By reader acclaim: first suit filed in Colorado theater shooting

by Walter Olson on July 25, 2012

Attorney Donald Karpel, representing a theatergoer, plans to sue the theater in Aurora, Colo., the doctors who prescribed medications for the killer, and Warner Brothers, for “rampant violence” in its Batman movie. [TMZ] Suits against movie studios, at least, unlikely to prevail, so let’s be thankful for small sanities [Reuters] “That a cinema should prepare to repel a concerted paramilitary attack is only reasonable In Times Like These.” [George Wallace] More: Ken at Popehat.

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PointOfLaw Forum
07.27.12 at 1:15 am

{ 18 comments }

1 Jim Collins 07.25.12 at 9:29 am

In my opinion he would be further ahead to sue the theater chain for removing their patron’s right to self-defense by declaring their theaters to be “gun free zones”.

2 Scott Jacobs 07.25.12 at 10:22 am

I agree with Jim, though the apparent lack of alarms on the emergency exits is an issue that might bite the theater in the ass…

3 John Burgess 07.25.12 at 10:57 am

@Scott Jacobs: Perhaps, but the plaintiff would have to show that not only were un-alarmed emergency exits a hazard in themselves, but that the theater/chain knew them to be a hazard.

I’m unaware of any such findings in law or science. If you could point me to any, I’d appreciate it. (No snark)

4 Ron Miller 07.25.12 at 11:58 am

This is both depressing and inevitable.

5 Scott 07.25.12 at 12:39 pm

Is it required that an exit door that complies with fire safety code sound an alarm? I use the back doors all the time to exit theaters. They are exit door and not fire alarms.

6 Mark Biggar 07.25.12 at 1:08 pm

Notice that he’s suing over violence in a movie that no-one had seen yet. That seems to have a causality problem.

7 Anna 07.25.12 at 1:18 pm

Scott, the thing is the exits in the rear of a theater are just exits, not emergency exits. They are used daily for non-emergent purposes, I’d say I use the back exit about half the time when I’ve finished watching a movie ; especially when I’m parked on the side or rear of the theater. Why walk all the way around to the front?

8 wfjag 07.25.12 at 2:35 pm

“James Holmes, the accused gunman in last Friday’s midnight movie massacre in Colorado, mailed a notebook ‘full of details about how he was going to kill people’ to a University of Colorado psychiatrist before the attack, but the parcel sat unopened in a mailroom for as long as a week before its discovery Monday, a law enforcement source told FoxNews.com.”

http://www.foxnews.com/us/2012/07/25/exclusive-movie-massacre-suspect-laid-out-plans-in-package-mailed-to/

So, apparently plaintiff’s theory of the case against the psychiatrist is that he is liable for not reading undelivered mail.

Or, as we say in wine reviews: Novel, but with a hint of unconvincing and an aftertaste of specious.

9 captnhal 07.25.12 at 9:20 pm

I wonder the lawyer could have forgotten to include the person 100% responsible for the tragedy, the shooter.

10 Benjamin 07.26.12 at 2:17 am

I agree with Jim Collins. An armed citizen could have taken out the shooter before too many people were killed.

11 William Nuesslein 07.26.12 at 6:59 am

The shooter was fully covered with bullet proof material. Please no more “if only somebody else had a gun.”

12 E-Bell 07.26.12 at 8:10 am

The shooter was fully covered with bullet proof material. Please no more “if only somebody else had a gun.”

There is some doubt on that at this point. I have read conflicting reports on what exactly he was wearing – this report indicates he was wearing a “tactical vest,” which is NOT bulletproof (although it is a military-style garment).

Nevertheless, getting shot while wearing a bulletproof vest is no picnic – there is a lot of energy behind even the smallest caliber bullet, and all that force has to go somewhere. A vest does a pretty good job at spreading it out, but it’s a very solid hit and the guy wearing the vest is going to feel considerable pain. If nothing else, “if only somebody else had a gun,” and that somebody had shot Holmes, Holmes would have paused to reconsider his attack – and probably retreated.

13 boblipton 07.26.12 at 8:56 am

Your claims about Holmes’ state of mind and what he would have done under other conditions makes me think that you’re talking from inside his head. Should we be concerned?

Bob

14 William Nuesslein 07.26.12 at 9:09 am

But gun fire obeys the law of conservation of momentum. The momentum of the bullet is matched by the recoil. If the impact of the bullet is spread out, it is as much of a picnic as the recoil.

The news report on CNN were quite explicit as to the shooter being completely covered, including his neck and groin areas. They could be wrong. I am sure that many remember the two bank robbers who held off an entire police department until suitable high powered weapons that could overwhelm the bank robbers armor were brought into play.

15 Ron Miller 07.26.12 at 12:16 pm

I agree that it would have been helpful if someone had fired back at this guy. But it is also true that if I had put everything owned into Apple stock in 1997, I’d be a lot richer today.

Point is, what would have or would not have helped in that movie theater does not well inform the gun control debate we are having in this country.

16 No Name Guy 07.26.12 at 6:21 pm

WN: 2 to the chest, one to the head*. Standard practice ever since the 2 you mentioned. You obviously have never been trained. I’ve never seen body armor that covers the face. Oh, and getting “punched” (from a non-penetrating round) in the chest or throat when you’re not expecting it is a bit more disturbing than expected recoil on the hand or shoulder.

And firing back at the attacker would no doubt have diverted his attention from the unarmed innocents in the theater, giving them precious seconds to escape.

Ron: I carry a concealed pistol because I’m NOT expecting trouble – just as I always buckle up even though I never think I’ll get into a crash. If I’m expecting trouble, I’ll bring a high cap, high power rifle and 300 rounds of “black tip” ammo.

The point being that discussions of this type DO inform the debate – more guns in the good guys / gals hands (responsible citizens) = less crime, period. Anti-2nd Amendment types wish to remove guns from non-criminal citizens hands, leaving them defenseless to such depredations as just occurred. One well placed shot to the head of this sick bast*** would have ended this slaughter before it got too far along.

* – Blunt force trauma to the upper nervous system is the best way to promptly render an assailant physically incapable of continuing their assault. It’ll knock ‘em out, even if the blow isn’t fatal. The shots to the chest will bleed them out by severing the aorta or heart, rendering them unconscious via blood loss, and an unconscious attacker is physically incapable of continuing. However there is the lag time between inflicting this chest shot blow and it becoming effective, during which a determined attacker can still inflict fatal wounds as evidenced by the Miami FBI shootout in the early 80’s. The challenge with head shots is, of course, that it’s a much smaller target than the center of mass (e.g. chest) so standard practice is to sequentially fire on both aim points to achieve a successful defensive engagement.

17 wfjag 07.26.12 at 6:22 pm

@William Nuesslein “The shooter was fully covered with bullet proof material. Please no more ‘if only somebody else had a gun.’”

It would depend on what type of tactical vest and garments he was wearing, and the type of handgun, sights and skill of the person acting in self defense.

Personal armor, http://en.wikipedia.org/wiki/Personal_armor provides a reasonable review of the levels of protection. However, it states that personal armor meeting Level 1 will stop penetration by a .380 ACP. That’s not true of some of the.380 ACP ammo that is now available, and, if you are like me, you have a laser sight and practice head shots, since a .380 ACP isn’t a round that knocks someone down. But, although Level II or IIA armor will likely prevent a .380 ACP round from penetrating, there’s still plenty of force behind it, possibly enough to break ribs or dislocate a joint, either of which would significantly impair the shooter and increase the chances for people to escape.

Level IIIA is supposed to stop .45 ACP, 9 mm Parabellum, and .40 S & W rounds. Assuming that is true, there would still be a significant impact felt, possibly enough to knock the person down.

Level IV is essentially military style personal armor, which the shooter was not wearing.

In addition, you need to figure in the First Law of War for both the original shooter and anyone shooting back. The First Law of War is that War isn’t fun anymore when the other guy starts shooting back. In this case, the original shooter immediately surrendered when confronted by armed police. It is not unreasonable to conclude that he would have run away had there been someone to shoot back, and he may have picked the theatre since it was a gun free zone. However, in returning fire, that fact that may result in someone shooting (back) at you makes the situation much different than plugging targets at the range. Here the original shooter had a long gun, and trading shots using a pistol against someone with a semi-auto sports version of an assault rifle falls on the Bad Idea side of the Good to Bad spectrum. Still, we all tend to be Courageous When Drunk and Brave From A Distance, and that may be reflected in some of the comments. However, being armed and having a small chance beats being unarmed and a mere target.

Personally, I would rather have some (small) chance than no chance. However, I realize that self-defense is a last resort when society’s normal controls have failed. Here, the more important issue than gun control is how someone that sick went unnoticed and unhelped until he went to a threatre to kill randomly. Holmes didn’t fall through a crack. He fell through a canyon. The standards for civil commitment for evaluation and liability exposure of mental health providers for seeking such need serious revision. Till then, while I hope to experience random acts of kindness, I have to prepare for random acts of violence. I will run away if I can, but will be able to fight back if I have to. I see no other option except resigning myself and family to being victims, and hoping that my family and I are not unlucky and become them.

18 Max Kennerly 07.26.12 at 9:10 pm

Sigh. If it makes anyone feel better, in my professional opinion that plaintiff and his lawyer ain’t gonna get nuthin’ from this lawsuit but a big waste of time.

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