Lawsuits from tragedy, ubiquitous security cameras, and IRS torpor

April 23, 2013

1. Does awful luck always have to mean a lawsuit?

As Alison Frankel reported in her Thomson Reuters litigation column, last week a federal judge in Colorado refused to dismiss a suit brought by victims of the movie massacre in Aurora, Colorado against Cinemark, the theater chain that owned the Aurora venue.

The judge, as Frankel reports, wrote in his decision that “his first reaction to suits against Cinemark was, ‘How could a theater be expected to prevent something like this.’” But he went on to rule, according to Frankel, that:

[V]ictims should be allowed to probe exactly what Cinemark knew about past criminal activities at the Aurora theater (which had been the site of occasional gang-related violence), what it should have known about the risk of shootings, and what informed its decisions about safety and security for moviegoers. Holmes [the alleged shooter], after all, apparently made more than one trip from the theater to his car, where he had stored weapons and ammunition, and each time returned to the theater via a door he had propped open. “This took an extended period of time, but he was not monitored, deterred or contacted by theater personnel,” the judge said. [Judge] Jackson also noted that the theater didn’t bring in security guards for the midnight Batman premiere, even though it often hired security on the weekends.

To be sure, the judge noted that this was a close call and that he might end up giving the theater owner summary judgment after he reviews pre-trial discovery. Nonetheless, he has opened the door to expensive litigation brought by people who had tragically bad luck against a corporate defendant whose pockets are deep but for whom finding fault would be, to put it mildly, quite a stretch.

Not only does the green light for this case deserve coverage far beyond Frankel’s column, it also suggests lots of related, broader stories:

Will theater owners stop hiring guards occasionally for fear of being held responsible when they don’t?

What will decisions like this do to insurance rates at public venues?

And let’s see a list of all the suits brought (along with their status) against all defendants in this and similar recent tragedies, such as Sandy Hook, Tucson, and now, I guess, the Boston Marathon.

Finally, with all of this in mind, let’s start seeing some probing stories about the litigation that’s probably already brewing as a result of another tragedy last week where the culprit really may be a corporate actor rather then some shallow-pocketed (and, in some cases, dead) mad men: the explosion last week at that fertilizer plant in West, Texas that killed 14 people, left many more missing or severely maimed, and devastated much of the town.

Have plaintiffs’ lawyers already descended en masse on West while the dust is still clearing, as usually happens? Who’s signing up the most clients, and how?

And which corporations responsible for the plant and its safety are their likely targets?

2. Ubiquitous security cameras:

With ubiquitous security cameras (including one positioned outside a department store) having been the key to nailing the alleged Boston Marathon bombers, deploying these remote spy tools is likely to accelerate. As this story reports, even as the FBI and police were just starting to close in on the brothers Tsarnaev, Mayor Rahm Emanuel of Chicago “lauded the use of such cameras in Chicago” and promised to keep buying more.

So, it’s time for a slew of stories about this surging security technology. Who are the big winners in the business? What are the economics? What are the quality differences in the products being sold?

Have any courts impeded the deployment of video recording devices, challenging what seems to be the logical argument that if you can be seen in a public place you have no legal expectation of privacy?

Which cameras also record audio? And doesn’t the possibility of overhearing conversations raise privacy issues beyond those having to do with people in public just being seen?

Have any private parties tried to subpoena video (or audio) recordings from cameras deployed by other private parties or even the police? For example, if a hotel has security cameras in the lobby or at the entrance, has anyone involved in a contentious divorce tried to use the recordings for evidence?

Finally, there’s the phenomenon of facial recognition technology – the process by which video recordings are frozen and the faces of those shown are digitized and then compared with data bases of other digitized photos. It started as a relatively primitive technology, with only near-perfect, straight-on camera shots being able to be matched with each other. And the databases were pretty much limited to mug shots and passport photos. Have things now advanced far enough so that the kinds of street-camera images recorded of the Tsarnaev brothers can produce quick matches? And have other photos, such as drivers’ licenses now been loaded into the databases?

3. Holding the IRS accountable:

Karl Rove’s Crossroads GPS, the conservative political action fund, and others like it continue to be allowed to keep the names of their donors secret because they claims status as a 501 C (4) tax exempt entity under Internal Revenue Service rules that are supposed to be for the benefit of “social welfare” organizations. This designation allows them to evade Federal Election Commission rules requiring that the names of political donors be made public.

Rove’s questionable application to the IRS has been pending for almost three years, and under IRS rules he is free to collect his secret money and spend it on candidates unless and until the IRS rules that he can’t.

Meantime, a growing number of non-profit online local news organizations – formed to take up the slack in vital news coverage caused by staff cutbacks at financially-pressed traditional newspapers – can’t get non-profit, tax exempt status because the IRS is apparently still operating under a guideline it wrote in 1967, under which organizations can’t qualify if they cover the kind of news that commercial newspapers cover.

The sixties were the days, of course, when commercial newspapers were thriving and actually covering a lot of news; there would seem to be a good argument that the news business – and the need for non-profit journalism – has changed 46 years later.  But whatever the merits, for me the more striking story here is that no one seems to be holding the IRS accountable for its actions in these cases, or for its inaction in cases like those in which political slush funds like Rove’s or Organizing For America, the 501 C (4) organized by supporters of President Obama, remain under wraps.

This otherwise comprehensive post on the blog of the John S. and James L. Knight Foundation, a leading funder of online news non-profits, illustrates perfectly how the IRS seems to be regarded as an inscrutable, unaccountable building rather than a group of public servants who work for us. The blog post deftly summarizes the argument for the absurdity of the IRS’s position that the new non-profit news organizations don’t qualify for tax exemptions but never tells us the names of the people making these decisions or what their side of the story is. In fact, it seems from other material I have read about the issue, that, as with the controversy over the secret slush funds, the IRS has never been asked to tell us its side.

Why haven’t Treasury Secretary Jack Lew, his predecessor Timothy Geithner, or their IRS Commissioner, Douglas Shulman, been asked to explain their decisions or their inaction? Ditto, the issue I wrote about last month  – the IRS’s failure, now more than three years running, to promulgate regulations to implement Obamacare’s important new restrictions on the ability of hospitals to hound and sue poor patients who can’t pay inflated bills.

Memo to Washington reporters: The IRS is not a court, where decisions made, or decisions delayed, aren’t supposed to be questioned by pesky reporters. It’s a division of the executive branch. It’s your job to pester the people behind the curtain.

PHOTO: Investigators look for evidence near security cameras on the Lord and Taylor department store building at the scene of the Boston Marathon bombings in Boston, Massachusetts April 18, 2013.  REUTERS/Brian Snyder


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The Colorado ruling is no where near the travesty of justice that the commentator is claiming. A basic tenet of law in the US is that business have a duty to protect their customers from reasonably foreseeable harm.The only thing the judge is allowing is for the defendants to submit evidence that the theater knew or should have known about the danger the shooter presented, when they invariably fail in this proof, the Defendant will be granted summary judgement and be released from liability. Yes, it is annoying for the theater to have to spend money defending this case, but guess what, that is why they purchase insurance, to cover such contingencies.

Posted by triviaguy | Report as abusive

Wow. How quick you are, Mr. Brill, to jump to the defense of the big corporation.

So, they are totally without responsibility here. Really?

– Could they have made sure that each and every door into the theatre was locked and/or monitored?

– Could they have noticed something different, some unusual, such as…a man in costume walking into the theatre carrying weapons and ammunition?

– Could they—knowing there were already lots of reports about violence—have beefed up security just a bit? (I worked as a minimum wage security guard during my college summers, told just to be watching every moment in case anything suspicious occurred. Could they have afforded to pay someone $10 an hour for this?

And why is the gun manufacturer, distributor and retailer immune from a lawsuit? Same for the ammunition maker. Do you think that’s a good thing?

I’d like to believe that you’re always calling it as you see it, Mr. Brill, regardless, and that informing us of the truth is your paramount concern.

But, after reading most of “Class Warfare”, I have real doubts about your judgment and your integrity.

Maybe you’re doing here, what you did in writing that “education” screed; promoting the view of the side that has lots more money—with the hope that you can access some of it later, as a “writer” on their behalf, doing “special projects” or whatever name you choose to give to obsequious fawning in public.

Talk about a new form of “Ambulance Chasing”…

Some of us can see right through it, Steven. And it won’t wash. It just won’t wash.

Posted by ModernDad | Report as abusive