The Volokh Conspiracy
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Do Threatened Businesses and Institutions Have Heightened Legal Obligations to Provide Security?
This case involved a Colorado Springs abortion clinic, but it could equally apply to synagogues, bookstores selling books with Mohammed cartoons, animal research facilities, etc.
From the four-Justice majority opinion (written by Justice Richard Gabriel, joined by Chief Justice Nathan Coats and Justices William Hood and Carlos Samour) in Rocky Mountain Planned Parenthood v. Wagner, decided by the Colorado Supreme Court in June; the case arose from a shooting that killed three (including one inside the building) and injured nine at a Colorado Springs abortion clinic:
Here, the plaintiffs introduced substantial evidence showing that PPRM [Planned Parenthood of the Rocky Mountains] knew for many years that there was a risk of violence against its facilities. In fact, PPRM warned all new physicians that "there is an inherent risk associated with working [at PPRM]," and it provided them with training on how to protect themselves. PPRM even offered to provide all of these physicians with custom-fitted bulletproof vests, free of charge.
The plaintiffs also presented evidence tending to demonstrate that PPRM knew that the level of threats of violence and criminal activity directed against Planned Parenthood facilities increased exponentially in the aftermath of the release of the inflammatory "baby body parts" videos. In fact, after the videos were released, the Medical Director of PPRM personally reported the level of increased threats and more invasive actions to both the president and chief executive officer and the chief operating officer of PPRM, as well as to the president and chief executive officer of PPFA.
In addition to the foregoing, the plaintiffs presented evidence that, despite this awareness, PPRM did not take adequate precautions at the Colorado Springs facility. For example, the plaintiffs offered evidence to show that although PPRM had hired an armed security guard, that guard was on duty only three days per week and only for about four hours each day (until 11:00 a.m. or 12:00 noon), despite the fact that the facility remained open (and doctors were performing abortions there) after the guard had ended his shift. Indeed, the guard had been at work on the day of the shooting but left at 11:00 a.m., shortly before Dear started his shooting rampage at approximately 11:35 a.m. Similarly, the plaintiffs offered evidence that PPRM did not erect a perimeter fence around the Colorado Springs facility, although it had done so at its Denver location, and it did not replace its tempered glass entry door with a steel or otherwise bullet-resistant door, which allowed Dear to shoot through the door to gain entry and continue his rampage.
Finally, the plaintiffs presented a lengthy and detailed affidavit from Lance Foster, an expert in premises security. In his affidavit, Mr. Foster opined, in pertinent part, that (1) the lack of security at the PPRM Colorado Springs facility made it a more likely target and placed it at a much higher risk for an event like that which ensued; (2) fencing would likely have prevented Dear from gaining entry onto the facility's property in the first place; (3) had the security guard been on duty, the shootings would likely have been prevented; and (4) had steel doors been installed and electronic lock down measures been employed, Dear would not likely have been able to enter the clinic itself. Based on the foregoing, Mr. Foster opined that the shootings at issue "were reasonably preventable and the injurious effects could have been mitigated."
In light of this evidence, and cognizant of the settled principle that summary judgment is a drastic remedy, we conclude that on the evidence presented in the summary judgment record here, a reasonable juror could find that Dear was not the predominant cause of the plaintiffs' injuries and that therefore PPRM's action or inaction was a substantial factor in causing those injuries. Accordingly, we further conclude that PPRM was not entitled to the entry of summary judgment in this case….
We hasten to say that in ruling as we do, we offer no view as to the merits of the plaintiffs' claims. Nor should our opinion be read to suggest either (1) that different rules apply to what may be deemed "politically neutral" sites, on the one hand, and potentially "incendiary" sites such as a women's health clinic, on the other, or (2) that given the risk that a mass shooting could happen virtually anywhere, potential targets—even those that are sadly sometimes attractive to the deranged or sadistic, or those with sociopathic notions of political motivation—must build fortresses to protect against any possible risk.
To the contrary, our ruling is limited to the specific facts of this case, based on the summary judgment record before us. And we do not intend to suggest that summary judgment is never appropriate in a case such as this, although we are likewise unwilling to say … that summary judgment is required in virtually every case involving a mass shooting because the shooter's actions will almost always be the predominant cause of the victims' injuries. We say no more than that, on the summary judgment record here, we do not believe that a court can properly decide the predominant cause issue as a matter of law.
Three Justices dissented, in an opinion written by Justice Melissa Hart, joined by Justices Monica Marquez and Brian Boatright:
[T]he majority makes "proximate cause" a determination solely of the foreseeability of a particular event—in this case a mass shooting—occurring at a particular location. The dangerous consequence of this move is to subject a landowner to liability for the irrational actions of a mass murderer, who has no concern about detection or death. And, while the majority asserts that its approach does not turn on the politically controversial nature of the landowner's business, I fear that in fact the majority is creating the equivalent of a heckler's veto—if a business owner receives threats of violence because of the nature of his business, the business owner will be subject to a risk of liability that could render his business uninsurable or require impossibly expensive fortifications….
On one hand, we expect all public-facing businesses—including women's health clinics—to incur the costs of security measures that are reasonably proportionate to the potential risk of harm to their patients. But, because mass shooters are not animated by reason or cost/benefit analysis, it is irrational to ask businesses—or jurors—to engage in the cost/benefit analysis of determining what sorts of preventative measures are sufficient to prevent or mitigate the harm caused by a shooter's senseless acts of violence….
I fully grant that "'the concept of foreseeability is central to establishing proximate cause' and that foreseeability acts 'as a guidepost to delineate the extent to which a defendant may be held legally responsible for a plaintiff's injury.'" And unfortunately, Planned Parenthood has suffered a "long history of violent direct attacks, killings and threats" against its various facilities.
But the reason for such threats, largely unacknowledged by the majority, is the well-known fact that PPRM provides abortions—a service fraught with political controversy and heated cultural divide. While the majority asserts that its analysis does not turn on whether a mass shooter's attack is on a politically controversial business, I fear that the consequence of the court's approach is that certain businesses and activities will face entirely different risks of liability than others will.
It bears emphasizing that our proximate cause analysis has never, and should not now, turn on how controversial the goods or services offered by a landowner are. But the majority's approach creates a perverse incentive: Knowing that women's health clinics are more threat-prone than other public-facing businesses, and that such clinics may be found liable for their failure to mitigate or prevent mass shootings, abortion opponents can increase the frequency and severity of their threats of violence in order to force women's health clinics to fortify their facilities to extreme levels. This, in turn, makes women's health clinics both prohibitively expensive to operate and virtually impossible to insure….
Moreover, this risk is not one that will be faced only by women's health clinics that provide abortion services. After today's decision, antisemitic fanatics can impose additional costs on synagogues, and White supremacists can inflict the same on Black churches or businesses. Threats of violence often precede acts of violence in these locations, as they did at PPRM.
I fear that the consequences of today's decision will be felt well beyond this litigation. The majority's analysis, by focusing so exclusively on foreseeability, significantly changes our proximate cause jurisprudence. In doing so, it ties the liability of the landowner to the nature of its business and ignores the reality that the overwhelming—the predominant—cause of harm to victims of mass shootings is the maniacal determination of the shooter himself.
