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Old February 15, 2013, 11:16 AM   #1
I'vebeenduped
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Curious about, not letigious

If someone were injured during a robbery or battered in a non-carry state, would they have a lawsuit for violation of their 2nd amendment rights since the State rendered them unable to protect themselves? I did a brief search for this before asking this and I did not see anything posted. I practiced some Bing-foo and didn't see it either.
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Old February 15, 2013, 11:32 AM   #2
Glenn E. Meyer
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We have discussed this before and Frank and Spats are the experts.

I will summarize and perhaps incorrectly. Please fix it, guys.

1. The entity you would sue is not responsible for the actions of a criminal actor. They are responsible for their own actions.

2. There is the doctrine of foreseeability - an entity might be responsible if they could reasonably predict an outcome they could prevent. This has not been the case with crime in general. A store or the state cannot reasonably foresee that you will be attacked anymore than it can foresee you will be in a general car accident. If an employee said specifically they would kill another employee, that's very predictable. Someone walking into the business at random is not.

3. Since this would be a difficult case to win and you would be opposed by very powerful legal resources, you would have to be rich to sue or find someone to take a tough case on contingency.
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Old February 15, 2013, 01:38 PM   #3
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But couldn't you prove the state knew that- somewhere statewide- people would get mugged, assaulted, and murdered. And by applying a universal standard preventing reasonable self defense it established a pattern of behavior or something?
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Old February 15, 2013, 02:00 PM   #4
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JimDandy, that's probably too vague to be foreseeable in the context of litigation. Yes, someone, somewhere is likely to be mugged today, but the other side of that argument will be: Could the state have foreseen that Person X would be mugged? Probably not. You can sue the state or municipality for depriving you of your 2A rights, but Glenn nailed it in that the gov't entity won't be held accountable for the criminal actions of third parties, and it is not constitutionally required to protect you from those actions unless it has entered into a special relationship with you, for example, by taking you into custody.
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Old February 15, 2013, 03:39 PM   #5
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and it is not constitutionally required to protect you from those actions unless it has entered into a special relationship with you

Yes, but crime statistics being what they are, we know several things. We know how many murders, muggings, rapes, etc. that we can assume (statistically) will happen every day. Along with this, we know that the Supreme Court has ruled that we have the right to defend ourselves. It is this same Superior Court who has ruled that the police do not have the mandate to protect us, without a special relationship. So, couldn't it be deduced that the local or federal government was complicit in said rape or murder by intentionally disarming us?
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Old February 15, 2013, 03:49 PM   #6
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I feel like addressing the legality of carrying or owning firearms directly (like the Illinois ban on carry or DC ban on handguns) would be more effective than to argue an infringement of rights through circumstance.
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Old February 15, 2013, 04:02 PM   #7
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Dr. Bird,
I always enjoy your posts.
Anyway, I feel that the government, whether State or Federal, should share in some level of negligence. I do not even know enough about law to be considered a jailhouse lawyer, so forgive me if I am too far off base. However, with the rulings as they have been in the past, and they remove from us our right to protect ourselves, then a tragedy develops, I wouldn't say that it was simply due to happenstance. If the government neuters my ability to protect myself, shouldn't they then be obligated to protect me?
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Old February 15, 2013, 04:08 PM   #8
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Interesting, I'm kind of glad people can't sue for such vague things..

But I was curious, what about police confiscation during an investigation? Would they be liable if anything happened to you?
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Old February 15, 2013, 04:14 PM   #9
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I'm not sure what you mean by vague. If I am denied the ability to protect myself and my family, and one of us dies because we were no longer allowed to protect ourselves, shouldn't the person or entity that prevented that ability be liable?
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Old February 15, 2013, 04:36 PM   #10
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Vague in that a third party is held responsible for the separate actions of two people? It's more or less saying that the government is responsible for crime.. Somewhat similar to suing your work for banning knives and you choking on your steak lunch from home.

I get what you're saying, I just think it would open an ugly can of worms.

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Old February 15, 2013, 05:01 PM   #11
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Re: Curious about, not letigious

Quote:
Originally Posted by Spats McGee View Post
JimDandy, that's probably too vague to be foreseeable in the context of litigation. Yes, someone, somewhere is likely to be mugged today, but the other side of that argument will be: Could the state have foreseen that Person X would be mugged? Probably not.
I'm having trouble with this reasoning. If I create a hazard (maybe by digging a hole in the middle of the road) I probably can't foresee exactly who will get in an accident but I can foresee that someone will and I think I would be held liable. Likewise if the state banned seatbelts and it can be shown that they knew or should have known that more people would be hurt or killed due to that policy then I don't see why they wouldn't also be responsible.

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Old February 15, 2013, 05:08 PM   #12
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If it is foreseeable that an item will cause 17000 deaths a year, should it be banned?
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Old February 15, 2013, 05:19 PM   #13
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Re: Curious about, not letigious

Quote:
Originally Posted by Glenn E. Meyer View Post
If it is foreseeable that an item will cause 17000 deaths a year, should it be banned?
No but choosing not to ban a product still leaves the decision (and the responsibility) up to the public.

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Old February 16, 2013, 04:35 PM   #14
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The circumstantial approach is unjustifiable, and we should drop it in most cases.

The fact that we argue circumstances is to our detriment. Circumstances are for rational basis decisions, and Heller made clear the 2nd Amendment will receive greater protection than rational basis.

If you're trying to think about a 2A issue, and you find yourself saying, "Yeah, but if I reloaded.." or something like, "What if there are 4 bad guys" or anything relating to a concrete circumstance, you have probably gone off the reservation. Such concerns are beneath the protection afforded to the 2nd Amendment....in theory...
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Old February 17, 2013, 12:51 AM   #15
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There is also the question of causation. In order to hold someone liable for an injury you suffer, you must first be able to establish that but for his particular action, you would not have suffered the injury.

So you now claim that if you had been lawfully able to carry a gun, you would have been able to successfully, under the exact circumstances of your particular incident, defend yourself and avoid injury. That can be a pretty tall order. For example, could you prove to the satisfaction of a jury that had you been able to lawfully carry a gun, you would have been carrying it at the particular time? Could you show to the satisfaction of a jury that you had the level of training and skill necessary to effectively use your gun under the exact circumstances of your incident? Could you show to the satisfaction of a jury that you would have used your gun effectively enough to prevail and escape injury? Remember, sometimes good guys fighting back still get hurt, and sometimes good guys lose.

Basically, what you could have been able to do under particular circumstances is too vague and speculative.

And of course, that's only one possible legal hurdle. The short answer is that a claim such as the OP proposed really doesn't have any legs under current law.
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Old February 19, 2013, 03:12 PM   #16
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So you now claim that if you had been lawfully able to carry a gun, you would have been able to successfully, under the exact circumstances of your particular incident, defend yourself and avoid injury. That can be a pretty tall order. For example, could you prove to the satisfaction of a jury that had you been able to lawfully carry a gun, you would have been carrying it at the particular time? Could you show to the satisfaction of a jury that you had the level of training and skill necessary to effectively use your gun under the exact circumstances of your incident? Could you show to the satisfaction of a jury that you would have used your gun effectively enough to prevail and escape injury? Remember, sometimes good guys fighting back still get hurt, and sometimes good guys lose.

Basically, what you could have been able to do under particular circumstances is too vague and speculative.


Thanks, Frank. That summed it up pretty nicely. I suppose that I am grasping at straws on this one. It just feels... negligent??? I wish I could find the term I want to use here. It seems negligent that the government would want to leave us defenseless.
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Old February 19, 2013, 03:23 PM   #17
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Quote:
Originally Posted by delarosadavid
. . . . Thanks, Frank. That summed it up pretty nicely. I suppose that I am grasping at straws on this one. It just feels... negligent??? I wish I could find the term I want to use here. It seems negligent that the government would want to leave us defenseless.
Speaking of negligence, you would also have to overcome the hurdles of governmental immunities. I haven't studied these in all states, but from what I do know of the states in the Eighth Circuit, governmental bodies are immune from actions that sound in negligence. I don't mean immune from liability, I mean immune from suit. You can get a declaratory judgment that a particular law is unconstitutional, but if you want money damages from lawmakers for passing an unconstitutional law, you'll have to overcome some combination of:
  • sovereign immunity;
  • legislative immunity; and
  • qualified immunity
And that's just to get past the summary judgment stage and get it to a jury. Even if you win at that summary judgment stage, in the Eighth Circuit, a defendant who is denied qualified immunity gets an immediate (interlocutory) appeal to take it up to the 8th, which will decide the immunity issue. If you win that appeal, then it goes back down for trial.
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