Rulings In Cinemark Theater Aurora, CO Shooting Case

[Double Naught Spy]

can you link that law?

Here is an article with a link. http://dailycaller.com/2016/07/01/new-tenn-law-puts-onus-on-gun-free-zone-property-owners/

To my knowledge, it has not been tested. It would appear to be fairly weak and vague.

This bill imposes a duty of care on any person who posts their property to prohibit firearms whereby such person will be responsible for the safety of any handgun carry permit holder while the permit holder is on the posted premises and traversing any area to and from the premises and the location where the permit holder's firearm is stored. The duty of care created by this bill will extend to the conduct of other invitees, trespassers, employees of the person or entity, vicious animals, wild animals, and defensible man-made and natural hazards.
http://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=SB1736&ga=109

So basically, I could leave my house in Tennessee without my gun (though I have a permit) and get robbed. All I would need to do is to claim I was on my way to some business that prohibits firearms and BOOM, they are now responsible for what happened to me. No need for me to even carry regularly to now have a form of reimbursement insurance, health insurance, or life insurance in the event of some attack because a some business that prohibits guns is no responsible for me.

What the bill is now law, I have a feeling that it will be contested and at least the parts pertaining to off property activities will be edited out. When it comes up, I would be willing to be that the insurance companies will fight it.

 

[barnbwt]

"When it comes up, I would be willing to be that the insurance companies will fight it."
I've never understood this. When a crook shoots up a store, the store is generally not liable for his actions*, and the physical damages from small arms discharge to the property really don't really amount to all that much. So why are insurance companies (allegedly) such dogged drivers of gun control posting in their clients' businesses? They have far more reason than politicians to approach the issue rationally & objectively from the perspective of odds and money, and yet we haven't seen much evidence these signs prevent attacks in the first place, and I've never heard of liability falling to the owners in the unfortunate event the attack does take place (at least, not without other factors like locked doors or code violations playing a role in the carnage)

The more I think about it, the more it seems these signs are simply put up because they seem like a good "common sense" idea by some owner or manager, and there really is no incentive besides their feels to go one way or another. In that case, even a weak law like this may be effective in changing posting behavior; what is more damaging, the few people wounded by an attack filing a frivolous lawsuit against you, or every single disarmed customer with a license bringing suit under a law on the books that would likely need to go to trial every time to determine whether its broad criteria are met by the facts of the case (at least until precedent is established). Especially given that posting signage isn't likely to significantly change the chances of an attack in the first place.

TCB

*By which I mean, is there even precedent for civil damages awarded because an owner did not decide to post a no-guns sign?

 

[steve4102]

Here is an article with a link. http://dailycaller.com/2016/07/01/new-tenn-law-puts-onus-on-gun-free-zone-property-owners/

To my knowledge, it has not been tested. It would appear to be fairly weak and vague.

This bill imposes a duty of care on any person who posts their property to prohibit firearms whereby such person will be responsible for the safety of any handgun carry permit holder while the permit holder is on the posted premises and traversing any area to and from the premises and the location where the permit holder's firearm is stored. The duty of care created by this bill will extend to the conduct of other invitees, trespassers, employees of the person or entity, vicious animals, wild animals, and defensible man-made and natural hazards.
http://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=SB1736&ga=109

So basically, I could leave my house in Tennessee without my gun (though I have a permit) and get robbed. All I would need to do is to claim I was on my way to some business that prohibits firearms and BOOM, they are now responsible for what happened to me. No need for me to even carry regularly to now have a form of reimbursement insurance, health insurance, or life insurance in the event of some attack because a some business that prohibits guns is no responsible for me.

What the bill is now law, I have a feeling that it will be contested and at least the parts pertaining to off property activities will be edited out. When it comes up, I would be willing to be that the insurance companies will fight it.

Did you read your own link?

Did you read post #16.

The above quote in Red is not what SB 1736 says.

Here is what SB 1736 says from your own link,

Weapons - As enacted, provides immunity from civil liability to a person, business, or other entity that owns, controls, or manages property and has the authority to prohibit weapons on that property by positing, with respect to any claim based on the person's, business's, or other entity's failure to adopt such a policy. - Amends TCA Title 39, Chapter 17, Part 13.

Here is the actual TN SB 1736, also posted in post #16.

http://www.capitol.tn.gov/Bills/109/Amend/SA0692.pdf

AMEND Senate Bill No. 1736* House Bill No. 2033 SA0692 013338 -1- by deleting all language after the enacting clause and substituting instead the following: SECTION 1. Tennessee Code Annotated, Title 39, Chapter 17, Part 13, is amended by adding the following as a new section: (a) A person, business, or other entity that owns, controls, or manages property and has the authority to prohibit weapons on that property by posting, pursuant to § 39- 17-1359, shall be immune from civil liability with respect to any claim based on such person's, business's, or other entity's failure to adopt a policy that prohibits weapons on the property by posting pursuant to § 39-17-1359. (b) Immunity under this subsection (a) does not apply to a person, business, or other entity whose conduct or failure to act is the result of gross negligence or willful or wanton misconduct. SECTION 2. This act shall take effect July 1, 2016, the public welfare requiring it.

It says that a business that does NOT post a sign shall be immune, it does NOT say that a business that DOES post a sign shall be liable.



.

 

[Double Naught Spy]

Well, that is then very good news for property owners, again re-affirming property rights, despite the original intent of the law.

 

[mdauben]

A state law has no effect on the examples you give. .

True but my post had nothing to do with the state law. It was a reply to an earlier post about why someone could not just avoid going into gun free areas.

 

[Zoogster]

I've never understood this. When a crook shoots up a store, the store is generally not liable for his actions*, and the physical damages from small arms discharge to the property really don't really amount to all that much. So why are insurance companies (allegedly) such dogged drivers of gun control posting in their clients' businesses? They have far more reason than politicians to approach the issue rationally & objectively from the perspective of odds and money, and yet we haven't seen much evidence these signs prevent attacks in the first place, and I've never heard of liability falling to the owners in the unfortunate event the attack does take place (at least, not without other factors like locked doors or code violations playing a role in the carnage)

Why? At the corporate level and passed down to the retail chain level they think with pocket books not hearts. They fear being liable for something an employee does more than anything. They would rather everyone die in a robbery or mass shooting and hire new staff than be on the hook for millions for even one death or injury caused by someone working for them. When a criminal does something they have no liability. If an employee stops even a mass shooter they may deal with a lawsuit.
The minimum wage employees will be replaced in a week, the large figures lost in lawsuits not so much.
As for customers they seem to feel it can't hurt to extend that to the locations in general and prohibit weapons altogether. They won't get into trouble when something is misused that they banned, because they made it clear they didn't even want such things on the premises. That it only empowers those that ignore the rule at the expense of everyone else doesn't matter.

Many small businesses have armed employees or owners on site. They have more personal relationships with the decision makers.
Large corporations are bigger targets for lawsuits too, you can't squeeze big payouts out of small businesses the same.


This is why the ability to hold them liable for preventing people from defending themselves was so important. They only have incentive to disarm, even if they know it is worse for the people it will always be preferred for their bottom line. So if they can be sued when they let certain people be armed, but cant be sued when they let nobody be armed, they will not change those policies.
If they had equal stakes in both directions then they could pick the more rational one option and be won over.

If you want long term concealed carry to mean anything it requires people be able to carry during their day to day activities, most errands and shopping taking place on private property controlled by policies set by corporate. If you can be banned on most property then over time your carry permit will be of little use once you leave your vehicle.

 

[RX-79G]

If you want long term concealed carry to mean anything it requires people be able to carry during their day to day activities, most errands and shopping taking place on private property controlled by policies set by corporate.

So, you think your personal security requirements are more important than what people allow on their property?

 

[Carl N. Brown]

On the question raised in RX-79G -> Zoogster,

My answer is that a business open to the public has to allow a lot of things beyond what they might disallow on their private property, in order to accomodate the diverse public. A lot of folks feel their personal security requirements trump the preferences of the owners of property open for business with the general public (which public today includes more people legally armed in self-defense).

The state of Tennessee interpreting the state constitution Art I Sec 26 right of the citizens to RKBA for defense of themselves established an absolute right of people to have a gun in their home or place of business for self-defense generations ago; it has allowed carry for defense in public under a permit system. While there are businesses that bar firearms, there are those who do not. The arguments we hear are from the ones who bar arms often based on corporate policy not necessarily the business property owners' choice.

 

[Double Naught Spy]

This is why the ability to hold them liable for preventing people from defending themselves was so important.

I know this argument is a common argument, but it is misrepresentative. Banning guns is NOT the same thing as banning self defense. People are not being prevented from defending themselves. They have at their disposal a myriad of other options for defending themselves other than with a firearm. A firearm may be a good choice (in only those situations where lethal force may be used), but it is not the only choice. In some cases, it may be a poor choice.

I am reminded of posts I have seen where people claim to have been defenseless because they did not have a firearm. That is not a winning mindset for self defense.

I will point out again the lack of lawsuits backed by the major gun groups in support suing businesses that ban guns. You know the NRA, GOA, etc. have some high powered legal teams that have undoubtedly looked into this issue. So why haven't they gone after businesses that ban guns? Why do you think these businesses are not being successfully held liable by any other lawsuits? Well, in part, they have not banned self defense.

 

[RX-79G]

The arguments we hear are from the ones who bar arms often based on corporate policy not necessarily the business property owners' choice.

The corporation IS the business property owner. What do you think a corporation is?

I think I mentioned this, but last year near Seattle a doofus shot a women through her seat back in a movie theater. He brought a gun to the movies because of Aurora, and couldn't help but play with the gun in his pocket waiting for the film to start.

If you think people can sue for the right of self defense, why couldn't the victim in this case sue the theater for allowing morons to bring dangerous toys they don't know how to use into the theater? You're talking about the potential threat to the gun owner, but here we have a real threat to patron safety from a gun owner with no training who was carrying weapon of unknown condition.

We can't act like there is zero downside to people carrying guns, and those downsides need to be the property owner's choice because they bear the liability for what happens on their property. When the woman sues someone, it isn't just going to be the young moron - he doesn't have millions to give for damages.

 

[Double Naught Spy]

The corporation IS the business property owner. What do you think a corporation is?

Well, a corporation is a group of people who can act as a single entity as defined by the laws of the state in which they are incorporated. A corporation may or may not hold any real property and the holding of real property is not a covenant of being a corporation. Many corporations have ZERO real property holdings.

What do you think a corporation is?

I own two properties that I lease to corporations. Neither corporation is the property owner. They are the effective managers of the property as the property is under their care and control, but they are NOT the property owners. In my case as the property owner, I do not stipulate how my tenants do business. I maintain my own liability insurance on the properties and they maintain liability insurance for their businesses on the properties.

 

[RX-79G]

Well, a corporation is a group of people who can act as a single entity as defined by the laws of the state in which they are incorporated. A corporation may or may not hold any real property and the holding of real property is not a covenant of being a corporation. Many corporations have ZERO real property holdings.

What do you think a corporation is?

I own two properties that I lease to corporations. Neither corporation is the property owner. They are the effective managers of the property as the property is under their care and control, but they are NOT the property owners. In my case as the property owner, I do not stipulate how my tenants do business. I maintain my own liability insurance on the properties and they maintain liability insurance for their businesses on the properties.

Which is what I was getting at. Whoever occupies a property are the ones making the policies because they are the ones who have liability for the things we're discussing - not the entity that has its name on the deed. And person, persons or corporation that are using the property have exactly the same responsibility regardless of whether they are a corporation or not.

Carl's statement makes it sound like there is some conflict between the corporation and some other person. But the business owner is the business owner, corporation or not.

 

[Double Naught Spy]

Which is what I was getting at. Whoever occupies a property are the ones making the policies because they are the ones who have liability for the things we're discussing - not the entity that has its name on the deed. And person, persons or corporation that are using the property have exactly the same responsibility regardless of whether they are a corporation or not.

Carl's statement makes it sound like there is some conflict between the corporation and some other person. But the business owner is the business owner, corporation or not.

I am not sure what you were getting at, but you are still at least partially in error. As the landowner, I can still be sued in hopes of being held liable for some of what happens on my property. Note that I said that I still carry liability insurance as do my tenants. As the landowner, I do make policy for my property. The policy that I make is quite liberal in giving the tenant leeway in doing what the tenant thinks is right for the tenant's business, so long as it is legal. If my tenant's decide to disallow legal carry, that is their decision. Whether they allow carry or not will NOT stop some yahoo that gets injured somehow from attempting to sue them or myself in hopes of winning the lottery.

Either way, to date to my knowledge, there have been no successful suits against a business for not allowing customers to carry guns into a business and no such suits have been backed by any major pro-gun entity such as the NRA, GOA, etc.

 

[RX-79G]

I am not sure what you were getting at, but you are still at least partially in error. As the landowner, I can still be sued in hopes of being held liable for some of what happens on my property. Note that I said that I still carry liability insurance as do my tenants. As the landowner, I do make policy for my property. The policy that I make is quite liberal in giving the tenant leeway in doing what the tenant thinks is right for the tenant's business, so long as it is legal. If my tenant's decide to disallow legal carry, that is their decision. Whether they allow carry or not will NOT stop some yahoo that gets injured somehow from attempting to sue them or myself in hopes of winning the lottery.

Either way, to date to my knowledge, there have been no successful suits against a business for not allowing customers to carry guns into a business and no such suits have been backed by any major pro-gun entity such as the NRA, GOA, etc.

We are not disagreeing. I'm not writing a book on corporate law, just trying to respond to a post.

Did you read Carl's post that I disagreed with? Did you understand why I disagreed with his assertion that there is some important line between corporation policy and business owner policy, since both are "the business owner"?

 

[Zoogster]

Banning guns is NOT the same thing as banning self defense.

It is the same as banning effective self defense against anyone with a gun. In a society where guns are common preventing people from legally having a firearm means the people that choose to have one have a clear and decisive advantage over those that follow the prohibition. This gives the advantage to whoever chooses to be armed in a gun free zone.

Choosing to be a business open to the public turns private property into something less than private property in many states on a long list of other issues, why shouldn't firearms be one of them.


Several people may think this is good, but I assure you as more and more of society is chain stores you will be prohibited from carrying in most businesses in the future as they get wiser to concealed carry and the laws, including the ability to prohibit it.
That concealed carry is on the books won't even matter at that point for most people, and you will be stuck carrying just in your car or on some public land. If you stop your vehicle it will be to go inside places that generally don't let you carry. Becoming a pain and requiring taking the gun from your person and storing it in the vehicle.
If you are legally obligated to take off your firearm that means you also must leave a firearm in a vehicle. Want to take a guess how most criminals get their guns?
Not being able to carry a gun into the places you must run your errands has more repercussions than just being disarmed during that time, even for those that would go through the hassle of arming and disarming constantly and not simply stop carrying most of the time.

Irregardless of whatever ideology you think it violates I can tell you the outcome after enough years of allowing lawyers to determine if they want to allow people to be armed on corporate property.
All the gains made in concealed carry won't even matter anymore, and you will be almost back to how it was before concealed carry.
The mindset I see some with makes me understand the elitists that like special privileges, and keep them secret from the general public as long as possible. Before the commoner could carry concealed most places those that did get a concealed carry permit could take it just about everywhere and never saw any signs with the weight of law. But now that the average person can carry they just let the privilege once enjoyed by only the few be marginalized into uselessness. How much better it would have been if you were one of the few and the commoner never learned of concealed carry and ruined it for you.
CA concealed carry was like that,. You could carry everywhere, including on all school properties until just last year. When most of the public had no idea concealed carry existed those that obtained a license had few restrictions.
The heyday of concealed carry may be then and now, because in the future your license to carry down the sidewalk but not into any of the businesses on that sidewalk will make it a novelty and more hassle than it is worth for most to carry at all.

 

[RX-79G]

Not being able to carry a gun into the places you must run your errands has more repercussions than just being disarmed during that time, even for those that would go through the hassle of arming and disarming constantly and not simply stop carrying most of the time.

Consumers avoiding certain businesses also has repercussions for those businesses, as do having unarmed people killed on their property.

One of the main drivers of businesses banning carry is gun owners doing something stupid, dangerous or inappropriate in those businesses. Chipotle did not have a firearms policy until those open carry idiots took rifles into the restaurants and forced the issue. The theater chain where the idiot negligently shot another movie gower has every reason to ban guns.

The primary reason businesses exist is for business. That usually means being as open and accommodating to all patrons as they can be, and many will not mess with pissing off the gun crowd until something damaging to the bottom line happens. Not just because the legal team is making noise - lawyers are there to mitigate loss, not make profits.

 

[Sam1911]

I assure you as more and more of society is chain stores you will be prohibited from carrying in most businesses in the future as they get wiser to concealed carry and the laws, including the ability to prohibit it.

Just to point out, that would presuppose state laws which give actual legal weight and backing to store policies. I've not done an exhaustive count but I think it safe to say that the majority do not. And the number of people who check up on store policies before entering (absent a legal requirement to do so), and/or who would feel bound to follow them, would seem vanishingly small indeed.

So it is worth considering that many store policies of this sort do not exist because they are enforceable or because they are expected to be attempted to be enforced outside of a few odd cases. They exist as a form of low level legal shield whereby a business could say, if someone does something negligent, oh but he was violating our polices -- we don't allow that here.

 

[Carl N. Brown]

I'll repeat myself.
It seems to me that, when there have been retrospects on shall-issue right-to-carry, city police chiefs, county sheriffs, and district attorneys who publicly opposed R-T-C have no problem admitting they were wrong.
Example: in 1991, Prosecutor Joshua Marquis wrote an opinion piece expressing misgivings about the shall-issue concealed handgun license introduced in Oregon. In 2013 he wrote a letter to the editor of the same newspaper withdrawing his opposition. "I thought it would be a disaster. I was wrong. Based on my experience, crimes by CHL holders are very rare and are certainly less than in the general population."*
Of course, politicians, gun control advocates and op-ed opinionators continue to harp on "Wild West at the OK Corral", they'll never look at reality.
As for the prediction that "No Guns Allowed" will become the norm in businesses, I feel businesses are just as likely to follow the experience of city police chiefs, county sheriffs, and district attorneys who changed their mind on the subject. Especially when they come to realize the "No Guns" signs only apply to legal self-defense carriers who follow the law.

__________________
* http://blog.oregonlive.com/myoregon/2013/10/letter_conceal-carry_licenses.html
Joshua Marquis, DA Clatsop Co. OR, "Rise in concealed handgun licenses hasn't harmed public safety", Letter to The Oregonian, 15 Oct 2013.

 

[Double Naught Spy]

It is the same as banning A SINGLE POTENTIALLY effective self defense against anyone with a gun.

There. Fixed it for you.

So banning guns is NOT the same as banning self defense and guns are NOT the only defense against guns. They can be a very good defense against guns, but people who are concerned about self defense really need to understand that guns are not the only defensive weapon they have at their disposal.

 

[RX-79G]

Just to point out, that would presuppose state laws which give actual legal weight and backing to store policies.

Most state carry laws include prohibitions on where you can't carry, and "posted private property" is usually one of them. If caught with a gun in a posted no-carry restaurant by police (because you and your gun were involved in something that caused the police to show up), why wouldn't that trigger exactly the same charges as taking a gun into a school or courthouse?

I think what you're getting at is that violating a store policy is really just between you and the store - and it realistically may be for most situations - like if you printed and the manager asked you to leave. But if you dropped your 1911 on the tile floor of a posted restaurant and had an ND - the police are going to be talking to you about violating the state's CC laws regardless of what the business thinks about it. And that might be very serious.

 

[Sam1911]

Most state carry laws include prohibitions on where you can't carry, and "posted private property" is usually one of them. If caught with a gun in a posted no-carry restaurant by police (because you and your gun were involved in something that caused the police to show up), why wouldn't that trigger exactly the same charges as taking a gun into a school or courthouse?

Admittedly, I did not do a comprehensive count of states to see which states include something like "posted private property". The law is very certainly NOT that here in PA. Perhaps I will do a count-up and report back whether this is actually "most", "some," or "a few."

(See Below)

What charges could or would be filed against you because you are discovered -- by someone with arrest authority -- to be carrying in a posted privately owned location would be entirely dependent on that state's laws.

Now having said that, if you're involved in a defensive shooting that saved your life or someone else's, whether or not you ever get charged with violating the relatively minor carrying in a prohibited place statute (minor in comparison to shooting someone, in this case) would depend a lot on "prosecutorial discretion". Shooting someone is against the law. Firing a weapon within a city's borders is usually against the law. Drawing and displaying in a threatening way your firearm, preliminarily to shooting it in this case, is against the law. All of these things are usually set aside if your action of shooting is found to be lawful self defense.

Now, what charge is brought upon you if you're just "found to be carrying" absent any other factors would, again, be highly state-by-state dependent.

I think what you're getting at is that violating a store policy is really just between you and the store - and it realistically may be for most situations - like if you printed and the manager asked you to leave. But if you dropped your 1911 on the tile floor of a posted restaurant and had an ND - the police are going to be talking to you about violating the state's CC laws regardless of what the business thinks about it. And that might be very serious.

Again, IF the state has laws that would make that a prohibited place, yes you could be. Of course, in any state you'd be subject to a rather unpleasant time of it talking to the police about how your weapon fired in a place where it was unlawful to fire a weapon, and in dealing with any criminal and/or civil cases brought against you for that. Carrying where prohibited would probably be the least of your worries.


Edit to Add: Doing a quick count of the states over at Handgunlaw.us, I find only 18 of the 50 states make carrying of a firearm counter to a posted notice on private property illegal.

The severity of that offense varies between misdemeanor criminal trespass and lower grade felonies. Those may or may not be commensurate with the penalties for carrying in a school or courthouse, in states where schools or courthouses are off limits for carry, which of course not all are.

 

[Tcruse]

Another option....if you're not comfortable with gun free zones don't enter.

Yes, often repeated. However, many times there are not alternative choices. Like you have only one Internet provider for your location and you need to exchange equipment.
For a business that services the public, there should be some expectation of a safe environment, just as with any other hazard on the property.

 

[Frank Ettin]

Admittedly, I did not do a comprehensive count of states to see which states include something like "posted private property". The law is very certainly NOT that here in PA. Perhaps I will do a count-up and report back whether this is actually "most", "some," or "a few."

.....Edit to Add: Doing a quick count of the states over at Handgunlaw.us, I find only 18 of the 50 states make carrying of a firearm counter to a posted notice on private property illegal....

That sounds about right. Certainly it's only a minority of States in which entering properly posted private property with a gun is immediately unlawful -- usually some sort of criminal trespass. Otherwise, you're only in trouble if you're asked to leave and you refuse.