"Gun Free Zone" Lawsuits?


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Eagle103
April 21, 2007, 02:22 PM
What are the chances of some lawsuits being filed against VT for stripping students, faculty, and staff of their 2nd Amendment rights and ignoring Virginia concealed carry law making everyone defenseless? This really POs me. I suppose it's been discussed here already and maybe there are already lawsuits going forward in this regard so educate me.

This quote from Susanna Hupp on the CBS Early Show, of all places, says it all.
"I believe in this particular scenario, when Virginia Tech apparently stood up in front of a hearing and said they didn't want people to be able to protect themselves on campus, at that point, they had the responsibility and the liability to protect those people and they didn't."

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Outlaws
April 21, 2007, 02:55 PM
Thats a slippery slop because everyone knew they couldn't carry a firearm and they waved their right to when they voluntarily came onto campus. You would almost have to argue that no college campus in the US (if that can be verified) allows students to carry firearms so you are almost forced into disarmament. But that could be seen as pushing it a bit far by the judge.

.45&TKD
April 21, 2007, 03:01 PM
I think lawsuits are a great idea. Especially since the logic (illogic) of the gun free zones is to prevent lawsuits (from allowing guns).

Car Knocker
April 21, 2007, 03:51 PM
You would almost have to argue that no college campus in the US (if that can be verified) allows students to carry firearms so you are almost forced into disarmament.
And it is certainly not true that ALL college campuses do not allow concealed carry.

chemist308
April 21, 2007, 05:32 PM
The families of the victims should certainly be filing lawsuits. Even if they lose or get settled out of court it sends a message.

Art Eatman
April 21, 2007, 05:54 PM
"Failure to protect", like the singer who collected a bundle of $$$ from a motel in Pennsylvania after she was raped.

Art

Eagle103
April 21, 2007, 06:07 PM
"Failure to protect"
Yes. By stripping you of your legal ability to do so yourself (CCW) it would seem implicit that they are assuming full legal responsibility for the safety of all who enter the campus. What would happen if a busload of VT students went off a cliff killing 30 students? There would be immediate lawsuits with the courts settling on blame later. After all, the students were entrusting their lives to the driver.

InChop
April 21, 2007, 07:37 PM
I'd say lawsuits are almost a sure thing - but not for failure to protect. They are going to blame the police for taking their time, the administration for failing to inform the students promptly, etc etc etc. Can't say I blame them...

When I was in college - it never crossed my mind that I should need to be armed...and I went to school in the middle of a large city.

michaelbane
April 21, 2007, 07:42 PM
Thats a slippery slop because everyone knew they couldn't carry a firearm and they waved their right to when they voluntarily came onto campus.

In civil law, this concept is called "assumption of risk" and is a defense against the original lawsuit.

Besides, VT and any other state controlled universities probably enjoy sovereign immunity protection.

rkh
April 21, 2007, 08:11 PM
All torts consist of four elements: 1) cause, 2) duty, 3) breach of duty, 4) harm. At this time only one of those elements is clearly in favor of the plaintiffs. How far does the duty to protect students reach? Does it encompass unforeseeable events or natural disasters? The school's duty is not unlimited. Nor is it apparent that even if there was a legally cognizable duty that the school breached it. Was its reaction reasonable under the circumstances? Maybe.

Issues of duty aside, establishing causation will be the primary hurdle. If there's evidence to suggest that one of the victims possessed a carry permit and regularly carried when not on campus and complied with the school's policy only for the sake of avoiding possible expulsion, then yes. There is the possibility of successful lawsuit.

Don't bet on it though.

edited: stupid grammar error

Eagle103
April 21, 2007, 08:31 PM
Being the target of a frivilous lawsuit myself I can't say that the likelihood of success necessarily precludes a lawsuit. The main point here could be to air the arguments concerning CCW and the dangers of "gun free zones" publicly.

As far as students not possessing a CCW I think it could be argued that few of them would bother to aquire one since college students spend a large majority of their time on campus and since VT declared such permits null why would students bother to get one.

InChop
April 21, 2007, 08:40 PM
College students can't afford weapons. They spend all of their money on booze :)

LawBot5000
April 21, 2007, 08:44 PM
Sovereign immunity for one. If youre going to make a due process claim, the problem is that any legal duty to protect the public doesnt require that police successfuly prevent private actors from harming people.

Now if the university isnt considered to be part of the government, their policy banning otherwise lawfully carried firearms on campus might be a source of liability, but there isnt really much case law pointing either direction yet.

SteveS
April 21, 2007, 09:41 PM
The federal government and most states (I am not familiar with Virginia law), have waived sovereign immunity under various tort claims acts so that they can be sued for negligence. I would think it would be a difficult claim to win since, generally speaking, an entity does not have a duty to protect a person from the criminal acts of another.

There is another thread somewhere that suggested a course of action that would ensure a high level of success in these types of suits. Congress would have to pass legislation creating a specific cause of action for injured people to sue when denied the abilty to CCW in a certain area.

thexrayboy
April 21, 2007, 10:19 PM
"Gun Free Zone" Lawsuits?


Not a bad idea. Might even see some filed. Chances of any of them ever seeing the light of day, mimimal at best. Unless filed before an extremely pro 2A judge would most likely be dismissed very early on. But if no one gives it a try legal action will have zero chance at effecting social change on this one.
Hopefully some legal beagles on the side of 2A will get involved.

awkx
April 22, 2007, 10:10 AM
We need to be careful to not exploit this tragedy to further our agenda.
That said, if any of the families of the victims are angry that CCW was prohibited on campus, then a lawsuit may be a good idea. Pro-2A jurors would undoubtedly find that the university assumed the responsibility of protection of its students when it disarmed them. Liberal "bleeding-heart" jurors may award a payment just because they "feel sorry" for the families.

lysander
April 22, 2007, 11:07 AM
We need to be careful to not exploit this tragedy to further our agenda.

Both sides are going to throw accusations of exploitation at each other...and in fact...already have.

deadin
April 22, 2007, 11:28 AM
Failure to protect

Think this through. By suing for "failure to protect" you are basically saying that protection is the total responsibilty of the individual. This means that if anything happens to you, it's your fault if you weren't armed to "protect" yourself. That opens up a very large can of worms . Muggers, bank robbers, 7/11 stick-up men, etc. couldn't be held responsble for their actions, because the citizen should have been armed and stopped them from breaking the law. :evil: :evil:
I guess we would have to allow everybody to arm themselves (whack-jobs, violent felons and all) because they deserve protection too. I really don't want to contemplate where this might go.......:rolleyes:

freewheeling
April 22, 2007, 12:09 PM
I believe that Utah has legislation that blocks universities (possibly only public universities) from banning CCW. The law was recently challenged by the University of Utah (http://old.heraldextra.com/modules.php?op=modload&name=News&file=article&sid=33095), which argued that the state constitution gives it an autonomous exemption. However the Supreme court upheld the law. Last I head the University administration was attempting to negotiate for "specific" exemptions from the law in certain university venues (like classes, faculty offices, sporting event, well basically everywhere...). Not sure how this turned out. Maybe someone else knows.

Len S
April 22, 2007, 12:20 PM
Has there been any indication if any of the victims or any of the students who fled had a CCW? If so then maybe. They had the ability and desire but denied the right to do so. If no permits I do not see how anyone can claim they were denied something they couldn't do anyway. Of course I am not a lawyer nor do I play one on tv and I did NOT stay at a Holiday Inn Express last night.

Len

awkx
April 22, 2007, 12:23 PM
Think this through. By suing for "failure to protect" you are basically saying that protection is the total responsibilty of the individual.
I'm saying that self-protection is a right, not a responsibility. (Of course, if one chooses to exercise that right, there is a responsibility to exercise it in a non-negligent manner.)
If an authority chooses to disarm someone and thereby forbid him the right to self-defense, they assume responsibility for his protection. I believe that there is caselaw saying that prisons have a responsibility to protect their prisoners.

I guess we would have to allow everybody to arm themselves (whack-jobs, violent felons and all) because they deserve protection too. I really don't want to contemplate where this might go.......
Dangerous whack-jobs and violent felons should be locked up in insane asylums and prisons, respectively. If they're not dangerous enough to be locked up, then they're not dangerous enough to be denied their right to self-defense.

freewheeling
April 22, 2007, 12:33 PM
Note also that if you were a legitimate permit holder carrying a weapon on the VA Tech campus you wouldn't be breaking any law unless you were discovered and asked to leave, and additionally that you refused (which would not be a weapons violation, but trespass).

awkx
April 22, 2007, 12:57 PM
Note also that if you were a legitimate permit holder carrying a weapon on the VA Tech campus you wouldn't be breaking any law unless you were discovered and asked to leave, and additionally that you refused (which would not be a weapons violation, but trespass).
Yes, but a student of VA Tech would still be subject to university sanctions for violating the rules & regs of the university.

TnRebel
April 22, 2007, 01:16 PM
I would be interested in knowing if any of the dead had a CCW ?
and if so would that be grounds for a law suit ?

deadin
April 22, 2007, 01:26 PM
Dangerous whack-jobs and violent felons should be locked up in insane asylums and prisons, respectively. If they're not dangerous enough to be locked up, then they're not dangerous enough to be denied their right to self-defense.

We don't have enough asylums and prisons to hold them all. And besides, how about the old 'paying your debt to society' bit?
Or are you saying that once adjudicated a whack-job or violent thay should just be locked up and throw away the key? Great idea, but how about this one? Instead of locking them up and throwing away the key, we just summarily execute them? That way they will never repeat and won't be a burden on the rest of us paying for their upkeep. I think this was tried in Germany around 60-70 years ago. Oh Wait... some of the inmates managed to get in charge and started doing that to whoever opposed them. It didn't work out.

F4GIB
April 22, 2007, 01:35 PM
In Warren v. DC, DeShaney and other cases, the courts have said a public entity has no obligation to protect any individual person. Government can fall down on the job without liability (consider the alternative). But, in this case, the entity did more than fall down on the job, it took AFFIRMATIVE ACTION to disarm the individual and render them helpless. That's a viable basis for a tort suit, IMLO.

shield20
April 22, 2007, 03:05 PM
I am more of th eopinion that if THEy deny the ability to protect myself, THEy take responsibility for it.

I have read ,ore professional opinion then mine who would agree - but until a coiurt case is decided? Who knows?

I DID write my kid's school superintendent for permission to CCW - which is required here in NY. It was denied (as I expected) but I am now on record officially - with her and their lawyer - so they WILL be taken to court if anything ever happens, God forbid, and I am rendered helpless. I figure at that time I will have good cause/suffered "hurt", etc.

Hmmm...an element such as this was reqiured for the DC case - no one was actually held up or anything though, so how much "damage" does one have to prove? I would LOVE to see gun free zones struck down as unconstitutional - AND plain stupid.

myusername
April 22, 2007, 11:21 PM
I live in Louisiana and attend one of the state universities. I have been looking through all the state statutes I can find concerning firearms in a residence and in a Gun Free Zone. From what I can see the state allows you to keep a firearm in your dorm room. Under the GFZ statute it allows for carry on campus when you are between your car and your dorm room. However school policy prohibits this.

I wouldn't know if it would be able to get this changed.

SteveS
April 24, 2007, 02:53 PM
Here is a thorough analysis on the potential liability of VT and a suit.


http://writ.lp.findlaw.com/sebok/20070424.html



Could Virginia Tech Be Held Liable for Cho Seung Hui's Shootings, If An Investigation Were to Reveal It Had Been Negligent?
The Unfortunate Answer
By ANTHONY J. SEBOK
----
Tuesday, Apr. 24, 2007

In the aftermath of the tragedy at Virginia Tech, many commentators have begun to ask whether university officials could have done more to prevent the gunman, Cho Seung Hui, from killing 32 faculty members and students and himself, and wounding others. In this column, I will explore the possible legal basis for holding Virginia Tech liable for Cho's actions.

Importantly, I will not make any claims about Virginia Tech's actual responsibility - just its potential responsibility, contingent on the results of an investigation. Plainly, Cho, who is now dead, was the one most responsible for the events of April 16. No one can or should assume that anyone else bears responsibility for what he did. Only after a careful investigation can that sort of judgment be made.



But once an investigation is complete, what will it tell us? If it turns out that there was negligence, or worse, on the part of the university or others, can the wounded victims or the families of the deceased victims of the attack sue Virginia Tech for damages?

The answer is not very reassuring for the families or the surviving victims, and it raises important questions about whether we want to insulate the state from accountability in court for its mistakes.

Can Virginia Tech Be Held Responsible to Students Simply as a Landowner?

In thinking about liability for the shootings, we must distinguish between two very important questions: First, when, if ever, is a university responsible for the actions of a killer on its own campus? Second, if the university is a state institution, is its liability greater or less than if it were a private university?

The answer to the first question is relatively well-established in Virginia. Virginia is notoriously pro-defendant in matters of tort law. (For example, it still adheres to the doctrine of contributory negligence, which bars a negligent plaintiff from recovering damages.) Yet even Virginia imposes limited duties on universities to protect their students.

The first of the grounds for this duty simply comes from the fact that a university is a landowner, and landowners have certain duties to an invitee (that is, a person invited to enter upon the property for business or educational purposes). For example, in the 2001 case of Thompson v. Skate America, Inc., the Virginia Supreme Court held that a skating rink operator could be held liable for an assault on a patron by another patron if the attacker was "known to [the skating rink] to be violent and to have committed assaults on other invitees on its property in the recent past."

Indeed, universities have greater duties than the typical landowner, under Virginia law. In its 1989 decision in Wilson v. Commonwealth of Virginia et al., a Virginia lower court held that "a student living in a college dormitory should reasonably expect a greater degree of protection from the University than would a tenant who leases residential property from a landlord in the open market."


The problem with invoking the landowner liability cases with respect to the tragedy at Virginia Tech, however, is that Virginia courts have been very conservative in applying the doctrine. Even in Thompson, the skating rink case mentioned above, the court limited the landowner's duty to protect invitees to imminent criminal assaults. And in Wright v. Webb, for example, the Virginia Supreme Court held that a motel owner was not responsible for a criminal assault that might have been prevented by better security unless "the owner knows that criminal assaults against persons are occurring, or are about to occur" on the premises.

Possibly, Virginia Tech's awareness that a shooter was on campus, as evidenced by the mass email it initially sent to students after the first two shootings, could be argued to constitute knowledge that additional, imminent shootings were "about to occur." Unfortunately, however, it seems that, in fact, Virginia Tech did not expect additional shootings - even if it should have -- when it sent the email. Otherwise, it presumably would have cancelled classes and warned students to barricade themselves inside their rooms.

Another Possible Basis for a Duty: A Special University/Student Relationship

There is a second ground for a duty to protect students: The Restatement (Second) of Torts 315 - which Virginia follows -- imposes a duty to protect or aid when there is either a "special relationship" between either the victim of an attack and the defendant, or the defendant and the attacker. Virginia Tech had a special relationship with both the students whom Cho shot, and Cho himself, for he was also a student.

As a federal district court noted in 2002 in Schieszler v. Ferrum College et al., Virginia common law would probably apply the Restatement rule to universities. The Schieszler case was based on the following allegations: Ferrum College freshman Michael Frentzel exhibited suicidal behavior. The campus police had to break into his room; found him with bruises on his head; and took him to the Dean of Students. But the Dean merely asked him to sign a statement that he would not hurt himself, and allowed him to return to his room. Within a few days, Frentzel hanged himself. The federal court held that Ferrum College owed a duty to its students to protect them from physical injury on campus - including injury at their own hands.

(The most infamous cases involving university liability for failure to protect students typically arise from cases involving suicide. MIT, for example, was sued by the parents of Elizabeth Shin, who committed suicide despite the fact that, two days earlier, the campus police and health center were notified of her threats to do so. After MIT lost its motion to have the suit dismissed, it settled the case.)

If Virginia Tech Has a Duty, How Much Would It Have to Do To Satisfy It?

Schieszler clearly implies that a university has a duty to protect students (and most likely staff) from injury on campus caused by either another student or a stranger. But how much does a university have to do to satisfy the duty?

To establish liability, the plaintiffs would have to prove that the steps the university took before and during the day of the attack were inadequate, and that there were alternative measures, reasonably available to the university, that it could have implemented. Many have suggested that the university's initial email to students after the first shootings was inadequate, and that a much strong warning email should have been sent immediately. Plaintiffs could also argue, going back further in time, that it should have been plain to the university that Cho was enough of a threat to be expelled.

An interesting comparison can be made with the California Supreme Court's ruling in Tarasoff v. The Regents of the University of California. There, the court ruled that therapists whose patients inform them of a credible, immediate threat to a third person, must call the third party and tell them of the threat, but it did not require that the therapist do anything beyond that. That 1976 decision set off a firestorm of controversy, because many felt it violated psychiatrist-patient privilege. In Cho's particular case, it seems that he refused counseling when it was offered to him, and thus, no privilege applied. But in the case of another school shooter (or potential suicide) who had received university counseling, the privilege question might occur.

Let's suppose Cho had, in fact, gone to counseling, and that his therapist, concerned about his threats about certain students, warned those students about the threats. To fulfill its duty to take reasonable care, would the university have to assign security officers to follow those students - or Cho himself - around? And what if the threats were more general, or to an entire class full of students? Would the university have the duty to expel Cho and remove him from campus?

The Americans with Disabilities Act Was No Barrier to Expelling Cho

The answer to that question isn't clear - but it is quite clear that the university could have legally opted, if it so chose, to expel Cho.

It has been suggested in the media that certain civil rights laws, such as the American with Disabilities Act (ADA) prevent a university from taking steps to remove a student who exhibits violent tendencies. However, this is almost certainly an urban myth. The ADA provides for reasonable accommodation of disabilities; it doesn't require the harboring of violent persons who present risks to others.

For example, in 1999, in Ascani v. Hofstra University, the U.S. Court of Appeals Second Circuit rejected any ADA challenge to a decision by Hofstra to expel a graduate student who had threatened a professor.

The Second Key Question: Does It Matter that Virginia Tech Is a Public University?

Let's suppose for a moment that the wounded victims and the families of the deceased victims can, in fact, prove that Virginia Tech failed to take adequate steps to protect its students. Unfortunately, their case would still fail - for the doctrine of sovereign immunity makes it almost impossible for the plaintiffs to collect significant damages even if they can prove negligence.

Sovereign immunity literally means that the government cannot be sued for its torts, even if it acts negligently (or worse). Originating in England before the American revolution, the doctrine has been largely abandoned in the U.K. and Europe. But it is alive and well - though partially waived by both the federal government and the states -- in the United States.

Virginia's waiver of sovereign immunity is pretty typical: The Virginia Tort Claims Act, Code 8.01-195.1 through -195.9, states that "the Commonwealth shall be liable for claims for money . . . on account of . . . personal injury or death caused by the negligent or wrongful act or omission of any employee while acting within the scope of his employment under circumstances where the Commonwealth . . ., if a private person, would be liable to the claimant for such . . . injury or death."

You might think that Virginia Tech could be sued under this waiver. But you would be wrong. As the Virginia Supreme Court noted in the 2004 case of Rector & Visitors of the Univ. of Va. v. Carter, only the Commonwealth of Virginia has waived its sovereign immunity, but the Commonwealth's agencies - such as the University and its various schools -- have not.

Thus, in that case, Tina Carter's medical malpractice suit against the University of Virginia Medical School was dismissed -- although she, in theory, could have then refiled the suit against the Commonwealth of Virginia, if it was not barred by the statute of limitations. That's because the Commonwealth of Virginia can be sued for the actions of its agents under a theory of vicarious liability.

Couldn't the Virginia Tech plaintiffs just sue the Commonwealth, then? Yes, but here is where the final indignity comes in: The same Act limits the liability of the Commonwealth to $100,000 per tort. This amount, while not insignificant, is dwarfed by the amount of damages that might be won in a wrongful death claim brought on behalf of a college student or her surviving family. (By comparison, the 9/11 Victims Compensation Fund, which I have discussed in earlier columns such as this one, provided a minimum of $250,000 to the victims' families, and in the case of young people who would have looked forward to long and lucrative careers, often much more.)

The Best Potential Basis for Suit: Evidence of Gross Negligence, If It Arises

In the end, the only realistic way for the plaintiffs to receive anything like the amount of the damages they have actually suffered, is to show that Virginia Tech acted with gross negligence.

As a Virginia-based federal court held in the 1995 case of Coppage v. Mann, sovereign immunity does not protect doctors employed by the state from tort suits if they acted with gross negligence. So too, the doctrine would presumably not protect university administrators and other employees if they acted with gross negligence. Nor would it protect their employer, even if it were an agent of the state.


In sum, if an investigation reveals negligence by Virginia Tech, and it can plausibly be argued to be gross negligence, then perhaps the wounded victims and the families of the deceased will be able to recover for the damages they actually incurred. But the law - thanks to the archaic sovereign immunity doctrine - sets the bar too high. Proof of negligence, even short of gross negligence, should be enough.

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