A Judge Is Punishing Aurora Massacre Survivors to the Tune of $700K for Losing Their Civil Suit Against Cinemark

Apparently the consequence of losing a lawsuit over the worst night of your life is paying the winners.
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Publish date:
September 1, 2016
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mass shooting, movie theaters, lawsuits, legal battles

In an era when it feels like there's a mass shooting in the news every other week, it's hard to stretch your mind back all the way to 2012, when a gunman killed 12 people and wounded 70 during a screening of The Dark Knight Rises in Aurora, Colorado. It was a horrific incident that confronted Americans with the ugly reality that nowhere — not even a movie theater with your friends — is safe. It remains one of the worst mass shootings in modern U.S. history.

Over the ensuing four years, prolonged litigation has surrounded the case, and now, things have finally come to a bitter end: an end that has the survivors who brought suit paying $700,000 worth of Cinemark's legal fees.

I'd like that to sink in for a moment.

$700,000.

These are pretty ordinary people, with everyday lives, who could have happily lived out their lives doing the things they loved but for the fact that a gunman entered a movie theater and started shooting. Most of them don't come from money and don't have much to speak of, unlike a massive company with multinational holdings. Cinemark could well afford to pay the fees associated with defending itself in court — in fact, $700,000 is actually pretty low for prolonged civil litigation.

But it's kind of a lot when you're a group of pretty regular people with shallow pockets. It wasn't enough for Cinemark to prevail in this case, paying no damages to survivors (they originally offered a settlement, which fell through). Instead, the theater chain had to throw out a final petulant slap.

There's a lot to pick apart here, but let's start with the obvious.

Is this even legal?

Though you may have heard the claim that the losing side in a suit in the U.S. may be obliged to pay the legal fees of the winning side, that's actually not really accurate. In fact, most states operate under what's called the "American rule," which specifically states that winning plaintiffs or respondents are going to have to pay their legal fees all on their lonesome.

One reason for that is cases a lot like this one: When ordinary people with small pockets but a serious problem want to take someone (or an entity) to court, they'd like to do so without fearing horrendous debt if they lose. While judges do actually have some discretion when it comes to this issue, most stick to the American rule.

There are some exceptions. If a case is in the public interest and the plaintiff prevails, the respondent may be required to pay for the suit. Sometimes legal contracts (between business partners, or more commonly between you and a financial institution, employer, or other entity) also provide for this kind of arrangement.

But in general, if you lose a case, you're just on the hook for your own legal fees. Except in certain states, which allow winners to go after losers for compensation, usually with the goal of discouraging frivolous lawsuits.

One of those states is Colorado.


OK, but should they really have lost?

This is where we get into potentially unpopular opinion time.

The plaintiffs in the case specifically said they wanted to sue to make movie theaters safer and recover damages. They argued that Cinemark had inadequate security and that the theater allowed the shooting to take place. One thing they cited was the lack of a door alarm on the emergency exit the shooter used to enter the theater, for example.

Cinemark's attorneys responded with the assertion that the theater couldn't have predicted that something like this would happen, and that there wouldn't have been any way to stop it.

The plaintiffs' case was pretty woefully weak — so much so that it's been a subject of discussion, actually, and a federal judge just dismissed a similar case. When the plaintiffs were offered a settlement, the judge told them point blank that he would be ruling in Cinemark's favor and they would be wise to take it.

It's necessary to set emotions aside when looking at a case like this. There's a strong desire to find someone, anyone, to blame, but Cinemark really wasn't liable in the legal sense here. No movie theater before Aurora would have reasonably expected something like this, nor could any movie theater afford to support the infrastructure and security force needed to actually intervene in an active shooter incident — you would effectively need to keep a SWAT team on the premises.

Had the plaintiffs prevailed, theaters would have been pushed to change their security practices, but it's tough to say what that would look like in the real world. Metal detectors? Bans on oversized bags, purses, and backpacks? Security forces? Panic rooms? As we've repeatedly seen in the U.S. and beyond in recent years, even substantial security precautions cannot prevent a determined shooter. When attacks are taking place in heavily guarded airports and on military bases, it's a reminder that all the safety in the world can fail.

And that maybe responsibility for preventing mass shootings lies with direct intervention not at the site of the shooting, but before. We're learning a lot about how to identify mass shooters, and the high costs of missing warning signs and reports from people familiar with the shooter. We're learning about what radicalizes people.

Mass shooters and spree killers may pick sites they view as "soft targets," but it's awfully difficult to predict a soft target, or secure it, when any public building anywhere in the U.S., from a major city to a tiny hamlet, is potentially a killing ground. Do you want everything around you to look like Ben Gurion Airport or Heathrow during the Troubles?

I think about Aurora sometimes when I go to the movies, pay for my ticket at the window, and buy popcorn at the concession stand. Most of the employees are young, and they mill around briskly through the lobby. Sometimes there's an apathetic security guard by the door if I'm in an urban area. Usually there's not. In my own small-town, four-screen theater, the only cops around are the off-duty ones in the audience. My theater could never afford the elaborate security that might provide an illusion of safety but wouldn't stop the truly determined — the killer in body armor barging past metal detectors and panicked security to storm into the dark theater where we're all watching Ghostbusters. Are they responsible when that happens? Am I, for taking the calculated risk to go to the movies? What kind of world do we live in, where going to the movies is a "calculated risk"?

I think about Columbine, about Newtown, about Umpqua when I drive past the school and the college. I "slow down when children are present" like the sign directs me, and I watch the kids chasing each other around the playground at recess or flooding the halls at the high school between classes. There are no metal detectors there, no security, except maybe a groundskeeper with a rake. Our college doesn't hold active shooter drills. Are they responsible for the day someone storms in and opens fire, or are they trying to do the best they can, hedging their bets against the day their time runs out?

Sometimes I think about that hot, tense summer of 2011 when one of the largest manhunts in California history unfolded in my backyard. I remember the reverse 911 calls and the sheriff coming up the driveway to tell us to shelter in place. If I'd been shot walking to the compost pile, or in my sleep, who would have been to blame? Me? The sheriff, for not being everywhere at the same time? The hordes of law enforcement swarming the forest, for not catching him soon enough?

When it comes to liability, there's an important conversation to have about the reasonable precautions a person or entity could have taken. Cinemark wasn't negligent in this case: This could have happened in any theater in the U.S. and happened to occur in this one. This may sound cold, but that's the way it is.

What does justice even look like?

In the grander picture of justice, and what justice looks like, they deserved to lose this case — though Cinemark could have recognized how traumatic this incident was and should have offered more than a $150,000 settlement, even knowing that it would prevail. It would have been the decent thing to do. And Cinemark definitely shouldn't have taken advantage of its legal right, but not obligation, to demand compensation for court fees, even though the case was rather dubious. It forced the judge to make a terrible choice.

The victims and survivors of the Aurora shooting deserve to get justice, and this case is a complicated tangle. The spirit of restorative justice strongly suggests that it's the shooter who should be paying all medical, funeral, and other fees directly associated with the incident, though they'd likely bankrupt him, given the high cost of both funerals and health care in America. The shooter is the one who is liable for making the choice to enter a movie theater and kill people, and he's the one who should pay for it. That's certainly the argument made by the federal judge who dismissed the other Cinemark suit.

That includes compensation for emotional suffering, which is difficult to quantify, but also important. Survivors will be having nightmares for life. There's nothing Cinemark can do about that, but that's a person who could be spending years in therapy and on various medications, possibly missing work and having to modify her life to accommodate her PTSD. She's not to blame. The movie theater isn't to blame. The shooter is.

This is an outcome that's dismaying not because people searching for some kind of closure lost a case they should have lost, but because the huge corporation they went up against decided to be a dick about it. The flood of negative publicity Cinemark is facing may force it to walk away, and I hope it does.