Jul 10, 2018 | Ben Boscolo
This post was co-authored by Elizabeth Payne-Maddalena and Benjamin Boscolo.
Recently, a mass shooting event happened at the Capital Gazette in Annapolis, Maryland, not far from our Greenbelt office. Five Marylanders and committed journalists lost their lives when a gunman opened fire on the newsroom, and two more were seriously injured. Our hearts go out to the reporters who were simply doing their jobs when the shooter targeted them. ChasenBoscolo stands with the Capital Gazette, Sun Newspaper Group and the Annapolis community.
As of the posting of this blog, there have been 168 mass shooting events in the U.S. just this year. Unfortunately, as Americans know all too well, these events can and will happen anywhere. This number will continue to go up as long as lawmakers choose to ignore the root cause of the problem. In the meantime, those who are left behind – survivors and family members of those lost – have a long, arduous road to recovery that goes on long after the cameras leave and the attention of our leaders moves on to the next tragedy.
Many people do not know are their legal rights in the wake of these events. These rights vary from survivors left with physical injuries and mental scars, to the families left behind. Our hope is that this blog helps people understand what their rights are as they try to cope and heal. This isn’t just meant for those impacted by the Gazette shooting, or the Great Mills High School shooting, or the survivors in Parkland; but also the people who’ll be targeted in the inevitable next one.
Red Flags Ignored
When I was in college, back in 2007, I did a research project focused on the psychological mindsets of mass school shooters. One thing I discovered, which still rings true today, is that there are almost always warning signs of the coming violence – warning signs that many people, including people with the power to prevent the attack, knew about. In all of the mass shootings I studied, I learned that for a variety of reasons, these red flags are ignored. When the people in power ignored the warning signs, the result was the shooter being allowed to carry out his plans uninterrupted.
While these institutions or businesses may not have actually pulled the trigger, their choosing to turn a blind eye to the threat make them civilly liable for their negligence. That is what creates the legal right for survivors and family members of victims to bring civil lawsuits in order to be compensated for the damages they suffer as a result of the shooting.
Who has the right to sue?
The law only gives certain people the right to recover in these kinds of situations. Generally, the only people with the right to sue are those survivors directly impacted by the event, and certain surviving family members of those killed in the shooting. For those unfortunate people who were at the place where the shooting occurred, they can only recover if they are in the “Zone of Danger.”
Survivors of the Shooting
People who were actually present when the event occurred rarely walk away unscathed. They either suffer physical injuries from being shot or, more significantly, emotional and mental trauma, such as post-traumatic stress; or both. Survivors have the right to file civil lawsuits for damages to help pay for:
- Hospital treatment
- Rehabilitation and medical treatment
- Psychological counseling and treatment
- Expenses related to permanent injuries, such as making a home handicap friendly
- Lost income due to injuries
- Pain and suffering – both physically and mentally
Anyone with a physical injury has a right to be compensated for these injuries. This includes any mental or emotional distress, trauma, and treatment needed. Survivors have the right to be compensated for the previously mentioned costs and effects of the shooting.
But what about people that only suffered mental distress as a result of the shooting?
This is much more complicated. Generally, D.C., Maryland and Virginia first require that that the person was in the “Zone of Danger”. This means you were there, in the immediate area of the shooting (same room/floor/office) and were actually afraid of being shot. Whether or not a survivor of a mass shooting is in the zone of danger is a very fact-specific determination. To make things more challenge there are little differences in the law in Maryland, D.C. and Virginia that make it very hard to really break down the Zone of Danger here. For example, each state and the District of Columbia have different rules about whether or not a person has to display physical signs or symptoms of their mental trauma to recover. That’s why it’s absolutely essential for a survivor left behind with mental scars from trauma to talk to an attorney who is experienced with mass shooting cases.
Physical Wounds and Medical Treatment – Who Pays?
For many physically injured mass shooting survivors, the types of injuries they suffer require immediate emergency medical treatment. They’re taken from the scene straight to the hospital, by ambulance, helicopter, or, the backseat of emergency responders’ cars. For those with only minor injuries – broken bones and concussions from trying to escape the gunman – they’ll be quickly released. But survivors who suffer gunshot wounds face a long road to recovery, one that may take months, or even years.
Either way, a trip to the hospital alone costs thousands of dollars, money most Americans simply don’t have. Survivors who needs extensive treatment are faced with tens or even hundreds of thousands of dollars in medical bills. So who pays for it? And who should pay now?
If you’re lucky enough to have health insurance, you should absolutely use it to cover the bills now. Many people think if they think they use health insurance, they can’t claim those medical bills paid for by their insurance in their cases. That is untrue. You can still claim those medical bills. Ultimately, the negligent party should pay for the medical bills, but in order to protect yourself in the meantime, health insurance can step in and pay for the care needed for recovery.
The Scars of Trauma – Getting Psychological Treatment
Immediately after a mass shooting event, local charities and organizations do a great job offering survivors grief counseling and making sure mental health hotlines are available. But for many, regardless of whether they were physically harmed in the shooting, the mental and emotional aftereffects last far longer than a few weeks – and require more help than what these resources can offer. Victims deal with everything from survivor’s guilt to flashbacks, nightmares, and panic attacks. Some survivors find that the mental effects can be even more devastating and harder to heal than their physical injuries.
Luckily, grief counselors and crisis hotlines are incredibly helpful for finding mental health providers that specialize in helping trauma survivors. Be sure that whoever you see is experienced in dealing with post-traumatic stress. It is even better if they’ve helped survivors of mass shooting events before. Either way, getting help as soon as you can is extremely important to help you process and recover from the trauma you’ve endured.
Just like with medical treatment, if you have health insurance, mental health treatment should be covered.
For Those Left Behind – Wrongful Death and Survival Claims
Unfortunately, many mass shooting events result in the loss of innocent lives: children, parents, friends, co-workers, brothers and sisters taken far too soon in an act of violence. Left behind are heartbroken family members and loved ones struggling to fill the holes left in their lives. They’re suddenly planning for funerals, which, according to https://www.parting.com, cost between $7,000 and $10,000. Many victims of mass shootings are young people, meaning they hadn’t financially planned for their deaths, leaving their loved ones shouldering heavy costs. When a parent is killed, the loss of income can devastate a family. This financial loss is magnified by the sudden and violent loss of their loved one and the accompanying public attention.
In these situations, there are two kinds of claims certain family members can bring: wrongful death claims and survival claims. Let’s briefly explore these together
Wrongful Death claims:
A wrongful death claim is a claim brought by certain family members of the departed person which allows them to be compensated for the loss of their loved one. Only certain family members have the right to bring these kinds of claims. Those who have these right depends on whether or not the victim was married and has children, as well as surviving parents, brothers and sisters. Finally, the people who have these rights differs between Maryland, Virginia and the District of Columbia. This is another reason it is important for surviving family members to talk to an experienced, knowledgeable attorney.
Wrongful death claims allow the family to be compensated for the following losses:
- Any medical bills for treatment to the departed person as a result of the shooting
- Funeral expenses
- The loss of current and future income the victim would’ve earned
- Grief, pain and suffering that the family endures from the loss of their loved one, both past, present and in the future.
One particularly tricky part of wrongful death claims is that (generally), the law only allows one claim to be made for all the family members who have the right to bring these claims. That means that everyone who wants to bring a claim, or wants to bring a claim, needs to be part of one action. Maryland requires all of the family members with the right to be a named party in the case, even if they do not want to participate or bring a claim at all. It’s important for close family members to discuss this option together, and keep the lines of communication open. Some families pick one person to be the main point of contact for any discussions with an attorney.
The other kind of claim available are survival actions. This is for the actual pain and suffering the deceased victim suffered during and after the shooting but before they pass away. This includes their fear as they realized what was happening, as well as when they realized that they were not going to escape unscathed. If the victim was unfortunate enough to survive after being shot – even if it was for just a few minutes – these claims also allow damages for their pain, anguish and suffering during their last moments.
Unlike wrongful death cases, survival claims are brought on the behalf of the victim’s estate – the legal entity that exists after a person dies. Any compensation is then paid to satisfy any of the victim’s outstanding debts, and then to any people who get to inherit from the estate. Who runs the estate (the “personal representative” or “administrator”) and who gets to inherit depends on a couple of things. First, whether or not the victim had a will. Second, if there was no will, who the law allows to serve as a representative. The family members who can inherit again depends on the law of the state where the mass shooting event occurred and whether or not the victim was married or a parent.
The Challenge of Proving Negligence in Mass Shooting Cases
These cases aren’t easy. There are a lot of weird legal nuances, as well as factual, evidentiary, and societal hurdles that survivors and the families of the victims have to face. We do not want to discourage anyone from exploring their rights, we just want to be completely honest and candid.
We’ve already hinted at some of these problems: proving that the survivor was actually in the zone of danger; overcoming laws limiting the kinds of actions survivor with only psychological injuries can bring; making sure all the right people are named and involved in wrongful death lawsuits. But there are a couple other big issues that we haven’t talked about.
Ok, so, as we mentioned above, these cases center around the ignored red flags around the shooter and his behavior before the shooting occurred. This brings up an obvious point: we not only have to prove that these red flags existed, we also have to prove that the entity we think is responsible knew about these red flags. Then we need to prove that the responsible entity chose to ignore the red flags, allowing the shooter to take his plans and turn them into a tragic reality.
We also have to prove that the responsible entity that knew about the red flags had a legal responsibility to protect the people who were eventually targeted. Not a moral responsibility, but a legal one. This is a very fact-specific determination (like so many other things in these cases) and is something an experienced attorney can definitely help you figure out.
Suing the Shooter Directly
There’s a very obvious party we haven’t talked about yet: the shooter. After all, he’s the one who pulled the trigger, he’s the one who chose to take the lives of innocent people. Why aren’t we going after him?
The very simple reason is that these cases – meaning civil cases – only allow us to get our clients monetary damages. That’s the way the law works. Period. So, when there’s no money available to get – these cases are just simply not worth our clients’ time. It is not worthwhile for them to go through years of litigation (yes, we do mean years) to get nothing but a piece of paper in the end saying they won. There’s no question of who was in the right or the wrong here: we all know the shooter did something unspeakably evil.
So when we sue a shooter, unless they were a multi-millionaire, there’s nothing for our clients to collect. Homeowner’s insurance doesn’t cover these cases. Their contracts specifically deny coverage for intentional crimes like this. That’s why we’re not talking about suing the shooter themselves: because we don’t want to force survivors and grieving family members to go through all this for nothing in the end.
The other reason is that when an entity picks to ignore a red flag, they are responsible. They made a choice, and then decided for some reason not to warn anyone, not to do anything to try to stop the shooter, limit the risk he prevented, or add extra security or safety to keep people safe. They didn’t pull the trigger, but their silence makes them complicit.
One of the most important things to remember is that depending on the situation and where the shooting took place, there may be laws in place that shield those at fault from civil liability. This is called “immunity”, and who has immunity depends on what state the shooting occurred in. This is a very fact-specific determination, and is why it’s important for survivors and family members to talk to experienced lawyers who know what to look for.
One group of companies that families and survivors often believe should be held responsible are gun manufacturers. Unfortunately, Congress passed a law giving gun manufacturers total immunity from civil lawsuits, meaning these companies are legally shielded from responsibility. The only way that will change is if the law itself is changed.
If you have been the victim of or lost a family member to a mass shooting, it is important for you to contact a trial lawyer who is experienced in handling cases arising out of mass shootings. No matter what, we hope this blog has helped you get a better idea of what rights you have, legally, as you begin the long process of picking up the pieces left behind.