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'The Dark Knight Rises' Shooting Victims Lawyer Up; Blame Begins (Analysis)

Should the Aurora, Colo., theater owner Cinemark pay the victims?

Dark Knight Rises Shooting Aurora Colorado Theater - H 2012
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This story first appeared in the August 10 issue of The Hollywood Reporter magazine.

It took only one week to move from remorse over what happened at a Colorado movie theater July 20 to finger-pointing about legal responsibility. Even before shooting suspect James Holmes, 24, was charged with 142 counts, including first-degree murder, some victims and their family members had retained lawyers to prepare for suits.

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One man who attended the screening said he will sue theater owner Cinemark, The Dark Knight Rises studio Warner Bros. and Holmes' doctors. A parent of a 32-year-old woman shot and killed in the rampage is preparing a lawsuit on grounds that the Century Aurora 16 multiplex's emergency exit doors should have had alarms and security guards posted next to them. If history is a judge, however, Warners likely will not be forced to pay anything except the cost of defending such suits. In the wake of past movie-related shootings, victims have attempted unsuccessfully to hold producers liable for such violent fare as Natural Born Killers, The Basketball Diaries and Boulevard Nights.

The First Amendment grants broad protections for free expression, even when "someone uses that expression as a springboard for violence," says former U.S. Solicitor General Walter Dellinger. As for Texas-based Cinemark, though, past case law offers slightly greater cause for concern. In 2011, six years after a patron was shot and killed at a screening of Curtis "50 cent" Jackson's 2005 film Get Rich or Die Tryin' at a Loews theater in Pittsburgh, the theater company was found negligent by a jury for faulty security.

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But the difference between what happened in Pittsburgh and what happened in Aurora comes down to foreseeability, the primary factor in a negligence claim. The Pittsburgh theater had previous security problems and was in a high-crime neighborhood. By contrast, the middle-class Denver suburb was deemed an All-American city by the National Civic League, and in 2011, Forbes magazine ranked it the ninth-safest city in the U.S. based on FBI crime statistics. 

Even if plaintiffs' attorneys were able to show the July 20 crime was foreseeable, and thus the theater had a duty of care, the next formidable obstacle would be to demonstrate that the duty was breached. True, the multiplex had employed security guards on weekends and none was on duty the night of the massacre. But would more alarms and security guards really have prevented this tragedy? Holmes reportedly bought a ticket to Dark Knight Rises, waited for the film to start then returned to his car and armed himself before sneaking back into the theater through an exit door he had propped open. Says Eric Turkewitz, a New York attorney, "It's hard to see what would have stopped this guy."