,

447 U.S. at 83 , 100 S.Ct. 2035 (reasoning that constitutional provision did not constitute a taking, in part, because there was “nothing to suggest that preventing appellants from prohibiting this sort of activity will unreasonably impair the value or use of their property as a shopping center”).

The Court spent considerable time analyzing the takings issue because Plaintiffs’ arguments have visceral appeal. It does not seem logical that a state can force a property owner to allow the invasion of firearms onto his property. However, the Supreme Court has carefully carved out categories of takings that are deserving

of per se

treatment, and the invasion in this case does not fit neatly into these categories. Further, the Supreme Court has never sanctioned a finding of a

Penn Central

taking in the absence of allegations of economic harm. The Tenth Circuit or the Supreme Court may expand the

per se

categories to include some types of temporary invasions that involve a particularly onerous activity, or may determine that a

Penn Central

taking can occur in the absence of economic harm if the character of the government intrusion is sufficiently severe. This Court, however, must interpret the law as it exists and does not find precedential support for the proposition that the Amendments result in a regulatory taking under any of the possible theories.

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IY. Substantive Due Process Clause Challenge

Plaintiffs also challenge the Amendments as a violation of their substantive due process rights. Specifically, Plaintiffs contend that the right to exclude others from private property is a “fundamental right,” that the Amendments must be subjected to strict scrutiny, and that the Amendments cannot survive a strict scrutiny analysis because they are not narrowly tailored to meet their objectives.

The “substantive component of the Due Process Clause provides heightened scrutiny against government interference with certain fundamental rights and liberty interests.”

Powers v. Harris,

379 F.3d 1208, 1215 (10th Cir.2004) (quotation omitted). “Fundamental rights” are those that are “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty or justice would exist if they were sacrificed.”

United States v. Deters,

143 F.3d 577, 582 (10th Cir.1998) (quotation omitted). If the law affects a fundamental right, it “will not survive judicial scrutiny unless it serves a compelling state interest and is narrowly tailored to effect that interest.”

Id.

If the law does not affect a fundamental right, heightened scrutiny is not appropriate, and the law is subject only to rational basis review.

See Powers,

379 F.3d at 1215 .

Plaintiffs did not cite any authority holding that the right to exclude others from private property qualifies as a “fundamental right” for purposes of a substantive due process analysis. Plaintiffs rely on case law arising under the Takings Clause that labels the right to exclude as one of the most treasured strands in an owners’ bundle of

property

rights.

(See

Br. in Support of Request for Perm. Inj. and Declaratory Relief 8.) For example, in

Lingle ,

the Supreme Court declared the right to exclude to be “the most fundamental of all property interests.”

Lingle,

544 U.S. at 539-40 , 125 S.Ct. 2074 (emphasis added). However, the Supreme Court’s statement in

Lingle

merely emphasized the importance of the right to exclude within the bundle of

property

rights for purposes of a Takings Clause analysis. This is a far cry from declaring the “right to exclude” to be a “fundamental right” protected by the substantive component of the Due Process Clause. Significantly, in the

Lingle

case itself, the Supreme Court stated it had “long eschewed [ ] heightened scrutiny when addressing substantive due process challenges to government regulation [of property rights],”

see id.

at 545 , 125 S.Ct. 2074 , and indicated that the “arbitrary and irrational” test must be applied to regulations of property rights,

see id.

at 543 , 125 S.Ct. 2074 (stating that a regulation of property may be “so arbitrary as to violate due process”). Therefore,

Lingle

and other circuit cases indicate that the right to exclude is not a “fundamental right” under a substantive due process analysis and that regulations of private property rights are not subject to heightened scrutiny.

See, e.g., Weems v. Little Rock Police Dep’t,

453 F.3d 1010 , 1015-16 (8th Cir.2006) (holding, in context of equal protection claim, that statute allegedly interfering with right to acquire, own, and dispose of property did not implicate a fundamental right);

Clajon Prod. Corp. v. Petera,

70 F.3d 1566 , 1580 (10th

*1319

Cir.1995) (holding, in context of an equal protection claim, that state regulations restricting property rights, specifically the right to hunt on one’s land, are not subject to strict scrutiny and do not implicate fundamental rights);

United States v. 16.92 Acres of Land,

670 F.2d 1369, 1373 (7th Cir.1982) (holding, in context of equal protection claim, that “the right to enjoy one’s property is subject to the legitimate exercise of eminent domain by the government ... [and] strict scrutiny is not the proper standard”);

Coalition for Equal Rights, Inc. v. Owens,

458 F.Supp.2d 1251, 1263 (D.Colo.2006) (holding, in context of substantive due process claim, that the “general right to enjoy one’s property is not

per se

a fundamental right” such as the right to travel, the right to vote, and the right to procreate). The Amendments do not affect a “fundamental right” for purposes of substantive due process analysis, and the Amendments are subject only to rational basis review.

See Clajon,

70 F.3d at 1580 (applying rational basis review to regulation affecting property rights).

When the rationality of a law is questioned, the decision of the legislature must be upheld if “any state of facts either known or unknown which could reasonably be assumed affords support for [the law].”

Powers,

379 F.3d at 1216-17 . “[Rjational basis review does not give courts the option to speculate as to whether some other scheme could have better regulated the evils in question.”

Id.

at 1217 . A law will not be struck down as irrational “simply because it may not succeed in bringing about the result it seeks to accomplish” or “because the statute’s classifications lack razor-sharp precision.”

Id.

Nor may a court “overturn a statute on the basis that no empirical evidence supports the assumptions underlying the legislative choice.”

Id.

Further, a law can survive rational basis review even if the defender of the law has not submitted any evidence supporting its rationality.

See Clajon,

70 F.3d at 1580 (“[T]he State need not articulate its actual objective behind the scheme or submit evidence to support the rationality of the regulation, provided that we can conceive of facts which reasonably justify the [law] at issue.”).

To satisfy the rational basis test, the Amendments need only be rationally related to a legitimate government purpose.

Powers,

379 F.3d at 1215 . The OCCA held that, based on their presence within the OFA and OSDA, the 2004 Amendments were criminal laws aimed at protecting “the health, safety, and public welfare of citizens and to deter crime.”

Whirlpool Corp. v. Henry,

110 P.3d 83, 86 (Okla.Crim.App.2005). The OCCA further held that the 2004 Amendments “concern protection of the community as a whole rather than individual citizens.”

Id.

The Court is bound by this ruling in construing the purposes of the 2004 Amendments.

See Burleson v. Saffle,

278 F.3d 1136, 1144 (10th Cir.2002) (holding that construction of a state statute by a state court of last resort is binding on federal courts). The Court also finds it appropriate to construe these as the purposes of the 2005 Amend

*1320

ments. Therefore, the government purposes to be served by both the 2004 and 2005 Amendments are (1) to promote public health, safety, and welfare; (2) to deter crime; and (3) to protect the community as a whole.

There is no question that promoting public safety, deterring crime, and protecting the community are legitimate government purposes.

In support of the rationality of the Amendments in furthering these objectives, Defendants presented statements made by Oklahoma legislators at the time of passage of the 2005 Amendments indicating that the Amendments promote the goal of public safety by allowing citizens to “arm themselves” in their vehicles.

See, e.g.,

Oklahoma House of Representatives Media Division,

Legislature Approves Gun Owner Protections

(May 27, 2005),

available at

htttp://www.lsb.state.ok.us/ HOUSE/news7632.html (quoting Oklahoma State Representative Greg Piatt as stating that “[bjusinesses have no reason to fear law-abiding employees and workers have a right to defend themselves” and that “[w]e all know women that work late nights who would be considered easy prey by criminals if they were not allowed to arm themselves”). Other than these statements, Defendants have presented no evidence as to how the Amendments accomplish the three goals articulated above.

Also before the Court is the affidavit of Johnson, the original drafter of the language remaining in both challenged laws, who stated he drafted the law in order to create a public policy tort in the event employees were terminated for keeping firearms in their vehicles on company property. (Aff. of Author of Subject Statute ¶ 3.) As evidenced by the OCCA’s ruling, Johnson accomplished significantly more than that — he drafted a statute that criminally prohibits the exclusion of any individuals engaging in the activity of transporting firearms in a locked vehicle. It also extends the prohibition to many types of property owners other than employers. Thus, to the extent Johnson’s statement is considered a type of legislative history, it does not support the proposition that the Amendments increase public safety. It instead supports the idea that the Amendments were passed to protect employees’ right to bear arms on their employers’ parking lots.

Also before the Court are empirical studies concluding that carrying firearms outside the home by law-abiding adults actually promotes public safety, which were presented by

amicus

NRA.

(See

Br. of

Amicus Curiae

NRA 10.)

For example, the NRA contends that “defensive gun uses are more effective than any other

*1321

response for preventing the completion of robberies and assaults” and that “defensive gun users are significantly less likely to be injured during a robbery or assault than victims who respond in any other way.”

(Id.)

The NRA’s conclusions are based on statistical studies presented in various law review articles.

See, e.g.,

Florenz Plassmann & Nicholas Tideman,

Does the Right to Carry Concealed Handguns Deter Countable Crimes? Only a Count Analysis Can Say,

44 J.L. & Econ. 771 , 796 (2001) (presenting statistical analysis and concluding that “ ‘right to carry’ laws do not always have the deterrent effect on crime ... [but that] it would be imprudent to make it generally more difficult for law-abiding citizens to carry concealed handguns”); Gary Kleck & Marc Gertz,

Armed Resistance to Crime: The Prevalence and Nature of Self-Defense With a Gun,

86 J.Crim. L. & Criminology 150, 180 (1995) (presenting statistical analysis and concluding that “prohibitionist measures ... would therefore discourage and presumably decrease the frequency of [defensive gun use] among noncriminal crime victims”).

Considering the evidence presented in support of the Amendments, the Court first observes that the Amendments would likely not survive any degree of heightened scrutiny. They force property owners to allow potentially dangerous weapons on their private property in order to

increase

public safety and deter crime. As a matter of common sense, and as argued by Plaintiffs, an increased number of firearms in vehicles on private property would logically lead to an overall decrease in public safety. Former Tulsa Police Chief Dave Been (“Been”), who was acting chief at the time the Amendments were passed, submitted his opinion that “[t]he presence of firearms in a locked vehicle on an employer’s parking lot increases the risk of workplace violence.”

(See

Aff. of Dave Been, Ex. 2 to App. of Materials Submitted in Support of Plf.’s Mot. for TRO and/or Prelim. Inj., at ¶ 6.) In addition, the Amendments force property owners to allow firearms on property without regard to the type of establishment on that property. For example, the Amendments force allowance of firearms on parking lots of the following types of establishments: mental health care facilities, resulting in a risk of harm to patients and all employees; day care facilities, resulting in a risk of harm to children;

state and federal courthouses, resulting in a risk of harm to individuals involved in the criminal justice system;

and battered women’s shelters, resulting in a risk of further harm to victims of domestic violence. These problematic examples demonstrate how and Co what extent the Amendments create danger to particularly vulnerable Oklahomans under the guise of promoting public safety

*1322

and deterring crime. In addition, a plain reading of the Amendments could lead to the illogical conclusion that general “no trespassing” policies are prohibited by the Amendments because such policies have the specific effect of excluding the segment of the population covered by the Amendments — those carrying firearms in their locked vehicles. For example, a gated residential community that sought to exclude all types of trespassers may illogically be forced to allow the trespass of an individual, if that individual is carrying a firearm in his locked vehicle. The Amendments are not tailored to achieve their objectives of promoting safety of Oklahoma citizens. However, for reasons explained above, this Court has no opportunity to conduct heightened means-end scrutiny of the Amendments.

Instead, the Court must apply the extremely deferential rational basis standard, which inquires only if the laws are “rational” and excuses Defendants from making a persuasive evidentiary case in support of the rationality of the Amendments.

Based on Defendants’ limited evidence in support of rationality, which includes statements by Oklahoma legislators at the time of passage of the 2005 Amendments and statistical studies provided by the NRA, it is at least conceivable that the Oklahoma Legislature made a determination that the forced invasion of guns on private property increases safety for the community because such guns may be used by the vehicle owner for defensive purposes. Although it is a close case and the rationality of the Amendments is questionable, the Court cannot conclude the Amendments are “wholly irrational” or “arbitrary” methods of accomplishing the objectives identified by the OCCA.

Powers,

379 F.3d at 1217 (“[Rjational basis review does not give courts the option to speculate as to whether some other scheme could have better regulated the evils in question.”). Accordingly, the Amendments must survive a rational basis review.

V. Supremacy Clause Challenge — OSH Act Preemption

A. General Preemption Principles

Congress has the power to preempt state law under Article VI, Clause 2 of the Supremacy Clause of the U.S. Constitution.

See Choate v. Champion Home Builders,

222 F.3d 788 , 791 (10th Cir.2000). Federal law preempts state law in three circumstances:

“First, Congress can define explicitly the extent to which its enactments preempt state law. Pre-emption fundamentally is a question of congressional intent, and when Congress has made its intent known through explicit statutory language, the courts’ task is an easy one. Second, in the absence of explicit statutory language, state law is pre-empted

*1323

where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively. Such an intent may be inferred from a scheme of federal regulation ... so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it, or where an Act of Congress touchfes] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.... Where ... the field which Congress is said to have preempted includes areas that have been traditionally occupied by the States, congressional intent to supersede state laws must be clear and manifest. Finally, state law is pre-empted to the extent that it actually conflicts with federal law. Thus, the Court has found pre-emption where it is impossible for a private party to comply with both state and federal requirements, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

Id.

at 791-92 (quoting

English v. Gen. Elec. Co.,

496 U.S. 72 , 110 S.Ct. 2270 , 110 L.Ed.2d 65 (1990)). These three types of preemption are known as express preemption, field preemption, and conflict preemption.

Id.

The “ultimate task in any preemption case is to determine whether state regulation is consistent with the structure and purpose of the [federal] statute as a whole.”

Gade v. Nat’l Solid Wastes Mgmt. Ass’n,

505 U.S. 88, 98 , 112 S.Ct. 2374 , 120 L.Ed.2d 73 (1992). In completing this task, a court must “look[ ] to the provisions of the whole [federal] law, and to its object and policy.”

Id.

(quotation omitted).

B. OSH Act’s Purpose and General Duty Clause

Plaintiffs contend the Amendments are preempted as in conflict with the OSH Act’s purposes,

see

29 U.S.C. § 651 (b), and the OSH Act’s “general duty” clause,

see

29 U.S.C. § 654 (a)(1). The OSH Act’s purpose clause provides:

(b) The Congress declares it to be its purpose and policy, through the exercise of its powers to regulate commerce among the several States and with foreign nations and to provide for the general welfare, to assure so far as possible every working man and woman in the Nation have

safe and healthful working conditions and to preserve our human

resources—

(1) by

encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards

at their places of employment, and to

stimulate employers and employees to institute■ new and to perfect existing programs for providing safe and healthful working conditions

29 U.S.C. § 651 (b)(1) (emphasis added). Thus, the OSH Act aims to promote safe and healthful working conditions, to preserve human resources, and to encourage employers to institute programs and policies aimed at increasing workplace safety.

In addition to these overall objectives, employers are charged with general and specific duties:

(a) Each employer—

(1)

shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

(2) shall comply with occupational safety and health standards promulgated under this chapter.

*1324

29 U.S.C. § 654 (a) (emphasis added). The first subpart of 29 U.S.C. § 654 (a) is known as the “general duty” clause.

See Teal v. E.I. DuPont de Nemours & Co.,

728 F.2d 799, 803 (6th Cir.1984). The duty imposed by § 654(a)(1) is considered “general” because “it asks employers to protect employees from all kinds of serious hazards, regardless of the source.”

United States v. Pitt-Des Moines, Inc.,

168 F.3d 976, 982 (7th Cir.1999). The “general duty” clause is a stand-alone obligation with which employers must comply. It is in addition to the “specific duty” clause in § 654(a)(2), which requires compliance with the numerous OSH Act regulations promulgated to prevent specific workplace hazards.

See Safeway, Inc. v. Occupational Safety & Health Review Comm’n,

382 F.3d 1189, 1194 (10th Cir.2004) (“The plain language of the statute and its structure indicate that an employer’s duty to provide a safe working environment extends beyond compliance with specific safety and health standards that are included in regulations promulgated under the [OSH Act].”). The purpose of the general duty clause is to be a catch-all provision covering serious hazards that are not otherwise covered by regulations:

The general duty clause was intended by Congress to cover unanticipated hazards; Congress recognized that it could not anticipate all of the potential hazards that might affect adversely the safety of workers. Accordingly, it enacted the general duty clause to cover serious hazards that were not otherwise covered by specific regulations.

Teal,

728 F.2d at 804 . In contrast to duties owed pursuant to the specific duty clause, which are necessarily defined by “reference to [an employer’s] control of the workplace and opportunity to comply with the OSHA regulations,” duties owed pursuant to the general duty clause are much broader:

[E]very employer owes a duty of reasonable care to protect his employees from recognized hazards that are likely to cause death or serious bodily injury. The protection from exposure to serious hazards is the primary purpose of the general duty clause, and

every employer owes this duty regardless of whether it controls the workplace, whether it is responsible for the hazard, or whether it has the best opportunity to abate the hazard

Id.

(emphasis added).

Employers are subject to citation by the Secretary of Labor for violation of the general duty clause, just as employers are subject to citation for violation of specific OSH Act regulations.

See Baroid Div. of NL Ind., Inc. v. Occupational Safety & Health Review Comm’n,

660 F.2d 439 (10th Cir.1981) (reviewing Secretary of Labor’s citation of employer for violation of general duty clause). Significantly, courts have construed an employer’s duties under the general duty clause to extend to the prevention of harm caused by fellow employees. For example, the Seventh Circuit has stated:

We note, first, that if an employee is negligent or creates a violation of a safety standard, that does not necessarily prevent the employer from being held responsible for the violation. True, an employer is not an insurer under the Act. But an employer is responsible if it knew or, with the exercise of reasonable diligence, should have known of the existence of a serious violation. A particular instance “of hazardous employee conduct may be considered preventable even if no employer could have detected the conduct, or its hazardous nature, at the moment of its occurrence, ... (where) such conduct might have been precluded through feasible precautions

*1325

concerning the hiring, training, and sanctioning of employees.”

Brennan v. Butler Lime & Cement Co., 520

F.2d 1011, 1017 (7th Cir.1975) (citations omitted) (quoting

Nat’l Realty & Constr. Co. Inc. v. Occupational Safety & Health Review Comm’n,

489 F.2d 1257 , 1260 n. 6, 1266-67 n. 37 (D.C.Cir.1973)). Accordingly, the general duty clause clearly places the onus on the employer to prevent hazards that could lead to death and serious bodily harm, even when such hazards are not covered by specific OSH Act regulations, when the employer is not responsible for creating the hazard, and when the employer is not in the best position to abate the hazard.

Gade

Preemption

Plaintiffs rely on the Supreme Court’s decision in

Gade v. National Solid Wastes Management Association,

505 U.S. 88, 98 , 112 S.Ct. 2374 , 120 L.Ed.2d 73 (1992), as authority that the Amendments are preempted by the overall purposes and general duty clause of the OSH Act.

(See

ConocoPhillips’ Add’l Brief on Preemption Issues 10-14.) The

Gade

Court held that Congress intended the OSH Act to wholly preempt

all

“state regulation^] of an occupational safety or health issue with respect to which a federal standard has been established,” even when the state regulation is nonconflicting or stricter than the federal standard.

Id.

at 100 , 112 S.Ct. 2374 (holding that state law providing a stricter standard than the OSH Act standard was preempted). This holding was based on the “negative implications” of the OSH Act’s savings clause, which is set forth at 29 U.S.C. § 667 (a).

Gade, 505

U.S. at 104 n. 2, 112 S.Ct. 2374 . The savings clause states that “[n]othing in this subchapter shall prevent any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue for which no standard is in effect under section 655 of this title.” 29 U.S.C. § 667 (a).

Because the Supreme Court’s holding was based on the “negative implications” of the savings clause, a plurality of the Court was unwilling to base their holding on the doctrines of express or field preemption.

Gade,

505 U.S. at 104 n. 2, 112 S.Ct. 2374 . Instead, the plurality chose to label its decision as one based on “obstacle” conflict preemption. The Court acknowledged, however, that it “could as easily have stated that the promulgation of a federal safety and health standard ‘preempts the field’ for any nonapproved state law regulating the same safety and health issue.” M

The Supreme Court also held that

Gade

preemption applies even if the state law at issue has a purpose other than or in addi

*1326

tion to workplace health and safety.

Id.

at 105-08 , 112 S.Ct. 2374 . In

Gade ,

the Court addressed a “dual impact regulation” — one that addressed general public safety as well as occupational safety concerns. Specifically, the law at issue in

Gade

provided for training, testing, and licensing of hazardous waste site workers and had the stated purposes of “pro-mot[ing] job safety” as well as “protect[ing] both workers and the general public.”

Id.

at 91 , 112 S.Ct. 2374 . In this situation, the Court held that a dual-impact state law was still preempted so long as it “directly, substantially, and specifically regulates occupational safety and health” in addition to accomplishing other purposes.

Id.

at 107 , 112 S.Ct. 2374 .

The Court concludes the Amendments do not qualify for

Gade

preemption for two reasons. First, the Amendments are not state law requirements that “specifically” regulate occupational safety and health.

See id.

Instead, the Amendments are merely “state laws of general applicability (such as laws regarding traffic safety or fire safety) ... that regulate the conduct of workers and nonworkers alike.”

Id.

Although the Amendments have a direct effect on workplace safety and although they were originally drafted for the primary purpose of preventing employers from prohibiting firearms from their property, there can be no question that the “forced invasion” of firearms extends to property owners other than employers.

See

Okla. Stat. tit. 21, §§ 1289 .7a; 1290.22. In addition, the OCCA interpreted the Amendments’ purposes as generally promoting safety and deterring crime for all citizens, rather than promoting the safety of Oklahoma’s workers.

See Whirlpool Corp.,

110 P.3d at 85 . The Amendments are therefore distinguishable from the dual-purpose regulation at issue in

Gade ,

which was at least partially aimed at occupational safety by its stated purposes.

See Gade,

505 U.S. at 91 , 112 S.Ct. 2374 (one of stated purposes of Illinois law was “promoting] job safety”),

Second, the alleged conflict in this case is with the OSH Act’s overall purpose and its general duty clause, rather than a “standard” promulgated pursuant to 29 U.S.C. § 655 . As explained above, the general' duty clause is set forth in 29 U.S.C. § 654 and is distinct from a specific OSH Act “standard” as that term is used in 29 U.S.C. § 667 (a). Courts have indicated that the OSH ' Act’s general duty clause is not a § 655 “standard.”

See Wilcox v. Niagara of Wis. Paper Corp.,

965 F.2d 355 , 366 n. * (7th Cir.1992) (Cummings, J., concurring) (“This Court has not held that the ‘general duty clause’ ... is a ‘standard’ that preempts state law.”);

Puffer’s Hardware, Inc. v. Donovan,

742 F.2d 12, 16-17 (1st Cir.1984) (finding that, in case in which an employer was cited for violation of the general duty clause, “no federal standard govern[ed] the conduct at issue”);

Traudt v. Potomac Elec. Power Co.,

692 A.2d 1326, 1332 (D.C.App.1997) (stating that the general duty clause is not a “standard” promulgated under § 655); Note, Xavier K. McDonnell,

Criminal Liability for Workplace Accidents,

24 New Eng. L.Rev. 293, 325 n. 269 (“This section [§ 667(a) ] only preempts state jurisdiction over standards which are promulgated” and “does not preempt violations of the general duty clause”);

see also P & Z Co., Inc. v. District of Columbia,

408 A.2d 1249, 1250-51 (D.C.App.1979) (stating that term “standard” as used in statutory preemption sections of the OSH Act is a “word of art” that applies “only to standards promulgated by rule under § 655”). The preemption subsections of the OSH Act, which function to preempt all state laws for which there is a federal “standard” in effect, do not extend to the general duty clause. Therefore, the Amend

*1327

ments are not preempted based on

Gade

preemption.

The Court concludes, however, that this does not end the preemption analysis. In addition to considering

Gade

preemption (which in many ways is most like the traditional concepts of express or field preemption), the Court must also consider conflict preemption as a possible basis for preemption by the OSH Act.

See Gade,

505 U.S. at 107 , 112 S.Ct. 2374 (indicating that state laws that are “conflicting” with the OSH Act may still be preempted, even if the state laws are ones of general applicability and would not be preempted based on

Gade

preemption);

In re Welding Fume Prod. Liab. Litig.,

364 F.Supp.2d 669, 678 (N.D.Ohio 2005) (“Thus, even when Congress states expressly what aspects of state law it means to pre-empt, courts must still infer pre-emption beyond the confines of Congress’s statements if state law actually conflicts with federal law. And this inference is appropriate even ‘in light of the presumption against the preemption of state police power regulations.’ ”);

Gonzalez v. Ideal Tile Importing Co.,

184 N.J. 415 , 877 A.2d 1247, 1253 (2005) (analyzing whether common law products liability claim was preempted based on obstacle conflict preemption after concluding

Gade

preemption did not apply);

see generally Sprietsma v. Mercury Marine,

537 U.S. 51, 65 , 123 S.Ct. 518 , 154 L.Ed.2d 466 (2002) (“Congress’ inclusion of an express pre-emption clause does not bar the ordinary working of conflict preemption principles that find implied preemption where it is impossible for a private party to comply with both state and federal requirements, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress”) (quotations omitted).

The Court further concludes that the OSH Act’s general duty clause and/or the OSH Act’s overall purposes can function to preempt state law in cases of actual conflict therewith,

i.e.,

when state law makes it impossible or poses a significant obstacle to compliance. In the only circuit decision found addressing whether a state law was preempted by the OSH Act’s general duty clause, the court first analyzed whether the language of 29 U.S.C. § 667 (a) functioned to preempt the state law and then proceeded to analyze whether the state law “actually conflicted” with the general duty clause or the overall federal objectives of the OSH Act.

See Puffer’s Hardware, Inc. v. Donovan,

742 F.2d 12, 16-17 (1st Cir.1984) (“Since no federal standard governs the conduct at issue in this case, it is clear that the [state] statute is not preempted as a result of federal occupation of the field of elevator safety.... Further, we do not believe that there is any actual conflict between federal and state law”). Although

Puffer’s Hardware

was decided before

Gade ,

the Court finds nothing in

Gade

to indicate that state law can never be preempted based on conflict with the general duty clause or the OSH Act’s overarching purpose.

See Gade,

505 U.S. at 107 , 112 S.Ct. 2374 (explaining when a court may find preemption of “non-conflicting” state laws). Obviously, the general duty clause cannot function to preempt

every

state law addressing a matter that is also covered by the general duty clause, as could an OSH Act “standard.” This does not mean, however, that a state law cannot “actually conflict” with the general duty clause. Although not a technical “standard,” the general duty clause is a vital component of the OSH Act’s overall objective of promoting safety in the workplace because it obligates employers to prevent hazards that could lead to death or serious bodily harm. The Court therefore finds Congress intended to preempt state

*1328

laws that conflict with the general duty-clause or with the OSH Act’s overall purposes.

D. Conflict Preemption

“Conflict preemption includes both situations in which it is impossible for a private party to comply with both state and federal requirements and situations in which state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

Choate,

222 F.3d at 792 (quotations omitted). The Court will refer to the first type of conflict preemption as “impossibility conflict preemption” and the second type as “obstacle conflict preemption.”

Impossibility conflict preemption applies if “it is impossible for a private party to comply with both state and federal requirements.”

Id.

For example, impossibility conflict preemption would occur if a federal law “forbade the picking and marketing of any avocado testing more than 7% oil” while a state law “excluded from the State any avocado measuring less than 8% oil content.”

See Florida Lime & Avocado Growers, Inc. v. Paul,

373 U.S. 132, 142 , 83 S.Ct. 1210 , 10 L.Ed.2d 248 (1963). Under the general duty clause, an employer must “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654 (1). To support a finding that an employer has violated the general duty clause, the Secretary of Labor must meet a three-part test; “(1) that a hazard likely to cause death or serious bodily harm existed at a citable workplace; (2) that that hazard was recognized as such either by the cited employer or generally within the industry; and (3) that there was a feasible method by which the cited employer could have abated the ‘recognized hazard.’”

Baroid Div. of NL Ind., Inc.,

660 F.2d at 444 . The question is whether the Amendments render compliance with the general duty clause “impossible.” In other words, the question is whether the allowance of firearms in vehicles would, in every instance, result in a citation under the general duty clause when such firearms led to the death or serious injury of an employee.

The Amendments come very close to making it “impossible” for Plaintiffs and other Oklahoma employers to comply with the general duty clause. For reasons explained in more detail below, the Court finds that gun-related workplace violence and the presence of unauthorized firearms on company property qualify as “hazards that are causing or are likely to cause death or serious physical harm” under the general duty clause. The Amendments eliminate Plaintiffs’ chosen method of abating such hazards. However, the Occupational Safety and Health Administration (“OSHA”) has indicated that whether a particular instance of workplace violence will result in a violation of the general duty clause is a fact-specific inquiry that depends on the nature of the employer’s business and the surrounding circumstances.

See

Standard Interpretations Letter, Dec, 10, 1992,

available at

www. osha.gov/SLTC/workplaceviolence/ standards.html (“Whether or not an employer can be cited for a violation of [the general duty clause] is entirely dependent on the specific facts.... The recognizability and foreseeability of the hazard, and the feasability of the means of abatement, are some of the critical factors to be considered.”);

Megawest Fin., Inc.,

OSHRC Docket No. 93-2879, 1995 OSAHRC Lexis 80 (May 8,1995) (refusing to uphold general duty clause citation by Secretary of Labor where employer failed to take security measures to “minimize or eliminate

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employee exposure to assault and battery by tenants of the apartment complex” because the hazard was not sufficiently “recognized” by the employer in that instance). At this juncture, OSHA has not taken the final step and expressly required employers to enact “no firearms” policies in order to be in compliance with the general duty clause. Therefore, the Court cannot conclude the Amendments render compliance with the general duty clause “impossible” in every instance of a gun-related workplace injury.

The Court must also consider obstacle conflict preemption. “In obstacle preemption cases federal law does not completely occupy a field of law, nor does state law require an act that federal law forbids (or vice-versa), but state law instead impedes some policy or purpose of a federal statute or regulation.”

Mgmt. Ass’n for Private Photogrammetric Surveyors v. United States,

467 F.Supp.2d 596, 603-04 (E.D.Ya.2006). “What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects.”

Crosby v. Nat’l Foreign Trade Council,

530 U.S. 363, 373 , 120 S.Ct. 2288 , 147 L.Ed.2d 352 (2000). In order for obstacle preemption to apply, the state action must be a “material impediment” to the federal action or must “thwart [ ] the federal policy in a material way.”

Mount Olivet Cemetery Ass’n v. Salt Lake City,

164 F.3d 480, 489 (10th Cir.1998). It is not relevant whether the state had a purpose in mind other than frustration of the federal scheme.

See Perez v. Campbell,

402 U.S. 637, 651 , 91 S.Ct. 1704 , 29 L.Ed.2d 233 (1971) (holding that state law frustrating operation of federal law will be preempted even though state legislature had significant purpose in mind other than frustration).

The Supreme Court has affirmed the importance and relevance of obstacle conflict preemption within a preemption analysis:

The Court has not previously driven a legal wedge — only a terminological one — between “conflicts” that prevent or frustrate the accomplishment of a federal objective and “conflicts” that make it “impossible” for private parties to comply with both state and federal law. Rather, it has said that both forms of conflicting state law are “nullified” by the Supremacy Clause ... and it has assumed that Congress would not want either kind of conflict.

Geier v. Am. Honda Motor Co., Inc.,

529 U.S. 861, 873 , 120 S.Ct. 1913 , 146 L.Ed.2d 914 (2000). Further, the Supreme Court has found obstacle preemption to exist in a variety of contexts in which a state law posed an obstacle to accomplishment of the purposes of federal law.

See, e.g., id.

(holding that rule of state tort law imposing a duty that would have required installation of airbags rather than passive restraint systems “presented an obstacle to the variety and mix of devices that the

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federal regulation sought” and “could have made less likely the adoption of a state mandatory ‘buckle-up’ law”);

Boggs v.

Boggs, 520 U.S. 833 , 117 S.Ct. 1754 , 138 L.Ed.2d 45 (1997) (holding that state community property law that interfered with objectives of ERISA was preempted based on obstacle preemption);

Int’l Paper Co. v. Ouellette,

479 U.S. 481 , 107 S.Ct. 805 , 93 L.Ed.2d 883 (1987) (holding that Vermont nuisance law permitting common law suits that had the potential to undermine regulatory structure and objectives of Clean Water Act was preempted based on obstacle preemption);

Mich. Canners & Freezers Ass’n v. Agrie. Mktg. & Bargaining Bd.,

467 U.S. 461 , 104 S.Ct. 2518 , 81 L.Ed.2d 399 (1984) (holding that Michigan agricultural law establishing accredited “associations” and requiring nonmember growers to adhere to contracts negotiated by the growers’ association conflicted with Federal Agricultural Fair Practices Act insofar as it enabled producers’ associations to determine the prices individual growers would receive for their products and was therefore preempted based on obstacle conflict preemption).

The Court finds the Amendments are preempted based on obstacle conflict preemption. Because this Court is the first to address whether these types of laws stand as an obstacle to the OSH Act, the Court sets forth detailed reasoning below. First, the Court finds the general duty clause extends to the hazard of gun-related workplace violence. Second, the Court finds the Amendments pose a material impediment to compliance with the general duty clause and also thwart the overall purposes and objectives of Congress in passing the OSH Act.

1. General Duty Clause Extends to Injuries Caused by Workplace Violence

Even in light of the broad obligations imposed by the general duty clause, the Court initially had concerns as to whether an employer’s obligations under the general duty clause extend to the prevention of workplace violence and, in particular, workplace violence committed with firearms. After review of various published materials discussing the OSH Act and workplace violence, the Court is convinced the OSH Act’s general duty clause extends to potential dangers posed by unauthorized firearms on company property and, specifically, the danger of workplace violence committed against employees.

First, in

Megawest Financial, Incorporated,

OSHRC Docket No. 93-2879, 1995 OSAHRC Lexis 80 (May 8, 1995), an employer was cited by the Secretary of Labor for violation of the general duty clause for failing to take security measures to “minimize or eliminate employee exposure to assault and battery by tenants of the apartment complex” after a tenant who was refused her security deposit sprayed mace at the apartment managers.

Id.

at *5. The Administrative Law Judge (“ALJ”) determined that failure to provide a workplace free of violence could in fact constitute a violation of the general duty clause under the OSH Act but noted that “a high standard of proof must be met to show that the employer itself recognized the hazard of workplace violence.”

Id.

at *29. The ALJ vacated the citation in that case, finding that the hazard was not “recognized” by the employer.

Id.

at *32. Although it was not ultimately upheld by the ALJ, the Secretary of Labor issued the citation. This reveals that the general duty clause extends to injuries inflicted upon employees with weapons during a violent incident on company property.

See also Psychiatric Hospital in Chicago Cited by OSHA for Workplace Violations,

23 O.S.H. Rep. (BNA) 646 (1993) (explaining that hospital was cited for violation of gen

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eral duty clause for failing to protects employees from workplace violence).

Second, on the OSHA website, there is a specific page devoted to the topic of “workplace violence.” This page provides:

Violence in the workplace is a serious safety and health issue. Its most extreme form, homicide, is the fourth-leading cause of fatal occupational injury in the United States. According to the Bureau of Labor Statistics Census of Fatal Occupational Injuries (CFOI), there were 551 workplace homicides in 2004 in the United States, out of a total of 5,703 fatal work injuries.

Environmental conditions associated with workplace assaults have been identified and control strategies implemented in a number of work settings. OSHA has developed guidelines and recommendations to reduce worker exposures to this hazard but is not initiating rulemaking at this time.

(See

OSHA Website Materials, Ex. C to ConocoPhillips Add’l Br. on Preemption Issues (footnotes added).) After explaining the problem of workplace violence, the OSHA website then directs readers to a page answering the question, “What OSHA standards apply?” This page, entitled ‘Workplace Violence: OSHA Standards,” sets forth the “general duty” clause found in § 654(a)(1) as the standard of compliance for preventing workplace violence, indicating to employers that workplace violence is indeed covered by the general duty clause.

(See id.)

Third, OSHA has enacted voluntary guidelines dealing with workplace violence in night retail establishments and the health care and social service fields.

See

OSHA Guidelines for Preventing Workplace Violence Among Health Care and Social Service Workers, 25 O.S.H. Rep. (BNA) 1439 ,1440 (March 13,1996); OSHA Guidelines, for Workplace Violence Prevention Programs for Night Retail Establishments, 15 O.S.H. Rep. (BNA) 1591 , 1591 (Apr. 15, 1996). The guidelines related to health care and social service workers expressly mention “[t]he prevalence of handguns and other weapons among patients, their families or friends” as a “risk factor” leading to an increased risk of work-related assaults.

See

OSHA Guidelines for Preventing Workplace Violence Among Health Care and Social Service Workers, 25 O.S.H. Rep. (BNA) 1439 , 1440 (March 13, 1996). While these voluntary guidelines are not considered OSH Act “standards,” they evidence that workplace violence is within the scope of the OSH Act and that OSHA has offered specific suggestions for reducing workplace violence at certain establishments.

Fourth, OSHA has issued “standard interpretation” letters that are informative as to the OSH Act’s reach into the area of workplace violence. The first letter issued regarding an employer’s obligations to prevent workplace violence under the general duty clause states that “[wjhether or not an employer can be cited for a violation of [the general duty clause] is entirely depen

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dent on the specific facts.... The recognizability and foreseeability of the hazard, and the feasability of the means of abatement, are some of the critical factors to be considered.”

See

Standard Interpretations Letter, Dec. 10, 1992,

available at

www.osha.gov/SLTC/workplaceviolence/ standards.html. After promulgation of the voluntary guidelines for night retail establishments in 1996, OSHA responded to an inquiry from a U.S. Congressman regarding whether the guidelines imposed a heightened standard of care for employers. This response stated that “whether or not [voluntary] guidelines exist,” an employer is always subject to the legal requirements of the general duty clause.

See

Standard Interpretations Letter, Oct. 23, 1996,

available at

www.osha.gov/SLTC/ workplaceviolence/standards.html. The response further stated that, while the guidelines offer suggested methods for abatement of the hazard of workplace violence, the “employer is always free to choose his own method of abatement” in complying with the general duty clause.

Id.

These statements establish that the general duty clause is an overarching obligation extending to all employers with respect to workplace violence. The absence of guidelines related to all specific industries does not diminish an employer’s obligation under the general duty clause to identify hazards that could lead to death or serious bodily harm and to abate them through their chosen methods.

Fifth, in addressing the effect of concealed weapons legislation on the workplace, commentators have opined that employers must be able to enact “no firearm” policies such as those enacted by Plaintiffs in order to comply with the OSH Act.

See

A. Nicole Hartley, Comment,

Business Owner Liability and Concealed Weapons Legislation: A Call for Legislative Guidance for Pennsylvania Business Owners,

108 Penn St. L.Rev. 637, 646 (2003) [hereinafter

Business Owner Liability

] (concluding that “[i]f OSHA recognizes workplace violence, then employers who prohibit weapons could be eliminating foreseeable hazards”);

Gun For Hire, supra

(arguing that employers’ policies prohibiting weapons are reasonable and permissible even when they are contrary to rights given to citizens by concealed weapons legislation due, in part, to an employer’s obligations under the OSH Act). One commentator concluded:

Given the current workplace violence statistics, it does not require a great leap of imagination to conclude that allowing employees to bring weapons into the workplace, even lawfully, would increase the potential hazard of workplace violence. Moreover, a cogent argument could be made that such hazards are now objectively “recognizable,” and therefrom, employers are on notice of the hazard of workplace violence in light of the recent publication of various statistics as well as the promulgation of OSHA guidelines.... Therefore, employers can reasonably adopt policies of prohibiting concealed weapons in the workplace predicated upon the employ

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er’s legal duty to provide a safe workplace for employees.

Id.

at 310. Although these articles discuss general concealed weapons legislation, which presumably allows employees to bring firearms inside places of business and not merely in locked vehicles in the parking lots, their conclusions that gun-related workplace violence should be considered a “recognizable hazard” under the OSH Act’s general duty clause is instructive.

see also

Br. of the Oklahoma State Chamber of Commerce as

Amicus Curiae

4-5 (stating that “one of the most reasonable and effective ways to decrease the likelihood of [workplace violence] is for employers to prohibit employees from bringing weapons onto the employer’s property”).)

In addition to Plaintiffs’ subjective opinions that their policies are effective methods of reducing reduce gun-related workplace injuries, there is published evidence that such policies are an effective method of reducing gun-related workplace injuries. According to a study published in 2005 in the American Journal of Public Health, “workplaces where guns were specifically permitted were 5 to 7 times more likely to be the site of a worker homicide relative to those where all weapons were prohibited.” Dana Loomis, Stephen W. Marshall, and Myduc L. Ta,

Employer Policies Toward Guns and the Risk of Homicide in the Workplace,

95 Am. J. of Pub. Health 830, 831 (2005). In addition, former Chief Been testified:

I am aware that many Oklahoma employers have a policy prohibiting firearms anywhere on company property. In my opinion, an employer’s policy prohibiting firearms anywhere on company property reduces the risk of workplace violence. Such policies are part of an employer’s legitimate workplace prevention plan. The presence of firearms in a locked vehicle on an employer’s parking lot increases the risk of workplace violence .... The Amendments will pose a higher likelihood of the use of firearms, and a corresponding greater risk of violence from them.

(See

Aff. of Dave Been, Ex. 2 to App. of Materials Submitted in Support of Plf.’s Mot. for TRO and/or Prelim. Inj., at ¶¶ 5-7.) Thus, Plaintiffs’ chosen method of abating the hazards associated with unauthorized firearms on company property— eliminating unauthorized firearms from the entire premises — is a logical and effective means of complying with the general duty clause. Notably, these policies are not overbroad or irrational attempts to comply with the OSH Act. An employer is certainly less likely to be liable for an OSH Act violation if it prohibited the presence of the firearm used in an act of workplace violence than if it expressly consented to the presence of the firearm, as the Amendments require. Jonathan A. Segal,

When Charles Manson Comes to the Workplace,

HR Magazine, June 1994 (recommending that, in order to avoid OSH Act and other liability, “[e]mployers should also have work rules that minimize the likelihood that employees will engage in violent behavior. ... [e.p.,] every employer should prohibit employees from possessing, while at work, weapons, broadly defined.”);

Business Owner Liability, supra,

at 646 (“If OSHA recognizes workplace violence, then employers who prohibit weapons could be eliminating foreseeable hazards.”).

In sum, the Amendments “materially impede” Plaintiffs’ attempts to reduce workplace violence and comply with the general duty clause.

See Mount Olivet Cemetery Ass’n,

164 F.3d at 489 (holding that, in order for obstacle preemption to apply, the state action must be a “material impediment” to the federal action). This is because the Amendments criminally prohibit Plaintiffs’ chosen method of abatement of these potential hazards and require employers to abolish their current firearms policies. The Court can imagine no greater impediment than outright criminalization of the employer’s attempt to comply with federal obligations and policies. Accordingly, the Court finds the Amendments stand as a significant obstacle to compliance with the general duty clause and impair Plaintiffs’ and all other

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Oklahoma employers’ abilities to comply with their obligation to abate hazards that could lead to death or serious bodily harm in the workplace.

See Gonzalez,

877 A.2d at 1253 (holding that common law products liability claim stood as an obstacle to accomplishment of federal regulation regarding forklift warning devices because the warnings urged by the plaintiff “actually may tend to create greater additional dangers in the workplace”).

In addition to materially impeding employers’ abilities to comply with the OSH Act general duty clause, the Amendments “thwart” the overarching federal policies of “encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards” and “stimulat[ing] employers and employees to institute new and to perfect existing programs for providing safe and healthful working conditions”

See

29 U.S.C. § 651 (b)(1). The Amendments frustrate these overall goals by allowing an employee’s desire to bring a firearm onto his employer’s property to trump an employer’s attempt to comply with its OSH Act obligations. The specific frustration of federal purpose — a criminal statute prohibiting the employers from enacting a selected method of abating the haz

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