DENVER - A Denver federal judge will decide by January on whether to dismiss a lawsuit filed by victims of the Aurora theater shooting against theater owner Cinemark.
Lawyers for the victims say there was lax security at the Aurora Century 16 on July 20 that enabled the gunman to open fire during a midnight showing of the Batman film, "The Dark Knight Rises." Twelve people were killed and 58 others were wounded.
The lawyer for Cinemark asked U.S. District Court Judge Michael E. Hegarty to dismiss the lawsuit, saying there was no way Cinemark could have foreseen a mass shooting.
"A mass assault is not an event that a commercial enterprise should have to plan for as one that is likely to occur," said Cinemark attorney John Roach. "Prior ordinary crimes (at the theater) cannot put Cinemark on notice that mass murder is likely to occur."
"A landowner is not liable for unforeseeable criminal acts," Roach said.
The victims' lawsuit said Cinemark bears legal responsibility, because the theater lacked security guards and apparently had no alarm on a theater emergency exit door, through which accused shooter James Holmes allegedly entered and opened fire.
But Roach says questions about whether security measures were adequate is an "improper analytical framework (that) puts the cart before the horse."
The theater owner's attorney said the victims have "no claim, because they don't submit facts to show Cinemark should have known" that a mass shooting might happen.
Yet, if Cinemark had hired a security guard, the judge said, that "first line of defense probably does mean something. But that won't matter to my analysis" of whether the case should be dismissed, Hegarty added.
However, the judge said he was wrestling with Cinemark's argument that the lawsuit should be dismissed without allowing victims' attorneys an opportunity to conduct discovery -- or legal investigation into what action or studies the theater owner had taken regarding security.
"I'm honestly struggling with the idea of not allowing discovery in this case," Hegarty said. "I don't know if there are memos at Cinemark, maybe there's a study they authorized that said it is going to happen one of these days. I don't know that, but it's one of the things discovery might find."
Meanwhile, James Holmes awaits a criminal trial on 142 charges, including 24 counts of first-degree murder, two for each of the 12 people who were killed.