Stopping a Shooter

How church leaders can work to prevent a violent incident—or respond if one occurs.


In the summer of 2013, the Federal Emergency Management Agency (“FEMA”) released Developing High Quality Emergency Operation Plans for Houses of Worship (the “Guide”), a 38-page resource assisting churches with planning for, and responding to, emergencies. The Guide notes that many kinds of emergencies may affect churches, including:

Extreme temperatures
Winter precipitation
Violent acts

The Guide provides houses of worship with information regarding emergency operations planning for the spectrum of threats and hazards they may face. It discusses actions that may be taken before, during, and after an incident in order to reduce the impact on property and any loss of life and it encourages every house of worship to develop an “emergency operations plan” (EOP).

Key point. The Guide clarifies that it “does not create any requirements beyond those included in applicable law and regulations, or create any additional rights for any person, entity, or organization.”

The Guide acknowledges that “congregations may approach some of these issues differently than government and other community organizations,” but it stresses that FEMA “would like to assist congregations that are interested in emergency operations planning, and this guidance is offered in that spirit.” The Guide recommends that the church teams responsible for developing and revising EOPs use the Guide to assist their efforts.

“Active shooter situations”

Much of the Guide is devoted to the implementation and maintenance of an emergency operations plan (see “Developing an Emergency Operations Plan” on page 22). But the Guide ends with a look at the risk of “active shooters,” and it is this section of the Guide that will be addressed in this article.

Key point. The “active shooter” section of the Guide is based almost entirely on a 2008 booklet titled Active Shooter: How to Respond, which was prepared by the Department of Homeland Security (DHS).

The Guide defines active-shooter situations “as those where an individual is actively engaged in killing or attempting to kill people in a confined and populated area.” The Guide, in noting that churches are not immune from such assaults, refers to two examples—a 2012 shooting in a Sikh temple in Oak Creek, Wisconsin, that left six people dead and four injured, and a 2008 shooting at a Unitarian Church in Knoxville, Tennessee, that left two dead and seven injured.

The Guide makes the following statements:

“Working with emergency management officials and community partners, houses of worship can develop a plan to better prepare their staff and congregants in prevention, reaction, and response to an active shooter incident.”
“The better first responders and those working and visiting a house of worship are able to discern these threats and react swiftly, the more lives can be saved … . Working with emergency management officials and community partners, houses of worship can develop a plan to better prepare their staff and congregants in prevention, reaction, and response to an active shooter incident.”
“Active shooter situations are unpredictable and evolve quickly. Because of this, individuals must be prepared to deal with an active shooter situation before law enforcement arrives on the scene.”

Preparing for an Active-Shooter Incident

The Guide recommends that churches form an “emergency planning team” to develop “goals, objectives, and courses of action” for an active-shooter situation. And, as courses of action are developed, the planning team should consider a number of issues, including, but not limited to:

How to evacuate or lock down personnel and visitors. Personnel involved in such planning should pay attention to disability-related accessibility concerns when advising on shelter sites and evacuation routes;
How to evacuate when the primary evacuation routes are unusable;
How to select effective shelter-in-place locations (optimal locations have thick walls, solid doors with locks, minimal interior windows, first aid-emergency kits, communication devices and duress alarms);
How those present in buildings and on the ground will be notified that there is an active-shooter incident underway. This could be done using familiar terms, sounds, lights, and electronic communications, such as text messages or e-mails. In the courses of action, include how to communicate with those who have language barriers or need other accommodations, such as visual signals to communicate with hearing-impaired individuals. Planners should make sure this protocol is readily available and understood by those who may be responsible for sending out or broadcasting an announcement. Rapid notification of a threat can save lives by keeping people out of harm’s way;
How everyone will know when buildings and grounds are safe.

The planning team may want to include functions in the active-shooter annex that are also addressed in other functional annexes. For example, evacuation will be different during an active-shooter situation than during a fire.

Additional considerations are included in the “Responding to an Active Shooter Incident” and “After an Active Shooter Incident” sections below.

Sharing information with first responders
The Guide stresses that “the planning process is not complete until the house of worship’s emergency operations plan is shared with first responders.” It continues:

The planning process should include preparing and making available to first responders an up-to-date and well-documented site assessment as well as any other information that would assist them. These materials should include building schematics and photos of the buildings, both inside and out, and include information about door and window locations, as well as locks and access controls. Emergency responders should also have advance information on where individuals with disabilities are likely to be sheltering or escaping, generally in physically accessible locations or along accessible routes. Building strong partnerships with law enforcement, fire, and EMS includes ensuring they also know the location of available public address systems, two-way communications systems, security cameras, and alarm controls. Equally important is information on access to utility controls, medical supplies, and fire extinguishers.

The Guide notes that providing detailed information to first responders allows them to rapidly move through buildings and grounds during an emergency; to ensure areas are safe; and to tend to those in need. It is “critically important to share this information with law enforcement and other first responders before an emergency occurs so that they have immediate access to the information.”

Key point. The Guide recommends that “every house of worship should have more than one individual charged with meeting first responders to provide them with the site assessment, the emergency operations plan, and any other details about facility safety or concerns.”

The Guide notes that evacuation drills for fires and protective measures for tornadoes may be part of routine activities for a house of worship, “but far fewer facilities practice for active shooter situations.” To be prepared for an active-shooter incident, churches “should train their staff and congregation, as appropriate, in what to expect and how to react.” And, “good planning includes conducting drills that involve first responders.” Exercises with these individuals “are one of the most effective and efficient ways to ensure that everyone knows not only their role, but also the role of others at the scene.”

Exercises should include “walks through buildings to allow law enforcement to provide input on shelter sites as well as familiarize first responders with the location.”

Preventing an Active-Shooter Incident

The Guide provides two suggestions for preventing active-shooting incidents: look for warning signs, and utilize “threat assessment teams.”

Warning signs
The Guide acknowledges that no profile exists for an active shooter, but it notes that “research indicates there may be signs or indicators.” It explains:

Specialized units in the federal government (such as the FBI’s Behavioral Analysis Unit) continue to support behaviorally-based operational assessments of persons of concern in a variety of settings (e.g. schools, workplaces, houses of worship) who appear to be on a trajectory toward a catastrophic violent act. A review of current research, threat assessment literature, and active shooting incidents, combined with the extensive case experience of the Behavioral Analysis Unit, suggest that there are observable pre-attack behaviors which, if recognized, could lead to the disruption of a planned attack.

The Guide concedes that “checklists of warning signs are often of limited use in isolation,” but it asserts that “there are some behavioral indicators that should prompt further exploration and attention from law enforcement or house of worship officials.” These behaviors often include:

Development of a personal grievance;
Contextually inappropriate and recent acquisitions of multiple weapons;
Contextually inappropriate and recent escalation in target practice and weapons training;
Contextually inappropriate and recent interest in explosives;
Contextually inappropriate and intense interest or fascination with previous shootings or mass attacks;
Significant real or perceived personal loss in the weeks and months leading up to the attack, such as a death, breakup, divorce, or loss of a job.

Few offenders had previous arrests for violent crimes, the Guide notes.

The Guide also notes that “no research has been conducted on individuals solely engaged in active shooting incidents at houses of worship; however, the behaviors listed above may be useful in identifying some of the behaviors of individuals of potential concern.”

Threat assessment teams
The Guide noted that research shows that perpetrators of targeted acts of violence “engage in both covert and overt behaviors preceding their attacks.” They “consider, plan, prepare, share, and, in some cases, move on to action.” A useful tool to “identify, evaluate, and address these troubling signs is the creation of a multidisciplinary threat assessment team for the house of worship.” The Guide explains:

The threat assessment team serves as a central convening body, so that warning signs observed by multiple people are not considered isolated incidents, slipping through the cracks, when they actually may represent escalating behavior that is a serious concern … . Although not as common in private industry or in religious establishments, threat assessment teams are increasingly common in college and university settings, pushed to the forefront of concern following the 2007 shooting at Virginia Polytechnic Institute and State University, Blacksburg, Virginia, where 32 individuals were killed. In some cases, state funding mandates that institutions of higher learning create threat assessment teams.

Churches also may want to create threat assessment teams. FEMA offers the following recommendations for the creation and operation of threat assessment teams, although it recognizes that houses of worship may differ in their approaches to certain issues:

For the purposes of consistency and efficiency, a threat assessment team should be developed and implemented in coordination with other policy and practices for the organization;
A threat assessment team with diverse representation often will operate more efficiently and effectively. Team members may include the leaders or administrators of the house of worship, counselors, staff, congregants, and medical and mental health professionals, who may be drawn from the congregation;
Threat assessment teams review troubling or threatening behavior of persons brought to the attention of the team;
Threat assessment teams contemplate a holistic assessment and management strategy that considers the many aspects of the person’s life. More than focusing on warning signs or threats alone, a threat assessment team’s assessment involves a unique overall analysis of changing and relevant behaviors. The threat assessment team takes into consideration, as appropriate, information about behaviors; communications; any threats made; security concerns; family issues; or relationship problems that might involve a troubled individual. The threat assessment team may also identify any potential victims with whom the individual may interact. Once the team identifies an individual that may pose a threat, the team will identify a course of action for addressing the situation. The appropriate course of action, whether law enforcement intervention, counseling, or other actions, will depend on the specifics of the situation;
The threat assessment team may wish to seek assistance from law enforcement that can help assess reported threats or troubling behavior and tap available federal resources.

Key point. The FBI’s behavioral experts in its National Center for the Analysis of Violent Crimes (NCAVC) at Quantico, Virginia, are available 24 hours per day, seven days per week to join in any threat assessment analysis and develop threat mitigation strategies for persons of concern. Law enforcement working with a threat assessment team from a house of worship should contact the local FBI office for this behavioral analysis assistance. Each FBI field office has a NCAVC representative available to work with the house of worship and coordinate access to the FBI’s Behavioral Analysis Unit, if the congregation wishes. The unit focuses on prevention, not response. Early intervention can prevent a situation from escalating by identifying, assessing, and managing the threat.

Key point. The Guide notes that “generally, active shooter situations are not motivated by other criminal-related concerns such as monetary gain or gang affiliation. Often, violence may be prevented by identifying, assessing, and managing potential threats. Recognizing these pre-attack warning signs and indicators might help disrupt a potentially tragic event.”

Responding to an Active-Shooter Incident

How should church members and staff respond to an active-shooter incident prior to the time that law enforcement officers arrive? The Guide states:

No single response fits all active shooter situations; however, making sure each individual knows his or her options for response … [can help them] react decisively [and] save valuable time. Depicting scenarios and considering response options in advance will assist individuals and groups in quickly selecting their best course of action.

The Guide offers these suggestions for responding to an active shooter:

Congregational meetings
The Guide states that “it may be valuable to schedule a time for an open conversation regarding this topic. Though some congregants or staff may find the conversation uncomfortable, they may also find it reassuring to know that as a whole their house of worship is thinking about how best to deal with this situation.”

Respond immediately
It is common for people confronted with a threat to deny the danger rather than respond. The Guide notes that “an investigation by the National Institute of Standards and Technology into the collapse of the World Trade Center towers on September 11, 2001, found that people close to the affected floors waited longer to start evacuating than those on unaffected floors.” Similarly, during the Virginia Tech shooting, “individuals on campus responded to the shooting with varying degrees of urgency.”

The Guide recommends that churches “train congregants and staff to skip denial and to respond immediately.” For example, “train congregants to recognize the sounds of danger, act, and forcefully communicate the danger and necessary action.”

If it is safe to do so, the first course of action that should be taken is to run out of the building and far away until in a safe location. Congregants and staff should be trained to:

Leave personal belongings behind;
Visualize possible escape routes, including physically accessible routes for individuals with disabilities;
Avoid escalators and elevators;
Take others with them, but do not stay behind because others will not go;
Call 911 when safe to do so;
Let a responsible adult know where they are.

If running is not a safe option, the Guide recommends that church members “hide in as safe a place as possible.” In addition:

Lock the doors;
Barricade the doors with heavy furniture;
Close and lock windows and close blinds or cover windows;
Turn off lights;
Silence all electronic devices;
Remain silent;
If possible, use strategies to silently communicate with first responders; for example, in rooms with exterior windows, make signs to silently signal law enforcement and emergency responders to indicate the status of the room’s occupants;
Hide along the wall closest to the exit but out of the view from the hallway (allowing for an ambush of the shooter and for possible escape if the shooter enters the room)
Remain in place until given an all clear by identifiable law enforcement.

The Guide concludes its review of options when responding to an active-shooter incident with this advice:

If neither running nor hiding is a safe option, as a last resort, when confronted by the shooter, adults in immediate danger should consider trying to disrupt or incapacitate the shooter by using aggressive force and items in their environment, such as fire extinguishers or chairs. In a study of 41 active shooter events that ended before law enforcement arrived, the potential victims stopped the attacker themselves in 16 instances. In 13 of those cases, they physically subdued the attacker.

“How each individual chooses to respond if directly confronted by an active shooter is up to him or her. Each house of worship should determine, as part of its planning process, policies on the control and presence of weapons, as permitted by law.” FEMA Guide

While talking to the congregation and staff about confronting a shooter may be daunting and upsetting for some, they should know that they might be able to successfully take action to save lives. How each individual chooses to respond if directly confronted by an active shooter is up to him or her. Each house of worship should determine, as part of its planning process, policies on the control and presence of weapons, as permitted by law.

Evaluating FEMA’s Guide for Churches

FEMA’s Guide provides some useful information for churches, but it fails to address a number of important topics pertaining to guns in churches, including the following:

A church’s potential liability for deaths and injuries caused by an active shooter on church property.
Using armed police officers or security guards on church property as a deterrent to violent assaults and as first responders in the event of a shooting incident.
Using technology to manage the risk of active shooters.
Allowing members with a concealed weapons permit to bring their weapon onto church property as a means of responding to active-shooter incidents.

These are questions that many church leaders are asking, and the FEMA Guide failed to respond to any of them. Each of these questions is addressed below.

Importance of the FEMA Guide

The fact that the FEMA Guide fails to address some of the most common questions asked by church leaders in no way diminishes the importance of the Guide. The fact is that the Guide represents an intentional effort by FEMA to assist houses of worship in planning for and reducing the risk of active-shooter incidents.

Also, note that the Guide likely will be used by attorneys representing victims of gun violence on church property in establishing a “standard of care” by which a church’s acts and omissions can be judged. For this reason, it is important for church leaders to implement the FEMA Guide’s recommendations if possible.

A church’s potential liability for deaths and injuries caused by an active shooter on church property.

The FEMA Guide fails to address the critical question of a church’s potential liability for deaths and injuries occurring on its premises as a result of an active-shooter incident. And yet, this is a question of considerable relevance to church leaders.

Few churches have been sued as a result of acts of violence, but many other places of public accommodation have been, and here are some of the leading theories of liability:

premises liability
failure to hire security guards
negligent selection of a security guard or security service
liability for negligent acts of security guards

Each of these theories of liability is addressed below.

(1) Premises liability
Generally, property owners have no duty to protect others from the criminal acts of third parties who are not subject to their control. But, there are exceptions. For example, property owners have a duty to use ordinary care to protect “invitees” from criminal acts of third parties if the owner knows or has reason to know of an unreasonable and foreseeable risk of harm to invitees. Persons who are on church property to attend religious services or other scheduled activities generally are considered to be invitees, whether members or visitors, since they are on the premises by reason of an actual or implicit invitation.

The Restatement (Second) of Torts, a respected legal treatise, states the general rule as follows:

[A property owner] is not liable where he neither knows nor should know of the unreasonable risk … . He is not required to take precautions against a sudden attack from a third person which he has no reason to anticipate. Section 314A, comment e.

Similarly, Restatement (Second) of Torts § 344 (comment f), provides:

Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual.

The foreseeability of an unreasonable risk of criminal conduct is a precondition to imposing a duty on a property owner to protect others from that risk. It is important to note that:

criminal conduct of a specific nature at a particular location is never foreseeable merely because crime is increasingly random and violent and may possibly occur almost anywhere, especially in a large city. If a [property owner] had a duty to protect people on his property from criminal conduct whenever crime might occur, the duty would be universal. This is not the law. A duty exists only when the risk of criminal conduct is so great that it is both unreasonable and foreseeable. Whether such risk was foreseeable must not be determined in hindsight but rather in light of what the premises owner knew or should have known before the criminal act occurred. Lefmark Management Company v. Old, 946 S.W.2d 52 (Tex. 1997).

In deciding if criminal conduct on a landowner’s premises was foreseeable, most courts consider several factors, including the following:

whether any criminal conduct previously occurred on or near the property;
how recently and how often similar crimes occurred;
how similar the conduct was to the conduct on the property;
what publicity was given to the occurrences to indicate that the landowner knew or should have known about them.

Each of these factors is summarized below.

(a) proximity in place and time
A relevant factor in assessing the foreseeability of criminal assaults is whether similar crimes occurred on or near a landowner’s property in the recent past. Criminal activity occurring far from a landowner’s property bears less relevance because crime rates often vary significantly within a large geographic area. This is not to say that evidence of remote criminal activity can never indicate that crime is approaching a landowner’s property. But such evidence must show that the risk of criminal conduct on the landowner’s property is not merely increasing but has reached a level as to make crime likely. One court explained foreseeability as follows: “It does not necessarily follow that the prior similar criminal activity must have taken place at the premises; it is required only that the criminal act or acts occurring near the premises in question give notice of the risk that crime may travel to the premises of the business owner.”

(b) how recently and often similar crimes occurred on or near the property
Foreseeability also depends on how recently and how often criminal conduct has occurred in the past. The occurrence of a significant number of crimes within a short time period strengthens the claim that a particular crime was foreseeable. On the other hand, the complete absence of previous crimes, or the occurrence of a few crimes over an extended time period, negates the foreseeability element.

To illustrate, the courts have found a criminal act to be foreseeable when similar crimes occurred on or near the property in question:

10 times within 3 years;
394 times within 2 1/2 years;
40 times within 1 year;
85 times within 3 or 4 years;
7 times within 1 year; and
75 to 100 times within 3 years.

On the other hand, the courts have concluded that a criminal act was not foreseeable in several cases, including the following:

apartment owner not liable for a criminal assault on a tenant because no violent crimes had occurred at the premises;
sexual assault on a female customer of a parking lot as unforeseeable in light of only 17 previous crimes over a 10-year period;
bank could not foresee an assault at one of its ATMs based on 2 previous crimes within the 8 preceding years;
an assault in a grocery store was not foreseeable because no robberies or assaults had ever occurred in the store;
“because there are no reports of prior similar crimes occurring on the Wal-Mart Supercenter parking lot, the crime was unforeseeable”;
a cab company could not foresee an employee’s criminal act based upon one prior incident in a 20-year period.

(c) similarity of previous crimes
The previous crimes on or near a landowner’s property must be sufficiently similar to the crime in question to place the owner on notice of the specific danger. To illustrate, one court found that the stabbing of a guest at an apartment complex was not foreseeable from four prior incidents of vandalism and the theft of a refrigerator.

The prior crimes need not be identical. A string of assaults and robberies in an apartment complex make the risk of other violent crimes, like murder and rape, foreseeable. On the other hand, a spate of domestic violence in the complex does not portend third-party sexual assaults or robberies.

This factor is often difficult to apply because, as one court observed, “criminal activity is not easily compartmentalized.” In addition, property crimes may facilitate personal crimes. For example, a burglar who breaks into a home to steal property may decide to assault a person who is discovered inside. On the other hand, vandalism to automobiles in an apartment complex’s parking lot generally does not suggest the likelihood of sexual assault.

(d) Publicity given to prior crimes
The publicity given to previous crimes helps determine whether a property owner knew or should have known of a foreseeable danger. Actual notice of past incidents strengthens the claim that future, similar crimes were foreseeable. However, unreported criminal activity on or near the premises is no evidence of foreseeability. Previous similar incidents cannot make future crime foreseeable if nobody knows or should have known that those incidents occurred. One court noted that “property owners bear no duty to regularly inspect criminal records to determine the risk of crime in the area. On the other hand, when the occurrence of criminal activity is widely publicized, a property owner can be expected to have knowledge of such crimes.”

In summary, these factors (proximity in place and time, frequency, similarity, and publicity) must be considered together in determining whether criminal conduct is foreseeable. The frequency of previous crimes necessary to show foreseeability lessens as the similarity of the previous crimes to the incident at issue increases. The frequent occurrence of property crimes in the vicinity is not as indicative of foreseeability as the less frequent occurrence of criminal assaults on the landowner’s property itself. The courts must weigh the evidence using all of these factors.

In only 1 of the 27 cases of church shootings summarized above did the gunman warn the church in advance.

If a church receives a threat of an attack by an armed assailant, this will immediately elevate foreseeability toward certainty, triggering a corresponding duty on the part of the church to implement the most stringent safeguards. Depending on the circumstances, this may require the cancellation of church services. It is imperative that church leaders coordinate the church’s response with local enforcement agencies.

Church Cases

No court has addressed the liability of a church for a shooting incident on church premises. However, a few courts have addressed the liability of churches for other violent assaults. The main cases are summarized below.

Case study #1. A Georgia court ruled that a church was not liable for an assault on a woman who was passing by an abandoned property owned by the church. A woman (the “victim”) was assaulted and seriously injured on her way home late one evening from a neighborhood convenience store. Her assailant crept up behind her as she walked along the sidewalk near a church. The church building was owned by the church, but no longer used since the church moved to another location a few years before. During the attack, the victim’s back was injured and her legs paralyzed. While she lay immobile, a second assailant emerged from a door on the church property. This person raped the victim and left her. The victim sued the church, claiming that it was responsible for her injuries because it should have foreseen that a criminal might use an abandoned building as a hideout when preying on the general public. In rejecting the victim’s claims, the court concluded: “[The victim’s] unsupported speculation that her assailant may have concealed himself in the bushes near the church building before attacking her on the public sidewalk does not establish a causal relation between the condition of the property and the attack or a duty on the part of the church to protect her from such a criminal assault by a third party … . A contrary ruling would, in effect, impose a duty upon all property owners, especially those in high crime areas, to protect the general public from criminal activity committed on the property by third persons. This would include most unimproved lots and well-maintained buildings wherever the criminal could perform his misdeeds out of the public’s watchful eye. Public policy, we believe, would not favor such a holding. Although defendants may have owed a duty to plaintiff against harm caused by the dilapidated condition of the building (e.g., injury caused by a falling brick or broken glass), that duty does not extend to the unforeseeable criminal activity of third persons.” Barnes v. St. Stephen’s Missionary Baptist Church, 580 S.E.2d 587 (Ga. App. 2003).

Case study #2. A New York court ruled that a church was not responsible on the basis of negligent supervision or negligent retention for a sexual assault committed by a church employee. The court concluded that the church had received no complaints of inappropriate behavior concerning the employee for the five years of his employment, and therefore his assault was not foreseeable. The court acknowledged that the employee “may have used drugs in the past,” was an HIV-positive homosexual, and may have made “inappropriate expenditures” or hired “ex-convicts” to perform community service at the church, but it found all of these factors “irrelevant to any propensity to commit an act of sexual aggression.” Osvaldo D. v. Rector Church Wardens and Vestrymen, 834 N.Y.S.2d 94 (N.Y.A.D. 2007).

Case study #3. A South Carolina court ruled that a church was not liable for injuries sustained by a person when he was attacked on church property. A church owned an apartment complex used as low-income housing. Despite the fact that the apartment building was in a high-crime area, and church leaders were aware of numerous incidents of criminal behavior occurring within the building, the church did not provide a security guard. A man (the “victim”) was injured when he was attacked while visiting a friend in the apartment building. The victim sued the church, claiming that it was responsible for his injuries on the basis of negligence. A state appeals court disagreed. The court observed: “A [property] owner has a duty to take reasonable care to protect invitees. However, this duty does not extend to protection from criminal attacks from third persons unless the owner knew or had reason to know the criminal attack would occur … . In this case [the victim and his mother] stated they knew of criminal activity that had occurred at [the apartment building] in the past, including an alleged shooting. In addition [the victim] asserted he knew [his attacker] was a violent person and that he had seen [him] involved in other fights at the complex. However, there is no evidence in the record that [the church] was aware of [the attacker’s] previous fights or of any incident that day that would put management on notice the attack [on the victim] might occur. Therefore [the church] had no duty to protect [the victim] from an intentional attack.” Goode v. St. Stephens United Methodist Church, 494 S.E.2d 827 (S.C. 1998).

“Foresight, not retrospect, is the standard of diligence. It is nearly always easy, after an accident has happened, to see how it could have been avoided. But negligence is not a matter to be judged after the occurrence. It is always a question of what reasonably prudent men under the same circumstances would or should, in the exercise of reasonable care, have anticipated. Reasonable anticipation is that expectation created in the mind of the ordinarily prudent and competent person as the consequence of his reaction to any given set of circumstances. If such expectation carries recognition that the given set of circumstances is suggestive of danger, then failure to take appropriate safety measures constitutes negligence. On the contrary, there is no duty to guard when there is no danger reasonably to be apprehended. Negligence is gauged by the ability to anticipate. Precaution is a duty only so far as there is reason for apprehension. Reasonable apprehension does not include anticipation of every conceivable injury. There is no duty to guard against remote and doubtful dangers.” (Quoting Shearman and Redfield on Negligence).

Non-church cases
Several courts have addressed the liability of commercial property owners for armed assaults occurring on their premises. Most courts have applied the principles summarized above, and have found commercial property owners liable for armed assaults on patrons only if the assaults were foreseeable. A few illustrative cases are set forth below.

Case study #4. On a clear and sunny day in 1984, a man entered a McDonald’s restaurant dressed in camouflage pants and armed with a 9mm semi-automatic rifle, a semi-automatic 9mm pistol and a 12-gauge shotgun. He immediately began indiscriminately slaughtering patrons and employees within the glass-enclosed structure. During the hour of terror before he was killed by a police sharpshooter, the assailant showed no intent to rob the restaurant; made no demands for money; made no effort to take hostages; loaded his weapons several times; and killed 21 people in the restaurant and wounded 19 others. His single apparent purpose was to kill as many people as possible before he was slain. Several victims and their families sued for damages for wrongful death and personal injuries, claiming that McDonald’s failed to provide adequate security personnel to protect customers from dangerous and known risks. In support of their theory of liability, the plaintiffs alleged that McDonald’s knew of the area’s high-crime rate, increasing gang activity, and nearby incidents of violent crimes. Claiming economic reasons, McDonald’s declined to provide a uniformed security officer.

The plaintiffs presented evidence showing that within the three years preceding the shootings, the crimes committed at the restaurant included two robberies, two petty thefts, one unlawful use of a vehicle, vandalism, grand theft and theft by fraud. During the same period, crime statistics revealed that within a one-tenth of a mile radius of the restaurant, six burglaries, five batteries, one assault with a deadly weapon, two drawings of a deadly weapon, numerous grand thefts, and various other crimes occurred.

A California appeals court noted that property owners may be responsible for the criminal acts of third parties only if those acts are reasonably foreseeable under the “totality of circumstances.” The court concluded that the shooting rampage in this case was not foreseeable:

The risk of a maniacal, mass murderous assault is not a hazard the likelihood of which makes McDonald’s conduct unreasonably dangerous. Rather, the likelihood of this unprecedented murderous assault was so remote and unexpected that, as a matter of law, the general character of McDonald’s nonfeasance did not facilitate its happening. [The assailant’s] deranged and motiveless attack, apparently the worst mass killing by a single assailant in recent American history, is so unlikely to occur within the setting of modern life that a reasonably prudent business enterprise would not consider its occurrence in attempting to satisfy its general obligation to protect business invitees from reasonably foreseeable criminal conduct … .

Plaintiffs’ reliance on the evidence of mostly theft-related crimes on and nearby the [restaurant] and the crime rate in the surrounding area, to show the event here was reasonably foreseeable, is misplaced. We recognize foreseeability of third-party criminal conduct does not require prior identical or even similar incidents. However, here the evidence does not portend disasters of this type. As McDonald’s argues: “To the extent it can be foreseen at all, such an attack, like a meteor falling from the sky, can occur in any neighborhood regardless of the crime rate.” Rather, the predominantly theft-related character of the crimes is simply probative of the foreseeability of such crimes, more precisely defining its duty to provide protective measures designed to deter theft-related and ordinary criminal conduct (i.e., vandalism). In comparison, not only was [the assailant’s] crime not theft-related, but the narrow focus on slaughter and [his] obvious suicidal motive are unrelated to the area’s general crime rate as a matter of law … . A review of the surrounding circumstances emphasized by plaintiffs does not render the occurrence of a mass murderous assault any more foreseeable … .

Further, although the policy of preventing future harm is great, the extent of the burden to the defendant and the consequences to the community of imposing a duty to protect against heavily-armed, suicidal murderers is onerous. As already explained, where the burden of preventing future harm is great, a high degree of foreseeability is required. Absent such a high degree of foreseeability, the courts have declined to declare a duty where its imposition “would place an extremely onerous burden on both the defendant and the community, and where the defendant is not morally culpable, and where the proposed duty and the measures to be applied in discharge of the duty defy exact delineation and suffer from inherent vagueness … .”

[W]hat protective measures should be pursued to protect against a mass murderous assault truly defy exact delineation, because how can one know which measures will be effective against a degenerate, a psychopath or a psychotic? The type of unforeseeable criminal conduct involved here would require expensive protective measures of questionable deterrent value when confronted by an assailant bent on committing a mass murder. In other words, the kind of harm involved here cannot be deterred by such measures as security cameras and alarms which help deter ordinary criminal conduct because of the potential of identification and capture. Lopez v. McDonald’s Corporation, 238 Cal.Rptr. 436 (Cal. App. 1987).

Case study #5. A husband and wife attended a night baseball game at Dodger Stadium. As they returned to their car at the end of the game, the husband was injured when he came to the aid of another man who had been attacked by two drunks. The couple sued the owner of the stadium for damages and won. A California appeals court reversed the decision and dismissed the couple’s claims. The California Supreme Court described the appeals court ruling as follows in a later case:

Starting from the premise that it would be grossly unfair to permit a lay jury, after the fact, to determine in any case that security measures were “inadequate,” particularly in light of the fact that the decision would always be rendered in a case where the security had, in fact, proved inadequate, the court observed: “It appears that a growth industry is developing consisting of experts who will advise and testify as to what, in their opinion, constitutes ‘adequate security.’ The $64 question, of course, is ‘adequate for what?’

The question then to be determined by the jury is what reasonable steps could have been taken to prevent plaintiff’s injury? The purpose of a trial in this type of case is not simply to critique defendant’s security measures and to compare them to some abstract standards espoused by a so-called “security expert.” The objective is to determine whether a particular defendant should, under the circumstances, be held liable for a plaintiff’s injury because of a failure to prevent the criminal actions of a third party … .

Further it is one thing for an expert to testify concerning the mechanical devices such as locks, safes, fences, etc. which are designed to protect property by ‘hardening the target,’ it is quite another for such expert to discuss deterring conduct such as rape, robbery or physical assaults. As one court has stated: “It is an easy matter to know whether a stairway is defective and what repairs will put it in order … . but how can one know what measures will protect against the thug, the narcotic addict, the degenerate, the psychopath and the psychotic?” The present case is a classic example of a plaintiff establishing what could be described as abstract negligence, in the context that the Dodgers’ security didn’t comport with plaintiffs’ expert’s or the jury’s notion of “adequacy,” but failing to prove any causal connection between that negligence and the injury. Noble v. Los Angeles Dodgers, 214 Cal. Rptr. 395 (Cal. App. 1985).

“It is an easy matter to know whether a stairway is defective and what repairs will put it in order … . But how can one know what measures will protect against the thug, the narcotic addict, the degenerate, the psychopath and the psychotic?” Noble v. Los Angeles Dodgers, Inc., 214 Cal.Rptr. 395 (1985).

(2) Failure to hire security guards

Can a church be liable for deaths or injuries caused by an armed assailant as a result of a failure to employ security guards or police officers? Most churches do not employ such persons. Does this make them liable for shooting rampages that occur on their premises? No court has addressed this question in a published decision. But, a few courts have addressed this question in cases involving commercial property owners, and these courts generally have concluded that property owners have no duty to employ security guards unless the foreseeability of violent crime is high as a result of the four factors summarized above (proximity in place and time, frequency, similarity, and publicity). Consider a few examples.

Case study #6. The California Supreme Court ruled that a shopping mall owner’s failure to employ security guards did not make it liable for the rape of a mall employee who worked for a photo processing service located in a secluded area of the mall. The court concluded that a property owner’s duty to provide protection from foreseeable third-party crime “is determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed. In cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required … . Or, as one court has accurately explained, duty in such circumstances is determined by a balancing of foreseeability of the criminal acts against the burdensomeness, vagueness, and efficacy of the proposed security measures.”

The court then addressed the need to hire security guards:

While there may be circumstances where the hiring of security guards will be required to satisfy a landowner’s duty of care, such action will rarely, if ever, be found to be a “minimal burden.” The monetary costs of security guards is not insignificant. Moreover, the obligation to provide patrols adequate to deter criminal conduct is not well defined. No one really knows why people commit crime, hence no one really knows what is “adequate” deterrence in any given situation. Finally, the social costs of imposing a duty on landowners to hire private police forces are also not insignificant. For these reasons, we conclude that a high degree of foreseeability is required in order to find that the scope of a landlord’s duty of care includes the hiring of security guards. We further conclude that the requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner’s premises. To hold otherwise would be to impose an unfair burden upon landlords and, in effect, would force landlords to become the insurers of public safety, contrary to well established policy in this state.

The court suggested that “it is possible that some other circumstances such as immediate proximity to a substantially similar business establishment that has experienced violent crime on its premises could provide the requisite degree of foreseeability.” But the court concluded that this possible exception was not met in this case: “Violent criminal assaults were not sufficiently foreseeable to impose a duty upon [the mall owner] to provide security guards. [It] did not have notice of prior similar incidents occurring on the premises.”

The court acknowledged that previous assaults and robberies had occurred at the mall, but it concluded that these offenses “were not similar in nature to the violent assault that [the victim in this case] suffered,” and were not “sufficiently compelling to establish the high degree of foreseeability necessary to impose a duty to provide security guards.”

The court noted that some properties, such as a parking garage or all-night convenience stores, may be so “inherently dangerous” that the owner may have a duty to employ security guards even without evidence of prior serious crimes on or near the property. But, such a rule would not apply to the typical retail store. Ann M. v. Pacific Plaza Shopping Center, 25 Cal.Rptr.2d 137 (Cal. 1993).

Case study #7. The California Supreme Court ruled that “only when heightened foreseeability of third party criminal activity on the premises exists—shown by prior similar incidents or other indications of a reasonably foreseeable risk of violent criminal assaults in that location—does the scope of a business proprietor’s duty include an obligation to provide guards to protect the safety of patrons. Delgado v. Trax Bar & Grill, 36 Cal.4th 224 (Cal. 2005).

Case study #8. The Louisiana Supreme Court ruled that a Wal-Mart store was not liable for an armed robbery of a customer in its parking lot. The customer claimed that Wal-Mart was liable for the robbery since it failed to post a security guard in the parking lot. The court disagreed. It applied a balancing test to determine whether a business owes a duty to protect its customers from the criminal acts of third persons. This test weighs the foreseeability of the crime risk on defendant’s property and the gravity of the risk to determine the existence and the extent of defendant’s duty. More specifically, the court held: “The greater the foreseeability and gravity of the harm, the greater the duty of care that will be imposed on the business. A very high degree of foreseeability is required to give rise to a duty to post security guards, but a lower degree of foreseeability may support a duty to implement lesser security measures such as using surveillance cameras.”

The court noted that the foreseeability and gravity of the harm are to be determined by the facts and circumstances of the case. The most important factor to be considered “is the existence, frequency and similarity of prior incidents of crime on the premises, but the location, nature and condition of the property should also be taken into account. It is highly unlikely that a crime risk will be sufficiently foreseeable for the imposition of a duty to provide security guards if there have not been previous instances of crime on the business’ premises.”

The court found that during the prior six and one-half years the parking lot had been the scene of three predatory offenses and that the area surrounding the store was considered “a high crime area.” This, however, was not enough for the court to find that Wal-Mart had a duty to post security guards in the parking lot. Posecai v. Wal-Mart Stores, Inc., 752 So.2d 762 (La. 1999).

These cases, and many others, suggest that a church has no legal duty to hire security guards except in cases of “heightened foreseeability of third party criminal activity on the premises” due to “prior similar incidents or other indications of a reasonably foreseeable risk of violent criminal assaults on church property.” Hiring one or more security guards is an expensive practice that will be justified only by a high degree of foreseeability that a shooting or other violent criminal act will occur on church property.

(3) Negligent selection of security guard or security service

If a church decides to hire security guards, can it be liable for deaths and injuries that they cause, or fail to prevent, on the ground that the church was negligent in selecting the guards? To illustrate, assume that a woman is shot by an armed assailant on church property despite the fact that the church employs a security guard. The woman sues the church, claiming that the church was negligent in selecting its security guard. She points out that the guard was not a police officer, had no law enforcement training, was not licensed, and had only minimal training in handling a firearm. Is it possible for the church to be responsible for her injuries under these circumstances? While no court has addressed this question in a published decision involving a church, a few have addressed the issue in other contexts. The principal cases are summarized below.

Case study #9. A California court observed: “A security guard is liable to an injured customer when the guard fails to act reasonably and that failure causes injury. The business, in turn, may be liable for failing to hire a competent security guard. Having assumed the duty to protect one’s patrons while on the premises of a business establishment, the proprietor will be liable if the guard acts unreasonably. Moreover, the proprietor will be directly liable when he or she negligently hires or retains an incompetent employee or negligently trains or supervises the employee. Under these circumstances, the injured patron need not prove the proprietor had notice of prior similar acts.” Mata v. Mata, 130 Cal.Rptr.2d 141 (Cal. App. 2003).

Case study #10. A Texas court ruled that an off-duty police officer acting as a security guard for a department store was acting “within the scope of his employment as a police officer” rather than as a security guard for the store when he allegedly used excessive force in apprehending a customer who was suspected of engaging in credit card fraud in a transaction. The victim sued the store on several grounds, including the negligent hiring of the security guard. The court observed:

The basis of responsibility for negligent hiring and retention is the employer’s negligence in hiring or retaining an incompetent employee who the employer knew or, in the exercise of ordinary care, should have known was incompetent or unfit, and thereby creating an unreasonable risk of harm to others. Negligence in hiring requires that the employer’s failure to investigate, screen, or supervise its [employees] caused the injuries the plaintiffs allege. An employer is not negligent when there is nothing in the employee’s background that would cause a reasonable employer not to hire or retain the employee.

The court noted that when an off-duty police officer acting as a department store’s security guard attempts to apprehend a criminal, he or she is acting as an on-duty police officer. Since the officer is no longer acting as a store employee, the store cannot be liable for negligent hiring or retention based on the officer’s alleged acts performed as an on-duty police officer.

Further, even if the police officer was acting as a store employee at the time of the arrest, “there is no evidence which supports a claim of negligent hiring or retention. [The police officer] was hired by the store as a security officer in 1998. The record reflects, at that time, he had no complaints on his record. In order to demonstrate a claim for negligent hiring, there must be evidence in an employee’s record that would cause a reasonable employer not to hire the employee.” Ogg v. Dillard’s, Inc. 2007 WL 3317480 (Tex. App. 2007).

Such cases demonstrate that a church may be liable on the basis of negligent hiring for injuries caused by, or not prevented by, a security guard if the church failed to exercise reasonable care in investigating the competency of the guard before hiring him or her. However, this risk can be reduced by exercising reasonable care in selecting a security guard. As noted later in this article, hiring only uniformed, off-duty police officers as security guards best demonstrates the exercise of reasonable care.

(4) liability for acts of security guards

Churches that hire security guards may be liable for deaths and injuries caused by the negligence of their guards. This is so, even if a church did not have a legal duty to hire security guards because criminal acts on church property were not foreseeable. As one court has observed, “We do not hold that business owners owe any duty to the public to provide security services generally. We simply find that where a business owner undertakes to provide security services, he remains liable as though he directly employed the security personnel, regardless of whether they are technically employed by an independent entity.” The court noted that “the majority of jurisdictions that have considered this issue have reached the same conclusion [and] have recognized the existence of this specific nondelegable duty, either explicitly or by imposing vicarious liability on a store for the intentional torts of independently contracted security guards regardless of the nature of the employment relationship between the store and the security agency.” Simon v. Safeway, Inc., 2007 WL 4441194 (Ariz. App. 2007).

Case study #11. A Pizza Hut restaurant employed an off-duty uniformed and armed police officer as a security guard. The restaurant was in a high-crime area and had been robbed or burglarized more than 20 times. Three armed robbers entered the restaurant while the security guard was sitting at a table obscured from view behind a partition, reading a book and visiting with an acquaintance. One of the robbers pointed a shotgun at the officer’s face and ordered him not to move. The officer allegedly made a slight movement to his right, which caused the robber to fire his shotgun. The blast missed the officer, but killed one patron and wounded another. The family of the deceased victim sued Pizza Hut, claiming that the shooting was caused by the security guard’s negligence. The Louisiana Supreme Court agreed that the shooting was due to the security guard’s negligence, and that this negligence could be imputed to Pizza Hut. The court found the following acts to have been negligent: (1) the security guard failed to position himself where he was clearly visible to potential armed robbers; (2) the security guard was eating a salad at a table inside the restaurant while on duty; (3) the security guard made a slight movement when ordered by one of the robbers not to move. The court concluded: “A business which undertakes to hire a security guard to protect itself and its patrons is liable for physical harm which occurs because of negligence on the part of that guard.” Harris v. Pizza Hut, 455 So.2d 1364 (La. 1984).

2. The use of armed police officers or security guards on church property as a deterrent to violent assaults and as first responders in the event of a shooting incident.

The FEMA Guide also fails to address the use of police officers or security guards as a means of responding to the risk of armed assailants on church property.

Churches should consider using security guards in some situations, including the following:

(1) A legal duty to employ security guards may exist because the risk of shootings or other violent crimes on church property is highly foreseeable based on the following factors described above:

whether any criminal conduct previously occurred on or near the property;
how recently and how often similar crimes occurred;
how similar the previous crimes were to the conduct in question; and
what publicity was given the previous crimes to indicate that the church knew or should have known about them.

(2) The use of one or more security guards is deemed necessary to further a church’s theological values, whether or not legally required.

As noted above, a church that uses security guards may be liable for deaths and injuries caused by the negligence of their guards based on at least two potential grounds: (1) negligent hiring, and (2) a nondelegable duty to exercise reasonable care in the protection of the public when a security guard is employed, whether or not the church had a legal duty to employ a guard. These risks make it imperative for churches that elect to use security guards to select persons of demonstrable competence. Consider the following options:

(a) Uniformed police officers
A church’s risk of liability for injuries caused by, or not prevented by, a security guard can be reduced by exercising reasonable care in selecting a security guard. The exercise of reasonable care can best be demonstrated by hiring only uniformed police officers as security guards since such persons:

are thoroughly screened before being hired as police officers;
receive extensive training in dealing with volatile situations;
receive extensive training in the use of firearms;
receive continuing training in the use of firearms, and other job-related skills;
according to some courts, become “on-duty” police officers even while otherwise acting as private security guards when responding to criminal activity, which has the effect of insulating their employer from liability based on negligent hiring or retention for their actions; and serve as a deterrent to crime because of their police uniform.

Churches considering the use of uniformed off-duty police officers should check with the local police department regarding the use of such persons as security guards, and the number they should hire.

(b) Private security guards
Some churches that decide to employ security guards may opt for uniformed, private security guards who are hired directly by the church, or who work for a security firm that provides guards to the church pursuant to a contractual agreement. Sometimes, these persons are members of the church with nothing more than a permit to carry a concealed weapon. Churches will find it more difficult to defend against a negligent hiring claim when hiring security guards who are not police officers. But the risk can be reduced to some degree through various means, including the following:

conduct a thorough criminal records check on the individual;
obtain several references, ideally from other institutions where the person has served as a security guard;
make sure that the guard is licensed under state law (if possible); and
have the individual complete a detailed application documenting all prior experience as a security guard or police officer, along with a full description of all prior law enforcement and firearms training, and any licenses or certifications the person currently has as a security guard, police officer, or firearms trainer, under state or federal law.

According to the United States Department of Labor:

Most States require that guards be licensed. To be licensed as a guard, individuals must usually be at least 18 years old, pass a background check, and complete classroom training in such subjects as property rights, emergency procedures, and detention of suspected criminals. Drug testing often is required and may be random and ongoing.

Guards who carry weapons must be licensed by the appropriate government authority, and some receive further certification as special police officers, allowing them to make limited types of arrests while on duty. Armed guard positions have more stringent background checks and entry requirements than those of unarmed guards.

An increasing number of states are making ongoing training a legal requirement for retention of licensure. Guards may receive training in protection, public relations, report writing, crisis deterrence, first aid, and specialized training relevant to their particular assignment.

The American Society for Industrial Security International has written voluntary training guidelines that are intended to provide regulating bodies consistent minimum standards for the quality of security services. These guidelines recommend that security guards receive at least 48 hours of training within the first 100 days of employment. The guidelines also suggest that security guards be required to pass a written or performance examination covering topics such as sharing information with law enforcement, crime prevention, handling evidence, the use of force, court testimony, report writing, interpersonal and communication skills, and emergency response procedures. In addition, they recommend annual retraining and additional firearms training for armed officers … .

Obviously, security guards with little or no training, and who are not licensed under state law, present the greatest risk of liability to a church or other employer as a result of injuries they inflict while responding to a crime or otherwise performing their duties, or injuries they fail to prevent.

3. Technology
A third issue not addressed by the FEMA Guide is the use of technology as a means of preventing or reducing the impact of active-shooter incidents. Like security guards, crime-fighting technologies should be implemented as a result of either or both of the following grounds:

(1) A legal duty to install technological devices may exist because the risk of shootings or other violent crimes on church property is highly foreseeable based on the following factors described above:

whether any criminal conduct previously occurred on or near the property;
how recently and how often similar crimes occurred;
how similar the previous crimes were to the conduct in question; and
what publicity was given the previous crimes to indicate that the church knew or should have known about them.

(2) The use of one or more technological devices is deemed necessary to further a church’s theological and biblical principles, whether or not legally required.

In evaluating the feasibility of various technologies to prevent or reduce the risk of shootings in public schools, the United States Department of Justice noted that the effectiveness, affordability, and acceptability of each technology must be considered. To illustrate, many church leaders would regard metal detectors at church entrances to be unacceptable, even if affordable and effective, because they are incompatible with the concept of “sanctuary” and are at odds with biblical assurances of providence and divine protection. For many smaller churches, such devices would be unaffordable.

Devices that often are employed by churches and commercial businesses to prevent or reduce the risk of criminal acts include surveillance cameras, metal detectors, and entry control devices. In each case, church leaders should consider the device’s effectiveness, affordability, and acceptability in evaluating its usefulness.

4. Using church members legally authorized to carry a concealed weapon as non-uniformed security guards
A fourth issue that the FEMA Guide fails to address is the use of lay members who possess a state-issued concealed weapons permit as a means of responding to the risk of armed assailants on church property. The Guide simply states, “How each individual chooses to respond if directly confronted by an active shooter is up to him or her. Each house of worship should determine, as part of its planning process, policies on the control and presence of weapons, as permitted by law.”

Watch attorney Frank Sommerville, an Editorial Advisor for Church Law & Tax Report, further explain what concealed carry weapons laws mean for churches.

There are several points to keep in mind when considering the use of church members who possess a concealed weapons permit as a means of responding to active shooters, including the following:

All 50 states have enacted legislation allowing specified persons to carry a concealed weapon in public. In most states, carrying a concealed weapon requires a state-issued permit or license, while a few states allow anyone to carry a concealed weapon in public even without a permit or license.

Most states condition the issuance of a concealed weapons permit on successful completion of a prescribed course of study and active firearms training.

States that allow persons to carry a concealed weapon in public are either “shall-issue” or “may-issue” jurisdictions. Most states are “shall-issue,” meaning that the state shall issue a concealed weapons permit upon a person’s successful completion of the prescribed coursework and weapons training. A few states are “may-issue,” meaning the persons have no absolute right to obtain a concealed weapons permit. Rather, the issuance of a permit is at the discretion of a local or state official on the basis of “good cause.” In some “may-issue” states, permits are rarely granted.

The District of Columbia is a “no-issue” jurisdiction since concealed weapons permits are not issued. In 2008, the United States Supreme Court ruled that several statutes in the District of Columbia which, taken together, amounted to a total ban on possessing a handgun in the home, violated the Second Amendment. But the only conduct that the Supreme Court clearly located within the Second Amendment right was the possession and carrying of a handgun by an otherwise qualified person within his or her home for self-defense. It carefully noted that “the right secured by the Second Amendment is not unlimited,” and that “historically, the right had never been viewed as a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” District of Columbia v. Heller, 554 U.S. 570 (2008). The Heller decision did not address directly the constitutional right of citizens to carry concealed weapons in public, and so the District of Columbia “no-issue” position, and the de facto no-issue position of some “may issue” states, are presumably constitutional until further guidance from the Supreme Court.

In most shall-issue and may-issue states, persons must complete a prescribed course of study, including active firearms training, in order to qualify for a permit.

Concealed weapons permit holders exhibit a wide range of competency in handling firearms, with some permit holders having a very minimal ability in the use of firearms, and others having extensive training and ability. As a result, church leaders should not treat all permit holders equally.

Most state concealed weapons statutes specify a concealed weapons permit does not apply to certain properties. Exempt properties often include government buildings, airports, schools, hospitals, and churches. However, in many states, a church can allow persons with concealed weapons to access church property.

In most cases, uniformed, on-site police officers are a better way for churches to respond to the risk of active shooters for several reasons, including the following: (1) extensive training in responding to crises; (2) extensive firearms training; (3) continuing training; (4) a uniform may act as a deterrent; (5) police officers become “on duty” when responding to criminal acts, which reduces a church’s legal liability for a police officer’s negligence or exercise of excessive force when responding to an active shooter. To be sure, some holders of concealed weapons permits have extensive experience in handling weapons, due to military or law enforcement training, or personal experience. But, as noted above, the range of ability among concealed weapons permit holders is vast. While some are highly skilled and competent, many are not. To some extent, churches can reduce their legal risks when using concealed weapons permit holders as part of their response to armed shooters by taking the following steps: (1) place a reasonable limit on the number of concealed weapons permit holders that the church will use as part of its response to armed shooters; (2) do a thorough background check on each person, including references; (3) use a written application that includes a description of the applicant’s weapons training; (4) periodic confirmation that the individual’s permit is active. Note that the use of uniformed police officers remains the best response to the risk of active shooters for the reasons mentioned above, but it is possible for carefully screened concealed weapons permit holders to serve in a supporting role. But any such role should be coordinated with the law enforcement personnel already being used.

Church leaders should periodically “benchmark” their security policies by comparing them with other similar organizations in the community.

A church’s security policy, including the use of concealed weapons permit holders, should be reviewed by your police or sheriff’s department, your insurance agent, and an attorney.

An additional risk in using concealed weapons permit holders as a means of responding to active shooters is the use of excessive force. Few permit holders have received training on the importance of limiting any response to “reasonable force.” The use of excessive force, which is always a possibility when concealed weapons permit holders respond to an active shooter, can result in liability for the church. Permit holders must receive competent training on this essential point.

Unfortunately, recent tragedies in the United States have demonstrated the need for churches to be prepared to respond to shootings and other violent crimes. The United States Department of Justice has prepared the following recommendations for schools to help reduce the risk of violent crime (the word “church” is substituted below for “school”). Department of Justice, Research Report: The Appropriate and Effective Use of Security Technologies in U.S. Schools.

Every church needs a well-thought-out, annually updated crisis plan, with regular training for all those who might be involved.

The crisis plan needs to make assignments of who is in charge during different types of emergencies; who is the alternate in charge; who is called first, by whom, from where, and using what; whether persons are relocated and how; what type of statement is made to the press and by whom; and who is in charge when emergency teams (fire, police, and so forth) arrive on the scene. These are only a few of the specifications called for.

In the best of all possible situations, a predetermined team will immediately mobilize upon the occurrence of a serious situation. Team members will know who to look to for decisions and then proceed automatically in their roles for the particular plan chosen to be implemented.

Crisis team members should wear distinctive clothing, and be located in places of high visibility, so they can be contacted in the event of a crisis.

Crisis team members should immediately contact local law enforcement when a crisis is reported, either on a cell phone or two-way radio. All crisis team members should have one or both of these devices with them at all times while on church premises.

Consider the use of “duress alarms” that anyone can activate to report a crisis. These can activate an audible alarm, or an inaudible alarm that is detected only by crisis team members.

Be sure to have your crisis plan reviewed by local law enforcement professionals, your insurance agent, and an attorney.


Listed below are several conclusions, based on the material presented in this article:

Church shootings, and other violent crimes on church premises, are rare.

The law imposes upon any place of public accommodation, including a church, a duty to protect occupants against foreseeable criminal acts. The level of protection is directly proportional to the degree of foreseeability. Many courts assess foreseeability on the basis of the following factors: (1) whether any criminal conduct previously occurred on or near the property; (2) how recently and how often similar crimes occurred; (3) how similar the previous crimes were to the conduct in question; and (4) what publicity was given the previous crimes to indicate that the church knew or should have known about them. If shootings or other violent crimes on church property are highly foreseeable based on these factors, then a church has a heightened duty to implement measures to protect occupants from such acts.

Many church leaders and congregations, guided and informed by their theological values, feel compelled to take steps to protect human life from acts of violence whether or not they have a legal duty to do so.

In evaluating which measures to implement in order to discharge a legal or moral duty to protect occupants, church leaders should consider the affordability, effectiveness, and acceptability of a measure before implementing it.

Church leaders should consult with local law enforcement professionals, the church insurance agent, and legal counsel, in making decisions regarding which protective measures to implement. These same persons should also review the church’s emergency response plan.

Contact other churches and other places of public accommodation in your community to see what measures they have enacted to protect occupants against shootings and other violent crimes. Examples include schools, malls, libraries, restaurants, stores, sports facilities, theaters, and concert halls. This research will help church leaders ascertain the “community standard,” which is an important consideration in deciding if a property owner was negligent.

Note that even the most stringent protective measures would have prevented few, if any, of the 27 shooting incidents on church property summarized in Table 1 of this article. In fact, in some of these cases, the church implemented what seemed to be reasonable precautionary measures. However, no measures will foil an armed and dedicated assailant, especially if that person plans on taking his or her own life.

While it is not possible for churches to prevent acts of violence on their premises, it is possible to deter such acts in some cases, and to contain the damage and destruction when an incident erupts.

Courts, public figures, and law enforcement officials have all acknowledged that no level of risk management can thwart a dedicated killer from shooting people on church premises. President Bill Clinton, following a 1999 shooting rampage in a Texas church that left seven dead and seven more wounded, noted that “there is nothing we can do to assure that this will never happen, but there is a lot more we can do to assure that it will happen more rarely.” Even the most stringent precautions will not prevent such incidents. To illustrate, consider a church that uses metal detectors at each entrance and armed guards. Will these measures prevent shooting incidents from happening? Not at all. They would not stop a dedicated assailant who is sufficiently armed.

President Bill Clinton, following a 1999 shooting rampage in a Texas church that left seven dead and seven more wounded, noted that “there is nothing we can do to assure that this will never happen, but there is a lot more we can do to assure that it will happen more rarely.”

If no level of risk management can prevent such incidents from happening, what should churches do? Church leaders should view risk management as achieving four attainable objectives:

Reduce the risk that shootings and other criminal assaults will happen on church property. In the words of President Clinton, “there is nothing we can do to assure that this will never happen, but there is a lot more we can do to assure that it will happen more rarely.”

If an incident should occur, contain the damage through an appropriate response.

Ensure that the church’s precautionary measures satisfy the applicable legal duty of care. As noted previously, most courts have ruled that the level of precaution a property owner should take is proportional to the foreseeability that a shooting or other violent criminal act will occur on the property. The very highest level of care will be required when multiple crimes involving shootings or other assaultive acts have occurred in recent years on or near church property, or when a church receives a direct threat that a shooting or assault will occur.

Ensure that the church’s precautionary measures are consistent with its moral values. Most churches place a high value on human life as a result of theological and biblical principles, and may wish to adopt precautionary measures that transcend those of local businesses unconstrained by those principles.

For more suggestions, church leaders should contact local law enforcement officials and the church’s insurance agent. More articles about church security and risk management planning are available to subscribers in the site’s “Risk” section.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

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