Colorado Recognizes a Narrow Self-Defense Public-Policy Exception to At-Will Employment

3.1. Precedents Cited

The opinion is built on Colorado’s established wrongful-discharge jurisprudence and on authority defining what qualifies as a “clearly expressed” public policy.

• Martin Marietta Corp. v. Lorenz, 823 P.2d 100 (Colo. 1992): The cornerstone. The court first recognized the public-policy exception here, provided the four-part test, and rooted the doctrine in the contract principle that “a contract violative of public policy should not be enforced,” citing Russell v. Courier Printing &Publ'g Co., 95 P. 936 (Colo. 1908). In Moreno, the court uses Martin Marietta both as the doctrinal test and as a rationale: employees should not be forced into an intolerable choice—there, between job and criminal conduct; here, between job and physical safety.
• Crawford Rehab. Servs., Inc. v. Weissman, 938 P.2d 540 (Colo. 1997): Supplies cautionary principles: courts must avoid expansive, court-made policy; the legislature “is the branch of government charged with creating public policies.” The majority distinguishes Weissman’s “rest breaks” context from self-defense as an “essential, inalienable” right, while also borrowing Weissman’s acknowledgment that the doctrine is “not subject to precise definition.”
• Rocky Mountain Hosp. &Med. Serv. v. Mariani, 916 P.2d 519 (Colo. 1996): The key case for what “clearly expressed” means. Moreno relies on Mariani to require a concrete policy, a clear mandate for conduct, and sufficient notice to employees/employers. It also relies on Mariani for the proposition that constitutional provisions and ethical codes may supply public policy.
• Lampe v. Presbyterian Med. Ctr., 590 P.2d 513 (Colo.App. 1978) and Calvert v. Mayberry, 2019 CO 23, 440 P.3d 424: Cited for the “clear mandate” requirement, including that professional rules can supply sufficiently definite norms. Their function in Moreno is to support the claim that self-defense law is bounded and administrable.
• Lathrop v. Entenmann's, Inc., 770 P.2d 1367 (Colo.App. 1989), Jones v. Stevinson's Golden Ford, 36 P.3d 129 (Colo.App. 2001), and Flores v. Am. Pharm. Servs., Inc., 994 P.2d 455 (Colo.App. 1999): Cited to show public policy may be found where statutes establish rights or broader schemes—even where the statute does not specifically regulate employment or impose a direct employee duty.
• Kearl v. Portage Env't, Inc., 205 P.3d 496 (Colo.App. 2008): Supports the proposition that public policy may be derived from existing case law, not only statutes.
• Job-related rights line of cases: Bonidy v. Vail Valley Ctr. for Aesthetic Dentistry, P.C., 186 P.3d 80 (Colo.App. 2008); Herrera v. San Luis Cent. R.R. Co., 997 P.2d 1238 (Colo.App. 1999); Hoyt v. Target Stores, 981 P.2d 188 (Colo.App. 1998); and the out-of-state anchor Frampton v. Cent. Ind. Gas Co., 297 N.E.2d 425 (Ind. 1973). These cases illustrate that “job-related” can include rights occurring at work or arising from work, and more broadly that employers cannot use termination to punish the exercise of important statutory rights.
• Self-defense authorities and sources: The court situates section 704 in a long statutory history (the “1861 Self-Defense Law”) and cites Colorado self-defense cases describing section 704 as expressing a “right”: Castillo v. People, 2018 CO 62; People v. Toler, 9 P.3d 341 (Colo. 2000); Beckett v. People, 800 P.2d 74 (Colo. 1990); and Galvan v. People, 2020 CO 82 (Marquez, J., dissenting).
• Constitutional interpretation and inalienable rights: The court cites Colo. Anti-Discrimination Comm'n v. Case, 380 P.2d 34 (Colo. 1962) on article II, section 3’s recognition of “natural, essential[,] and inalienable” rights; People v. Brown, 485 P.2d 500 (Colo. 1971) on reasonable limitations; and In re Legis. Reapportionment, 374 P.2d 66 (Colo. 1962) (quoting Asbury Park Press, Inc. v. Woolley, 161 A.2d 705 (N.J. 1960)) on the judiciary’s duty to safeguard rights. It also uses People ex rel. Graves v. Dist. Ct., 86 P. 87 (Colo. 1906) to explain constitutional provisions are interpreted against the common-law backdrop.
• Certified question practice and standard of review: Skillett v. Allstate Fire & Cas. Ins. Co., 2022 CO 12, and Jaynes v. Centura Health Corp., 148 P.3d 241 (Colo.App. 2006), support de novo review and the court’s role under C.A.R. 21.1(a).
• Comparative/out-of-state self-defense wrongful-termination cases: The court cites Semore v. Pool, 266 Cal.Rptr. 280 (Cal.Ct.App. 1990) (rights vindication benefits all), State v. Merk, 164 P. 655 (Mont. 1917), Ray v. Wal-Mart Stores, Inc., 359 P.3d 614 (Utah 2015), and Feliciano v. 7-Eleven, Inc., 559 S.E.2d 713 (W.Va. 2001), to show other courts have treated self-defense as public-facing because it protects life and deters crime.
• Authorities used to reject Circle K’s “no constitutional policy against private actors” argument: Circle K cited structural constitutional cases, including People v. Rodriguez, 112 P.3d 693 (Colo. 2005) (constitution as limitation on power) (quoting Reale v. Bd of Real Est Appraisers, 880 P.2d 1205 (Colo 1994)); People ex rel Elder v Sours, 74 P 167 (Colo 1903); and out-of-state cases United States v Nicholls, 4 Yeates 251 (Pa 1805), and Baker v. City of Fairbanks, 471 P.2d 386 (Alaska 1970). The majority’s response is pragmatic and precedent-based: Colorado already recognizes constitutional provisions as public-policy sources in this doctrine’s context.
• Cases invoked by Circle K to narrow the doctrine: Hoven v. Walgreen Co., 751 F.3d 778 (6th Cir. 2014), is distinguished as Michigan-specific (and based on a different statutory structure). The court also declines to follow Slaughter v. John Elway Dodge Southwest/AutoNation, 107 P.3d 1165 (Colo.App. 2005), which rejected using article II, section 3 to support a “right to refuse drug testing,” emphasizing the “far cry” from article II, section 3’s explicit “defending [one’s life]” language.
• Dissent’s doctrinal background: The dissent anchors at-will principles in Cont'l Air Lines, Inc. v. Keenan, 731 P.2d 708 (Colo. 1987), and reiterates the “clear mandate” framing drawn from Thompson v. St. Regis Paper Co., 685 P.2d 1081 (Wash. 1984). It also cites In re Phillips, 139 P.3d 639 (Colo. 2006) (Eid, J., dissenting) and the majority cites Klabon v. Travelers Prop. Cas. Co. of Am., 2024 CO 66, for the proposition that certified questions may be answered with factual background without resolving facts.

Takeaway: the majority does not treat self-defense as an “ad hoc” value judgment; it frames self-defense as a long-standing, textually grounded, and judicially bounded legal right, then fits it into the existing Martin Marietta architecture.

3.2. Legal Reasoning

(a) “Clearly expressed” public policy

The court finds clarity in both the statute and the constitution. Section 704 provides operational rules: a person may use force when they “reasonably believe” they face “use or imminent use of unlawful physical force,” may use only force “necessary,” and faces limitations for deadly force and for initial aggressors. The opinion underscores that this specificity provides both employees and employers notice of lawful vs. unlawful conduct.

Article II, section 3 is concise, but the court treats it as more than hortatory because it explicitly includes “defending [one’s life]” and because its meaning is constrained and elaborated by Colorado case law and statutory evolution (including the 1861 territorial enactment and subsequent jurisprudence). The court’s interpretive method relies on the idea that constitutional provisions are read against common-law and historical understandings (People ex rel. Graves v. Dist. Ct.).

(b) “Public” rather than proprietary

Drawing from Weissman’s requirement that the policy “truly impacts the public,” the court characterizes self-defense as necessarily public-facing: it preserves life and safety, deters crime, and reflects an inalienable right “guaranteed to all people.” The court warns against an overly narrow framing that would reduce any broadly held right to an “individual” interest and thereby collapse the exception.

(c) “Job-related” right or privilege as a worker

This is the opinion’s central doctrinal move. The court acknowledges that many prior cases involve wages, breaks, compensation, or job-duty reporting. But it refuses to confine “job-related” to employment-specific statutes, citing Martin Marietta itself (18 U.S.C. § 1001) to show a general statute can be “related to” work when it governs conduct occurring in the employment context.

The court reasons that self-defense is job-related “insofar as the need to lawfully defend oneself from an unprovoked attack can occur in the workplace.” Put differently, an employer cannot use the employment relationship to strip a worker of a right “not left at the door when a person enters the workplace.”

(d) The “choice-of-evils” concern and contractual unenforceability

The opinion returns to Russell v. Courier Printing &Publ'g Co. and Martin Marietta’s foundational contract rationale: at-will terminability is a contractual condition that becomes unenforceable if it violates public policy. The court analogizes the doctrine’s classic coercion scenario—job loss vs. illegality—to job loss vs. physical harm, framing the exception as necessary to prevent employers from leveraging termination to compel employees to forgo lawful self-protection.

(e) Limiting principle: narrow scope

Anticipating overbreadth concerns, the majority announces multiple limitations:

• It is limited “importantly, to self-defense as an essential, inalienable right.”
• It applies only when an employee “lawfully exercises the right in response to an unprovoked attack at work.”
• It does not decide whether Circle K’s policy in fact prohibits self-defense or whether Moreno’s conduct qualified as self-defense.

(f) Constitutional provisions as policy sources against private employers

Circle K argued that constitutional provisions restrain only government, so article II, section 3 cannot supply public policy for a claim against a private employer. The court rejects this as inconsistent with Colorado precedent recognizing constitutional provisions as policy sources in this doctrine’s framework (Mariani). It also distinguishes Hoven v. Walgreen Co. because Michigan law does not permit constitutional provisions as public-policy sources in this context.

(g) The dissent’s critique

The dissent argues the majority has effectively rewritten Martin Marietta by: (1) treating any inalienable constitutional right as “public”; and (2) treating any broadly applicable right as “job-related” because it can occur “at work.” It warns this logic could destabilize at-will employment by constitutionalizing workplace disputes and could undermine employer safety policies like Circle K’s de-escalation rule.

3.3. Impact

(a) Immediate doctrinal impact in Colorado

New cause-of-action pathway: At-will employees in Colorado may now plead wrongful discharge in violation of public policy when they plausibly allege termination for lawful self-defense against an unprovoked attack at work.

(b) Litigation consequences: fact-intense disputes

The decision will likely shift many cases into factual disputes over: (1) whether the employee’s conduct meets section 704’s reasonableness and necessity limits (and related case law); (2) whether the employee was an “initial aggressor” under section 704’s limitations; and (3) whether the employer’s stated reason (policy violation) is pretext for punishing self-defense. Because the majority stressed “lawful” self-defense, section 704’s boundaries become the central gatekeeper.

(c) Employer policy design and enforcement

The opinion does not invalidate de-escalation policies, but it constrains how such policies can be applied to incidents involving employee safety. Employers may need to revise training, investigation protocols, and termination decisions to distinguish between: (i) prohibited “confrontation” to protect property or enforce store rules; and (ii) defensive force used when an employee reasonably perceives imminent unlawful force.

(d) Doctrinal pressure points for future cases

Despite the majority’s “narrow” framing, the dissent highlights potential expansion arguments: defense of third persons (expressly included in section 704), defense of property (article II, section 3 also references “protecting property,” and Colorado has a separate defense-of-property statute), and claims premised on other constitutional rights. Whether Colorado courts accept those analogies will likely turn on: (1) whether the asserted right is as “essential” and “inalienable” as self-defense; (2) whether it is as concretely bounded by statutory elements and established case law; and (3) whether the claim can be anchored to the majority’s limiting condition of an “unprovoked attack” and lawful defensive conduct.

(e) Federal courts and certification practice

The case exemplifies the role of certification under C.A.R. 21.1(a): federal courts confronting novel Colorado employment questions are encouraged to seek Colorado Supreme Court guidance rather than predict expansions of public-policy exceptions.