The Militarization of Movie Theaters

Perhaps the defining feature of crazy people is that they’re unpredictable.  Except in Aurora, Colorado, where United States District Court  Judge R. Brooke Jackson held that the Cinemark Theater where James Holmes committed “madman’s mass murder” during a midnight screening of the Batman film “The Dark Knight Rises.”

From the Denver Post:

Noting “the grim history of mass shootings and mass killings that have occurred in more recent times,” U.S. District Court Judge R. Brooke Jackson ruled that Cinemark — owner of the Century Aurora 16 theater — could have predicted that movie patrons might be targeted for an attack.

What “grim history” would that be?  Are there crazies slaughtering people in theaters all the time?  Is it just Batman movies, just midnight screenings, or does Bambi count?  Regardless, holding that the theater “could have predicted” the act of a madman is akin to saying they could have predicted a meteor shower or abduction by space aliens.  Far more people are harmed by being struck by lightning than by a crazy with a gun, which the judge apparently recognized:

“Although theaters had theretofore been spared a mass shooting incident, the patrons of a movie theater are, perhaps even more than students in a school or shoppers in a mall, ‘sitting ducks,’ ” Jackson wrote.

So because it’s never happened before, the likelihood that it was going to happen was sufficiently predictable that the theater should have been prepared for it?  Extrapolate that reasoning to all the places where no one has ever been slaughtered by a madman and consider the ramifications.

Judge Jackson’s decision came in response to a motion by Cinemark for summary judgment, seeking a ruling that the Holmes’ killings were not foreseeable, and therefore Cinemark cannot be held liable for failing to do whatever it is the plaintiffs contend they should have done to prevent an occurrence that never happened before anywhere ever.

Consider, if what happened in Aurora, the duty of businesses to be prepared for the act of a one-in-a-million crazy.  The biggest growth job in America will be armed guard. Every theater will require its own SWAT team, perhaps a MRAP or Bearcat.  Office buildings, parks, skating rinks, pretty much anywhere more than three people gather, could be the next target of a madman. They will all need security, armed with the weapons needed to take out any crazy.

Don’t blame the businesses. They’re just trying to cover their foreseeable obligations.  Sure, there is almost no chance, almost no possibility whatsoever, that they will be the target of the next insane shooter, but Judge Jackson says it’s still foreseeable.  In fact, that no one has ever shot up a skating rink makes it even more foreseeable, by his rationale.

It’s understandable that the victims and families of the deceased are trying to find some comfort, some recompense, in Aurora.  This is not to diminish their loss in any way.  They, more than anyone, have suffered at the hands of a madman, and no one went to the movies that night thinking they were risking their lives.

But as sympathetic as we, and the judge, might be toward the victims and families, manufacturing foreseeability out of a void, even less than a void given that the total absence of foreseeability increases foreseeability, creates liability for a wholly unpredictable nightmare.

The ramifications of this holding are fairly clear: every business where people congregate, especially those where no one has ever attacked before, are held to foresee that they may be the target of a madman who might cause mayhem.  Either they will be liable for the failure to protect patrons against the unknown killer, or they will be constrained to turn their businesses into armed camps.

This won’t be Ferguson, MO, but the movie theater on Main Street. Any Main Street. Every Main Street.


They’ve already turned schools into combat zones, and that certainly turned out well, right?  If there are armed men hanging around with nothing to do, and awaiting the day when a madman arrives to shoot up the place will leave a lot of down time, there is a strong likelihood that the security folks will find some way to use their time.  It’s not like you can keep them in a closet awaiting the day that the crazy killer shows up.  Maybe making sure patrons aren’t doing things the business prefers they not do, with sniper rifles in hand.

To hold that the mass murder by Holmes was not unforeseeable, as a matter of law, defies the concept of foreseeability.   There has to be some reason, some basis, to anticipate that something bad will happen.  A theater showing a movie, even a Batman movie at midnight, is not a crazy killer magnet such that Cinemark could have possibly anticipated what would happen.

While it’s true that the only consequence here is that Cinemark will be put on trial, face potential liability for its failure to protect its patrons against a madman like Holmes, this is how the law draws lines between the reasonable and the completely unreasonable expectations on businesses, and hence on society.  If a business is held potentially liable for the act of a madman that no one could have possibly anticipated, then businesses are put in an untenable position, and we, too, will be forced to share their liability.

Maybe no theater will prefer to turn their place into an armed camp, but then they will have to find a way to pay for their liability. How does $50 movie tickets sound to you?  That’s the alternative to liability.

Yet again, we come face to face with the reality that the law cannot provide a remedy for every horrible thing that mankind can do.  Some things are simply unforeseeable, even if that means that victims will have no one to turn to for compensation.  The act of a madman is such a thing.  Neither Cinemark, nor any other person or business, can anticipate every one-in-a-million occurrence that might cause harm and be prepared for it.  The law shouldn’t impose a duty that suggests otherwise.


28 thoughts on “The Militarization of Movie Theaters

  1. the other rob

    I note that Judge Jackson’s examples of other places supposedly prone to mass shooting events are typically “gun free zones” and wonder what role the fact that the theater was also one plays in the case. If it’s a significant one, might this all end with a holding that businesses only assume a duty to protect when, by banning concealed carry, they prevent patrons from effectively protecting themselves?

    1. SHG Post author

      You may be imputing too much into the decision. Most places are “gun free zones,” so the examples may have nothing to do with that, and the ban of concealed carry irrelevant to foreseeability.

  2. Tom G

    If the police with all their giant brains of superior intelligence, unlimited budgets, equipment, firepower, and authority, did not predict the Aurora event, how could a private company with none of the above foresee the event? Judge Jackson opined incorrectly in this case.

    1. SHG Post author

      You lost me at “giants brains of superior intelligence,” but you got me back at “unlimited budgets, equipment, firepower and authority.”

  3. traderprofit

    Get real. The theater should have a “ticket disclaimer” for this as well as a long list of foreseeable perils, like, say, meteor strikes.
    –automated response from my trojan-infected Windows XP Sabbath computer.
    Oh, sorry, it’s Sunday…let me turn that automation off.
    Try : infinity+1= x and you’ll reduce snarky comments. If you just blocked me, you’d lose your future best client (the one who always asks for advice before acting and pays in advance)

    1. SHG Post author

      You assume I would take you. All my clients ask for my advice and pay in advance. Those are my minimum requirements.

  4. Nigel Declan

    Perhaps the Judge’s bizarre hybrid of the reverse gambler’s fallacy and the availability heuristic (i.e. the tendency to place greater significance on more recent, more memorable examples) can earn him a logical fallacy of his own. “Jackson’s fallacy” has a nice ring to it.

  5. simple-touriste

    Since it was foreseeable, why would people even go to such risky events?

    By this line of “reasoning”, the victims are “guilty” of negligence.

    Can parents be prosecuted for bringing their children to Batman screenings? Is it any different than telling children to play with dynamite, and giving them said dynamite?

  6. Fubar

    Recently leaked to the press, from galley proofs of a new judicially approved pamphlet tentatively titled A Guide to Dating for Today’s Post-Palsgraf Youth:

    When a guy takes a gal to a movie,
    To impress her he’s totally smooth, he
    Should dress in full camo,
    And bring lots of ammo.
    Be foreseeable, modern and groovy!

  7. Wheeze the People™

    It is bit disconcerting that a judge could write such a wrong decision. It’s either stinkin’ thinkin’ in the first degree by the judge or pandering to the crowd. Regardless, in a case he obviously knew was gonna receive massive visibility, this one piss poor decision in this case makes me question his competence and/or his ethics to be a judge in any case. Maybe I’m being too hard on him, but maybe not. Based on his worldview as expressed in this decision, personally, I’m as worried, if not more, about the judge as I am about some random madman showing up at some random place intending harm . . .

  8. Marc R

    I don’t think his opinion is going so far to say it’s necessarily foreseeable, merely that it’s possibly foreseeable. And the important distinction is to punt the factual rendering to a jury. Denying the defendant’s summary judgment means he went the other way. If he strictly stated “they were sitting ducks, and the theatre should’ve known that” then he would’ve ruled for the plaintiff in a cross-motion for SJ.

    Maybe the theatre got specific threats they hadn’t acted upon, maybe there’s an internal memo recommending armed guards but they eschewed the advice for financial reasons, etc. I haven’t seen the discovery in the case but it’ll be interesting to see what evidence a trial produces, unless the insurers settle it.

    1. SHG Post author

      Correct, but my argument is that Cinemark is correct and the acts of a madman should be held unforeseeable as a matter of law. If they had notice that it would happen (your specific threats point), that would change the equation, but there is nothing to indicate that was the case.

      I note that I tried to get a copy of Judge Jackson’s decision, but was unable to find it and relied instead on the article. Granted, it’s not the best source of information.

        1. SHG Post author

          It’s cool. Thanks.

          From my quick read of the decision, there are no extraordinary facts which remove this case from any other case.

  9. Krish

    I found the “meteor shower” reference odd given that we can predict (at least some) meteor showers quite well. I, for one, enjoy watching the Leonids and Perseids meteor shower every year. Imagine if we could predict (at least some) madmen that well…

  10. Pingback: “Batman” Shooting Could Have Been Predicted, Judge Rules : Free Range Kids

  11. Pingback: Aurora Theater Should Have Predicted Mass Shooting, Judge Rules | Michigan Standard

  12. Pingback: The Zebra of Worst-First Thinking | Simple Justice

  13. Pingback: Judge allows case to proceed arguing that mass theater shooting was foreseeable - Overlawyered

  14. Pingback: Aurora Theater Shooting Foreseeable Rules Federal Judge

Comments are closed.