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The Management Is Not Responsible

There’s a certain amount of libertarian ambivalence about laws that force companies to allow their employees and patrons to have firearms (or other weapons) in vehicles in parking lots on private property. On the one hand, the property rights of the owner are trampled. On the other, if this is not forced, the self-defense right of the individuals are trampled. No matter what, someone’s natural rights are getting trampled. The justification for parking lot laws boils down to property rights are less important than self-defense rights.

But, there’s an interesting lawsuit that’s come out of the Aurora, CO mass shooting a few years back. Victims and family members are proceeding with a wrongful death/personal injury suit against the theater chain. Normally, I’d say this was an attempt to go after the deep pockets. But, we have been told that this theater chain was somewhat unusual in the region for posting their property, and it’s suspected that the shooter chose this theater at least partially because it was posted, since the theater was not the closest to his home.

A federal judge has again refused to dismiss wrongful death and personal injury lawsuits filed against a movie theater chain by victims of a 2012 mass shooting at a Colorado cinema where 12 people were killed and dozens injured.

In general, the lawsuits claim Cinemark had lax security at its theater in the Denver suburb of Aurora when a gunman opened fired during a midnight screening of the Batman film “The Dark Knight Rises.”

The article then goes on to point out that other theaters in the chain hired security, but this theater chose not to. The theater chain’s defense is that they should not have a “duty and burden to have foreseen and prevented the criminal equivalent of a meteor falling from the sky.” However, by encouraging their patrons to disarm under threat of banning from the property or other legal actions, I’d say that they have chosen to assume the “duty and burden” by forbidding their patrons from retaining the means of self-defense. And, at any rate, a mass murderer is not the only reason for someone to wish to have the means to defend themselves readily to hand.

In the end, this is why those signs and policies exist, because after a tragedy, people will go looking for the deepest pockets that can provide them monetary compensation. The assumption has been, until now, that the signs may not be effective against lawbreakers, but they are effective against the plaintiff’s bar; that they are the equivalent of those signs you see at coat racks and in parking lots that say “management is not responsible for theft.” (which is literally true, but apparently needs to be spelled out). However, today we live in a legal regime where the search for deep pockets causes the plaintiff’s bar to advance the theory that if a property owner does not have a policy against the carriage of weapons, they are responsible for the actions of anyone who does carry a weapon onto the property. Which is absurd, of course.

If this lawsuit goes through, though, the property owners will be forced to take on the duty of defense of their patrons. For a variety of reasons I don’t expect this lawsuit to succeed; but it points out a libertarian way of obtaining the same results as a parking lot law, without the trampling of the rights of the property owners. Pass laws that make it harder to sue the property owner for the actions of a third party on that property, a la the Protection of Lawful Commerce In Firearms Act or the safe harbor provisions of the DMCA, and impose a duty to defend patrons if the property owner chooses to post their property as a “gun free zone.” Then leave it to the free market and the insurance companies to make those signs evaporate…

 

H/T to Saysuncle

28 Responses to “The Management Is Not Responsible”

  1. Patrick says:

    Business Property Rights versus Civil Rights is a false dichotomy.

    The reason libertarians are confused is because they cannot properly categorize the Second Amendment, nor can they properly prioritize “rights”.

    The Second Amendment is fundamental and enumerated. It is a Civil Right, in modern parlance. The property rights of businesses are not enumerated, nor are they singularly discoverable anywhere in that document or law. Whole volumes exist to demonstrate their existence, but they all generally flow from the rights we have to collectivize and to pursue our capitalistic dreams.

    Civil Rights come with baggage, one of which is the idea that once you become an adequately “public” entity you must adhere to some basic civil behaviors. One of them is business not barring individuals based on genetic makeup (race, sex, etc) or anyone else based on other protected rights – like religion. At some point, the individuals behind a business need to eschew the social line, or else society (in the body of the government) can step in and enforce change.

    To the extent the Second Amendment runs up against the property rights of Costco or Target, it is the same as property rights running up against laws preventing discrimination on other grounds. The business must acquiescence to the rights of that individual. Target cannot tell Evangelical Christians to stay away, nor can Ambercrombie and Fitch make every overweight or minority staff member work in the stockroom and leave the more desirable customer service positions to the cute white kids (of course, this case was “settled without admitting…”).

    So I got no problem with laws protecting my right to carry in Costco or Ikea. If the Second Amendment is equitable to the individual, then it must also be equitably treated in the public sphere by business.

    A couple of points:

    – This should not suggest that gun owners are a “protected class”. Not so. The fact this is a civil right, is enough.

    – Commercial entities are not individual persons. They may have some sort of collective right of property, but they are not people whose rights can be “infringed”.

    – Individuals still have rights, and one of the key ones is the right to not associate with gun owners if they wish to avoid us. But that right is limited to the non-public places they own and/or control. They cannot bootstrap their right into legislation saying denying ours by suggesting that, “more of us wish to not associate with you than not, so we are banning your kind from our places.”

    Rand Paul lost about all ounce of respect from me when he suggested that – as a libertarian position – the Civil Rights Act should not have been force-fed by government. He was wrong. His response showed how small his views are on the issue. The Civil Rights Act was the way that government attempted to enforce liberty – liberty for those who had liberty denied to them. Whatever imperfections the Act might have held, the fact is the government has a role in enforcing laws that guard liberty, because this is why we formed the Republic.

    So I would have no qualms about a “Self Defense Civil Rights Act” to the extent it would ensure that pubic entities are minding the liberty dream.

    • Ian Argent says:

      “Commercial entities are not individual persons.” No, but they are owned by individual persons; hence, among other things, Citizen’s United. If I, as a private person, can forbid possession of firearms under penalty of trespass, then so can a business, whether sole proprietorship or amalgamation. WE do not give up rights by amalgamating.

      But with the right comes the responsibility of defending the life and property of those who I have disarmed; right now the property owner (except, apparently in WI – see below) gets it both ways, they get to disclaim responsibility and deny the ability to defend their patrons. One or the other, not both, please.

      • Patrick says:

        If I, as a private person, can forbid possession of firearms under penalty of trespass, then so can a business, whether sole proprietorship or amalgamation. WE do not give up rights by amalgamating.

        I don’t think you are arguing that a group of people could band together and decide upon themselves to, I don’t know…make people of color use a separate door, drink from different places or not enter a public place. So why the disparate treatment? Or is the Second Amendment somehow inferior to the ones we all know and accept today?

        I am hardly a gun-rights absolutist (wherever that line falls). There are places for regulations. However, I do absolutely believe that Second Amendment is co-equal to it’s sister rights, and I believe that society should treat each as equally as possible.

        Which leads to the canard of “business property rights”. A “privately owned” business cannot discriminate against people based on race or sex, and we generally agree that to be a wise course. So what is it about the Second that makes it inferior to the Fourteenth, or the First? What penumbra allows Costco or Target to infringe the lawful exercise of the civil right of self-defense, yet forbids them from posting a “No Jews Allowed” sign on the front door?

        The key word here is, “public”. My rights stop at the doorstep of your private places. You don’t want guns on your personal property? No problem. I have no right to your personal space.

        But when you cross the line from private to public, you have given up absolute control. When you put up that, “public welcome” sign on your door, you have left behind the gates of your castle and extended the public square into what was once a private place. As a result, you give up some control of that space: you must respect the rights of others in society.

        I am quite curious to hear your thoughts. Why is it that society can enforce some civil rights against a business, but not others? Why can we regulate stores into respecting rights that prohibit discrimination based on sex, religion or gender, but not regulate that they respect the right to self-defense using arms?

        Again, I think the crux here is public versus private. Society cannot accommodate 400 million “absolute” opinions in public. That’s why we have rules to enforce certain bedrock rights. I think that the 2A is one of them.

        As a side note, gun people always read the WI law the wrong way. It does not make owners of gun-prohibiting businesses liable for anything. All it does is not increase the liability to those businesses who allow guns in their shops.

        • Geodkyt says:

          Exactly — there is a category of relationship in common law (and codified statutory law in most states) that describes the relationship between a business that invites customers, and the invited customers — that is not the same relationship as exists between total strangers or between businesses that do not invite the general public as customers (“By Appointment Only”) and the general public.

          when you open a business to the general public to come in and frequent your property, you, by definition have voluntarily surrendered some of your private property rights. You made something that would be utterly “private sphere” something that is partially “public sphere”.

          Now, one can argue where the line should be drawn in what “private property” rights a business that is open to the general public has surrendered, but that is a different question entirely. It is not, nor ever has been in American jusiprudence, the case that a business owner has no duties towards his customers (or limits to his private porperty rights with regards to them) that he wouldn;t owe to a stranger coming to his house.

          In fact, tort law generally specifically acknowledges that one of the “special relationships” that requires a private property owner to have additional concern for the safety of other people is between “business inviters” and their “invitees”.

          Now, if you want to run a high class, “By Appointment Only” business (say, a bespoke tailor), different story. At that point, you aren’t inviting the “general public” into your private property.

          Nor would I see any issues with framing open carry as a “dress code” restriction for even those “open to the public” businesses — “No shotguns, rifles, or profane t-shirts. Patrons must wear shirts and shoes.” If you can tell me to wear a tie or leave, you can certainly tell me to carry discretely if I choose to carry.

  2. Siege says:

    Wisconsin is interesting, in that the liability for the protection of patrons was included in the concealed carry laws here. You post a sign, you become legally liable for the safety of everyone in your building. There are still a surprising number of places that have the signs in spite of this.

    • Ian Argent says:

      Bet that has never come up in court, else either it would have been mooted by the courts or those signs would be coming down in most places.

      • Geodkyt says:

        Funny, because that’s exactly the tort law reasoning the court used to uphold the lawsuit against the movie theater from teh Aurora case — by virtue of the fact that they have invited the general public to patronize them, businesses have an additional responsibility to their patrons that they otherwise wouldn’t owe the general public (if they weren’t open to the general public), because the business controls the property, and thus, has taken at least some additional responsibility for the safety and security of the patrons.

        Straight up tort law, yo. :)

    • Patrick says:

      @Siege: Respectfully, you are reading this upside down.

      WI law does not make gun-prohibitionists moreliable for the safety of anyone in their place of business. At least, not any more than they were the day before the law was passed.

      29 Wis. Stat. § 175.60(21)(b)-(c)

      (b) A person that does not prohibit an individual from carrying a concealed weapon on property that the person owns or occupies is immune from any liability arising from its decision.

      (c) An employer that does not prohibit one or more employees from carrying a concealed weapon under sub. (15m) is immune from any liability arising from its decision.

      All that does is head off the inevitable lawsuits that would come if a business allowed carry, and at some point a person who carries harms someone else accidentally or otherwise (negligent discharge, etc.).

      This does not lower the liability for the gun-friendly business below that of the pre-carry days, it just works to not create an additional liability for those who permit the carriage. In the end, there are no new liabilities or protections for either side of that decision: they are just both as liable as they were before the decision, for non-gun related issues. All the law does is prevent gun carriage by the public from becoming a liability issue for a business. Nothing else.

      What the law specifically does not do is assign liability to a business that prohibits arms in their establishment. That “strict liability” conclusion cannot be found here, but I would support one if it were proposed.

  3. KCSteve says:

    The parking lot laws are just pointing out spheres of influence. Yes, the property owner’s rights apply on their property (the parking lot). BUT the patron’s rights should apply within their vehicle. Thus it’s logical that I can have my CCW in my vehicle (which is in your parking lot) and that I’m not allowed to take it out of my vehicle while it’s in your lot.

    The tricky bit comes in with things like motorcycles.

    • HSR47 says:

      I like to point out that there are states that legally view the vehicle as an extension of the home (especially as it relates to the possession of firearms). Thus, I submit that if a business entity has no authority to dictate the contents of my home, they similarly have no right to dictate what may or may not be present in my vehicle regardless of where it is parked.

      • Ian Argent says:

        In those states, I would expect that parking lot laws would be unnecessary. That having been said, by placing the liability on the property owner if they post, then it’s not just the right to leave your firearm in your car that you regain, it’s the right to carry on the property, a more desirable outcome, I’d think.

        • HSR47 says:

          I’m not sure you’re correct with your first point.

          That being said, I agree wholeheartedly with your second point. Speaking generally, I view the type of legislation you suggest (i.e. legislating different levels of liability due to the way a property owner restricts the carriage of firearms) as a positive improvement, and a largely productive way to achieve our goals.

          Frankly, I think it’s probably the ideal way to maximize the individual rights of everyone: Each individual has both the right, and more importantly the responsibility, to provide for his own personal protection. Therefore, I think it is proper that those who wish to disarm people as a condition of entering a business be forced from a legal perspective to do for their patrons what they refuse to allow their patrons to do for themselves.

          On the other hand, I believe that those businesses that do not prohibit their patrons from carrying tools for their own self-defense should have no liability for the use their patrons put such tools to on their premises.

          • Ian Argent says:

            Correct; hence the title. Management is not responsible, unless they choose to be.

            However, there are truly sensitive places, where it would be inappropriate to bring a firearm; among other things most laser/lights are not intrinsically safe…

            • Lee Cruse says:

              “However, there are truly sensitive places, where it would be inappropriate to bring a firearm” – the only ones that come to mind are places where government/police or in some cases a private identity has a responsibility to protect the individuals at that site, like prison, mental facilities, and court rooms. Otherwise, what “sensitive places” are you thinking about?

              • HSR47 says:

                As far as “sensitive places” go, I’m fundamentally disinclined to accept a broad definition.

                Prisons and mental facilities are, generally speaking, a good example of a what could rightly be defined as “sensitive” in this context. Courthouses and schools, on the other hand, are largely not places I would define as “sensitive.”

                As far as I’m concerned, there is a simple test that must be passed in order for firearms to be banned from areas of a government facility: Are the police, as a general rule, also prohibited from taking firearms into those areas? Furthermore, is the boundary of the supposed “sensitive area” distinct, secure, and screened?

                Prisons and mental hospitals, for the most part, DO pass these test: Items that can be used as weapons, especially firearms, are kept as far away from prisoners as possible, meaning that many guards go about their duty without firearms. They also pass the second half of the test in that there is generally a very distinct boundary between the secured area and the rest of the world.

                In my experience, the same is not true of courthouses: I regularly visit my county courthouse, and while I am forced to lock up my firearms (there are lockers on site) for the duration of my visit, the deputies of the county sheriff department are not subject to the same prohibition. Neither are judges. Still, in PA courthouses (at least county level and up) do tend to pass the second half of this test: access is controlled, and those entering the facility are subject to screening.

                Schools, by contrast, generally pass no part of this test: The police do not disarm when they enter the supposed “sensitive” areas of a school, those entering the school are rarely subject to search, and there is often no distinct barrier between “sensitive area” and the rest of the world.

                Frankly, I believe that if the law is to prohibit the average citizen from carrying in certain locations, the prohibition ought to be enforced universally; having a tin star should not, as a general rule, exempt one from being disarmed. Furthermore, I believe that any facility that does so force everyone to be disarmed should be required to provide secure storage space on site, with no limit as to the size or quantity of firearms they can secure.

                • Jake says:

                  Are the police, as a general rule, also prohibited from taking firearms into those areas? Furthermore, is the boundary of the supposed “sensitive area” distinct, secure, and screened?

                  I think this is generally a pretty good test. I would, however, be willing to make an exception to part one with respect to courthouses, for a couple of reasons.

                  1) The deputies assigned there are specifically acting as security, taking on the responsibility of protecting those who have been disarmed. The other police present, while not specifically there as security (they’re usually there to testify, or for other job-related reasons) are still expected to act as such if the SHTF.

                  2) Many of those deputies are escorting prisoners. Depending on the layout of the courthouse and jail, they are escorting them in and out of unsecured areas. At this time, I’m willing to accept their judgement on whether they should be armed in those circumstances.

                  3) While there are many law-abiding citizens in a courthouse conducting ordinary business (civil matters, real estate, etc.), let’s face it – courthouses are also, by nature, filled with criminals. Some of these are violent criminals who, for whatever reason, were granted bail, and are at the point of facing imprisonment.

                  The most significant point, of course, being #1 – the state has accepted responsibility for your safety while you are in the courthouse, and the armed deputies are the ones carrying out that responsibility.

                  • Geodkyt says:

                    ^^ THIS ^^

                    Although, there should be a “hard perimeter” between the “court” part of the facility and other, largely unrelated, city/county offices that happen to be co-located in the same building. My county has metal detectors and armed deputies at teh doors to the courtrooms, and just down the hall is the “Clerk of Courts” offices where land deeds are registered and archived (and CHP applications are turned in).

                    I would argue that the “hard perimeter” is the point where security actually kicks in, where people are searched on entry and armed security is present to deal with problems.

                    • Jake says:

                      “Although, there should be a “hard perimeter” between the “court” part of the facility and other, largely unrelated, city/county offices that happen to be co-located in the same building.”

                      True. Though, to be fair, in the usual setup (at least here in VA) the same “Clerk of Courts” office handles both land records and court proceedings (including CHP applications). In my county, in fact, it’s all handled in the same room, and often by the same people. It does make it a little difficult to put the hard perimeter between the “court” and “civil” offices when they’re one and the same.

                    • Geodkyt says:

                      Jake, I’m in VA, too – in a rural county. But the end of teh “Clerk of Courts” offce that handles the “civil” side of stuff versus the “court” side are on opposite ends of teh same building. All the “court” stuff is on the north end of the building, but from the central foyer south, it’s all land deeds and such.

                      (For that matter, they were running the sheriff’s office out of the same building for several years, but they’ve moved into a different building now, IIRC.)

  4. rd says:

    Perhaps one way of illustrating the point that self defense and firearms are a civil right is to push the civil right analogy to extremes?

    Would any one allow a parking lot to say “No Gays Allowed”?
    Or “No Firearms / No Blacks or Irish Allowed”?
    But “No Firearms Allowed” is OK?

    • R says:

      To continue RD’s train of thought about things that are ok to have in our vehicle even if the property owner doesn’t like them:
      Dirty magazines, condoms, or sex toys,
      bacon in the parking lot of the jewish deli,
      booze or tobacco products (pot in Wa. or Co. too)

      • Geodkyt says:

        A business can easily defend a policy that they don’t want me to pull out a copy of Hustler in the middle of their business and read it, where everyone can see it. Or watch pornographic videos with the external speakers turned on on my phone while waiting in line to pay. [insert objectional media of your choice]

        They cannot, however, prohibit me from having a dirty magazine completely out of sight in my pocket, or a porno video saved on my phone that I never fire up while I am in there. (Note, this applies to customers — the “rights line” often slides a bit when dealing with employees.)

        How is a lawfully concealed firearm any different than dirty pictures in my pocket?

  5. divemedic says:

    A person has the right to secure the doors within his home. A business owner cannot chain his exits shut. Once you open to the public, you have to understand that in allowing entry to the public, you allow that public to enter with their rights intact.

    A person carrying a concealed firearm does not harm your rights as a property owner, especially if there is a provision in the law that insulates the property owner from liability in the event that a shooting by a third party takes place upon that property.

    Prohibiting carry should, however, require that the property owner provide for the protection of those that his rulings have made defenseless.

  6. Jay Cue says:

    Theatres are not a statutory gun-free zone in Colorado. The No Firearms Allowed postings are virtually unenforceable for CCW permit holders. A permit holder who carries a concealed firearm in spite of the property posting will not result in arrest or be considered a violation of gun laws. It is not automatically a trespassing violation. if the property owner detects you are carrying a concealed firearm, he can, as a property owner, ask you leave the premises. Refusal to do so will then be considered trespassing. It is his property, after all. But as the man said, if you get caught carrying a legally concealed weapon, you’re not doing it right. The statute is clear as to prohibiting carrying in elementary, high school and federal buildings. Any CCW permit holder who is unaware of the law must have slept through the required permit courses. Good luck with the lawsuit.

  7. Dave says:

    “Like all rights, property rights are not absolute”

    Private property owners have fewer “rights” than they think. Property easements, laws that require “private” property to conduct themselves certain ways are already on the books, enforced and upheld by the courts. This is not just a false dichotomy, it’s just an outright lie perpetuated on the gun rights community by folks who seem to find it ok to enforce all manner of laws on the private property owner, but if it comes to some milquetoast parking lot law, queue the so called pro-gun “friends” who know best for everyone else.

    Maybe you’re poor and don’t want to spend the extra money on hurricane proofing your house in Florida. Wait! You can’t because it’s the law on YOUR private property. Maybe you want to catch rain water in some state that regulates it on YOUR private property.

    We don’t have private property rights in America any more, we have private property privileges granted by the state, like it or not.

    When I can truly exclude anyone I want from my private property because maybe I don’t like how they look, or maybe I don’t want to let some government goon inspector on my property or whatever… THEN, you can jump on the stump with some modicum of moral authority and say that your so called property rights are “infringed” by a law that prohibits you from terminating my employment or barring me from the property because I am protecting myself & family from harm.

    Parking lot laws target truly bad actors in the private sector, like AOL. These bad actors terminated otherwise good, decent, law abiding employees for no other reason than possessing a firearm. States are reacting by changing the pubic policy, prohibiting such acts. This is a proper use of the legislative authority to the extent that it reinforces what many already believe, but our “enlightened sensibility betters” decided otherwise while we thought everything was fine.

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