If a killer used email to lure his victim to her death, would the email provider be responsible? If a pedophile used an app to convince an underage girl to meet him at some seedy motel, would the app be at fault? If a restaurant served dinner to a mass murderer right before his killing spree, would the restaurant be at fault? The cook, perhaps? The server?
There is a theory that would say yes, if there was some after-the-fact detail, some hook, some explanation, that in retrospect could arguably suggest they could have known, should have known, what was about to happen if only they had seen the signs. As Mary Anne Franks has expanded her reach beyond revenge porn to guns, so too has she expanded her chaos theory view of collective liability.
We have reached a point in America at which mass shootings happen so often that the country sometimes only has a few days — sometimes only a few hours — to catch its breath in between. When the shooter is white and male, as mass shooters so often are, the narrative of the “lone wolf” quickly becomes dominant. Anti-gun control ideologues, from the National Rifle Association to Republican lawmakers, assure us that the shooter was a monstrous singularity, just one bad guy who happened to have a gun.
But it takes a village to unleash a mass shooting. It is never solely the result of one person’s evil intentions. Many mass shootings could never have taken place without the fuel of racist and misogynist propaganda, or the help of unscrupulous purveyors of the weapons of war, or the failure of public venues to implement effective security measures.
Her yeoman-like rhetoric aside, her argument incorporates the surface appeal of the obvious — after all, without air, the killer couldn’t breathe, so air contributed to “unleash” the mass shootings — with the shallow appeal to hyperbolic emotion. Use enough adjectives and maybe no one will notice the absence of nouns.
The linchpin to her argument here is “failure of public venues to implement effective security measures,” and the key word is “effective.” First, it’s not the test of liability, which is reasonableness. There is always a more effective thing to be done that could have prevented some tragedy as seen after-the-fact. Couldn’t the email provider have read every email to see whether it would result in a killing? Couldn’t a server be trained in the signs of a diner about to commit mass murder? Isn’t it worth it if it could prevent the death of innocent people?
Franks seized upon the decision by MGM to settle claims by victims of the mass shooting perpetrated by one of its “guests.”
The last factor was highlighted in the Oct. 3 announcement that MGM International would be paying roughly $800 million to settle lawsuits filed by victims of the 2017 Las Vegas shooting. MGM International owns the Mandalay Bay Hotel, where bullets were fired from the 32nd floor onto thousands attending a country music festival in October 2017. When it was over, 58 people were dead and hundreds were injured, in the deadliest mass shooting in United States history. Victims alleged that lax security at the hotel, where the shooter was able to bring more than 20 suitcases full of firearms and ammunition to his room over several days, made MGM partly responsible for the killings.
To a lawyer, the reason for settling seems obvious. One never knows what a jury will do, and when the victims are enormously sympathetic, as here, juries may well burn the defendant despite there being no liability. The contention that the hotel’s “lax security” missed the shooter’s bringing in 20 suitcases over several days sounds potentially damning, but only if viewed from a post-hoc lens, and even then only by shutting one’s eyes as tight as possible.
What should MGM have done to prevent this? Spied constantly on every guest to count the number of suitcases brought in over days? Had a program in effect to count each guests’ suitcases? Searched guests’ suitcases, just in case they planned to commit a mass shooting? No doubt MGM could have prevented the shooting, if only it engaged in outrageously intrusive conduct or was held to a grossly unreasonable standard of oversight.
But that’s a lawyer’s take, not a juror’s or Mary Anne Franks’. who has the benefit of wearing a law prof’s mantle without being a lawyer or ever having practiced law. She’s thus unconstrained by reality, which is a primary requirement to post one’s wild theories in the New York Times.
The MGM settlement illustrates the principle of collective responsibility, under which third parties can be considered responsible for harmful acts they did not cause but did not do enough to prevent.
If you look closely enough, you begin to see the common theme in Franks’ approach, that for every harm one person can do to another, there must be some third-party to blame and to hold financially liable for the damages. And to prove her point, she does a classic Franks move.
Collective responsibility, or secondary liability, is a common theme in the law. Bartenders who serve alcohol to obviously inebriated patrons can be sued if those patrons cause car accidents; grocery stores can be held accountable for failing to clean up spills that lead to injuries; employers can be liable for failing to respond to reports of sexual harassment. Such entities are often said to have breached a “duty of care,” and imposing liability is intended to give them incentive to be more careful in the future.
Are any of her “examples” comparable to the MGM grand scenario, or in each is the third-party both on facial notice, in control of the scene and directly involved in the wrongful conduct under scrutiny? None of these exist in the MGM situation, but there’s no analogy too inapt for Franks to twist to her will.
But how does this relate to her core concern, the plight of women victimized by the collective failure of the internets to protect these fierce, brave, badasses from their oppressors?
The MGM settlement acknowledges that in physical spaces, individuals or businesses that fail to “take care” that their products, services or premises are not used to commit wrongdoing can be held accountable for that failure. It is no less important that this duty to take care be honored in virtual spaces.
It takes a village, according to Mary Anne Franks. A village of idiots who care only about eliminating all potential harm and willing to give away its freedoms to achieve it.