Interesting question re: gun free zones
There was some argument regarding whether a private entity which forbade firearms in an area, or in parked cars, might assume some liability to a person who became a victim of crime because they could not defend themselves. The usual counter was the concept that a person generally has no legal duty to protect someone else from crime -- phrased otherwise, to prevent someone else from committing a criminal act.
Reader CarlS points out an interesting passage in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). The suit was brought on behalf of a boy who suffered serious brain damage when county social workers ignored evidence that his father was beating him, and the Supremes held that this did not involve deprivation of liberty without due process of law.
In the course of distinguishing cases that allowed prisoners to sue for lack of safety and medical care, the majority noted:
"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. See Estelle v. Gamble, supra, at 103 ("An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met"). In the substantive due process analysis, 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 -- which is the "deprivation of liberty" triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means."
So the State's liability in the prisoner context does not arise from its knowledge that the prisoner is in danger, but from the fact that it has limited his freedom to protect himself...
Interesting find. But I expect they'll say that criminals get taken to prison whether they like it or not, while free citizens have the choice of staying out of the mall or other private property.
Posted by: Critic at January 5, 2011 07:50 AM
We need states to pass the "Gun Free Zone Liability Act." See the link above from Alan Korwin for more details. Great idea!
Posted by: XD Owner at January 5, 2011 08:18 AM
It's been a few years, but wasn't there a building association in Texas that advised their members that posting "No Handgun" signs would increase their liability?
Posted by: James at January 5, 2011 08:53 AM
Well, it helps to understand DeShaney case law, as it has become rather complex.
What you are referring to above is the "special relationship" doctrine, and that only applies to those who are in custody, like prisoners.
More interesting is the "state-created danger" doctrine. Here, it might be possible to argue that if the state deprives you of your means of self-defense (gun bans), then it has rendered you more vulnerable to harm. This is derived from the dicta of the Chief Justice:
"While the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them."
Posted by: Mack at January 14, 2011 02:10 PM