Lawsuit Possibility?

[TooTaxed]

All of our American gun massacres have one thing in common: They have occurred in mandated "gun-free" areas. The crazies seek these places in order to shoot as many helpless people as possible before someone with a gun shows up to end it.

Question: Could survivors sue the people who mandated the "gun-free" area on the grounds that they created an unsafe condition?

 

[iiibdsiil]

You would think a denial of your right to protect yourself adequately would mean they will take responsibility for your safety huh.

 

[jfdavis58]

Probably not. Something called sovereign immunity in many places and just straight-up law in other places protects agents of the state from liabilities arising out of their legally mandated actions (or lack there-of). The way around this is generally to show some act of misconduct or neglect on the part of the official-such as a long or purposeful delay in informing a student body of the presence of an active shooter. It's very tough to be successful.

What people usually do is threaten to sue and hope for a big settlement. The reason a defendant settles is exactly this: to prevent all the facts (and dirty laundry) from being paraded about in a courtroom and subsequently in the media, i.e damage control.

 

[TooTaxed]

iiibdsiil, that's the point.

One way they could mount a defense is if they had someone on duty with a concealed weapon to protect the people. But, that includes such places as churches, schools, concerts, ect...I doubt that's likely to happen.

 

[Jim K]

I think the counter-argument would be that they have no requirement to protect anyone and I think a court would probably buy that. Even if they (whoever "they" are) posted a no-guns policy, they would argue that their policy was intended to protect the unarmed from the armed.

One example. A shopping mall, by its nature, is an automobile free zone. No one is supposed to drive a car into J.C. Penney's or Kaye's Jewelers. So if someone does, can the victims sue the mall for not having a tank at hand to stop a murderous driver? I think the suit would not be successful.

Jim

 

[jreagan]

Not to start a fight, but I wouldn't say *ALL* the massacres are in so-called gun-free zones. For instance, the guy who went in and shot the four LEOs in Tacoma a few weeks back. Obviously he was crazy enough to fire at four armed and trained LEOs (and sadly he was pretty successful). People who want to kill people will find a way. Whether it is in a school, church, coffee shop, or McDonalds (there was a 22 person massacre in a McDonalds back in 1984 in San Diego).

 

[Double Naught Spy]

All of our American gun massacres have one thing in common: They have occurred in mandated "gun-free" areas. The crazies seek these places in order to shoot as many helpless people as possible before someone with a gun shows up to end it.

Not to start a fight, but I wouldn't say *ALL* the massacres are in so-called gun-free zones.

Right, no all occur in gun free zones. Many occur in workplaces where no policies have been in effect. Many have occurred in public areas where no such policy is in effect. The Tacoma Mall shooting was not in a gun free zone. Neither was the Tyler, Texas shooting. The sequential multiple shootings in Alabama back in March didn't occur in gun free zones.

Question: Could survivors sue the people who mandated the "gun-free" area on the grounds that they created an unsafe condition?

How can you prove that an unsafe condition was created?

Businesses need only to have reasonable security precautions in place. The standard for what is "reasonable" is very low. Can you show that disallowing guns is an unreasonable security measure?

You would think a denial of your right to protect yourself adequately would mean they will take responsibility for your safety huh.

I have seen this argument a lot and it is a false argument that intentionally misdirects the facts. No denial of your right to protect yourself is created by gun free zones. Gun free zones simply deny you from carrying a gun. People are free to defend themselves with whatever means possible, including guns for those folks who choose to ignore gun free zone parameters. Many people do defend themselves in gun free zones. In short, the issues of gun possession and self defense have been confused as being the same thing when they absolutely are not.

One way they could mount a defense is if they had someone on duty with a concealed weapon to protect the people. But, that includes such places as churches, schools, concerts, ect...I doubt that's likely to happen.

Like the Colorado church shootings?

 

[divemedic]

Many have occurred in public areas where no such policy is in effect. The Tacoma Mall shooting was not in a gun free zone. Neither was the Tyler, Texas shooting.

The Tyler shooting was in a courthouse. Gun free by law. Didn't the Tacoma Mall post "no guns" signs?

Either way, I have always contended that a business that prohibits legal carry should be held responsible when I am left at a disadvantage, but that is not the case. They business claims "third party intervention" and get away with it. The business, aware enough that crime and shootings are an issue, places a "no guns" sign, then claims that they had no way of knowing, and no way to prevent a shooter.

 

[danbrew]

http://en.wikipedia.org/wiki/Luby's_massacre

 

[w_houle]

Oddly enough NPR had an interview with a lady that lived through the Luby's shooting and was extremely angered by the fact that she watched her parents die with her gun in her car. She successfully lobbied for concealed carry in TX.

 

[Frank Ettin]

I think that telling fact is that no one has tried it yet. So it sort of looks like no lawyer has as yet considered it to be a winning proposition.

 

[TooTaxed]

I think it would be an interesting case. The preponderance of cases show that the crazies choose advertised gun-free areas. (The Tacoma shootings are different from all others...intentional attack on a limited number of targeted police officers.)

In the face of this, if a company mandates a condition ripe for a massacre, and then does not provide for the safety of the people in some specific manner, it seems to me that they should be held liable.

 

[Frank Ettin]

I think it would be an interesting case. The preponderance of cases show that the crazies choose advertised gun-free areas. (The Tacoma shootings are different from all others...intentional attack on a limited number of targeted police officers.)

In the face of this, if a company mandates a condition ripe for a massacre, and then does not provide for the safety of the people in some specific manner, it seems to me that they should be held liable.

But these sorts of things have been going on for some years. Why hasn't anyone pursued such a lawsuit? Perhaps because no one thinks one would get anywhere?

 

[Fremmer]

No duty to protect you against the unexpected criminal act of a third person, and no liability for the criminal act of a third person.

Would you want the law to require those who CCW to protect another against the criminal acts of a third person? Careful!

 

[Cosmoline]

It's actually a really good argument and I'm surprised it hasn't been used more. The one case I know of where it played a role involved government contractors who were attacked by polar bears on the slope, but had been forbidden by their employer from carrying any arms.

I suspect the reason why nobody has tried it is the (perceived) risk of turning off the jurors or getting them sidetracked on gun rights arguments. Moreover, the vast majority of plaintiff attorneys are from the ranks of the far left and have an inherent mental block on such matters.

No duty to protect you against the unexpected criminal act of a third person, and no liability for the criminal act of a third person

This hasn't been the standard for several generations. There often *IS* an actionable duty, and in this case by forcing people to leave their firearms outside the store (or whatever) the defendant exposed them to a known and entirely foreseeable threat. The very rule forbidding arms reveals the foreseeability of the threat.

Can you show that disallowing guns is an unreasonable security measure?

The fact of the massacre is proof that the rule against arms was unreasonable and futile, since as we all know the little sign only stops the law-abiding. Someone determined to murder doesn't care about mall cops or their rules.

 

[Frank Ettin]

...the vast majority of plaintiff attorneys are from the ranks of the far left and have an inherent mental block on such matters...

IME the vast majority of plaintiff attorneys like making money and will pursue cases they believe have a high probability of making money for them.

 

[Fremmer]

If what you say is true legally, then the property owners very act of allowing anyone to enter the property would subject them to liability. Like I said, without specific and actual knowledge of a particular impending criminal act, a property owner owes neither the duty nor carries the liability to protect the public from the unexpected criminal act of a third person.

Here's my idea: Businesses will no longer be allowed to forbid the possession of firearms by the general public. BUT, we will impose an absolute duty on anyone who CCW's or possesses a firearm. They must use thier firearm if they become aware of a criminal nutball who is shooting other people. That means that you can't leave, wait for the police before acting, freeze in fear, or hide. You MUST confront the nutball and engage him or her in a gunfight. You absolutely must do this, and you now have a legal duty owed to the public to do this. If you fail to engage the nutball in a gunfight, then the victims (or their families) who are shot by the nutball can sue the CCW-er for failing to protect the injured or killed.

I don't seriously endorse this idea, but I'm trying to illustrate a point. Imposing a duty and liability on others to protect unrelated members of the public against the unexpected criminal acts of a third party is a bad idea.

 

[TooTaxed]

Fremmer, the idea of using my legal CCW to protect others doesn't bother me in the least.

 

[Colonel]

(there was a 22 person massacre in a McDonalds back in 1984 in San Diego)

You were allowed to CCW in a McDonalds in California in 1984?

 

[HoosierQ]

You can sue whomever you want. The question is, can you win? That's kind of a snarky answer though and I realize that when most people ask "can you sue somebody for..." they really mean would a lawsuit be a reasonable course of action to change the status quo or obtain redress.

In this case, I really think such a case would not go very well. The first and foremost obstacle would be proving that, had guns been allowed, the outcome would have been different. You'd never get that done.

Save you legal budget for litigating against direct assaults on the Second Amendment at the time such laws are proposed/attacks mounted, rather than seeking redress in such an indirect case.

 

[hso]

As pointed out anyone can sue anyone else for any reason, but winning is the challenge.

The murderer created the unsafe condition not the person responsible for prohibiting the carry of defensive firearms.

 

[Cosmoline]

Like I said, without specific and actual knowledge of a particular impending criminal act, a property owner owes neither the duty nor carries the liability to protect the public from the unexpected criminal act of a third person

If only it were true. Sadly it isn't. The classic case involved the shooting in a hospital parking lot, even where there had been no prior incidents. Isaacs v. Huntington Mem. Hosp, 695 P.2d 653 (Cal. 1985). It's easy to find with google, but have a barf bag ready. It's the California Supreme Court at its liberal, pro-plaintiff worst. Unfortunately it also proved to be very influential.

then the property owners very act of allowing anyone to enter the property would subject them to liability.

Yeah, pretty much. The only limitation under the modern rule is foreseeability, which isn't much of a barrier. And lord help you if you had some kind of pre-existing relationship or assumed duty towards the injured party.

 

[pak29]

There are two troubling elements to proving negligence of a property owner or anyone else where a third-party fires the killing shot; duty and causation. Even assuming the case is one in which the law imposes a duty on the defendant to act for the protection of others, how many juries do you think will find that their failure to do so was the cause of the death? It's pretty easy for the defense to point to the third-party shooter and say that whatever role the defendant's negligence, if any, played in the tragic event, it paled in comparison to the slobbering fiend shooting up the place.

 

[gatorjames85]

it paled in comparison

In comparative negligence states, even a little bit of causation can = a lot of money where damages are large.

 

[pak29]

Enough for your law firm to bet the cost of the litigation on the whim of the jury? I'm an attorney working on one like this right now, and it's a nail biter...