This question has come up from time to time. It seems clear that the
bulk of precedents does not support a premises proprietor (which would
be the role of an employer) being liable for the criminal wrongdoing of
persons on the premises, as long as there was not clear evidence of
instigation or incitement. The presumption is in favor of the
proprietor, although one never knows what a jury might do. I have
searched for cases in which the victim of a crime has sued the
proprietor for preventing him from defending himself, or being defended
by another who was disarmed by the proprietor, but not found any, at
least none that made it to the appeals level. I have suggested that we
be on the lookout for such a case and push it if it comes up. To my
mind, the greater liability falls on the proprietor who prevents someone
from defending himself or others. If we got one such case, there could
be a sea change in legal advice on the issue.
If we didn't have to confront the sovereign immunity defense, one could
make a case for any victim of a crime suing the government for
preventing bystanders from being armed, and thus defending him, in a
public place such as a street. That would have likely been a winning
case in the Early Republic.
-- Jon
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