Pharmacists Carrying Guns:   A Legal Review

Last week’s killing of a pharmacist in Virginia during the course of a robbery has brought back into sharp focus the oft discussed issue of pharmacist carrying guns.  “I want to protect myself and I have a right to carry a gun.”

Do you really?  Let’s review the law.  The Second Amendment states “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”   Unlike the First Amendment rights, which are actually a limit on the government’s ability to interfere with those rights, the way the Second Amendment is written it would appear as if the Founding Fathers meant that no entity could interfere with the right to keep and bear arms, a long-standing argument of the pro-gun advocates.  The Second Amendment lacks the First’s “Congress shall make no law” preamble.

However, the Supreme Court has weighed in and held that the right is not unlimited. For example, certain felons may not own guns.  Some states limit gun ownership to persons over the age of 18.  People with documented mental disease may not own a gun.  In these cases, almost everyone agrees that these are legitimate exceptions to the Second Amendment.

 As more gun cases came before the SCOTUS, the court moved deeply in the direction of permitting both government and private entities the right to limit access and ownership to guns.  From this has arisen the right of employers to ban the carrying of guns into the workplace.  A prime example here is that all the major pharmacy chains forbid their pharmacists and other personnel from keeping or carrying a gun at work. (Until recently, this prohibition existed for all property belonging to the employer, but courts have changed their direction and many now hold that leaving a gun in a car trunk or glove compartment of a locked automobile is something employers may not ban.) 

With the law behind them, the chains have stated to their employees that bringing a gun to work is a basis for instant termination.  The chains are rightfully concerned that a gun battle could erupt between pharmacist and robber in which other innocent people could be shot/killed in the crossfire.  Further, the chains, again rightfully, push cooperation with robbers: give them what they want and then let them leave—lives are more important than drugs.  The chains are concerned that an armed pharmacist might exacerbate a bad situation by pulling a gun where cooperation would peacefully end the episode with no one being harmed. Finally, employers are concerned over pharmacists carrying guns without even a basic education in firearms safety and use.

Pharmacists respond by the use of statistics which show the number of pharmacist and technicians injured or killed at work has increased 250% in the last eight years.  Opponents, employers and anti-gun advocates for the most part, respond that while this is true the number of people killed or injured eight years ago was quite few so the increase is still not a large enough number to warrant employees being armed on duty.  Going on, pharmacists argue that more and more robbers are entering the store already under the influence of drugs and the probability of a peaceful end is considerably less than with a sober thief.  A robber who is “high” may not be open to cooperation and may overreact to even a slight innocent movement.   And pro-gun pharmacists agree that only people who know how to use a gun and practice regularly should bring one to work.

The chains are sticking to their policy, though these days they do so with a much lower profile. Many of you remember the Wa***een’s pharmacist in Michigan who was the subject of a robbery attempt.  The would-be robbers jumped the counter, firing their pistols as they did so, with no word of warning.  The pharmacist pulled his gun and returned fire.  Wa***een’s fired the pharmacist but the community rallied for the pharmacist and against Wa***een’s.  Now, following the bad publicity from that and other similar incidents, the chains will mention their policy to employees but nowhere near as loudly as before.

These same chains are currently either changing or considering changing the wording in their policy against guns to a policy against weapons.  With guns banned, pharmacists carry knives, Tasers, Mace, dart pistols, guns but with rubber bullets, etc etc.  Their claim is that the ban is on guns and not on other forms of defense and protection.

And, despite the prohibition, many pharmacists are carrying guns.  Their justification is that following a company policy is not worth risking your life, an understandable attitude.  However, the courts support the chains on this, and the discovery of the gun can lead to a legitimate dismissal from employment.

The question is how this attitude will change over time.  The Newtown shooting, like the Colorado theater shooting, has done little or nothing for anti-gun advocates, while each killing of a health care professional seems to gather strength for their opponents.  For now, we wait and see.

To BMI or Not To BMI

That is the question (with apologies to William Shakespeare).

I have long recommended that all prescriptions for anorexiants have the BMI written on them.  If the prescriber has not done so, I want the pharmacist to call and get the BMI before filling.

The Board of Pharmacy says there is no legal requirement for pharmacists to do this.  I agree, and I am the first to say that my stance on this issue is more CYA than a legality.

Why do I push for BMIs?

  1.  Prescribers who do not know the legal requirements for anorexiant prescriptions.  Not a majority of prescribers, but a substantial minority are not even aware that phentermine requires a BMI of 27 with no co-morbidities, 25 with co-morbidities.  The new drugs are even stricter, with required BMIs of 30 and 27, respectively.  Get caught filling one of these and face a significant punishment from the Board as well as a permanent black mark on your file that is open to the public (ie, potential employers).
  2. Unscrupulous prescribers who write Rxs in exchange for cash and don’t care for legal requirements.  Same issue with the Board, who probably has knowledge of these prescribers and looks for their Rxs when doing your pharmacy’s inspections.
  3. A growing problem in pharmacy: the “patient” who seeks out prescriptions and fills them in the desire to create an issue with the prescription that will serve as the basis for a lawsuit (a lot of the “failure to counsel” cases are from these people).

Documentation is not a 100% shield against liability or Board action in any of the cases.above, but a prescription with the BMI present is solid evidence that you have taken reasonable steps to ensure legitimacy.  Boards of pharmacy are reluctant to act against pharmacists exercising reasonable professional judgment.  And lawsuits are harder to win where the expert witness says “she exercised reasonable professional judgment” as well as “I would not have done anything differently.”

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