Armed Assailants on Church Property

by Richard R. Hammar

On the morning of April 16, 2007, an armed gunman shot and killed 32 persons and wounded 17 others on the Virginia Tech University campus before committing suicide. The families of two of the victims sued the Commonwealth of Virginia, the president of Virginia Tech, and several other persons (the “defendants”) for wrongful death. The plaintiffs claimed the defendants had a duty to warn students of criminal acts and that their failure to do so in a timely manner was the cause of most of the deaths and injuries.

The defendants argued that they had no duty to warn students since the massacre was not reasonably foreseeable. A jury returned a verdict in favor of the plaintiffs and awarded $4 million to each family. On appeal, the Virginia Supreme Court reversed the trial court’s ruling and dismissed all claims against the defendants, concluding that “the facts in this case do not give rise to a duty to warn students of the potential for third party criminal acts” (Commonwealth v. Peterson, 2013 WL 5833262, Va. 2013).

The court began its decision by noting that “as a general rule, a person does not have a duty to warn or protect another from the criminal acts of a third person,” and that “this is particularly so when the third person commits acts of assaultive criminal behavior because such acts cannot reasonably be foreseen.”

The court concluded: “Here … there simply are not sufficient facts from which this court could conclude that the duty to protect students against third party criminal acts arose as a matter of law. In this case, the defendants knew that there had been a shooting in a dormitory in which one student was critically wounded and one was murdered. They also knew that the shooter had not been apprehended. At that time, the defendants did not know who the shooter was, as law enforcement was in the early stages of its investigation of the crime. However, based on representations from three different police departments, Virginia Tech officials believed that the shooting was a domestic incident and that the shooter may have been the boyfriend of one of the victims. Most importantly, based on the information available at that time, the defendants believed that the shooter had fled the area and posed no danger to others …. Based on the limited information available to the defendants prior to the shootings … it cannot be said that it was known or reasonably foreseeable that students would fall victim to criminal harm. Thus, as a matter of law, the defendants did not have a duty to protect students against third party criminal acts.”

The court applied the general rule that landowners generally are not liable for the acts of armed shooters on their premises unless such acts are reasonably foreseeable.

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), says: “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.”

In summary, according to the Virginia Supreme Court and the Restatement (Second) of Torts, 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).

“[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?” (Lopez v. McDonald’s Corporation, 238 Cal. Rptr. 436, Cal. App. 1987).

In deciding whether criminal conduct on a landowner’s premises was foreseeable, the courts generally have examined the following factors:

  • 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 the occurrences to indicate that the landowner knew or should have known about them.

Most churches will not be legally liable for deaths and injuries caused by armed assailants on their premises because such violent acts ordinarily are not reasonably foreseeable. To be sure, there are exceptional cases in which such acts are foreseeable, but this is the exception rather than the rule. As a result, most churches should not base their decisions regarding armed guards and other security measures on a desire to reduce legal liability, and the decision by the Virginia Supreme Court underscores this conclusion. That said, there are reasons other than the avoidance of liability for church leaders considering implementing measures to respond to armed assailants, including theological and moral considerations.

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, regardless of whether they have a legal duty to do so. In responding to the risk of armed assailants, there are several factors for church leaders to consider.

First, 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 to which an act can be foreseen.

Many courts assess foreseeability on the basis of 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. If shootings or other violent crimes on church property are highly foreseeable based on these factors, a church has a heightened duty to implement measures to protect occupants from such acts.

In evaluating which measures to implement to discharge a legal or moral duty to protect occupants, church leaders should consider their affordability, effectiveness, and acceptability.

The best way to mitigate the risks associated with an armed assailant is to have one or more police officers on site. Police officers have extensive training in using firearms and responding to crisis situations. Their uniform is a deterrent, and when responding to a crime, they become “on duty” and no longer an agent of the church, which reduces a church’s liability for their actions.

Some churches use members with concealed weapons permits as their response to the risk of armed assailants. However, such persons often pose a substantial risk to a church because of minimal training and experience. The best response is to have such persons work with police officers rather than serving on their own.

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 crisis response plan.

Contact other churches and 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, an important consideration in deciding whether a property owner was negligent.

Note that even the most stringent protective measures will not deter a dedicated assailant from entering church property and firing at parishioners. In fact, in some cases involving shootings on church property, the church had implemented what seemed to be reasonable precautionary measures. However, no measures will foil an armed and dedicated assailant, especially if that person plans to take his or her own life.

While churches cannot anticipate and prevent all acts of violence, it is possible to deter such acts in some cases, and to contain the damage and destruction when an incident erupts.