No, You Can’t Defend Yourself (But Nor Will We)

 

Earlier this year, a group of victims sued Cinemark Theaters in a Colorado court for failing to take precautions that might have prevented James Holmes from killing twelve and injuring dozens more in 2012. Via the Denver Post:

“Our belief,” said Ken Citron, one of the lawyers for the victims, “is that Cinemark had inadequate security measures to guard against a foreseeable danger. And, had they implemented proper security measures, this act would have never happened and our clients would have never been injured.” […] [T]he testimony is expected to focus on the days and months prior to the shooting, when killer James Holmes carefully cased the theater and when Citron and other plaintiffs’ lawyers contend Cinemark’s corporate headquarters received broad warning from the U.S. Department of Homeland Security that movie theaters might be targeted by terrorists. Cinemark never shared that warning with its theater managers, the victims’ lawyers say. On the night of the shooting, the Century Aurora 16 theater had no extra security on hand, no surveillance-camera coverage for large areas behind the theater where Holmes prepared, and no alarm on the exit door through which he entered and began shooting.

The civil trial went poorly and, in late June, the jury ruled that Cinemark was not liable. Under Colorado’s loser-pays law, the plaintiffs were on the hook for Cinmeark’s $700,000 court fees, though an unnamed source told the LA Times that the theater chain did not intend to collect (the article otherwise concerns a similar-but-separate federal case that collapsed as a result of the state court verdict).

While I can’t comment on the legal merits of the case, it seems likely that Cinemark made some genuine security blunders (e.g., the lack of the alarm on the exit door) though the plaintiffs remedies are, frankly, nuts. As if going to the movies isn’t hassle enough, I can’t imagine teens and date-nighters also having to endure an airport-style pat-down and lines while extremely bored armed guards mill around; sounds like hell with a date, worse if you’ve got kids. I imagine it can work in some settings, but not in a way that scales-up to the country’s third-biggest chain. When you factor in the costs of all this added security, as well as all the existing downsides of going to a public theater, it really does make home cinema seem all the more attractive. And I say this as a someone who really likes going out to the movies.

On the other hand, Cinemark’s long-standing prohibition against firearms does present a quandary, morally, if not legally. If the company chooses — as is its right — to prohibit its patrons from carrying the means of their own defense, then it stands to reason that they assume some compensatory responsibility for their safety.

Sadly, no one appears to have made that case in court.

Published in Domestic Policy, Guns, Law
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  1. DocJay Inactive
    DocJay
    @DocJay

    I just bring my gun in anyway.  Their rules don’t apply.

    • #1
  2. Eugene Kriegsmann Member
    Eugene Kriegsmann
    @EugeneKriegsmann

    DocJay:I just bring my gun in anyway. Their rules don’t apply.

    I tend to agree. If you are carrying concealed there should be no way that anyone could possibly know that you are carrying without patting you down. If nothing happens, then there is no reason for anyone to know that you are armed. If something does occur and you take action, I would imagine that prosecuting you for violating their rule, as opposed to breaking a law, seems to me to be pretty unlikely, particularly if your action saves lives otherwise lost. I carry a small handgun in the back pocket of my jersey when I ride my bike. No one knows it there but me, and no one will ever know if there is no reason for it to be drawn.

    • #2
  3. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    I don’t want to take anything away from the victims’ families, but there is no place that can truly be secure: airplanes, malls, theaters are all potential terrorist targets. So people live in fear, blame everyone except the terrorists, and expect remedies that guarantee nothing. It has nothing to do with terrorists, but I rarely go to malls, never go to movie theaters and generally dislike crowded places. But I also recognize there is no safe place. There never was. There never will be. And I live fairly peacefully with that understanding.

    • #3
  4. ModEcon Inactive
    ModEcon
    @ModEcon

    If I may ask, doesn’t the cinema have a good legal argument? While I need no convincing of the fact that gun free zones create targetable environments, given that this is a free country, everyone is free not to go to the cinema if they feel security is lacking. Also, since it was a long standing position, it’s not like no one could have known. Thus, all patrons of the establishment either should have known of the policy, didn’t care about security enough to look into it, or wouldn’t have made a difference because they would not have been armed anyways.

    Therefore, I am suspicious of the legal case for the victims. I see the logical extension of the the victims argument to be that the government would be required to take civil liability for all crimes committed under police jurisdiction, which is all public spaces, and/or where there are limits to what is legal to do in self defense. This is clearly impractical and I see no reason that civilian entities should be required to take such liability either.

    And really, who goes to the movies and says “my goodness, there aren’t nearly enough security guards here.”? How about a local park, mall, school, or any busy public space? I think this clearly shows the error in the victims argument.

    However, this legal precedence does create a terrible incentive to not have any security in order to avoid liability.

    • #4
  5. RyanFalcone Member
    RyanFalcone
    @RyanFalcone

    I’m wondering when Texas or Idaho will pass a law making establishments liable for patrons who are victimized in “gun free zone” when they could’ve defended themselves had they been allowed to carry.

    • #5
  6. Austin Murrey Inactive
    Austin Murrey
    @AustinMurrey

    RyanFalcone:I’m wondering when Texas or Idaho will pass a law making establishments liable for patrons who are victimized in “gun free zone” when they could’ve defended themselves had they been allowed to carry.

    Tennessee already did I think. They are, I think, to date the only state to have done so.

    • #6
  7. Chuck Enfield Inactive
    Chuck Enfield
    @ChuckEnfield

    Tom Meyer, Ed.: On the other hand, Cinemark’s long-standing prohibition against firearms does present a quandary, morally, if not legally. If the company chooses — as is its right — to prohibit its patrons from carrying the means of their own defense, then it stands to reason that they assume some compensatory responsibility for their safety.

    I don’t think it does.  You choose to attend a movie despite the fact that you can’t mount an armed defense should you need to.  Poeple can choose to stay home under these conditions, just like they would if Cinemark were to implement TSA-style security measures and charge $40 a seat to see the latest Nicholas Sparks film.  We all choose between conflicting wants on a routine basis.  There’s nothing special when the conflict involves guns.

    Even better than just staying home, if there’s a market demand and suitable legal environment, there’s no reason a competing theater chain can’t market a firearm friendly environment and steal business from Cinemark.  Our members routinely suggest free-market solutions to lefty “problem”, such as racism, sexism, homophobia, etc.  You’ll defend my right not to bake a cake for a gay wedding, but there should be laws absolving you of the consequences for your choices if I don’t allow you on my property under arms.   Why are free-market solutions sufficient for the former and not the latter?

    The fairly obvious answer is that we don’t have a suitable legal environment in some states.  You’ll get no argument from me on that point.  But that’s a social problem, the burden of which shouldn’t fall exclusively on business owners.  That’s the leftist approach to problem solving – government is screwed up, but businesses pays the price so there’s no reason to fix the government.

    I know from experience that I’ll be labelled as anti-gun.  I’ll be told that it’s foolish and counterproductive to ban guns on my property, so I must be anti-gun to suggest that property-owners should be allowed to do so.  What I’m suggesting is that gun rights advocates think of their preferred right in the same way they do the preferred rights of other advocacy groups.

    • #7
  8. Chuck Enfield Inactive
    Chuck Enfield
    @ChuckEnfield

    Austin Murrey:

    RyanFalcone:I’m wondering when Texas or Idaho will pass a law making establishments liable for patrons who are victimized in “gun free zone” when they could’ve defended themselves had they been allowed to carry.

    Tennessee already did I think. They are, I think, to date the only state to have done so.

    No, they didn’t.  They almost did, but the law was neutered at the 11th hour.

    • #8
  9. Probable Cause Inactive
    Probable Cause
    @ProbableCause

    Yeah, I’ve long recognized the economic problem — it costs thousands of dollars to provide real security, but it costs $1.97 to post a sign that disarms everyone and attracts mass shooters.

    RyanFalcone: I’m wondering when Texas or Idaho will pass a law…

    Exactly.  I advise state legislators that the law should be narrowly tailored, in order to “get the camel’s nose under the tent,” and therefore initially apply to theater owners only.   It should say to them: you have two choices.  Do nothing, and your patrons are responsible for their own safety.  But if you disarm them, then you are responsible for their safety.

    • #9
  10. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Eugene Kriegsmann: If something does occur and you take action, I would imagine that prosecuting you for violating their rule, as opposed to breaking a law, seems to me to be pretty unlikely, particularly if your action saves lives otherwise lost

    I don’t know about that, Eugene. You could be sued because of all the other people you might have killed. Sigh.

    • #10
  11. Rodin Member
    Rodin
    @Rodin

    RyanFalcone:I’m wondering when Texas or Idaho will pass a law making establishments liable for patrons who are victimized in “gun free zone” when they could’ve defended themselves had they been allowed to carry.

    This seems to be the answer. If you restrict an individual’s right of self-defense as a requirement to engage in commerce with them, then you take on the obligation to defend.

    I don’t think this will change some businesses minds about concealed-carry but it will add a risk of doing business that can be insured. There are sufficient stats that an actuarial estimate can be made.

    • #11
  12. Austin Murrey Inactive
    Austin Murrey
    @AustinMurrey

    Chuck Enfield:I don’t think it does. You choose to attend a movie despite the fact that you can’t mount an armed defense should you need to. Poeple can choose to stay home under these conditions, just like they would if Cinemark were to implement TSA-style security measures and charge $40 a seat to see the latest Nicholas Sparks film. We all choose between conflicting wants on a routine basis. There’s nothing special when the conflict involves guns.

    If the question is if business owners responsible for the safety of their guests I think they are.

    We wouldn’t think twice about a lawsuit from unsafe building practices, or health safety practices that lead to injury resulting in a lawsuit of the company. I’m uncertain why unsafe security practices are different.

    Business owners certainly have a right to say “We don’t want armed patrons on our property.” But if you tell people not to be armed if they want to enter your property, and going armed would have prevented injury I think it’s reasonable to state that those business owners bear some measure of responsibility for the injury.

    • #12
  13. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Chuck Enfield: You choose to attend a movie despite the fact that you can’t mount an armed defense should you need to. Poeple can choose to stay home under these conditions, just like they would if Cinemark were to implement TSA-style security measures and charge $40 a seat to see the latest Nicholas Sparks film.

    As I said, it’s their right and the obvious remedy for unsatisfied consumers is to take their business elsewhere (which always stinks more than it sounds, but hey, that’s life).

    I agree further that anyone who knowingly attends a theater that prohibits firearms is (implicitly) accepting the conditions of the theater’s rules. I do, however, think that if you deny people the ability to protect themselves you (implicitly) assume some degree of responsibility for their safety. If you’re honest about not meeting that responsibility, no harm no foul I say.

    • #13
  14. Polyphemus Inactive
    Polyphemus
    @Polyphemus

    I’ve been hoping for a lawsuit that would specifically address the “Gun-Free Zone” nonsense. I guess this wasn’t quite it.  I’m glad to hear others thinking the same way. Maybe a law is the thing like Tennessee tried. I just want to stop seeing institutions advertise a climate of safety that they have done nothing to assure. It is false and misleading. They should be put to shame, at least, for that.

    • #14
  15. ModEcon Inactive
    ModEcon
    @ModEcon

    Tom Meyer, Ed.: I do, however, think that if you deny people the ability to protect themselves you (implicitly) assume some degree of responsibility for their safety.

    First, what would legally constitute denying someone their ability to defend themselves. The cinema did not say that a person could not take actions to defend themselves. They could, for example, use their fists or hide. Okay, they would not be likely to successfully defend themselves from a gunman, but that is not to say that the cinema is not only responsible for their safety but also liable for any harm. Would you say that the cinema would be liable for the damages from a fist fight if it prohibited all fist fighting on the premises. I disagree that the company would ever implicitly accept responsibility patron safety.

    The only question in my mind is whether the company needs to enforce their own policy. In other words, does the prohibition of guns mean that the cinema must prevent any guns from entering the premises. But this also seems weak to me. Lets say the cinema only allowed concealed carry handguns and someone walks in with a rifle, or how about a iron man suit, would the cinema be liable for damages because they limited the firepower of the patrons compared to what they “let” into the premises? It seems untenable for any entity to assume any liability for actions they do not promise to control especially when the action is already illegal.

    • #15
  16. Frank Soto Contributor
    Frank Soto
    @FrankSoto

    Eugene Kriegsmann:

    DocJay:I just bring my gun in anyway. Their rules don’t apply.

    I tend to agree. If you are carrying concealed there should be no way that anyone could possibly know that you are carrying without patting you down. If nothing happens, then there is no reason for anyone to know that you are armed. If something does occur and you take action, I would imagine that prosecuting you for violating their rule, as opposed to breaking a law, seems to me to be pretty unlikely, particularly if your action saves lives otherwise lost. I carry a small handgun in the back pocket of my jersey when I ride my bike. No one knows it there but me, and no one will ever know if there is no reason for it to be drawn.

    This is how the law works in Georgia.  If you carry in an establishment that prohibits firearms, you are required to leave should they ask you to.  There are no further consequences unless you refuse to leave.

    Since your firearm is concealed, they should never notice you are carrying, and therefore never ask you to leave.

    • #16
  17. ctlaw Coolidge
    ctlaw
    @ctlaw

    Chuck Enfield:

    Austin Murrey:

    RyanFalcone:I’m wondering when Texas or Idaho will pass a law making establishments liable for patrons who are victimized in “gun free zone” when they could’ve defended themselves had they been allowed to carry.

    Tennessee already did I think. They are, I think, to date the only state to have done so.

    No, they didn’t. They almost did, but the law was neutered at the 11th hour.

    I vaguely recall from Property Law (and not Torts) in law school a ye olde time case where it was held that a business that bars arms is strictly liable if a patron suffers an injury that being armed could have prevented. Might have been an old English Common Law case, but some quick checking does not find such a case.

    • #17
  18. Eugene Kriegsmann Member
    Eugene Kriegsmann
    @EugeneKriegsmann

    Susan Quinn:

    Eugene Kriegsmann: If something does occur and you take action, I would imagine that prosecuting you for violating their rule, as opposed to breaking a law, seems to me to be pretty unlikely, particularly if your action saves lives otherwise lost

    I don’t know about that, Eugene. You could be sued because of all the other people you might have killed. Sigh.

    A lawsuit of that type is very likely to fall into the same realm as a trained first-aider coming to the aid of an injured or dying person. A licensed concealed carry holder acting to save the lives of others in a active shooter situation would likely be seen as no more culpable for collateral damage than would a police officer in the same circumstances. One way or the other, stopping an active shooter has got to be your second priority if you are armed and capable. Your first, of course, being personal survival.

    • #18
  19. Eric Hines Inactive
    Eric Hines
    @EricHines

    Tom Meyer, Ed.: to prohibit its patrons from carrying the means of their own defense, then it stands to reason that they assume some compensatory responsibility for their safety.

    No, it doesn’t.  Nobody gets to pass off his responsibility for himself to others.  Too many already see those others as Government; it doesn’t work any better when those others are free market enterprises or fellow citizens.  Don’t feel safe in a no-guns establishment without your own gun?  Don’t go there.

    Eric Hines

    • #19
  20. Austin Murrey Inactive
    Austin Murrey
    @AustinMurrey

    Eugene Kriegsmann:

    Susan Quinn:

    Eugene Kriegsmann: If something does occur and you take action, I would imagine that prosecuting you for violating their rule, as opposed to breaking a law, seems to me to be pretty unlikely, particularly if your action saves lives otherwise lost

    I don’t know about that, Eugene. You could be sued because of all the other people you might have killed. Sigh.

    A licensed concealed carry holder acting to save the lives of others in a active shooter situation would likely be seen as no more culpable for collateral damage than would a police officer in the same circumstances.

    Technically true in Texas but not something you want to test.

    Interestingly many active shooters do not respond to the presence of force used against them by increasing aggression – many stop fighting or kill themselves. If I recall correctly the Virginia Tech shooter killed himself when the police breached a locked door with a shotgun: the mere sound of gunfire not his own and the implication of what it meant ended the killing.

    • #20
  21. MarciN Member
    MarciN
    @MarciN

    Tom Meyer, Ed.: On the other hand, Cinemark’s long-standing prohibition against firearms does present a quandary, morally, if not legally. If the company chooses — as is its right — to prohibit its patrons from carrying the means of their own defense, then it stands to reason that they assume some compensatory responsibility for their safety.

    The gun-control debate in a nutshell.

    Bravo.

    • #21
  22. Eugene Kriegsmann Member
    Eugene Kriegsmann
    @EugeneKriegsmann

    Polyphemus:I’ve been hoping for a lawsuit that would specifically address the “Gun-Free Zone” nonsense. I guess this wasn’t quite it. I’m glad to hear others thinking the same way. Maybe a law is the thing like Tennessee tried. I just want to stop seeing institutions advertise a climate of safety that they have done nothing to assure. It is false and misleading. They should be put to shame, at least, for that.

    In my years of teaching I always felt that the most dangerous place I spent any time in was my school, and it was the only place I could not carry my firearm. Even a police officer assigned as a community liaison officer to our building had to leave his firearm off the grounds. The school district hired what can only be termed Affirmative Action security people to “secure” the building. They were neither armed nor particularly capable of protecting anyone. Even the kids found them essentially innocuous. As one with a spec ops background I frequently volunteered to handle situations that no one else in the building was trained for. When we were put on lock down due to some event in the neighborhood counselors and vice principals who had no training or experience would be asked to patrol the building while everyone else was supposed to huddle in place. More often than not, a counselor or vice principal would take my place in the classroom while I handled the patrol duty.

    • #22
  23. Ray Kujawa Coolidge
    Ray Kujawa
    @RayKujawa

    Tom Meyer, Ed.: …also having to endure an airport-style pat-down and lines while extremely bored armed guards mill around; sounds like hell with a date…

    Hey, why can’t I do that? (with my date, that is)  It should make the pat-down search go faster if we do it to one another.

    • #23
  24. Eugene Kriegsmann Member
    Eugene Kriegsmann
    @EugeneKriegsmann

    Austin Murrey: Technically true in Texas but not something you want to test.

    I think in that situation, worrying about being sued as opposed to being shot and killed seems somewhat academic. My sense is shoot first and worry about lawsuits later.

    • #24
  25. Robert E. Lee Member
    Robert E. Lee
    @RobertELee

    Eugene Kriegsmann: I carry a small handgun in the back pocket of my jersey when I ride my bike.

    Jersey’s got pocket?!

    • #25
  26. Seawriter Contributor
    Seawriter
    @Seawriter

    RyanFalcone:I’m wondering when Texas or Idaho will pass a law making establishments liable for patrons who are victimized in “gun free zone” when they could’ve defended themselves had they been allowed to carry.

    I believe there are plans to introduce legislation instituting strict liability for injuries suffered in gun free zones at the next Texas legislative session. The Texas Legislature only meets every other year, so (assuming the Republicans keep control of both houses) you can expect to see something in 2017.

    Seawriter

    • #26
  27. Frank Soto Contributor
    Frank Soto
    @FrankSoto

    Seawriter:

    RyanFalcone:I’m wondering when Texas or Idaho will pass a law making establishments liable for patrons who are victimized in “gun free zone” when they could’ve defended themselves had they been allowed to carry.

    I believe there are plans to introduce legislation instituting strict liability for injuries suffered in gun free zones at the next Texas legislative session. The Texas Legislature only meets every other year, so (assuming the Republicans keep control of both houses) you can expect to see something in 2017.

    Seawriter

    I can’t agree with these efforts.  You are free to avoid establishments that you feel endanger you in such ways.

    • #27
  28. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    By the way, I should have mentioned that I believe @franksoto made a similar point in these pages several years ago.

    • #28
  29. Frank Soto Contributor
    Frank Soto
    @FrankSoto

    Tom Meyer, Ed.:By the way, I should have mentioned that I believe @franksoto made a similar point in these pages several years ago.

    I believe so, though my point is really only that it is illogical to declare a gun free zone without then following up with checking everyone who enters the zone for weapons.

    I certainly think that a business has a right to do so.  I have the right to not patronize their establishment.

    I like Georgia’s solution, as it lets the anti-gun nuts feel safe without denying gun owners their ability to defend themselves if something happens.

    Any solution designed to make someone criminally liable if they declare their location gun free strike me as an overreach by our side which is inconsistent with liberty.

    • #29
  30. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Frank Soto:I like Georgia’s solution, as lets the anti-gun nuts feel safe without denying gun owners their ability to defend themselves if something happens.

    Agreed.

    I got in a facebook debate awhile back with a college professor who was aghast at the idea that her students might be allowed to carry a concealed weapon (she hit all the standard talking points; it was hilarious and boring simultaneously) and I asked her what’s preventing her students from doing so illegally now.

    She didn’t like it.

    • #30
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