The following is an excerpt from Chapter 3 dealing with church safety & liability issues from our book entitled He Trains My Hands for Battle.
Son of man, I have made thee a watchman unto the house of Israel: therefore hear the word at my mouth, and give them warning from me. When I say unto the wicked, Thou shalt surely die; and thou givest him not warning, nor speakest to warn the wicked from his wicked way, to save his life; the same wicked man shall die in his iniquity; but his blood will I require at thine hand.
Training Your Security Team. The number of professional training firms has grown. One of the most well recognized national ministries in the field of church safety is Sheepdog Ministries. Get involved with national church safety ministries and network with local ministries and other church teams. We have groups meeting in Kootenai County, Idaho and the Spokane, Washington area to share information and training opportunities.
Your team needs to participate in regular Reality Based Training (RBT) to avoid exposure to the risk of church liability. Such events involve volunteer actors playing roles such as an active shooter, innocent bystander, plain clothes law enforcement officer who enters the room with weapon drawn, etc, These events normally require simulated ammunition or Simunition or might even be conducted with SIRT laser pistols. The key is to create the stress of a chaotic life threatening event that causes team members to react to foreseeable situations.
Well recognized legal precedents provide that law enforcement agencies that fail to train for foreseeable situations will be held liable.
Firearms and use of Force Training: Training must be tailored to avoid specific church liabilities in a safe and caring atmosphere. Potential church liability is a compelling factor when anticipating the allegation that armed school personnel are not in compliance with the guidelines for law enforcement officers spelled out by the U.S Supreme Court in Popow vs Margate, 476 F.Supp. 1237 (Dist. N.J. 1979) (Officer’s firearms training consisted of going to a range twice a year; no training with respect to low light conditions, moving targets or firing in residential areas. Entirely foreseeable that an officer from the City of Margate, a largely residential area, would have to pursue a moving suspect at night under low-light conditions). See also Young v. City of Providence, 2004 U.S. Dist. LEXIS 1847 (R.I. 2004).
Foreseeability. Just as LEOs must be trained in the specific situations that an officer will foreseeably encounter, armed church personnel must also train for many foreseeable situations that have the potential for church liability. These situations are inherently different than situations presented to traditional uniformed LEOs. Such situations would include, for example, a plain-clothes officer entering a room during an active shooter incident. Active Shooter Protocol makes it likely that any police officer that arrives first at your church, school or other business will attempt to neutralize the active shooter. Just as officers must train to recognize the presence of armed citizens, your security team needs to know how to recognize officers who may not be wearing a uniform and other armed citizens during an active shooter situation. One way to facilitate such training is for volunteers to train with the police in Active Shooter training scenarios.
The Action Training Group, Inc. The ATG is a group that one of the authors started in the Spokane, Washington-North Idaho areas to facilitate an exchange of information between church security teams and then to offer training opportunities based on the needs reported by the teams. The events that we have already presented involve live-fire action training drills utilizing multiple paper and interactive steel targets to create shoot-on-the-move drills for tactical rifle and pistol drills. Training in church liability issues is also in the works.
Volunteers. By drawing from various church organizations and the expertise of the volunteers in our local communities, the ATG contracts with shooting ranges and arranges cost-effective venues, provides Range Safety Officers (RSOs) and presents events where church teams and other security groups can train together and share information. The ATG volunteers are insured for liability, thus insulating church and businesses from much of the exposure to legal liability that often makes such training cost prohibitive.
Legal Liability Factors in Church Shootings
Issue: What is the potential liability faced by churches and other institutions that arm volunteer personnel compared to a policy of deploying only unarmed security?
A PRUDENT PERSON FORESEES DANGER AND TAKES PRECAUTIONS. THE SIMPLETON GOES BLINDLY ON AND SUFFERS THE CONSEQUENCES. Prov. 22:3
- Unauthorized individuals may access a firearm that is negligently stored. How will firearms in schools be stored safely and used safely?
- Will the volunteer, church employee or the church corporate entity be liable for this increased foreseeable harm of introducing weapons into a potentially chaotic situation with hundreds of church members present if a foreseeable injury occurs?
- How many volunteers should be trained and authorized to carry weapons at church?
- Are there risks that are foreseeable due to inadequate training. How can church boards ensure that personnel are properly trained if concealed weapons are encouraged or required for certain church volunteers?
Conclusion: It is not possible under present case law to predict how or where churches owe a duty to protect members of the congregation from active shooters. But industry standards are changing rapidly. A whole new industry has sprung up to identify church liability issues, consult with church leadership and provide services and equipment to stop terrorists and other active shooters. The fact that ISIS recently listed a number of U.S. churches as targets makes terrorist attacks imminent and foreseeable!
Requisite Training: The best protection against legal claims is to require training that meets the same requirements expected of law enforcement under current case law.
Firearms and use of Force Training: Training must be tailored to specific needs and consequently becomes a compelling factor when the allegation arises that armed school personnel are not in compliance with the guidelines spelled out by the U.S Supreme Court in Popow vs Margate, 476 F.Supp. 1237 (Dist. N.J. 1979) (Officer’s firearms training of going to a range twice a year; no training with respect to low light conditions, moving targets or firing in residential areas. Entirely foreseeable that an officer from the City of Margate, a largely residential area, would have to pursue a moving suspect at night under low-light conditions).
- Situations that may be de-escalated by non-deadly force responses;
- Response to emotionally disturbed persons;
- Response to off-duty LEO reponse situations;
- Response to suicide situations;
- Decision making with respect to good citizens who are in possession of firearms and try to intervene;
- Crowd scenarios and hostage situations where missed shots may endanger innocent persons; and
- Fleeing attackers or other persons that turn with innocent objects in their hands that look like guns.
Liability cannot be absolutely eliminated unless the legislature immunizes armed volunteers who act in good faith. At this time we are proposing legislation for School Marshals that provides for immunity from liability. Such immunity should be enacted with specific criteria for state mandated certification that includes:
- Psychological evaluations such as required for LEOs;
- Reality Based Training (RBT) exercises;
- Shoot don’t shoot scenarios with simulators or simulated live-fire ammunition;
- Stress-training with firearms in RBT scenarios.
All of the above are either mandated or strongly suggested in case law dealing with law enforcement training.
Such training protocols that provide authentic, innovative, and up to date training do not guarantee that mistakes will not be made under stress. Just as with LEOs, the emphasis on Realty Based Training diminishes liability for churches and other organizations deploying paid or volunteer security teams. Active Shooter Protocols (ASP) with live-fire Simunitions in conjunction with law enforcement ASP training must be required for any church team . Each church and church school board should consider establishing such criteria and begin a certification process.
A mix of uniformed and non-uniformed personnel is most effective at deterring and stopping attacks on churches and schools; provided that there are RBT components for all security personnel. Other departments within your organization should also particpate in the role playing in order to become aware of your anticipated response to various contingencies. LEOs, security team members and others present need to recognize each other!
All law enforcement officers (LEOs) should be getting such training under Young v. City of Providence (plainclothes officers holding suspect at gunpoint shot responding uniformed officer in low-light situation). The court assigned potential liability based on an admission by the defendant law enforcement agency that the agency provided very limited RBT scenarios and no low-light training situations.
Standard of Care: As more churches and business organizations take steps that are outlined above, new church liability issues will be identified and developing industry standards will be established creating a new standard of care. At least 11 states already have approved some kind of concealed carry in public schools and many states that formerly restricted weapons in church have expanded concealed carry laws to include churches.
In thinking about changing industry standards and practices, think of the shipping industry. Insurance companies once were averse to insuring armed anti-piracy units at for maritime shipping. In a few short years this has become an industry practice and insurance is getting less expensive.
Air Marshals and armed pilots were extremely controversial. After many years the programs have been a success despite all the arguments that were similar to the arguments against armed church and school personnel. Furthermore, the Law Enforcement Officers Safety Act of 2004 was opposed by many law enforcement associations, including the Washington Association of Sheriff’s and Police Chiefs. The objection was that federal law empowered retired officers to carry in all 50 states and Washington, DC and the islands. The argument was that the retired officers might create a liability even though the law requires annual requalification on the range. There has been no outcry that retired LEOs (who supposedly might be impaired by dementia) create a hazard across the land.
OSHA, State & Local Regulations as Basis for Employer Liability: Administrative regulations provide a standard of care because they establish an industry practice standard. For example, Occupational Safety & Health Act (OSHA) has promulgated a regulation at 29 CFR 1910.157 requiring Emergency Action Plans (EAPs) if there are fire extinguishers required or provided in the workplace.
The Occupational Safety & Health Act states at Sec. 5(a)(1) that every employer in the United States shall furnish to each employee employment and a place of employment which are free from recognized hazards that are likely to cause death or rserious physical harm to employees.
This is often called the General Duty Clause. Failure to so provide can result in fines and an investigation involving training and procedure, including EAPs. Local and state authorities having jurisdiction may be the Department of Labor and Industries and local fire departments which maintain variations of the International Fire Code. These get updated after major terrorist attacks like the Oklahoma City federal courthouse bombing and the World Trade Center attack in 2001.
These will not specifically deal with Use of Force scenarios in most cases but, as terrorist attacks become more frequent, it will become more important for schools, other governmental entities and churches and businesses to include Use of Deadly Force protocols into their EAPs. Although the basis for church liability on mass shootings is not clear at this time, the Public Duty Doctrine and other bodies of law that shield public and private entities are in a state of transition.
The changes being driven by mass Active Shooter incidents will continue to bring about rapid change in industry changes. Management at apartment complexes has experienced increasing liability over many years for failing to protect tenants from violence. Stores have increased responsibilities in parking lots and other vulnerable areas. Statutory codes and case law precedent increasing the potential for 3rd party violence are in transition in convenience stores and many other workplace environments across the United States. In Washington state, LEOs are also held to higher standards of care when it comes to use of force and custodial situations.
Note well: Police officers have been taught the importance of obtaining legal counsel prior to making detailed statements so they will understand that you need some time before you answer questions. You will be experiencing an enormous rush of adrenaline but resist the urge to talk too much and make sure that you are not holding a weapon or doing anything when the police arrive that might cause them to regard you as a threat. Drop your gun on the floor without hesitation when commanded to do so.
Conclusion. This is not legal advice. Even though the author is a lawyer, every situation is governed upon very specific facts. Get training in the laws of self-defense and know the laws of your jurisdiction. The ATG mentioned above wants to help you talk to local police authorities and make sure they are aware of your threat response plan. Your board and individual armed citizens alone are responsible for your actions, especially if you decide that you are faced with the deadly force that justifies deploying a weapon.