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Aurora Theater Shooting Foreseeable Rules Federal Judge


panic-button

Lawsuits against the theater where 12 people were murdered during a midnight screening of The Dark Knight Rises may go forward.

Denver Post‘s John Ingold reports (“Federal judge rules Aurora theater shooting was foreseeable“):

The owner of the Aurora movie theater that was the site of a deadly 2012 attack could have reasonably enough foreseen the danger of such an attack to be held liable for it, a federal judge ruled Friday.

Noting “the grim history of mass shootings and mass killings that have occurred in more recent times,” U.S. District Court Judge R. Brooke Jackson ruled that Cinemark — owner of the Century Aurora 16 theater — could have predicted that movie patrons might be targeted for an attack. Jackson’s ruling allows 20 lawsuits filed by survivors of the attack or relatives of those killed to proceed toward trial.

“Although theaters had theretofore been spared a mass shooting incident, the patrons of a movie theater are, perhaps even more than students in a school or shoppers in a mall, ‘sitting ducks,’ ” Jackson wrote.

To be sure, this ruling simply denied a motion to dismiss for summary judgment; it doesn’t decide whether Cinemark is liable for damages for failing to take reasonable measures to prevent the shooting spree. Still, the notion that theater owners ought provide armed security in anticipation of some nut deciding to mow down its patrons is absurd.

Reason‘s Lenore Skenazy:

The judge seems to be saying that because we do not live in a perfect world, free of all violence, all businesses open to the public should be constantly on guard against psychopathic killers. Even though, as Scott Greenfield points out at his blog Simple Justice, ”Perhaps the defining feature of crazy people is that they’re unpredictable.” But predict them businesses must, said Judge Jackson.

[...]

While the ruling does not decide any of the lawsuits, it does establish that they can proceed. In doing so, it endorses what I call “worst-first thinking”—dreaming up the worst case scenario first (“What if someone comes in and shoots up our book club?”) and proceeding as if it’s likely to happen.

Worst-first thinking promotes constant panic. The word for that isn’t prudence. It’s paranoia.

Alas, we’re already there. Our schools, including small church-run day schools for preschoolers, already operate on lockdown and spend considerable time on drills against the incredibly unlikely eventuality that someone comes to shoot them up. We arrest people for letting their 9-year-olds go to the playground by themselves or leaving their 11-year-old in the car while they run into a convenience store.

It’s easy to sympathize with the families of those murdered in the Aurora theater shooting or any of the other horrific mass shooting incidents in recent years. But it’s just bizarre to put the blame on the theater owner, school principal, or others holding perfectly normal events.

For one thing, while they’re all over the news, mass shootings are nonetheless exceedingly rare and unpredictable. It’s a near certainty that another one will happen. But we have no way of knowing at which of millions of potential venues it might occur. It’s simply unreasonable to harden all of them against an exceedingly unlikely event.

For another, to the extent that we should reasonable expect theater owners to be aware of the possibility that a shooting might occur at a midnight showing of The Dark Knight Rises, the same is true of the patrons themselves. By attending a movie—or doing virtually anything—we knowingly take the very tiny risk that some nutjob will mow us down in preference to living our lives in constant fear.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. Ron Beasley says:

    When will people start suing the NRA and the politicians who pander to them?

    Hot debate. What do you think? Thumb up 16 Thumb down 6

  2. bill says:

    it’s a pretty thin line there, a mass killer could strike anywhere so the theater should have anticipated it? and we wonder why our police are now armed to the teeth?
    so will movie theaters start resembling military sites, with armed security and metal detectors? that’s bound to set off some attendees….and is utterly brilliant.

    @Ron Beasley: they do, they lose quickly. what about knife makers?

    Like or Dislike: Thumb up 6 Thumb down 5

  3. PJ says:

    @James Joyner:

    It’s easy to sympathize with the families of those murdered in the Aurora theater shooting or any of the other horrific mass shooting incidents in recent years. But it’s just bizarre to put the blame on the theater owner, school principal, or others holding perfectly normal events.

    Thanks to Republicans, the gun manufacturers and dealers are shielded from liability lawsuits. That makes blaming the theater owner, school principal, etc, quite a bit more understandable.

    But when kids get murdered in their school, the parents should just accept it and move on? Sure it did happen to THEIR kids, but it’s exceedingly rare and unpredictable. So, sh*t happens?

    Highly-rated. Helpful or Unhelpful: Thumb up 19 Thumb down 1

  4. John Burgess says:

    I think the judge mistaken. What is conceivable is not necessarily what is predictable. It is conceivable that Judge Crater was carried off by aliens, but I’m sure it wasn’t predicted that he would just disappear one day.

    Like or Dislike: Thumb up 3 Thumb down 0

  5. James Joyner says:

    @Ron Beasley: I understand the desire to make it more difficult for citizens to have access to tools that make killing others easier. But, given that they are perfectly legal to manufacture and have legitimate use, I don’t understand the notion that the manufacturer is liable when someone uses the product in ways that carry felony penalties.

    Regardless, this isn’t a thread for venting on the gun control issue. Let’s stay on topic.

    @PJ:

    But when kids get murdered in their school, the parents should just accept it and move on?

    They should be devastated. I certainly would be. But that doesn’t mean they should be entitled to monetary damages from innocent parties.

    If the perpetrator has money, he’s a fair target for civil lawsuits in addition to criminal lawsuits. See Simpson, OJ. Otherwise, though, all victims get is whatever satisfaction comes from getting justice in the criminal courts.

    Like or Dislike: Thumb up 5 Thumb down 1

  6. Tyrell says:

    So restaurants, stores, malls, theaters, bars, conveniece stores, post offices, even hiking trails should have security guards and customer pat downs ? Because, according to this judge, they should have foreseen that this rare (about the odds of being hit by a meteorite) event could happen ? How about a neighborhood or development ? I guess this judge would say that we should have a wall, armed guards, a gate, and searches of cars and people ? Can I sue the IRS if my tax bill causes a a heart attack? Seems like this judge is putting the fault, or some of it, on the wrong people. Let’s keep it where it belongs: on the criminals. I don’t think people want to pay an extra amount for a movie ticket to pay for a bunch of security guards. I would not want to be patted down or have my stuff searched going into a movie. They would find my drinks, candy, and popcorn. Of course that is because the popcorn and food prices at movie theaters is high enough to make a car payment. Now that is what this judge needs to do something about. But we will talk about movie food prices another day.
    We live in an age where criminal acts are blamed and excused with things like being deprived, poor, video games, tv programs, and junky music. With that line of “logic”, Lincoln should have wound up as some sort of serial killer. Why not consider the fact that some people actually choose to commit acts of evil. What a novel idea!

    Like or Dislike: Thumb up 5 Thumb down 1

  7. jd says:

    Isn’t this what business insurance is for? The insurance industry specializes in soaking us for constant coverage of unlikely events.

    Like or Dislike: Thumb up 5 Thumb down 0

  8. James Pearce says:

    Other stories also cite a warning from Homeland Security (or some other fed agency) to theater companies about the possibility of a terrorist attack, so not totally absurd.

    It’s not really something we think about, but movie theaters have been responsible for their customer’s safety for a long time, since the fire curtain days. The theater really “could have predicted that movie patrons might be targeted for an attack.”

    The question is, what reasonable steps could the theater do to lessen the risk? Lock the doors? Done. Require a ticket for entry? Done.

    Like or Dislike: Thumb up 4 Thumb down 0

  9. Ben says:

    With all due respect everyone, that is NOT what this judge found. He did not find that it was foreseeable. This was a motion for summary judgment. A summary judgment should only be granted when “there is no genuine issue of material fact”, and assuming the facts in the light most favorable to the plaintiff, the case must be resolved in favor of the defendant.

    All the judge found is that there is a question of fact in the area of foreseeability that should proceed to the jury.

    So he most certainly did not find that the shooting was foreseeable. All he found is that it was conceivable that a reasonable jury COULD find that it was foreseeable. That is a very different statement.

    Like or Dislike: Thumb up 8 Thumb down 0

  10. Mu says:

    Don’t let Ken White see what you just wrote James
    http://www.popehat.com/2014/08/22/can-you-trust-the-media-to-get-legal-stories-right/
    The judge did NOT decide it was foreseeable, he only decided that a jury might consider it possible, and as such the motion for summary judgement failed.

    Like or Dislike: Thumb up 3 Thumb down 0

  11. Tyrell says:

    Isn’t a bigger and more immediate risk that butter that you put on the $10 popcorn ?

    Like or Dislike: Thumb up 2 Thumb down 0

  12. JKB says:

    All that has been determined is that the event was foreseeable. That means it is a matter of fact determination via trail as to whether the theater took reasonable precautions.

    No doubt that the theater purposely chose to require their patrons not retain the means of self defense they could lawfully carry outside the theater will be an element. This assumes any of the plaintiffs can establish that they would have normally had those means with them or had come to reasonably depend on those means being available to others in the crowd.

    Like or Dislike: Thumb up 0 Thumb down 2

  13. michael reynolds says:

    @James Joyner:

    Sorry, but guns and gun control are always relevant when the matter under discussion is Americans killing Americans with guns. I don’t recall being told in any other case that the root cause of the problem is off the table. You’re insisting we talk only about the arrangement of the deck chairs and not the fact that said chairs are on the deck of the Titanic.

    Worst-first thinking promotes constant panic. The word for that isn’t prudence. It’s paranoia.

    And what is the cause of that paranoia? Does anyone else in the developed world live in this kind of fear? No. Why? Well, we can’t talk about why. We can talk about the paranoia, but not the cause. We can talk about the “overreaction” but not the thing being overreacted to?

    When one person is carrying a gun, everyone around him is paranoid. Don’t believe me? Walk into your next class carrying a gun. See how the students are shifting nervously in their seats and eyeing the exits? That’s because of the gun. Gun = Fear. Fear grows and becomes “paranoia.”

    The solution is obvious. But we shouldn’t talk about it?

    Highly-rated. Helpful or Unhelpful: Thumb up 20 Thumb down 5

  14. JKB says:

    @jd: Isn’t this what business insurance is for?

    No.

    The insurance business is a method by which those with a common risk of asynchronous loss can pool their risk so to mitigate the immediate impact on any one pool member suffering a loss. Should a jury decide that the theater is liable, then no doubt an insurance pool will be created to help theater owners mitigate the risk of suffering a loss. Or the loss will become a factor in the rates charged for their current liability insurance.

    Like or Dislike: Thumb up 0 Thumb down 0

  15. Franklin says:

    @Tyrell: I would argue that it’s the sugar in your pop, but you’re on the right track.

    Like or Dislike: Thumb up 1 Thumb down 0

  16. James in Silverdale, WA says:

    The german police used all of 86 bullets last year and half of those were warning shorts.

    We dance around the actual issue of Stupid Americans Who Like To Shoot. Not at all a religious person and even I can see Moloch at work in America’s gun debate, with Lapiere the Pit Fiend In Chief.

    Like or Dislike: Thumb up 5 Thumb down 2

  17. rudderpedals says:

    Should we expect theaters to screen patrons with metal detectors to bar entry to those bearing weapons? I think the answer is yes, absolutely.

    Like or Dislike: Thumb up 4 Thumb down 1

  18. superdestroyer says:

    I always find it odd that progressives want the private sector to be responsible for every possible outcome but that the legal system is not really responsible for the actions of people who are on parole, probation, out of bail, etc. Looking at the Aurora shooting, it should be obvious that the State of Colorado is much more responsible that any private person. But I guess that plantiff’s attorneys find suing the government harder than suing movie theater owners or private citizens.

    Like or Dislike: Thumb up 1 Thumb down 8

  19. rudderpedals says:

    @superdestroyer:

    But I guess that plantiff’s attorneys find suing the government harder than suing movie theater owners or private citizens.

    No need to guess my friend. Thanks to sovereign immunity government cannot be sued unless it wants to be sued. It’s harder to sue, win, and collect from a government than a judgment-susceptible private party.

    Clarify the route you prefer to take for me. Injured plaintiffs aren’t going away, they’re going to consume public benefits. If the court finds that the theater is liable doesn’t the better policy require the theater pay so as to minimize the cost to the public?

    Like or Dislike: Thumb up 2 Thumb down 1

  20. James says:

    What the post is reporting is not what the judge said. Ken over at Popehat has a great write-up on it http://www.popehat.com/2014/08/22/can-you-trust-the-media-to-get-legal-stories-right/

    Like or Dislike: Thumb up 0 Thumb down 0

  21. al-Ameda says:

    @superdestroyer:

    Looking at the Aurora shooting, it should be obvious that the State of Colorado is much more responsible that any private person.

    LOL!

    Well of course it was forseeable: We are nation of 315 million people and over 300 million guns. Statistically, this kind of incident will occur periodically.

    Like or Dislike: Thumb up 10 Thumb down 0

  22. James Joyner says:

    @michael reynolds: Every post isn’t about everything. I actually think this issue of who should be liable for lawsuits in the event of shooting sprees— which I fully agree is ultimately less important than the issue of who should have access to the tools that make killing sprees possible to begin with—is worthy of discussion on its own merits. If every post on the topic of shooting sprees becomes a conversation about guns, it drowns out those other conversations. We’ll continue to have plenty of conversations about guns which, again, I agree is a more important topic, if not as important a topic as there is for discussion in America today.

    Like or Dislike: Thumb up 3 Thumb down 0

  23. James Joyner says:

    @Ben: @Mu: @James: I acknowledge in the first analytical sentence of the post that “this ruling simply denied a motion to dismiss for summary judgment; it doesn’t decide whether Cinemark is liable for damages for failing to take reasonable measures to prevent the shooting spree.” My argument is that the notion that this question should even go to a jury is absurd.

    Like or Dislike: Thumb up 2 Thumb down 0

  24. michael reynolds says:

    @James Joyner:

    I agree the legal issue is interesting. But it’s a bit like discussing health codes used to shut down abortion clinics without discussing abortion. The conversation, minus any talk of guns, necessarily limits options and makes us prisoners of an irrational reality. It assumes that legal issues exist independent of the facts of a case. You’re asking for solutions to the legal issue of whether theaters should be liable for shootings; I’m suggesting we have less shooting, which would radically reduce the need for us to figure out just who is responsible.

    But it’s your blog, and it’s a great blog, so I’ll drop it.

    Like or Dislike: Thumb up 9 Thumb down 0

  25. Robin Cohen says:

    @James Pearce: Well said. This is a stupid decision which places the blame on the wrong party and excuses the real culprit. I hope it is appealed and heard by a judge with a functioning brain.

    Like or Dislike: Thumb up 2 Thumb down 0

  26. Tyrell says:

    @rudderpedals: If the theater pays, we could end up paying – in the form of higher ticket prices and higher concession prices (talk about there ought to be a law, but movie food prices are a topic for another day). That may seem minor to some people but it is the whole point of the blame game.
    In all of this talk about who is responsible and who gets sued, let us not forget that one man did this. The theater owner did not shoot anyone, nor did the government, nor the gun companies. I assume he got there in a car. Sue the car manufacturerer ? How about the movie company and the cast ? Keep the blame where it belongs: on the criminal who did this evil act. He is the one and only one who should be made to pay. The people should not have to end up paying one thin dime of their hard earned money because of this creep.

    Like or Dislike: Thumb up 1 Thumb down 1

  27. PD Shaw says:

    @James Pearce: “The question is, what reasonable steps could the theater do to lessen the risk? Lock the doors? Done. Require a ticket for entry? Done.”

    The door wasn’t secured, which appears to be the problem the Judge has:

    Rather, it seems to me, the danger inherent in the construction and operation of this theater was that it allowed someone inside the theater surreptitiously to prop the door leading directly from the theater to the outside open and thereby to permit himself or others to enter the theater undetected and to commit a violent act against one or more patrons inside. The questions then become, (1) did Cinemark know or should it have known that this danger existed, and, if so, (2) did it exercise reasonable care to protect patrons against this danger.

    Like or Dislike: Thumb up 1 Thumb down 0

  28. PD Shaw says:

    Judges do grant this type of motion from time to time. The example cited by the Theater is from the 1984 McDonald’s shooting in California, killing 21 persons and injuring 11. That Court refused to let a jury decide:

    Huberty’s deranged and motiveless attack, apparently the worst mass killing by a single assailant in recent American history, is so unlikely to occur within the setting of modern life that a reasonably prudent business enterprise would not consider its occurrence in attempting to satisfy its general obligation to protect business invitees from reasonably foreseeable criminal conduct.

    The Aurora Judge found that modern life has substantially changed:

    I do not disagree at all with the holding in the [McDonadld's] case. But what was “so unlikely to occur within the setting of modern life” as to be unforeseeable in 1984 was not necessarily so unlikely by 2012. Cinemark itself acknowledges in its reply brief some of the grim history of mass shootings and killings that have occurred in more recent times. The school shootings t the University of Texas in 1966, Columbine High School in 1999, and Virginia Tech in 2007 re just a few of the most highly publicized incidents. If one Googles “mass shooting incidents” one finds dozens of lists of the major incidents. For example, an article by the staff of the Los Angeles Times published on April 2, 2014 lists 31 mass shooting incidents between the San Ysidro McDonald’s disaster and the Aurora shootings.

    I find this analysis by anecdote very unconvincing. The judge should calculate the new probabilities to bolster claims that the world has changed. It has changed for him perhaps, as he rides under armed escort from courthouse to home with his top-of-the-line security system.

    Like or Dislike: Thumb up 2 Thumb down 0

  29. Lounsbury says:

    @michael reynolds:

    No I rather think your problem runs rather deeper than mere gun control. Americans seem to be trending to some kind of nannying paranoia.

    Illustratively your overseas missions.

    Among the places where I do business in the Maghreb the French are about as much a target for terror attacks as the Americans (yes, really – also the Sahel, citizens assassinated, kidnapped, etc.).

    Now, which country has its diplomatic and cultural missions bunkered up behind multi-ton containers with blast wall alley ways to entry and which one remains pretty much as it was in the 1990s? Want to take a guess?

    you lot have a national risk psychosis going on, rather deeper and more profound issue than mere gun control.

    Like or Dislike: Thumb up 3 Thumb down 1

  30. michael reynolds says:

    @Lounsbury:

    Oh, I agree it extends beyond a justifiable fear of guns. When I was a kid in France (Charente, not the cool part) and the US I went wherever I wanted on my bike. Now, as a parent myself, I’d be arrested if I raised my kids that way. People already think I’m some kind of radical because I give them unfettered internet access and occasionally leave them in a five star hotel while my wife and I go out for dinner.

    Like or Dislike: Thumb up 6 Thumb down 0

  31. rudderpedals says:

    @Tyrell:

    The people should not have to end up paying one thin dime of their hard earned money because of this creep.

    Thing is, uncompensated victims go on the public dole. Catch-22

    Like or Dislike: Thumb up 1 Thumb down 0

  32. C. Clavin says:

    The judge is merely portraying the world that the gun cultists long for.
    It’s what the NRA and the rest of the gun lobby have been fighting for.
    It’s the inevitable result if un-fettered access to guns by people who should not be allowed to own them.
    Enjoy it. Embrace it. Go buy a gun.
    It’ll make the gun lobby happy.

    Like or Dislike: Thumb up 1 Thumb down 1

  33. JohnMcC says:

    Since Mr Holmes snuck through an emergency exit which he propped open while he went to his car and donned a gas mask, black ‘ninja’ clothes and a ‘load-bearing’ vest (reported as a bullet-proof vest) and several semi-automatic weapons and only then re-entered the theater through that emergency exit, it doesn’t seem impossible to me that a case for negligence of the emergency exits could be made.

    The person who foresaw the shooting was Mr Holmes himself. He apparently shared his thought about mass shootings with a classmate (according to Wiki), wrote about it in a notebook which he shared with his therapist and entered his thoughts on his computer. Somewhere in there a reasonable case could be made for ‘failure to report’. (If Mr Holmes had confided that he was abusing a child, spouse or older adult, the failure of the therapist to notify authorities would have cost him his license.)

    At some point he had to begin amassing weapons and ammunition and the other ‘tools’ (as Our Gracious Host describes various murderous devices with no use other than poking sizable holes in people and things). At that point it was possible for someone to have ‘foreseen’ a possible shooting (since Mr Holmes apparently was not a hunter, target shooter or collector).

    So the issue of foreseeability does not have anything to do with assessing the likelihood of utterly random acts by anonymous deranged persons. Attaching the issue of ‘foreseeability’ to the theater and isolating their responsibility to screening (somehow) people standing in the ticket line is simply stupid.

    Try again, Dr Joyner. Better luck next time.

    Like or Dislike: Thumb up 9 Thumb down 0

  34. michael reynolds says:

    @JohnMcC:
    Nicely done.

    Like or Dislike: Thumb up 0 Thumb down 0

  35. wr says:

    @Tyrell: “If the theater pays, we could end up paying – in the form of higher ticket prices and higher concession prices’

    Wait — you mean people who have fought to make sure that every creep, loser, psychopath and troll in this country who wants a gun can have all the guns they want might actually be forced to pay a tiny surplus on the price of their movie snacks to help defray a miniscule part of the damage they’ve caused?

    Oh, the injustice. Oh, the humanity.

    As a right wing American I demand the right to destroy as many lives and as much property as possible and to never be responsible for any of the costs.

    Like or Dislike: Thumb up 2 Thumb down 1

  36. Bob @ Youngstown says:

    Go to any NRA sponsored meeting and the argument will be made that the theater in Aurora erred by prohibiting firearms. The NRA folks lay the blame on the theater because the patrons were restrained from shooting back.

    Like or Dislike: Thumb up 0 Thumb down 0

  37. JWH says:

    Keep in mind that a motion for summary judgment has a very high hurdle if it is to prevail.

    This judge didn’t say the Aurora shooting was foreseeable. The judge said that there is a chance a hypothetical jury might possibly, after looking at all the evidence, conceivably decide that the shooting was foreseeable.

    Like or Dislike: Thumb up 1 Thumb down 0

  38. the Q says:

    Mike Reynolds wrote….”When one person is carrying a gun, everyone around him is paranoid”…

    Several years ago, a Stanford professor recorded an amazing example of this unconscious behavior guns have on people.

    He set up hidden cameras at a carnival’s midway. He watched the bean bag toss game – the purpose of which was to try and knock down milk cartons. He had stuffed animals on the wall as prizes. The videotape shows men trying to knock down the cartons by tossing the bean bags like a baseball player.

    He then put an identical watergun replica of an AK47 on the wall as a prize. The result was amazing: the video shows a total change in behavior of the men who now throw the bags much harder, changes in body language are seen as men get more aggressive etc.

    All because of the mere physical PRESENSE of the gun and the unconscious visceral reaction of the men throwing. If anyone has seen this experiment, it was so clear the gun had an emotional influence on those nearby.

    It was a remarkable experiment. Yes, guns in a market or hardware store, WILL have an impact on those around who can see and unconsciously react.

    Like or Dislike: Thumb up 2 Thumb down 0