Can You Trust The Media To Get Legal Stories Right?
There, I saved you a click.
Let me qualify that. Some reporters are very good at reporting legal stories. They know what they are talking about in the first place, or they take pains to educate themselves. When a story is complex, they work to make it readable without making it inaccurate.
That is not the norm.
This week's example: the horrific July 2012 movie theater shooting in Aurora, Colorado.
Survivors of the shooting, and relatives of the slain, sued Cinemark Holdings, Inc. and other companies in the movie theater's chain of ownership. A federal court consolidated multiple cases into one. Recently the defendants in that case filed a motion for summary judgment, arguing that the court should grant judgment to the defense without trial because the shooting was not foreseeable to the theater.
A motion for summary judgment doesn't ask a judge to weigh evidence. It asks this: is there any admissible evidence that supports a legally viable theory under which the plaintiff could win? If a jury believed plaintiff's evidence and not defendant's evidence, would there be evidence to support everything that the plaintiff has to prove? If plaintiffs supply any facts which support a valid legal theory, they have created a "genuine dispute of material fact," and the court must deny the motion. If, on the other hand, undisputed facts show that the plaintiff isn't entitled to relief under the law, or if the plaintiff has no evidence to support key claims, then the court must grant the motion.
Let me give you an example. Say someone calls me an assmunch and breaks my mint Chewbacca action figure, and I sue them for defamation and intentional infliction of emotional distress and, I don't know, trespass to Wookies. The defendant files a motion for summary judgment. There are a number of ways the defendant might win. The defendant might win the defamation claim if the court found (correctly) that it doesn't matter whether or not the defendant called me an assmunch, because that's a statement of opinion rather than one of fact and can't be defamation. The defendant might win the intentional infliction of emotional distress claim because, as a matter of law, being called an assmunch is nowhere near outrageous enough to support the tort.1 The judge might grant summary judgment on the grounds that California does not recognize the tort of trespass to Wookies. The judge might grant summary judgment because I have no witnesses or evidence that the defendant bent my Wookie. But if the defendant offers declarations from twenty upstanding citizens that he did not bend my Wookie, and I offer one lonely declaration from a felon or heroin addict or Congressman or something, they lose, because a jury could conceivably believe my evidence.
That's what happened in the Aurora shooting case. The United States District Judge evaluated Cinemark's motion and denied it. The court answered the correct question posed by the motion: do the plaintiffs have any evidence which, if believed, would support their claim that the shooting was foreseeable? The court said:
None of these facts, even when taken together, compels the conclusion that Cinemark knew or should have known of the danger that the patrons of Auditorium 9 faced. I reiterate that this Court is in no way holding as a matter of law that Cinemark should have known of the danger of someone entering one of its theaters through the back door and randomly shooting innocent patrons. I hold only that a court cannot grant summary judgment on what is normally a question of fact under Colorado law unless the facts so overwhelmingly and inarguably point in Cinemark’s favor that it cannot be said that a reasonable jury could possibly side with the plaintiffs on that question. I am not convinced. Plaintiffs have come forward with enough – and it does not have to be more than just enough – to show that there is a genuine dispute of material fact. A genuine fact dispute must be resolved by the trier of fact, not by a court’s granting summary judgment. Whether the jury will resolve this issue in the plaintiffs’ favor is a different matter entirely.
In other words, the court did not find that the shooting was foreseeable. The court found that if a jury believed the plaintiffs' experts and evidence, the jury could conceivably find that the shooting was foreseeable.
Here's how that result is headlined in the Denver Post:
Federal judge rules Aurora theater shooting was foreseeable
No. That's not what the judge found. In fact the judge specifically and explicitly said it wasn't making that finding.
The article was edited at some point; I can't find the original. But now it says this in the body:
The owner of the Aurora movie theater that was the site of a deadly 2012 attack could have reasonably enough foreseen the danger of such an attack to be held liable for it, a federal judge ruled Friday.
Noting "the grim history of mass shootings and mass killings that have occurred in more recent times," U.S. District Court Judge R. Brooke Jackson ruled that Cinemark — owner of the Century Aurora 16 theater — could have predicted that movie patrons might be targeted for an attack. Jackson's ruling allows 20 lawsuits filed by survivors of the attack or relatives of those killed to proceed toward trial.
This is not quite as bad as the headline, but it's still bad. The judge did not rule that the theater "could have reasonably enough foreseen" the shooting; the judge ruled that a jury could possibly find that the shooting was foreseeable.
Perhaps you think I am being a pedant, and that "could have reasonably enough foreseen" is acceptable shorthand for "there is some evidence from which a jury might find that the theater could have reasonably foreseen." That generous interpretation is dashed by the rest of the story:
Jackson's ruling does not decide the lawsuits' ultimate question: Did Cinemark do enough to try to prevent the shooting? The lawsuits argue Cinemark should have had extra security measures in place to discourage the attack and to stop it more quickly once it began.
By calling the question of reasonable measures the "ultimate question," the article incorrectly implies that the issue of foreseeability has been resolved, when in fact the judge explicitly said it is not resolved.
In short, the Denver Post got the story badly wrong, substantially changing the meaning of the judge's ruling. The gulf between "I find this was foreseeable" and "I'm not saying it's foreseeable; I'm saying a jury might possibly think so" is vast. As you would expect, this incorrect interpretation then propagated, causing predictable outrage in some quarters. How can a judge find this is foreseeable? Why doesn't a jury get to decide?
Some people got it right. For instance, the blog Deadline Hollywood, which quotes the key part of the decision and therefore tells its readers what actually happened.
Yet some would have us believe that traditional, respectable media outlets like the Denver Post are reliable, and blogs are not.
It ain't necessarily so.
Now, if you'll excuse me, I need to go read coverage of the situation in the Middle East.
- Even this is not certain. Say the defendant is my therapist and, immediately after we reach a crucial breakthrough in my therapy and I am finally able to reveal a childhood trauma, the therapist jumps up, throws open her office door to the waiting room, and in front of the waiting patients screams "GET OUT OF HERE YOU ASSMUNCH." ▲
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