It has become a dismally familiar headline: a death count and an injury count stemming from a concert. The most recent, one dead and three injured, occurred at a shooting at a T.I. concert in Manhattan. This occurs ironically, or fortuitously, just as a Colorado jury decides that Cinemark movie theatre is not liable for the shooting that took place in Aurora. The concert took place at a Live Nation venue.
And, enter the public debate. Civil and criminal lawyers alike weigh in. But judges and juries will decide. We the people have to ask ourselves what kind of world we want to create.
Do the horrific events say something about rap culture? Or, is it more of a commentary of the American gun culture? Or is it simply a commentary on the particular individual who did the shooting?
Or is it a commentary at all? Maybe it is just a practical question with a practical answer: what can we do to make sure that tragedy doesn't strike again, whatever the cause? Do we want to live in a safe world or a free world and can't we have both? Who is responsible? Certainly the shooter is responsible. (Or is he? His lawyer has gone on record calling him the victim.) What about the venue? What about Live Nation? Holding venues accountable would certainly encourage security measures. But do we want to have to pause for a stop and frisk in every place where a shooting occurs? Concerts . . . ok, movie theatres . . . maybe, high schools . . . probably not . . . . It depends.
So who is responsible? This is the kind of complicated liability question, made more complicated by the constitutional provisions contained in the 2nd Amendment, that makes law students dread the bar exam, and lawyers like me, who don't have a dog in the fight, engage in pointless debate with colleagues.
Liability comes, generally speaking, when first, there is a duty; second, that duty is breached; and third, some damage comes as a result of the breach of duty. So first, we'd have to ask whether or not Live Nation had any duty to protect its patrons from gunfire. Second, we'd want to know whether Live Nation breached the duty. This second question depends upon whether or not it took 'reasonable measures' to ensure that the duty was not breached. Third, we'd want to know whether or not damage occurred.
Maggie Heckstall, a model who was shot in the leg after being caught in the crossfire definitely suffered damages. The third prong of the three part test is easily met for her. She's got medical bills, and at least one scar on her model's leg, and (if I had to guess) a completely reasonable fear of crowds and loud, sudden noises. It's the first two prongs - duty, and the breach thereof -- that give lawyers headaches.
Without getting too deep into impenetrable lawyer land and the different duties owed invitees and other individuals, what duty does Live Nation have to protect the people who go to its concerts from some random crazy (or mean, or vengeful, or deluded) person with a gun? Would it matter if Live Nation created one by promising its patrons extra security?
Live Nation is the same outfit that was in charge on November 13, 2015 at the Eagles of Death Metal concert in Paris where over 80 people were killed in a terrorist attack. After that attack, Live Nation issued a statement in response saying, "Due to the recent events in Paris and in an abundance of caution we have implemented heightened security procedures globally."
Does that change anything? Did Maggie Heckstall have any right to rely on Live Nation's claim that it would heighten security in order to keep her safe when going to a Live Nation concert? Ms. Heckstall's lawyer, Ryan Blanch, says it very well might. In fact, Mr. Blanch says his firm is investigating claims that not only did Live Nation not heighten security protocols, but actually had less security in place than would normally be expected. "We are investigating reports that Live Nation's statement after the Paris attacks were just hot air. This concert may have had less security than most rap concerts, including ones that took place before the Paris shooting. A venue is not responsible for the actions of every person who walks through the door, but they do need to take reasonable security measures."
Of course, even assuming the rumors about metal detectors sitting uselessly to the side as everyone walked in are true, is that necessarily unreasonable? What are "reasonable security measures" and how do you implement them in a way that protects patrons without being too invasive or running afoul of people's rights? Should metal detectors be used? Should every bag be searched? What about physical pat downs? Does it matter if this is a heavy metal band or a rap artist or a boy band or a country music concert? Would a "good guy with a gun" have made things better? Or made for more crossfire? And how would you distinguish a good guy from a bad guy at the door without running afoul of profiling or other legal no-nos?
I'm not sure I have the answers, but I sure will be thinking about the questions. The older my children get, and the more they want to go to concerts, the more it affects me personally. I'll be following Maggie Heckstall's saga to see what happens.