Can a merchant (mall operator) be held liable if they prohibit firearms?

skidmark · Aug 7, 2012

OK, now that I've got your attention, I'll confess that any decision on the headline question is going to still be answered some time in the future.

But a rather (IMHO) mundane case in Washington state has taken a sudden unexpected turn when the Federal Court asked the Waashington State Supreme Court to answer for the record if the state's system of laws recognizes some rather basic foundational premises. This is something for the legal geeks here more than for the average member, but it deserves an audience just beause the decision in this case will most likely be the foundation on which a case is brought seeking to hold a private business owner liable for injuries because they prohibitted firearms (and thus self defense) on their property.

Read and see if you agree.

stay safe.

http://www.courthousenews.com/2012/08/06/49033.htm

McKown, who was paralyzed in the shooting, sued Simon Property and IPC for allegedly failing to hire enough security guards and lacking proper security cameras.
A federal judge dismissed the claims against IPC, but allowed McKown to pursue tort claims against the mall owner.
Simon Property asked the court to reconsider, arguing that the judge had overlooked case law requiring McKown to show "prior similar acts on the premises" for a jury to decide if the shooting was foreseeable.
McKown responded with evidence of six shootings at the Tacoma Mall between 1992 and 2005, and three other gun-related incidents.
After reconsidering, the federal judge dismissed McKown's negligence claims on the basis that the earlier incidents were too dissimilar and remote to be considered "indiscriminate shootings."
The 9th Circuit said it could not rule on McKown's appeal "because the scope of the foreseeability inquiry under Washington law is not sufficiently clear to us."
"While we are conscious of the very real human suffering presented in this case, the questions with which we are confronted would be perfect for a first-year torts exam," the three-judge panel wrote. "What is the scope of the defendants' duty to protect McKown from harm from such a shooting? Were these acts of violence foreseeable to the defendants? In answering these questions, we must look to Washington law. But ... we are unsure of what the answers are."
The 9th Circuit certified the following questions to the Washington Supreme Court:
"1) Does Washington adopt Restatement (Second) of Torts § 344 (1965), including comments d and f, as controlling law?
"2) To create a genuine issue of material fact as to the foreseeability of the harm resulting from a third party's criminal act when the defendant did not know of the dangerous propensities of the individual responsible for the criminal act, must a plaintiff show previous acts of similar violence on the premises, or can the plaintiff establish reasonably foreseeable harm through other evidence?
"3) If proof of previous acts of similar violence is required, what are the characteristics which determine whether the previous acts are indeed similar?"

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The court opinion http://www.ca9.uscourts.gov/datastore/opinions/2012/08/06/11-35461.pdf explaining in agonizing detail why they asked the three questions above.

OC for ME · Aug 7, 2012

Trying to not shoot the BG, getting shot, then trying to shoot the guy. I suggest skipping steps one and two would have been the proper course of action.

As to the outcome of the case, the force is weak at this moment.....especially after I used it all up reading the 9th Circus quick kick play.

Vitaeus · Aug 7, 2012

bummer, none of those directly concern self defense, they all seem like culpability questions for the property owner.

Nevada carrier · Aug 7, 2012

Unfortunately, no. They have the right to prohibit firearms, and you have the right to go elsewhere. I do not agree with it, but in the eyes on the law, they cannot be held liable unless they either forced you to be in harms way, or did something to instigate the harm.

The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf... it is the State's affirmative act of restraining the individual's freedom to act on his own behalf - through incarceration, institutionalization, or other similar restraint of personal liberty...

the Supreme Court of the United States, DeShaney v. Winnebago County

This was written to apply to the state, and not a private entity, but in terms of liability in a civil matter against a private entity, I would imagine the same test would be applied. Your claim is that by requiring you to surrender your right to bear arms in exchange to access to their premises, they are restraining your liberty. Their claim would be that they did not do anything to require you to stay on their premises, and you were free to decline those terms and leave. Their argument will win under these circumstances.

As I said, I don't like it, but it's the case law we currently have to work with.

skidmark · Aug 7, 2012

:: skidmark shakes his head in frustration and displeasure ::

Here is the money quote:

Does Washington adopt Restatement (Second) of Torts § 344 (1965), including comments d and f, as controlling law?

I know most folks are going to have go look that up, and then spend some head-scratching time figuring out what it means, but as a hint it is vastly different from what SCOTUS relied in in DesHaney or any of the other cases regarding the obligation of "the state" towards a "citizen".

As a further hint - the question is a set-up. If the answer is that Washington does adopt, then the decision in the case before the bar is a slam-dunk under tort law If Washington does not adopt, then every single solitary tort decision filed prior to the answering of the question is, for all intents and purposes, reversed, throwing Washington State into utter and complete civil and financial disarray. (Unless the 9th Circuit can figure out how a penalty is a tax.

)

The only question I can think of off the top of my head that is more loaded is: "Have you stopped beating your wife yet?"

stay safe.

OC for ME · Aug 8, 2012

"Have you stopped beating your wife yet?"

I expect better. What if you are not married? Qualifiers remove the ambiguity from the premise of any question.

And yes, I got the "question". The federal 9th Circus getting involved in a state tort is the point for me. The 9th Circus should have refused to hear the case and force the WSSC to do their job.

But then again, why let a state figure it out when the feds can figure it out for them.

lockman · Aug 8, 2012

If the mall operators do not have blanket immunity there will always be potential civil liability. The sign can be considered negligent if the mall takes no other real steps to enforce it if necessary. Without real enforcement the sign is just an advertisement for GFZ.

Weapon screening, controlled entrances and armed security would be a complete response. But if the did that I would not shop there.

I do not adhere to absolute private property rights for businesses open to the public. If government can dictate the height of the bathroom mirrors they can certainly find civil liability for failure to allow self-defense.

Mark 1911 · Aug 8, 2012

Last week I attended an event at a local restaurant. There were so many people in attendance that my wife and I stood in line for almost 2 hours, and we were standing outside for over 90 minutes. The restaurant is on the property of Westfield Southlake Mall in Hobart, IN, but not inside the mall. Due to the large number of people, mall security was directing traffic and one of them noticed that I was OCing. I was asked to return my pistol to my vehicle. I asked why, and stated that I had an Indiana LTCH. The security guard said the restaurant was on mall property and that the mall had a strict anti-gun policy. I complied with the request, but mentioned that I would be writing a letter to Westfield management to express my displeasure, that I would not be shopping at any of their malls anymore, and that I thought such policies only encourage criminals to prey on unarmed citizends, as in Aurora, CO. I doubt my little note will make any difference, but at least they will know they have lost one more customer due to their overbearing anti-constitutional and un-American policies.

OC for ME · Aug 8, 2012

Was the restaurant posted? If there is a exterior entrance to the restaurant what the heck does 'mall security' have to do with security in that private business?

Mark 1911 · Aug 8, 2012

OC for ME said:
Was the restaurant posted? If there is a exterior entrance to the restaurant what the heck does 'mall security' have to do with security in that private business?

The restaurant is not inside the mall, it is in an outside building on Westfield's property as are several other businesses that have outbuildings around the mall. I believe the restaurant leases the land from Westfield. However, do not know the actual legal arrangement between the mall and the restaurant. There is a Showplace movie theater, a Red Robin Restaurant, a Gander Mountain, and several other busninesses with outbuildings on the mall property as well. Mall security was directing traffic around the event as access to and from the restaurant I was at is from the mall parking lot.

You raise a good question, and I posted this scenario here because of its relation to the OP topic. I did not see any signage on the restaurant door regarding firearms whatsoever, and I looked very intently for it because of the prior confrontation with security. I do know that other locations of this particular restaurant do NOT oppose OC in their stores. In addition, there is also a Gander Mountain store on the mall property and I have OC'd in Gander Mountain on several occasions now without a single comment. I am assuming that the mall security was within their rights to ask me to return my pistol to my vehicle since I was on their property, and my understanding is that private properties can have these types of polices as much as we disdain them. But I would CERTAINLY like to know if I was mistaken. Because if they were outside their rights to ask me to disarm, then my letter to them will take an entirely different tone (from my attorney). Also, please note that I was entirely on the restaurant's grounds when this happened, standing on their sidewalk, inside an outdoor seating area which is surrounded by a short metal fence to separate the outdoor seating area from the paved area for the drive-through. The security guard actually stepped into this area to speak to me.

OC for ME · Aug 9, 2012

Based on your information it seems that Paul Blart overstepped his authority.

WalkingWolf · Aug 9, 2012

Not sure about the other cities, but Raleigh here requires that clubs with a certain occupancy have adequate security. If they have a record of problems they are closed. This should be state law for all business, they should be responsible for the safety of the patrons. Maybe other states need to set standards or allow self defense.

Mark 1911 · Aug 9, 2012

OC for ME said:
Based on your information it seems that Paul Blart overstepped his authority.

I obviously need to understand this better. Can you explain why you say this?

sudden valley gunner · Aug 9, 2012

WalkingWolf said:
Not sure about the other cities, but Raleigh here requires that clubs with a certain occupancy have adequate security. If they have a record of problems they are closed. This should be state law for all business, they should be responsible for the safety of the patrons. Maybe other states need to set standards or allow self defense.

I would disagree that more laws are necessary, it should be buyer/user/patron beware. Like the cantina in Mos Eisley.

OC for ME · Aug 9, 2012

Mark 1911 said:
I obviously need to understand this better. Can you explain why you say this?

I'm not sure the restaurant located on what seems to be mall property is in fact mall property. Especially in light of the fact that Paul Blart had to enter upon the resaurants property to "request" that you disarm.

I'd be generating some e-mails and filing formal complaints. It might be that Paul Blart may have violated the law.

Lasjayhawk · Aug 9, 2012

It was a movie, Paul Blart Mall Cop.

Mark 1911 · Aug 9, 2012

Lasjayhawk said:
It was a movie, Paul Blart Mall Cop.

Yep, I caught the reference to the mall cop guy. Was just looking for someone with the facts on whether the mall security can prohibit carry at a business in a separate building from the mall the the mall claims to be on their property, even when the business in question has no policy against OC and no signage at all in regards to carrying firearms in their business. OC for ME was questioning whether they ovestepped their authority. It's a good point. Any legal types out there know the skinny?

skidmark · Aug 10, 2012

Mark 1911 said:
Yep, I caught the reference to the mall cop guy. Was just looking for someone with the facts on whether the mall security can prohibit carry at a business in a separate building from the mall the the mall claims to be on their property, even when the business in question has no policy against OC and no signage at all in regards to carrying firearms in their business. OC for ME was questioning whether they ovestepped their authority. It's a good point. Any legal types out there know the skinny?

The mall property probably extends all the way out to the public street. Why would anyone think that the land any outbuildings are on was not still mall property?

But your question regarding differential enforcement of policy between the mall proper (that big conglomeration of shops all within one generally contiguous building) and outbuildings raises some interesting issues. Can a mall owner impose policy regarding firearms on tenants? Betcha the answer in your state is also "Yes". Can a tenant (mall proper or outbuilding) ignore the mall owner's policy and get away with it? Probably also "Yes." but with conditions. And now here comes the big question, after I've set you all up. Is the policy one imposed by the mall owner or by the mall operator/mall management company?

If the policy is imposed by the mall owner there is no question it can be enforced on outbuilding tenants. If the policy is imposed by the mall management as a general "rule of conduct" there is some question about if it can be enforced on outbuilding tenants. It all depends on the very precise wording of the lease.

You, as a customer, are probably never going to get a look at the lease, so will have to settle for operating under the presumption that policies regarding the mall extend to all outbuildings as well as to the huge building in the middle of the parking lots.

It has been my pleasure to avoid directly answering your question and throwing so much new crap into the discussion that now we will never be able to resolve the matter. I have a degree in this and more than 20 years professional experience in doing this. Consider yourself lucky I am not sending you a bill you could ignore.

stay safe.

OC for ME · Aug 10, 2012

bloviate

skidmark · Aug 10, 2012

OC for ME said:
bloviate

Would you rather post some words that actually refute my statements?

Sorry that logic and rerality rained all over your dream of showing the mall that they cannot impose rules on you when you are at a restaurant that is part of their property and business operation. Sorry that I made you think.

stay safe.

Can a merchant (mall operator) be held liable if they prohibit firearms?

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