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Old May 12, 2016, 01:59 PM   #1
BobCat45
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A duty to protect

Actually, the full title is:
"A DUTY TO PROTECT: WHY GUN-FREE ZONES CREATE
A SPECIAL RELATIONSHIP BETWEEN THE
GOVERNMENT AND VICTIMS
OF SCHOOL SHOOTINGS"

I was looking on the web for something and found this instead.

It is by a Law student and published in the Cornell Journal of Law & Public Policy - here is the link to the page http://www.lawschool.cornell.edu/res...JLPP/index.cfm and here is a direct link to get the .pdf http://www.lawschool.cornell.edu/res...note-final.pdf

Here is a "fair use" paragraph from his conclusion:

"Although common sense would suggest that police
have a duty to protect the public, the public duty doctrine protects officers from liability unless they have taken such affirmative actions as
required under the current test to create a special relationship. The public duty doctrine makes sense to the extent that it prevents imposing an
impossible task on law enforcement to save everyone. However, its application should not be so rigid when civilians are left defenseless. If
courts account for the reliance created by gun prohibitions within school
zones, they should automatically find a special relationship and thus a
duty to protect the defenseless civilians within these zones."

Since I'm not an expert in Law, I can't judge the merits of his arguments - but since I agree with him I'll just go with my bias.

The question that arises is, if somehow his conclusions get taken seriously and implemented, and "the authorities" are held liable for failing to protect ordinary people who are statutorily disarmed - by being in a gun-free zone like a school - what is the implication for other entities like businesses, that post "no-guns" signs - here in Texas that would be 30.06 signage?

I've seen this asked here before (and can't find the thread - must a been a while ago) and the consensus seems to be (if I recall correctly) that nobody is compelled to enter a "gun-free" posted business, so it is your choice to go there and the business has no liability if some "bad guy" comes in and shoots up the place.

Others have argued that if the business owner prohibits my carrying effective means for my self defense, he has taken responsibility for my defense.

I do not mean to stir the pot here, was just interested that this guy's note was published in the journal of a well-known Law School and wondered what it implications it might have for "gun-free" places in general.
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Old May 12, 2016, 03:19 PM   #2
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Many people, on this and other forum sites, have argued that when any property owner adopts and enforces a gun-free environment, the property owner should be considered to have assumed an affirmative duty to protect those whom he has deprived of the means to defend themselves.

I think most of us agree that's how it should be viewed, but I'm not aware of anyone with a legal background prior to this article who has argued that that's the way it is.
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Old May 12, 2016, 03:32 PM   #3
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I find it an interesting argument but I think you elude to the counter argument. You are not required to enter a gun free zone and do so under no duress. Thus your willing entry assumes risk for yourself.
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Old May 12, 2016, 03:35 PM   #4
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I think all you have in this article is just that, an article. Maybe it rises to the level of a learned treatise and will affect the decisions of judges someday, but don't count on it.

When you get right down to it, do you think any government jurisdiction opposed to citizens carrying guns is going to allow public carry should they become responsible under case law for each person's safety? They'll either just shrug it off or put a cop on every street corner.
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Old May 12, 2016, 04:28 PM   #5
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There are two things going on here.

The guy who wrote the note is asserting that by making places "gun-free" by law, the government that made the law has established a "special relationship" with anyone injured there because of the law, and is subject to getting sued in court - that the "immunity" is erased or mitigated.

Nobody expects this to make the government give up on "gun-free" zones, his point is that he thinks they've opened themselves up to some legal responsibility that they currently do not have.

The other thing is that his ideas apply to governments and government agents - police; not to private businesses. Those are not mentioned at all.

I'm just wondering whether, if some court finds his argument convincing and allows victims of a mass shooting to sue the government that made the "gun-free" zone, that will have any effect on the possible liability of private business owners who post "no-guns" signs.
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Old May 12, 2016, 04:40 PM   #6
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this can only apply to public schools which compel children via their parents to attend or face legal penalties.

a movie theater you are not required to go to.....
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Old May 12, 2016, 09:29 PM   #7
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As JerryS said, a business is something you CHOOSE to enter and must accept their terms if you choose to do so.

Court, school, and many other government offices are not something that can always be avoided.
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Old May 13, 2016, 09:36 AM   #8
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Haven't there been legal decisions to the effect that the police are not responsible for protecting anyone?
Their duty rather is to maintain the peace, to secure and isolate a situation, not come to the rescue of any individual?
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Old May 13, 2016, 09:44 AM   #9
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https://en.wikipedia.org/wiki/Warren...ct_of_Columbia

You can google other analyses.
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Old May 14, 2016, 03:44 PM   #10
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I'm feeling the bias, therefore inclined to agree. I think that even if the impossible happened, and this guy's idea became law (through SCOTUS or whatever), it's application would be breathtakingly limited.

Any judge could easily say, "Well, the schools of that district share a private security service (it's one car with a 70 year-old lady, she was 4 miles away at the time, carries no weapon and is instructed to avoid any trouble that breaks out, but hey), so the gubbmint did a reasonable job of trying to protect you, and therefore meets it's burden."

The thing that strikes me as jaw-dropping hypocrisy is that while police have no duty to protect you (as per the Warren case, even if your home has been invaded, and you make multiple calls begging for help, and the police bungle the response according to their own standards) you are required to help them in certain circumstances, and it's a federal and state crime in many states to fail to do so. "ask not what your country can do for you..", eh?

https://en.wikipedia.org/wiki/Refusi...police_officer

As for the business thing, I don't see how it'll fly, legally. Not the govt, not a protected class...maybe if it's the only grocery store within 50 miles, so it kinda becomes a mandatory place to go?
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Old May 15, 2016, 01:10 PM   #11
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Thanks speedracer. The note to which I referred had a pretty good discussion of Warren, the Columbine shootings, the idea that the police have no duty to protect any particular individual, and immunity.

His point seems to me to be that the requirement of a "special relationship" between the authorities and the disarmed victim - that negates (in some part) the immunity and 'no duty to protect' - ought to be presumed met because the victims were disarmed by the "gun-free" nature of the location.

My question was related to any potential repercussions this view might have in terms of private sector relationships.

To my simple mind, it seems that if a business says "come on in and buy things, but leave your sidearm outside" that there is some subtext saying, 'you won't need it in here, we've got you covered'.

I know that in reality this is not the case but the law student's paper got me thinking about "special relationships" and so forth.
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Old May 15, 2016, 01:28 PM   #12
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"...when any property owner adopts and enforces a gun-free environment, the property owner should be considered to have assumed an affirmative duty to protect those whom he has deprived of the means to defend themselves."

Really?

When I go into a business it is to conduct business specific to the property owner. None of the business' that I go into, (even those with "NO GUNS" signs) are in the business of personal protection or security. These places have signs telling customers they're not responsible for lost or stolen items. I don't want them responsible for my personal safety.

If I disagree with their policy I can either shop elsewhere or ...
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Old May 15, 2016, 01:50 PM   #13
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If a business is argued to have such a duty the presence or absence of those signs should not impact that duty
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Old May 15, 2016, 02:54 PM   #14
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Quote:
this can only apply to public schools which compel children via their parents to attend or face legal penalties.
Not really; there are private schools, charter schools, religious schools and home-schooling options for your children

Since stores do not take responsibility for your car in their lot, even from the actions of others, why do you think they would take responsibility for your safety from armed attackers?
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Old May 15, 2016, 06:05 PM   #15
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Quote:
Originally Posted by FITASC
Quote:
this can only apply to public schools which compel children via their parents to attend or face legal penalties.
Not really; there are private schools, charter schools, religious schools and home-schooling options for your children
Slight drift from the intent of your post, but it raises a possibly interesting question:

Private schools are, well ... private. As in "not public," and "not run by the government." But they are schools. The laws of most states do not allow firearms on the property of schools -- and the definition encompasses all schools, public, private, parochial, etc. So what happens if the view espoused in this article becomes accepted? I think it's only fair and reasonable for the party responsible for disarming us to take on the responsibility of protecting us in the disarmament zone. So ... public school, public funds pay for the armed guards.

What happens in a private school? The school may be very pro-2A and may want to allow parents, faculty and staff to carry but is prohibited from doing so by state law. If it becomes somebody's responsibility to provide protection, does this mean that the private school would be forced to hire armed guards because of a state law they don't agree with? Would it mean that the state or some subset of the state has to provide armed guards at private schools as well as at public schools?

It would be SOOOOO much easier and cleaner to simply repeal all those anti-gun laws.
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Old May 15, 2016, 06:26 PM   #16
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Quote:
It would be SOOOOO much easier and cleaner to simply repeal all those anti-gun laws
True. And we won't go into civil disobedience.........
But until then, there is STILL a choice. My SIL homeschools her kids; two are now in college........
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Old May 16, 2016, 07:42 AM   #17
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Quote:
Originally Posted by FITASC
Not really; there are private schools, charter schools, religious schools and home-schooling options for your children
There might be non-public schools in a particular area but that is certainly not guaranteed nor is acceptance into any of them. Home schooling may be an alternative for some, depending upon state/local laws but not practical for some, like single parents working full time. And does someone have to pay for the public school plus the non-public school or home school expenses?

Quote:
Originally Posted by FITASC
Since stores do not take responsibility for your car in their lot, even from the actions of others, why do you think they would take responsibility for your safety from armed attackers?
I look at it this way. If a store chooses not to take responsibility for your car, for example, then they shouldn't ban stuff to keep your car safe like a car alarm. The same principle also applies to other things like personal safety. If a store chooses not to be responsible for your personal safety, then they should allow you to protect yourself like being able to carry a gun.
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Old May 16, 2016, 10:51 AM   #18
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it's been interesting to watch the Aurora shooting law suits pan out.
The survivors have sued the movie theater saying that the theater should have:
1. had guards
2. taken extra security precautions based on a DHS warning of an impending attack
3. Noticed the attacker suiting up (in the parking lot)
4. Should have had an alarm on the emergency exit door the attacker used to enter the theater.

Lot of spaghetti being thrown. Something might stick.
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Old May 17, 2016, 09:25 AM   #19
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Quote:
Others have argued that if the business owner prohibits my carrying effective means for my self defense, he has taken responsibility for my defense.
Quote:
I think most of us agree that's how it should be viewed, but I'm not aware of anyone with a legal background prior to this article who has argued that that's the way it is.
Right, because legally it hasn't occurred. There isn't a single case where this argument has been made and won.

Quote:
To my simple mind, it seems that if a business says "come on in and buy things, but leave your sidearm outside" that there is some subtext saying, 'you won't need it in here, we've got you covered'.
Well there's your problem. Your simple mind is drawing random, self serving conclusions from information not in evidence. Your simple mind was being way too complex. All the signs say is leave your gun outside. Period. Anything you read into that is on you, not the store.

However, let's turn this around...

If the argument is that a business that does not allow you to carry should therefore take responsibility for protecting you from injury, then if a business DOES allow carry, do they take responsibility for protecting you from injury if a gun they allow in the store discharges?

http://dfw.cbslocal.com/2012/07/24/t...llas-wal-mart/
http://krcgtv.com/news/local/police-...art?id=1152271
http://www.huffingtonpost.com/2014/0...n_5401191.html
http://www.liberalamerica.org/2014/0...walmart-video/
http://www.krem.com/news/local/koote...2469/157194148
http://raycomnbc.worldnow.com/story/...lmart-bathroom
http://wtvr.com/2015/06/13/gunfire-e...astoria-hotel/
http://thefiringline.com/forums/show...gent+discharge

So are Walmart and other businesses accountable since they ALLOWED guns to be present, following the logic that they should be accountable if they DON'T ALLOW guns to be present?
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Old May 17, 2016, 11:06 AM   #20
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Quote:
Originally Posted by Double Naught Spy
So are Walmart and other businesses accountable since they ALLOWED guns to be present, following the logic that they should be accountable if they DON'T ALLOW guns to be present?
No. It is called personal responsibility, something that is far to often absent in U.S. society today. A store, for example, should allow you to take responsibility for your own personal safety, such as carrying a gun. If the gun accidentally discharges, then that is also the responsibility of the person carrying the gun. Could a gun accidentally discharge in a store, injuring or killing somebody? Sure, but you could also, for example, accidentally injure or kill someone with your car in the parking lot and you don't see stores rushing to ban cars.
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Old May 17, 2016, 12:41 PM   #21
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Well then, it is obvious that if it is about personal responsibility, then we just blame the criminal if the criminal hurts someone in an illegal act. It is just so simple.
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Old May 17, 2016, 01:20 PM   #22
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Quote:
Originally Posted by Double Naught Spy
Well then, it is obvious that if it is about personal responsibility, then we just blame the criminal if the criminal hurts someone in an illegal act. It is just so simple.
Personally I wouldn't have it any other way... The problem that frequently comes into play is the store won't let you take responsibility for your own safety and won't take responsibility for it either.
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Old May 17, 2016, 01:30 PM   #23
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Our laws have begun to decay as our civilization has evolved. In a society such as ours where we are the only nation that accepts every race and religion to practice their beliefs without persecution, lawmakers forget that what gave us our freedom was that everyone is equal, thanks to Samuel Colt. America is a complicated nation because of our democracy and beliefs.

We are not a nation that have cast societies. There are no lords,princesses,or kings. We here in America have the same rights as everyone and we are not above the law that as a society have approved through democracy by choosing to vote or not. What has become obscure is that most of the lawmakers in positions of power and authority make decisions from their ivory towers, surrounded by an army of security personnel and their fore feel entitled.

My second amendment makes me feel entitled and I bring no harm to others and if the situation ever arises I hope that I can protect the weak. There is an old saying that goes like this. "Evil preys on the weak because it fears the strong". I am strong not because I carry a firearm but because I believe in good, because I am a man of good morals and character, but mostly because I believe in GOD and am willing to give up my life for it.
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