DENVER (CN) – Should a Colorado health clinic have beefed up security in anticipation of an attack at a facility that provides abortions? Seven Colorado Supreme Court justices will decide whether a jury should hear the case.
On Nov. 27, 2015, Robert Dear pulled into the Planned Parenthood Colorado Springs Health Center armed with four SKS rifles, two handguns, a shotgun, a rifle, and a propane tank. Intending to wage a war against the fertility clinic which provides abortions, the 57-year-old Dear fired 198 bullets at patients and staff both in the parking lot and inside the facility, killing three people including a police officer.
Federal prosecutors indicted Dear in December, but it remains to be seen whether he is mentally fit to stand trial.
Five people including Ashley Stewart, the wife of a military veteran killed in the attacked, sued Planned Parenthood in 2016. A Colorado judge initially granted summary judgment in favor of Planned Parenthood, but the Colorado Court of Appeals reversed in February 2019.
Now the Colorado Supreme Court’s panel of seven justices will have the final word on whether the case goes to trial.
“The lack of security measures did not lead to the assault. If the history of murderous rampages has taught us anything, it’s that this couldn’t be prevented by normal security measures,” attorney John Roche argued Tuesday before the panel on behalf of Planned Parenthood of the Rocky Mountains. “A stronger door or a single armed guard wouldn’t stop someone armed to the teeth.”
With the Denver firm Taylor Anderson, Roche also represented the Cinemark movie theater in Aurora after a shooter killed 12 people there during a 2012 screening of “The Dark Knight Rises.”
Justice Richard Gabriel pushed back.
“How do you know that? I think that’s a fact question," Gabriel said. "If there was an armed guard watching this on a security monitory, couldn’t that have saved lives?”
“Maybe, but maybe isn’t the legal test,” Roche replied. “We’re not arguing that an armed guard couldn’t have made a difference, but that no normal armed guard could have prevented the harms caused by Mr. Dear.”
In Roche’s view, Dear is the predominate cause of suffering, not the clinic.
The panel tried to parse out whether this is always the case, whether a property owner should never be held liable following a mass shooting or terrorist attack.
Attorney Ron Wilcox, representing the victims’ families, offered one example.
“The 9/11 Twin Towers probably represents the best case of predominate causing, with that being the planes,” Wilcox said. "You can argue there is nothing the landowners could have done in that situation to deter that attack."
The Planned Parenthood case is different, Wilcox argued, because at the time of the attack, the Colorado Springs clinic lacked a full-time security guard and had no one watching the site entrance.
“When is it enough?” Gabriel countered. “You can find an expert who says you could have built a fortress. What Planned Parenthood did or didn’t do paled in comparison to this maniacal killer who was ready to die there.”
He added, “Since there are so many mass shootings, unfortunately, why couldn’t you argue whether one was foreseeable at a school or a synagogue, a mosque or a McDonalds?”
Wilcox responded with reason.
“The kinds of measures we’re advocating for aren’t fortress measures, they’re having a full-time security guard instead of a part-time one,” Wilcox said. “Here there was nothing, no barriers, no fence.”
Chief Justice Nathan Coats said few words except to thank both parties for their arguments. Justices Melissa Hart, William Hood III, Carlos Samour Jr., Monica Marquez and Brian Boatright rounded out the panel. They did not indicate when or how they will decide.
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