Torts was one of the substantive classes in my first year of law school that I enjoyed the least, and it is also an area of the law that I make little use of on a daily basis. Nevertheless, I want to return to this subject today, because two related elements in negligence actions, duty and causation, speak to the Tucson massacre in a way that might help illuminate our discussion of Saturday’s events. With that, I return to a case included in a handout in my torts class.
The case I have in mind is Lopez v McDonald Corp, 193 Cal.App.3d 495 (1987). This was a case that I first read in my first semester of Torts. The grisly facts of the case from the opening of the opinion speak for themselves:
On a clear and sunny day, James Oliver Huberty entered McDonald's restaurant in San Ysidro dressed in camouflage pants and armed with a 9 mm. semiautomatic rifle, a semiautomatic 9 mm. pistol and a .12 gauge shotgun. He immediately began indiscriminately slaughtering patrons and employees within the glass-enclosed structure. During the hour of terror before he was killed by a police sharpshooter, Huberty showed no intent to rob the restaurant; made no demands for money; made no effort to take hostages; loaded his weapons several times; and killed 21 people in the restaurant and wounded 11 others. His single apparent purpose was to kill as many people as possible before he himself was slain.
For the survivors and surviving family of those slain, this was not the end of the matter:
Plaintiffs sued for damages for wrongful death and personal injuries 1 on theories of negligence and premises liability alleging McDonald's failed to provide adequate safety devices or security personnel to protect customers from dangerous and known risks. In support of their theory of liability, plaintiffs allege McDonald's knew its San Ysidro facility was in a high-crime area and its employees were so concerned over the criminal activity within the immediate vicinity they had solicited a private security company to offer its services to McDonald's. The security service's proposal to McDonald's management and ownership cited the area's high-crime rate, increasing gang activity and nearby incidents of violent crimes which would have endangered McDonald's patrons had they occurred on its premises. Claiming economic reasons, McDonald's declined the security service offer to provide a uniformed security officer at $ 5.75 an hour.
A quick review of negligence is in order. To have win on a negligence claim, a Plaintiff has to offer evidence that shows four elements: Duty, breach of duty, causation and damages. For the purposes of this discussion, the two elements at issue would be duty and causation, both actual and proximate. More on that in a minute. So how did the California appellate court address the claims of Ms. Lopez and other survivors and surviving family members?
In essence, the court concluded that McDonald’s did not have any legally cognizable duty to protect the Plaintiffs from the type of injuries caused by Mr. Huberty. The court acknowledged that Huberty was "an assailant bent on committing a mass murder," and as such unlikely to be deterred by any reasonable safety precautions, such as security cameras or alarms. Under the circumstances, given that the act was not foreseeable and given the onerous and possibly ineffective measures that would be required to counter such acts when they did occur, McDonald’s duty of care to the Plaintiffs was limited, and McDonald’s was not liable for damages resulting from Huberty’s rampage simply because it failed to take any and all precautionary measures to deal with the extremely unlikely event of mass murder in a fast food restaurant.
The court went a bit further than the trial court had, then, and resolved the case on the issue of causation. Recognizing that the most McDonald’s would have been required to do was to hire an unarmed licensed security guard, the court concluded that, as a matter of law, the question became whether a jury could conclude that "McDonald's failure to provide unarmed, uniformed, licensed security personnel constituted a substantial factor in causing the resulting injuries...by either effectively deterring such criminal conduct or limiting the scope of the resulting injuries?" Lopez, supra at 515. No, the court concluded:
Under the circumstances here, it cannot be reasonably urged that had McDonald's provided an unarmed, uniformed licensed security guard, the massacre would have been prevented or its extent diminished. The record defies such a conclusion. Rather, it paints a portrait of a demented, mentally unbalanced man, bent on murder and self-destruction, who viewed the nearby McDonald's restaurant with his binoculars from his apartment, kissed his wife goodbye and stated he was going "hunting for humans." Huberty set out to kill the most people possible and went to the restaurant, unconcerned with detection, dressed in camouflage fatigue pants and heavily armed. Upon entry into the restaurant, he immediately began firing his weapons indiscriminately at everything and everyone in sight, reloading his weapons periodically and walking up and down the aisles slaughtering those he found still alive. His only apparent motive was killing. He made no effort to rob the restaurant, made no demands for money, and made no effort to take hostages. His indiscriminate slaughter of human beings -- the worst mass killing by a single assailant in recent American history -- only ended when he believed all were dead and he was felled by a police sharpshooter.
On this record, we conclude plaintiffs have failed to establish any triable issue that there was a causal nexus between McDonald's nonfeasance, if any, and the resulting injuries. Any reasonable protective measure such as security cameras, alarms and unarmed security guards, might have deterred ordinary criminal conduct because of the potential of identification and capture, but could not reasonably be expected to deter or hinder a maniacal, suicidal assailant unconcerned with his own safety, bent on committing mass murder.
How does this case relate to the public discussion over the events in Tucson? Two issues, gun and speech, come to mind. I will quickly dispose of the gun question, because I am not that interested in discussing it further. With respect to guns, the argument is fairly straightforward: Guns make it easier to kill people, and the United States generally and some states like Arizona specifically have lax gun regulations that allow people to obtain them easily. Restricting access to firearms would make it more difficult for men like Huberty or Loughner to get their murderous hands on them in the first place. I think that this is a defensible position (although not one that I wish to get bogged down in), but I would raise a few points anyway:
- It is not clear that Loughner would have been a prohibited person, i.e., he was not legally ineligible for gun ownership in any event.
- This argument often fails to incorporate the recognition by the United States Supreme Court that gun ownership (or at least the ownership of some guns) is a fundamental right that is textually grounded in the Second Amendment to the United States Constitution. This means that not only that proposed future regulations (including licensure) must pass constitutional muster, it also means that many current regulations are constitutionally suspect and vulnerable to attack. After reviewing the federal prohibition on possession by people who have been committed to psychiatric care, I’m inclined to believe that this regulation, given its breadth, is particularly prone to attack. As far as I know, this prohibition is not firmly rooted in tradition, as are the felon in possession laws. Additionally, it appears to be underinclusive (people who are mentally ill and a danger to themselves or others but who have not been committed or adjudicated as such are free to possess firearms) and overinclusive (it prohibits possession even for people who have successfully treated their mental illnesses, but who were adjudicated or committed at some point in time). It is not clear that the courts would uphold any regulations more stringent than the ones currently in place, and it is not clear that those regulations, even if fully enforced, would have prevented Loughner or anyone else from obtaining firearms.
- This argument ignores the reality of firearms proliferation in the United States. Assuming arguendo that we could impose a more restrictive regulatory regime, the country is flooded with millions of firearms and it would take decades to create an environment where it was sufficiently difficult to obtain them that the regulatory environment would actually deter people like Loughner or Huberty.
Enough about the Second Amendment. What about the First?
There have been a number of diaries and comments on this site suggesting that the rhetoric of the right wing in general and Republican candidates in particular is partially to blame for the events on Saturday; that it was a "substantial factor" in Saturday’s events. Alternatively, even if the rhetoric is not to blame, the climate of fear and hostility it generates is worth addressing regardless.
On the second point I agree, although I doubt that I agree with any involuntary or legal remedies designed to redress the harm caused by inchoate and nebulous concepts like "violent rhetoric," the common as opposed to legal usage of "incitement to violence" or "climate of fear." More on that in a minute.
On the first point, there does not appear to be any concrete evidence suggesting that anything Palin and her coconspirators said or did contributed to Saturday’s massacre. For the purposes of this diary and an invitation to discussion, I will assume that there is a possibility, if not probability, that the ambient noise of heated right wing campaigning contributed to whatever delusional episode Loughner was suffering, and may have winnowed down his list of potential targets and whatever acts he was contemplating. For all the advances we have made in treating mental illness or in our general understanding of cognition, personality and the mind generally, we are not yet in a position to root out the "actual" or "but for" cause of Mr. Loughner’s actions. Which brings us back to Lopez and the discussion of proximate causation. When we concern ourselves with ultimate causes of these violent attacks and limit ourselves to the formulation of "but for" or "substantial factor" tests, it is entirely possible for us to speak of the influence of violent rhetoric, parenting, exposure to drugs, mental illness, evolutionary biology and even the Big Bang. The point of legal and moral analysis, however, is to assign fault, blame and liability. Let’s turn to one of his influences, one that is common to many young adult males: According to his friends, the shooter based his moral philosophy on a relatively common misinterpretation of the German philosopher Friedrich Nietzsche. Upon reading a philosopher who condemned the condition of nihilism, he became a nihilist who advocated the cultivation of chaos. Is Nietzsche responsible for this turn of events? I doubt that many of the people condemning the right wing rhetoric we have witnessed over the last two years would propose that we ban Nietzsche from the public library (although many of those same people do seem to take exception to the work of Mark Twain and have edited him accordingly). Like the court in Lopez, they have engaged in line drawing, and have used policy (and political) considerations to reach their conclusions. They would assign moral if not legal culpability to the right wing for generating a climate of fear; even if individual cases of violent massacres do not show a causal connection, they might say, the aggregate trend clearly points to disproportionately right wing violence against the left, and indicates that hate speech and violent rhetoric have a corrosive impact on society and public life.
We should be hesitant to endorse this position for a few reasons. The first is that proponents of this postulate have yet to offer up any real evidence of causation. If we are indeed reality-based, we must agree that subjective beliefs do not constitute actual evidence, and that correlation does not show causation.
Second, even when a proponent of this postulate does not advocate a specific content-based restrictions on speech, they are participants in a broader political environment, where such proposals are routinely offered in times of crisis. In order to be perceived as addressing their concerns or the concerns of other constituents who share similar beliefs, politicians may be moved to propose restrictions on speech or speech acts. Two Democratic Congressmen, Rep. Ruben Hinjosa of Texas and Robert Brady of Pennsylvania, have indicated that they are open to introducing legislation that would curb speech deemed to be "threatening" to public officials. Of course, the proposal itself is indefinite at this point, and Rep. Hinjosa has made statements that suggest he might only be interested in strengthening existing law and eliminating any gaps in legislation that is already on the books.
Third, even if proposals are not adopted wholesale, selective adoption of the restrictions by institutional actors can still have an adverse impact on members of society. I was a sophomore during the Columbine massacre, an event that triggered a minor copycat episode in my high school. As a result, students progressively lost much of the autonomy they enjoyed prior to Columbine. Individual lockers were eliminated in favor of "joint" lockers shared with another, randomly assigned student (a potential snitch), students were forced to wear identification cards around their neck at all times and off-campus activities during the school day were curtailed.
It is also no secret among attorneys that courts, or rather judges, are not insulated from the vagaries of politics and political discourse. Indeed, some judicially-crafted doctrines incorporate political change, although not directly. Nowhere is this more evident in my own experience than in Fourth Amendment jurisprudence, where fluctuating societal privacy expectations are used to analyze whether or not a criminal defendant (or Section 1983 Plaintiff) should enjoy Fourth Amendment protection. Even if courts are unwilling to own their political considerations on the record, the results often speak for themselves. The federal standing doctrine is nebulous and subject to manipulation to permit certain cases to go forward while prohibiting others from advancing. Similarly, the doctrine of "judicial minimalism," or an aversion to deciding any constitutional issue that does not need to be decided to dispose of the case before the court, was nicely illustrated in the detainee litigation before the United States Supreme Court. The Court has thus far avoided the issue of indefinite pretrial or "preventive" detention and a confrontation with the legislative and executive branches, but it has done so at the expense of the physical liberty of detainees and while allowing constitutionally suspect detention and trial to continue without meaningful review. There is no reason to believe that similar reasoning could not be employed in the First Amendment context. Which is to say, our first line of defense must not be the federal or state judiciaries; the defense of First Amendment values must be proactive and not simply reactive.
As we assign blame for Saturday’s events, or simply address violent political discourse, we need to be careful to avoid the pitfalls of incentivizing legislative overreaction or pretextual manipulation of public fear in the service of questionable objectives. To that end, we should be careful to maintain some semblance of humility when addressing hate speech or violent rhetoric, and admit that there are considerable limits to our knowledge of its influence, in the aggregate or otherwise. Assigning culpability is as much a policy deliberation as it is factual investigation and discernment, and the costs of bad judgment are high indeed.